81588 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 

1The Department notes that the NPRM 

confusingly indicated that some changes would 

apply ‘‘on or after the effective date of publication,’’ 

85 FR at 52498 even though the effective date is 30 

days after the date of publication. To correct any 

confusion from that statement and to provide 

additional clarity, the Department offers a more 

delineated explanation of the temporal application 

of this rule herein. 

2See section II.C.3.e for a summary and response 

to the comments received on this topic. 

DEPARTMENT OF JUSTICE 

Executive Office for Immigration 

Review 

8 CFR Parts 1003 and 1240 

[Docket No. EOIR 19–0022; Dir. Order No. 

05–2021] 

RIN 1125–AA96 

Appellate Procedures and Decisional 

Finality in Immigration Proceedings; 

Administrative Closure 

AGENCY: Executive Office for 

Immigration Review, Department of 

Justice. 

ACTION: Final rule. 

SUMMARY: On August 26, 2020, the 

Department of Justice (‘‘Department’’) 

published a notice of proposed 

rulemaking (‘‘NPRM’’ or ‘‘proposed 

rule’’) that would amend the regulations 

of the Executive Office for Immigration 

Review (‘‘EOIR’’) regarding the handling 

of appeals to the Board of Immigration 

Appeals (‘‘BIA’’ or ‘‘Board’’). 

The Department proposed multiple 

changes to the processing of appeals to 

ensure the consistency, efficiency, and 

quality of its adjudications. 

The Department also proposed to 

amend the regulations to make clear that 

there is no freestanding authority of line 

immigration judges or BIA members to 

administratively close cases. Finally, the 

Department proposed to delete 

inapplicable or unnecessary provisions 

regarding the forwarding of the record of 

proceedings on appeal. This final rule 

responds to comments received in 

response to the NPRM and adopts the 

NPRM with minor changes as described 

below. 

DATES: This rule is effective on January 

15, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Lauren Alder Reid, Assistant Director, 

Office of Policy, Executive Office for 

Immigration Review, 5107 Leesburg 

Pike, Suite 2600, Falls Church, VA 

22041, telephone (703) 305–0289. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Proposed Rule 

On August 26, 2020, the Department 

published an NPRM that would amend 

EOIR’s regulations regarding the BIA’s 

handling of appeals. Appellate 

Procedures and Decisional Finality in 

Immigration Proceedings; 

Administrative Closure, 85 FR 52491 

(Aug. 26, 2020). Through the NPRM, the 

Department proposed a number of 

changes to EOIR’s regulations in 8 CFR 

parts 1003 and 1240 to ensure that cases 

heard at the BIA are adjudicated in a 

consistent and timely manner. 

B. Authority 

The Department issued this final rule 

pursuant to section 1103(g) of the 

Immigration and Nationality Act (‘‘INA’’ 

or ‘‘the Act,’’), 8 U.S.C. 1103(g). 

C. Final Rule 

Following careful consideration of the 

public comments received, which are 

discussed in detail below in section II, 

the Department has determined to 

publish the provisions of the proposed 

rule as final with the following changes 

as noted below in sections I.C.3, I.C.4, 

I.C.5, I.C.8, I.C.9, and I.C.11 below. 

The Department is also clarifying the 

generally prospective temporal 

application of the rule.1 The provisions 

of the rule applicable to appellate 

procedures and internal case processing 

at the BIA apply only to appeals filed, 

motions to reopen or reconsider filed, or 

cases remanded to the Board by a 

Federal court on or after the effective 

date of the final rule. The provisions of 

the rule related to the restrictions on sua 

sponte reopening authority are effective 

for all cases, regardless of posture, on 

the effective date. The provisions of the 

rule related to restrictions on the BIA’s 

certification authority are effective for 

all cases in which an immigration judge 

issues a decision on or after the effective 

date. The provisions of the rule 

regarding administrative closure are 

applicable to all cases initiated by a 

charging document, reopened, or 

recalendared after the effective date. 

The rationale provided in the 

background of the proposed rule 

remains valid. Accordingly, the major 

provisions of the final rule are as 

follows: 

1. Briefing Extensions 

The final rule will reduce the 

maximum allowable time for an 

extension of the briefing schedule for 

good cause shown from 90 days to 14 

days. 8 CFR 1003.3(c). Consistent with 

current BIA policy ‘‘not to grant second 

briefing extension requests,’’ the rule 

expressly limits the parties to one 

possible extension. EOIR, Board of 

Immigration Appeals Practice Manual, 

Ch. 4.7(c) (hereinafter BIA Practice 

Manual) (last updated Oct. 5, 2020). 

2. Simultaneous Briefing 

The rule adopts simultaneous briefing 

schedules instead of consecutive 

briefing schedules for all cases. 8 CFR 

1003.3(c). Previously, the BIA used 

consecutive briefing for cases involving 

aliens who are not in custody. The rule 

does not affect the BIA’s ability to 

permit reply briefs in certain cases, but 

it does establish a 14-day deadline for 

their submission. 

3. BIA Remands for Identity, Law 

Enforcement, or Security Investigations 

or Examinations 

The rule revises 8 CFR 1003.1(d)(6)(ii) 

to provide that, when a case before the 

BIA requires completing or updating 

identity, law enforcement, or security 

investigations or examinations in order 

to complete adjudication of the appeal, 

the exclusive course of action would be 

for the BIA to place the case on hold 

while identity, law enforcement, or 

security investigations or examinations 

are being completed or updated, unless 

DHS reports that identity, law 

enforcement, or security investigations 

or examinations are no longer necessary 

or until DHS does not timely report the 

results of completed or updated 

identity, law enforcement, or security 

investigations or examinations. 

Additionally, the rule authorizes the 

BIA to deem an application abandoned 

when the applicant fails, after being 

notified by DHS, to comply with the 

requisite procedures for DHS to 

complete the identity, law enforcement, 

or security investigations or 

examinations within 90 days of the 

BIA’s notice that the case is being 

placed on hold for the completion of the 

identity, law enforcement, or security 

investigations or examinations. The rule 

also retains from the NPRM the 

exception to abandonment when the 

immigration judge determines that the 

alien demonstrates good cause for 

exceeding the 90-day allowance. Upon 

such a good cause finding, the 

immigration judge may grant the alien 

no more than 30 days to comply with 

the requisite procedures. 

Following the review of public 

comments received,2 the final rule 

makes two changes from the proposed 

rule on this point. First, this rule 

contains an additional requirement that, 

if DHS is unable to independently 

update any required identity, law 

enforcement, or security investigations, 

DHS shall provide a notice to the alien 

with appropriate instructions, as DHS 

does before the immigration courts 

under 8 CFR 1003.47(d), and 


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3The Department also notes that 8 CFR 

1240.26(k)(2) and (3) were duplicative in the NPRM 

and has further edited the provisions to remove the 

duplication since they apply to both types of 

voluntary departure under section 240B of the Act, 

8 U.S.C 1229c. 

4This provision was, arguably, already 

incorporated by reference in the NPRM through 8 

CFR 1240.26(k)(4) which adopts the provisions of 

8 CFR 1240.26(c), (d), (e), (h), and (i) (with one 

exception) regarding voluntary departure requests 

before an immigration judge and makes them 

applicable to requests before the Board. 

Nevertheless, the Department is specifically 

incorporating it into the text of the final rule to be 

applicable to a grant of voluntary departure under 

either section 240B(a) or 240B(b) of the Act, 8 

U.S.C. 1229c(a) or 1229c(b). 

5For example, EOIR has no jurisdiction over 

United States citizens with respect to removal 

proceedings; thus, evidence submitted on appeal 

Continued 

simultaneously serve a copy of the 

notice with the BIA. Second, while the 

NPRM would have begun the alien’s 90- 

day timeline for compliance with the 

biometrics update procedures began at 

the time the Board provided notice to 

the alien, the final rule aligns the 90-day 

time period to begin running at the time 

DHS submits the instructions notice to 

the alien, if such notice is applicable. 

The Department agrees with the 

commenters’ concerns that without 

these changes, the provisions of the 

proposed rule could have resulted in 

situations where the alien may be 

unable to effectively comply with the 

biometrics requirements due to possible 

delays by DHS or lack of sufficient 

notice. 

4. Finality of BIA Decisions and 

Voluntary Departure Authority 

In addition, the rule amends 8 CFR 

1003.1(d)(7) to provide further guidance 

regarding the finality of BIA decisions. 

To begin with, the rule adds a new 

paragraph (d)(7)(i) to clarify that the BIA 

has authority to issue final orders when 

adjudicating an appeal, including final 

orders of removal when a finding of 

removability has been made by an 

immigration judge and an application 

for protection or relief from removal has 

been denied; grants of relief or 

protection from removal; and, orders to 

terminate or dismiss proceedings. 

The rule further adds new 

§ 1003.1(d)(7)(ii) to provide instructions 

for the BIA regarding when the BIA may 

order a remand, rather than issuing a 

final order, after applying the 

appropriate standard of review to an 

immigration judge’s decision. For 

example, the rule requires the BIA to 

first identify the standard of review that 

was applied and the specific error made 

by the immigration judge before 

remanding the proceeding. 8 CFR 

1003.1(d)(7)(ii)(A). The final rule has 

one update from the same paragraph in 

the proposed rule to include a crossreference to 8 CFR 1003.1(d)(6)(iii), 

which allows for BIA remands regarding 

information obtained as a result of the 

identity, law enforcement, or security 

investigations or examinations. The 

Department has included this crossreference to prevent any unintended 

confusion that the remand procedures 

and options under 8 CFR 1003.1(d)(7)(ii) 

are the sole ones for the BIA. 

Next, the rule adds new paragraph 

(d)(7)(iii) to 8 CFR 1003.1 to delegate 

clear authority to the BIA to consider 

issues relating to the immigration 

judge’s decision on voluntary departure 

de novo and, within the scope of the 

BIA’s review authority on appeal, to 

issue final decisions on requests for 

voluntary departure based on the record 

of proceedings. Additionally, the rule 

directly states that the BIA may not 

remand a case to the immigration court 

solely to consider a request for 

voluntary departure under section 240B 

of the Act, 8 U.S.C. 1229c. 

The final rule makes three additional 

changes from the NPRM in response to 

public comments. First, in recognition 

of the fact that Board orders are 

generally served by mail—unlike orders 

of immigration judges which are 

frequently served in person—the final 

rule states that aliens will have 10 

business days to post a voluntary 

departure bond if the Board’s order of 

voluntary departure was served by mail. 

Further, as the Board is currently 

transitioning to an electronic filing 

system and expects to fully deploy that 

system within the next year, the final 

rule retains a period of five business 

days to post a voluntary departure bond 

if the Board’s order is served 

electronically. 

Second, in response to commenters’ 

concerns about cases in which DHS 

appeals a separate grant of relief or 

protection, the Department is making 

edits from the NPRM to clarify the 

Board’s procedure in that situation. 

Although cases in which an alien made 

multiple applications for relief or 

protection (including voluntary 

departure), an immigration judge 

granted at least one application but did 

not address the request for voluntary 

departure, DHS appealed the 

immigration judge’s decision, the BIA 

determined that the immigration judge’s 

decision was in error and that the 

alien’s application(s) should be denied, 

and the BIA found a basis to deny all 

other applications submitted by the 

respondent without needing to remand 

the case, leaving only the request for 

voluntary departure unadjudicated, 

should be uncommon, the Department 

nevertheless makes clarifying edits to 8 

CFR 1240.26(k)(2) and (3) 3 to indicate 

that the BIA may grant voluntary 

departure in cases in which DHS 

appeals provided that the alien 

requested voluntary departure from the 

immigration judge and is otherwise 

eligible. 

Third, in response to at least one 

commenter’s concern regarding the 

expiration of an alien’s travel 

documents, the Department is making 

changes to the final rule to make clear 

that if the record does not contain 

evidence of travel documentation 

sufficient to assure lawful entry into the 

country to which the alien is 

departing—and the alien otherwise has 

both asserted a request for voluntary 

departure and established eligibility 

under the other requirements—the 

Board may nevertheless grant voluntary 

for a period not to exceed 120 days, 

subject to the condition that the alien 

within 60 days must secure such 

documentation. This additional 

provision is consistent with similar 

authority already contained in 8 CFR 

1240.26(b)(3)(ii).4

5. Prohibition on Consideration of New 

Evidence, Limitations on Motions To 

Remand, Factfinding by the BIA, and 

the Standard of Review 

The rules make several changes to 

clarify the BIA’s ability to take certain 

actions in adjudicating an appeal to 

ensure that appeals are adjudicated in a 

timely fashion without undue remands 

and consistent with the applicable law. 

First, the rule limits the scope of 

motions to remand that the BIA may 

consider. Under new paragraph (d)(7)(v) 

to 8 CFR 1003.1, the BIA is prohibited 

from receiving new evidence on appeal, 

remanding a case for the immigration 

judge to consider new evidence in the 

course of adjudicating an appeal, or 

considering a motion to remand based 

on new evidence. Parties who wish to 

have new evidence considered in other 

circumstances may file a motion to 

reopen in accordance with the standard 

procedures for such motions, i.e., 

compliance with the substantive 

requirements for such a motion at 8 CFR 

1003.2(c). These prohibitions have three 

exceptions for new evidence: (1) The 

result of identity, law enforcement, or 

security investigations or examinations, 

including civil or criminal 

investigations of immigration fraud; (2) 

pertaining to a respondent’s 

removability under the provisions of 

sections 212 and 237 of the Act, 8 U.S.C. 

1182 and 1227; and (3) that calls into 

question an aspect of the jurisdiction of 

the immigration courts, such as 

evidence pertaining to alienage 5 or 


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regarding whether a respondent is a United States 

citizen may be a basis for a remand in appropriate 

cases. See Matter of Fuentes-Martinez, 21 I&N Dec. 

893, 898 (BIA 1997). 

6As the NPRM noted, there are multiple 

situations in which a question of EOIR or DHS 

jurisdiction over an application may arise. See 85 

FR at 52500. 

EOIR’s authority vis-a`-vis DHS 

regarding an application for 

immigration benefits.6

Second, the rule clearly delineates the 

circumstances in which the BIA may 

engage in factfinding on appeal. 8 CFR 

1003.1(d)(3)(iv)(A) and (B). Although 

the rule maintains the general 

prohibition on factfinding by the BIA, 

the rule allows the BIA to take 

administrative notice of facts that are 

not reasonably subject to dispute, such 

as current events, the contents of official 

documents outside the record, or facts 

that can be accurately and readily 

determined from official government 

sources and whose accuracy is not 

disputed. If the BIA intends to 

administratively notice any such fact 

outside the record that would be the 

basis for overturning a grant of relief or 

protection issued by an immigration 

judge, the BIA must give notice to the 

parties and an opportunity for them to 

respond. 

Third, the rule more clearly delineates 

the situations in which it is appropriate 

for the BIA to remand a case for further 

factfinding. 8 CFR 1003.1(d)(3)(iv)(C) 

and (D). Specifically, the BIA may not 

sua sponte remand a case for further 

factfinding unless doing is necessary to 

determine whether the immigration 

judge had jurisdiction. Id. 

§ 1003.1(d)(3)(iv)(C). Further, the BIA 

may not grant a motion to remand for 

further factfinding unless the party 

seeking the remand preserved the issue 

and previously attempted to provide 

such information to the immigration 

judge, the factfinding would alter the 

case’s outcome and would not be 

cumulative of other evidence already in 

the record, and either the immigration 

judge’s factual findings were clearly 

erroneous or remand to DHS is 

warranted. Id. § 1003.1(d)(3)(iv)(D). 

Nothing in the rule, however, prohibits 

the BIA from remanding a case based on 

new evidence or information obtained 

after the date of the immigration judge’s 

decision as a result of identity, law 

enforcement, or security investigations 

or examinations, including 

investigations occurring separate from 

those required by 8 CFR 1003.47. 

Following review of public comments 

and in recognition of possible confusion 

regarding a situation in which 

additional factfinding would be a 

necessary adjunct of a remand due to an 

error of law, the final rule clarifies that, 

subject to other requirements, the Board 

may remand a case for additional 

factfinding in cases in which the 

immigration judge committed an error 

of law and that error requires additional 

factfinding on remand. For example, the 

Board may order additional factfinding 

on remand if it determines an 

immigration judge erred as a matter of 

law by not sufficiently developing the 

factual record for an alien proceeding 

without representation. 

The rule also directly allows the BIA 

to affirm the decision of the immigration 

judge or DHS on any basis supported by 

the record, including a basis supported 

by facts that are not disputed. Id. 

§ 1003.1(d)(3)(v). 

Finally, the rule makes clear that the 

BIA cannot remand a case based solely 

on the ‘‘totality of the circumstances’’ as 

such a standard of review has never 

been contemplated by either the Act or 

the regulations. Id. § 1003.1(d)(7)(ii)(B). 

Nonetheless, in light of the confusion 

evidenced by commenters regarding that 

point, the Department in the final rule 

is making clear that the Board cannot 

remand a case following a totality of the 

circumstances standard of review, 

though an immigration judge’s 

consideration of the totality of the 

circumstances may be a relevant subject 

for review under an appropriate 

standard. 

6. Scope of a BIA Remand 

The rule provides that the BIA may 

limit the scope of a remand while 

simultaneously divesting itself of 

jurisdiction on remand. Id. 

§ 1003.1(d)(7)(iii). Thus, a remand for a 

limited purpose—e.g., the completion of 

identity, law enforcement, or security 

investigations or examinations—would 

be limited solely to that purpose 

consistent with the BIA’s intent, and the 

immigration judge may not consider any 

issues beyond the scope of the remand. 

7. Immigration Judge Quality Assurance 

Certification of a BIA Decision 

Additionally, to ensure the quality of 

BIA decision-making, the rule 

establishes a procedure for an 

immigration judge to certify BIA 

decisions reopening or remanding 

proceedings for further review by the 

Director in situations in which the 

immigration judge alleges that the BIA 

made an error. Id. § 1003.1(k). 

The certification process is limited 

only to cases in which the immigration 

judge believes the BIA erred in the 

decision by: (1) A typographical or 

clerical error affecting the outcome of 

the case; (2) a holding that is clearly 

contrary to a provision of the INA, any 

other immigration law or statute, any 

applicable regulation, or a published, 

binding precedent; (3) failing to resolve 

the basis for appeal, including being 

vague, ambiguous, internally 

inconsistent; or, (4) clearly not 

considering a material factor pertinent 

to the issue(s) before the immigration 

judge. Id. § 1003.1(k)(1)(i)–(iv). In 

addition, in order to certify a BIA 

decision for review, the immigration 

judge must: (1) Issue the certification 

order, (a) within 30 days of the BIA 

decision if the alien is not detained, and 

(b) within 15 days of the BIA decision 

if the alien is detained; (2) specify in the 

order the regulatory basis for the 

certification and summarize the 

underlying procedural, factual, or legal 

basis; and (3) provide notice of the 

certification to both parties. Id. 

§ 1003.1(k)(2)(i)–(iii). 

To ensure a neutral arbiter between 

the immigration judge and the BIA, the 

Director will review any such 

certification orders. Id. § 1003.1(k)(3). In 

reviewing such orders, the Director’s 

delegated authority from the Attorney 

General permits him to dismiss the 

certification and return the case to the 

immigration judge or remand the case 

back to the BIA for further proceedings. 

The Director may not, however, issue an 

order of removal, grant a request for 

voluntary departure, or grant or deny an 

application for relief or protection from 

removal. Id. In response to a concern 

raised by at least one commenter, the 

final rule will allow the Director, in his 

or her discretion, to request briefs or 

filings from the parties when 

considering a case under this qualitycontrol certification process. 

This quality assurance certification 

process is a mechanism to ensure that 

BIA decisions are accurate and 

precise—not a mechanism solely to 

express disagreements with BIA 

decisions or to lodge objections to 

particular legal interpretations. Id. 

§ 1003.1(k)(4). 

8. Administrative Closure Authority 

The rule amends 8 CFR 

1003.1(d)(1)(ii) and 1003.10(b) to make 

clear that those provisions—and similar 

provisions in 8 CFR part 1240—provide 

no freestanding authority for 

immigration judges or Board members 

to administratively close immigration 

cases absent an express regulatory or 

judicially approved settlement basis to 

do so. For example, the rule amends 8 

CFR 1003.1(d)(1)(ii) and 1003.10(b) to 

provide explicitly, for clarity, that the 

existing references in those paragraphs 

to ‘‘governing standards’’ refer to the 

applicable governing standards as set 

forth in the existing provisions of 


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7Administrative closure is not the only 

procedural mechanism for deferring adjudication of 

cases. For instance, EOIR deferred all non-detained 

removal hearings between March 17, 2020, and June 

12, 2020, due to the outbreak of COVID–19 but did 

not administratively close the cases. 

8The text of 8 CFR 1003.2(a) in the NPRM 

inadvertently removed the phrase ‘‘or reconsider’’ 

from the first sentence of that paragraph. This final 

rule reinserts that phrase to ensure that parties and 

the BIA are clear that the Board can reconsider a 

decision sua sponte in order to correct a 

typographical error or defect in service. 

9This provision would apply only when the 

intervening change vitiated the alien’s removability 

completely—an alien charged with multiple 

removability grounds would remain subject to the 

time and number bars unless the intervening 

change vitiated each removability ground. 

Additionally, this provision would apply only to 

grounds of removability. Aliens arguing that an 

intervening change in law or fact affected their 

eligibility for relief or protection from removal 

would remain subject to existing regulatory 

provisions on such motions. 

10For appeals, the record is complete upon the 

earlier of the filing of briefs by both parties or the 

expiration of the briefing schedule. For motions, the 

record is complete upon the filing of a response to 

the motion or the expiration of the response period. 

For remands, the record is complete upon either the 

date the remand is received by the BIA or, if the 

BIA elects to order briefing following the remand, 

the earlier of the filing of briefs by both parties or 

the expiration of the briefing schedule. 

§§ 1003.1(d)(1)(i) and 1003.10(d), 

respectively and do not refer to some 

more general, free-floating 

administrative closure authority. 

The final rule makes non-substantive 

change to 8 CFR 1003.1(d)(1)(ii) and 

1003.10(b) from the proposed rule by 

inserting the word ‘‘defer’’ in place of 

the word ‘‘suspend’’ in both paragraphs 

and by making conforming stylistic 

changes to ensure that the language is 

clear that an administrative closure of a 

case is a type of deferral of adjudication 

of that case. The Department has made 

this change to prevent any unintended 

confusion regarding whether there is a 

distinction between cases whose 

adjudication is deferred and those 

whose adjudication is suspended and to 

make clear that an administrative 

closure is not the only type of deferral 

of adjudication.7 The Department 

intended no distinctions and is 

clarifying that point by ensuring that the 

description of administrative closure as 

a type of deferral of adjudication is 

consistent throughout the rule. 

9. Sua Sponte Authority 

The rule removes the Attorney 

General’s previous general delegation of 

sua sponte authority to the BIA and 

immigration judges to reopen or 

reconsider cases and instead limit such 

sua sponte reopenings only to correct 

minor mistakes, such as typographical 

errors or defects in service. 8 CFR 

1003.2(a), 1003.23(b)(1).8 These changes 

do not preclude parties from filing joint 

motions, including in situations in 

which there has been a relevant change 

in facts or law. Moreover, nothing in the 

rule precludes the ability of a 

respondent to argue, in an appropriate 

case, that a time limit is inapplicable 

due to equitable tolling. 

In addition, to ensure that aliens 

whose removability is vitiated in toto 

prior to the execution of the removal 

order retain a mechanism for reopening 

their proceedings, the rule amends the 

regulations to allow the filing of a 

motion to reopen, notwithstanding the 

time and number bars, when an alien 

claims that an intervening change in law 

or fact renders the alien no longer 

removable at all and the alien has 

exercised diligence in pursuing his or 

her motion.9 Id. §§ 1003.2(c)(3)(v), 

1003.23(b)(4)(v). Similarly, the rule 

amends the regulations to allow the 

filing of a motion to reopen, 

notwithstanding the time and number 

bars, when an individual claims that he 

or she is a United States citizen or 

national in recognition that the law 

provides jurisdiction only in removal 

proceedings for aliens. See INA 

240(a)(1), 8 U.S.C. 1229a(a)(1); see also 

8 CFR 1003.2(c)(3)(vi), 1003.23(b)(4)(v). 

Finally, to address the effects of 

removal of sua sponte reopening 

authority on DHS, the rule clarifies that 

the filing of a motion to reopen with the 

BIA by DHS in removal proceedings or 

in proceedings initiated pursuant to 8 

CFR 1208.2(c) is not subject to the time 

and numerical limits applicable to such 

motions. 8 CFR 1003.2(c)(3)(vii). 

10. Certification Authority 

The rule also withdraws the BIA’s 

delegated authority to review cases by 

self-certification, id. § 1003.1(c), due to 

concerns over the lack of standards for 

such certifications, the lack of a 

consistent application of the 

‘‘exceptional’’ situations criteria for 

purposes of utilizing self-certification, 

the potential for lack of notice of the 

BIA’s use of certification authority, the 

overall potential for inconsistent 

application and abuse of this authority, 

and the strong interest in finality, 

11. Timeliness of Adjudication of BIA 

Appeals 

The rule makes a variety of changes 

to ensure the timely adjudication of 

appeals. For example, the rule amends 

8 CFR 1003.1(e)(8)(i) to harmonize the 

time limits for adjudicating cases so that 

both the 90- and 180-day deadlines are 

set from the same starting point—when 

the record is complete.10 In addition, 

the rule established specific time frames 

for review by the screening panel, 

processing of transcripts, issuance of 

briefing schedules, and review by a 

single BIA member to determine 

whether a single member or a threemember panel should adjudicate the 

appeal, none of which were previously 

considered via regulation or tracked 

effectively to prevent delays. Id. 

§ 1003.1(e)(1), (8). It also adds tracking 

and accountability requirements for the 

Board Chairman, also known as the 

Chief Appellate Immigration Judge, in 

cases where the adjudication of appeals 

must be delayed to ensure that no 

appeals are overlooked or lost in the 

process. Id. § 1003.1(e)(8)(v). Similarly, 

the rule establishes specific time frames 

for the adjudication of summary 

dismissals, providing substance to the 

current requirement at 8 CFR 

1003.1(d)(2)(ii) that such cases be 

identified ‘‘promptly’’ by the screening 

panel, and for the adjudication of 

interlocutory appeals, which are not 

currently addressed in the regulations, 

except insofar as they may be referred 

to a three-member panel for review. Id. 

§ 1003.1(e)(1). 

Additionally, with two exceptions for 

cases subject to an extension under 8 

CFR 1003.1(e)(8)(ii) or a hold under 8 

CFR 1003.1(e)(8)(iii), the rule instructs 

the Board Chairman to refer appeals 

pending beyond 335 days to the Director 

for adjudication. Id. § 1003.1(e)(8)(v). 

Following the review of public 

comments received, including 

comments about the potential volume of 

cases subject to referral and the impact 

of other provisions of the rule, the final 

rule makes two changes from the NPRM. 

First, it adds four further exceptions 

to 8 CFR 1003.1(e)(8)(v). Cases on hold 

pursuant to 8 CFR 1003.1(d)(6)(ii) to 

await the results of identity, law 

enforcement, or security investigations 

or examinations will not be subject to 

referral if the hold causes the appeal to 

remain pending beyond 335 days. Cases 

whose adjudication has been deferred 

by the Director pursuant to 8 CFR 

1003.0(b)(1)(ii) will not be subject to 

referral if the deferral causes the appeal 

to remain pending beyond 335 days. 

Cases remanded by the Director under 8 

CFR 1003.1(k) will not be subject to 

referral if the case remains pending 

beyond 335 days after the referral. Cases 

that have been administratively closed 

pursuant to a regulation promulgated by 

the Department of Justice or a previous 

judicially approved settlement that 

expressly authorizes such an action will 

not be subject to referral if the 

administrative closure occurred prior to 

the elapse of 335 days and causes the 

appeal to remain pending beyond 335 

days. These changes, which are 

incorporated through a stylistic 


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11For similar reasons, the final rule also makes 

changes to 8 CFR 1003.1(d)(3)(iv) to clarify that 8 

CFR 1003.1(d)(3)(iv)(A) applies to all cases at the 

Board, whereas 8 CFR 1003.1(d)(3)(iv)(D) applies 

only to direct appeals of immigration judge 

decisions. 

restructuring of 8 CFR 1003.1(e)(8)(v) for 

clarity, recognize additional situations 

in which a case may appropriately 

remain pending beyond 335 days 

without adjudication or when referral 

back to the Director would be 

incongruous because the Director had 

remanded the case in the first instance. 

Second, the final rule makes edits to 

eliminate confusion over the scope of 8 

CFR 1003.1(e). As both the title of that 

paragraph (‘‘Case management system’’) 

and its general introductory language 

(‘‘The Chairman shall establish a case 

management system to screen all cases 

and to manage the Board’s caseload.’’) 

make clear, the provisions of the 

paragraph apply to ‘‘cases.’’ Id. 

§ 1003.1(e) (emphasis added). In turn,

‘‘the term case means any proceeding

arising under any immigration or

naturalization law.’’ Id. § 1001.1(g). At

the Board, cases may be initiated in one

of three ways: (1) The filing of a Notice

of Appeal, (2) the filing of a motion

directly with the Board (e.g., a motion

to reconsider or a motion to reopen), or

(3) the receipt of a remand from a

Federal court, the Attorney General,

or—under this rule—the Director. In

other words, the Board adjudicates

multiple types of cases, not just appeals.

Although the existing language of 8 CFR

1003.1(e) is clear that it applies to all

types of cases at the Board, regardless of

how they are initiated, the inconsistent,

subsequent use of ‘‘appeals’’ throughout

that paragraph creates confusion as to

its scope since appeals are not the only

type of case the Board considers. See,

e.g., id. § 1003.1(e)(3) (in describing the

Board’s merits review process, using

‘‘case’’ in the first sentence, ‘‘case’’ and

‘‘appeal’’ in the second sentence, and

‘‘appeal’’ in the third sentence, all is

describing a unitary process). To avoid

continued confusion and to ensure that

the scope of the other changes in the

final rule regarding the Board’s case

management process are clear, the final

rule makes edits to 8 CFR 1003.1(e) to

ensure that it is clearly applicable to all

cases before the Board, not solely cases

arising through appeals.11

12. Forwarding the Record on Appeal

The rule revises 8 CFR 1003.5(a)

regarding the forwarding of the record of 

proceedings in an appeal to ensure that 

the transcription process and the 

forwarding of records do not cause any 

unwarranted delays. Specifically, the 

rule clarifies that the immigration judge 

does not need to forward the record of 

the proceedings to the BIA if the BIA 

already has access to the record 

electronically and removes the process 

for immigration judge review of the 

transcript. Id. § 1003.5(a). 

In addition, the rule removes language 

in 8 CFR 1003.5(b), which describes 

procedures regarding appeals from DHS 

decisions that are within the BIA’s 

appellate jurisdiction, that is not 

applicable to EOIR’s adjudicators and 

replaces outdated references to the 

former Immigration and Naturalization 

Service. These changes do not 

substantively affect the BIA’s 

adjudication of any appeals from DHS 

officers that are within the BIA’s 

jurisdiction. 

II. Public Comments on the Proposed

Rule

A. Summary of Public Comments

The comment period for the NPRM

ended on September 25, 2020, with 

1,284 comments received. The majority 

of comments were from individual and 

anonymous commenters, including 

coordinated campaigns. Other 

commenters included non-profit 

organizations, law firms, and members 

of Congress. While some commenters 

supported the NPRM, the majority of 

commenters expressed opposition to the 

rule, either in whole or part. 

Many, if not most, comments 

opposing the NPRM either 

misunderstood what it actually 

provides, proceed from erroneous legal 

or factual premises—e.g., that the rule 

applies only to aliens and not DHS or 

that its changes apply more heavily to 

aliens than to DHS—are founded in 

policy disagreements, or simply repeat 

tendentious or spurious claims about 

the Department’s motivations in issuing 

the rule. Further, many commenters 

opposing the rule failed to engage with 

the specific reasons and language put 

forth by the Department in lieu of broad 

generalizations or hyperbolic, 

unsupported presumptions. 

Additionally, many comments appeared 

rooted in a belief that EOIR’s 

adjudicators are incompetent or 

unethical and are either incapable or 

unwilling to adhere to applicable law. 

Finally, most, if not all, commenters in 

opposition to the rule viewed its 

procedural changes wholly through a 

results-oriented lens such that a 

proposal that commenters speculatively 

believed would cause aliens to ‘‘win’’ 

fewer cases was deemed objectionable, 

even without evidence that such a result 

would follow. In other words, any 

change perceived to lead to aliens 

‘‘winning’’ fewer cases was deemed 

unfair, arbitrary and capricious, biased, 

a violation of due process, or otherwise 

inappropriate, regardless of the 

Department’s justification for the change 

or the relevant law. Such a resultsoriented view both misapprehended the 

procedural nature of the changes and 

appeared to have been based on a tacit 

belief that aliens were entitled to 

specific outcomes in specific cases, 

notwithstanding the relevant evidence 

or law applicable to a case, and that the 

rule inappropriately required 

adjudicators to maintain partiality in 

adjudicating cases rather than 

continuing to provide what commenters 

viewed as favorable treatment toward 

aliens. 

To the extent that commenters simply 

disagree as a policy matter that Board 

cases should be completed in a timely 

manner, see id. 1003.1(d); cf. INS v. 

Doherty, 502 U.S. 314, 323 (1992) (‘‘[A]s 

a general matter, every delay works to 

the advantage of the deportable alien 

who wishes merely to remain in the 

United States.’’), or that the Department 

should take measures, consistent with 

due process, to ensure the timely 

completion of such cases, the 

Department finds such policy 

disagreements unpersuasive for the 

reasons given in the NPRM and 

throughout this final rule. 

Similarly, the Department also 

categorically rejects any comments 

suggesting that adjudicators should 

provide favorable treatment to one party 

over another, e.g., by granting a sua 

sponte motion to reopen contrary to 

well-established law. The Department 

expects all of its adjudicators to treat 

both parties fairly and to maintain 

impartiality when adjudicating cases. 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.’’ (emphasis added)); 8 CFR 

1003.10(b) (‘‘In all cases, immigration 

judges shall seek to resolve the 

questions before them in a timely and 

impartial manner consistent with the 

Act and regulations.’’) (emphasis 

added)); 5 CFR 2635.101(b)(8) 

(‘‘Employees [of the Federal 

Government] shall act impartially and 

not give preferential treatment to any 

private organization or individual.’’); 

EOIR, Ethics and Professionalism Guide 

for Members of the Board of 

Immigration Appeals sec. V (May 4, 

2011) [hereinafter BIA Ethics and 

Professionalism Guide] (‘‘A Board 

Member shall act impartially and shall 

not give preferential treatment to any 

organization or individual when 

adjudicating the merits of a particular 

case.’’), available at https:// 


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12The Department has fully considered the 

possible impacts of this rule on the relatively small 

pro se population of aliens with cases before the 

Board. As discussed below, however, the rule 

neither singles such aliens out for particular 

treatment under the Board’s procedures, nor does 

it restrict or alter any of the many procedural 

avenues such aliens already have available to them 

in advancing their cases. Further, nothing in the 

rule inhibits the availability of pro bono counsel to 

assist such aliens as appropriate. 

13Commenters’ specific concerns regarding 

different provisions of the rule are discussed 

separately below in section II.C.3. 

www.justice.gov/eoir/page/file/992726/

download; EOIR, Ethics and 

Professionalism Guide for Immigration 

Judges sec. V (Jan. 26, 2011) [hereinafter 

IJ Ethics and Professionalism Guide] 

(‘‘An Immigration Judge shall act 

impartially and shall not give 

preferential treatment to any 

organization or individual when 

adjudicating the merits of a particular 

case.’’), available at https://

www.justice.gov/sites/default/files/eoir/ 

legacy/2013/05/23/Ethicsand

ProfessionalismGuideforIJs.pdf. Further, 

the Department also rejects unsupported 

and almost ad hominem comments 

based on a belief that its adjudicators 

are incompetent or unethical, that they 

will fail to follow the law, or that they 

have some results-oriented view that 

will cause them to adjudicate cases in 

an inappropriate manner. See United 

States v. Chem. Found., Inc., 272 U.S. 1, 

14–15 (1926) (‘‘The presumption of 

regularity supports the official acts of 

public officers, and, in the absence of 

clear evidence to the contrary, courts 

presume that they have properly 

discharged their official duties.’’). 

In sum, the Department issued the 

NPRM for the reasons given in order to 

bring needed clarity to certain areas of 

law, improve efficiency at the BIA, 

ensure authority is appropriately 

exercised, reduce the risk of 

gamesmanship by parties, and promote 

impartial and timely adjudications 

consistent with the law. It did not do so 

for any nefarious purpose, nor did it 

intend for its procedural changes to 

have any substantive bearing on the 

outcomes of additional cases, which 

flow from the evidence and the law, not 

the Department’s process. As discussed 

herein, nothing in the NPRM singles out 

specific populations of aliens, including 

unrepresented aliens,12 nor do any of its 

changes fall disproportionately upon 

such groups in an inappropriate 

manner. To the extent that commenters 

did not engage with the NPRM itself, 

provided unsupported assertions of fact 

or law, attacked—tacitly or explicitly— 

the motivations of the Department’s 

adjudicators, or otherwise put forward 

suggestions based on their preferred 

results rather than an impartial process, 

the Department has nevertheless 

considered those comments but finds 

them unavailing. See Home Box Office, 

Inc. v. FCC, 567 F.2d 9, 35 n.58 (D.C. 

Cir. 1977) (per curiam) (‘‘In determining 

what points are significant, the 

‘arbitrary and capricious’ standard of 

review must be kept in mind. Thus only 

comments which, if true, raise points 

relevant to the agency’s decision and 

which, if adopted, would require a 

change in an agency’s proposed rule 

cast doubt on the reasonableness of a 

position taken by the agency. Moreover, 

comments which themselves are purely 

speculative and do not disclose the 

factual or policy basis on which they 

rest require no response. There must be 

some basis for thinking a position taken 

in opposition to the agency is true.’’). 

Further, to the extent that commenters 

provided substantive analysis and 

raised important issues, the Department 

has considered all of them; however, on 

balance, except for changes noted 

below, it has determined that the policy 

and operational benefits of the rule 

expressed above—including 

consistency, impartiality, and 

efficiency—outweigh all of the issues 

raised by commenters. Accordingly, 

although the Department has reviewed 

all comments received, the vast majority 

of them fall into the groupings outlined 

above, and few of them are persuasive 

for reasons explained in more detail in 

Part II.C below. 

B. Comments Expressing Support for the 

Proposed Rule 

Comment: Commenters expressed 

general support for the rule and 

immigration reform. These commenters 

supported all aspects of the rule, which 

they stated would ‘‘streamline’’ BIA 

processes to help reduce the backlog 

and the number of frivolous appeals. 

One commenter stated that the rule 

‘‘will have a positive impact on 

immigration, especially limiting the 

burden placed on the system by pro se 

immigrants.’’ 

Response: The Department 

appreciates the commenters’ support for 

the rule. 

C. Comments Expressing Opposition to 

the Proposed Rule 

1. General Opposition 

Comment: Many Commenters 

expressed general opposition to the 

rule.13 Several commenters asserted that 

the rule was motivated by politics and 

would ‘‘enable politicized and biased 

decision-making.’’ Various commenters 

raised concerns that the rule would give 

the EOIR Director ‘‘consolidated power 

over appeals.’’ Similarly, several 

commenters voiced concern that the 

rule would turn the BIA into a ‘‘political 

tool’’ or that the changes would turn the 

BIA into a rubber stamp for deportation 

orders. Others were concerned that the 

rule would put increased pressure on 

immigration judges to decide cases 

quickly. 

Some commenters expressed concerns 

that the rule was an attempt to end legal 

immigration. Other commenters alleged 

that the rule was motivated by an 

attempt to foreclose respondents’ access 

to relief from removal. 

Many commenters were concerned 

that the rule would eliminate a robust 

and meaningful appeal process. For 

example, one commenter stated that 

‘‘[a]ny individual facing judicial 

decision making deserves to have a full 

and fair right to appeal.’’ The 

commenter went on to claim that the 

rule seeks ‘‘to erode that right by making 

it more difficult for individuals to 

actualize the right to appeal to the BIA.’’ 

Another commenter was concerned that 

the rule would completely strip 

respondents of ‘‘their right to 

meaningfully contest a poorly reasoned 

or legally invalided decision.’’ 

Several commenters expressed 

concern about the rule’s impact on 

respondents’ safety and security. One 

commenter claimed that the rule 

‘‘would greatly reduce the rights of 

noncitizens appearing before EOIR and 

would result in . . . the potential death 

of asylum seekers who are removed to 

their home countries to be killed.’’ 

Another commenter noted that taking 

away a respondent’s ability to appeal 

their case ‘‘exposes them to more 

violence and risk of death if they are 

deported.’’ Other commenters were 

concerned that the rule would lead to 

permanent family separations. 

A number of commenters also made 

the generalized claim that the rule 

would entirely reshape the immigration 

system. Others stated that the rule 

would create significant administrative 

burdens. Several other commenters 

alleged that the rule would lead to an 

increased case backlog and make EOIR 

less efficient. Multiple commenters 

raised concerns regarding the impact of 

the intersection of the rule with other 

rules recently promulgated by the 

Department and by DHS, particularly 

the Department’s proposed rule to 

increase fees for motions to reopen and 

appeals. 

Response: Commenters are incorrect 

that the rule is the product of political 

or biased decision-making or that the 

rule would turn the BIA into a ‘‘political 

tool.’’ As noted in the NPRM, the BIA 

has seen recent significant increases in 


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14 In addition, the Department notes that it and 

EOIR have taken numerous steps, both regulatory 

and sub-regulatory, to increase EOIR’s efficiencies 

and address the pending caseload. See, e.g., 

Expanding the Size of the Board of Immigration 

Appeals, 85 FR 18105 (Apr. 1, 2020) (interim final 

rule expanding the size of the BIA from 21 to 23 

members); EOIR, Policy Memorandum 20–01: Case 

Processing at the Board of Immigration Appeals 

[hereinafter PM 20–01] (Oct. 1, 2019), available at 

https://www.justice.gov/eoir/page/file/1206316/ 

download (explaining various agency initiatives, 

including an improved BIA case management 

system, issuance of performance reports, and a 

reiteration of EOIR’s responsibility to timely and 

efficiently decide cases in serving the national 

interest); EOIR, Policy Memorandum 19–11: No 

Dark Courtrooms (Mar. 29, 2019), available at 

https://www.justice.gov/eoir/file/1149286/ 

download (memorializing policies to reduce and 

minimize the impact of unused courtrooms and 

docket time). 

15The DHS rule did not impose a fee for an 

asylum application filed by a genuine UAC who is 

in removal proceedings conducted by EOIR. 85 FR 

46788 at 46809 (‘‘Notably, unaccompanied alien 

children in removal proceedings who file an 

application for asylum with USCIS are exempt from 

the Form I–589 fee.’’). Thus, contrary to some 

commenters’ concerns, a genuine UAC who files a 

motion to reopen based exclusively on an asylum 

application is not subject to a fee for that motion. 

8 CFR 1003.8(a)(2)(ii), 1003.24(b)(2)(i), (ii). 

16While the injunction of DHS’s rule assessing a 

$50 fee for asylum applications is in effect, EOIR 

cannot charge a fee for asylum applications in its 

proceedings. Relatedly, while that injunction is in 

effect, it cannot charge a fee for a motion to reopen 

based exclusively on an asylum application. 8 CFR 

1003.8(a)(2)(ii), 1003.24(b)(2)(i), (ii). Because the 

ultimate resolution of that litigation is unknown— 

and, thus, there is a possibility that DHS’s rule may 

never take effect—commenters’ concerns about the 

potential relationship between that rule and this 

final rule are even more speculative. Nevertheless, 

as discussed, even if all of the relevant rules were 

in effect, the Department has concluded that the 

benefits of the final rule outweigh any substantiated 

costs identified by commenters. 

17 In issuing its proposed rule regarding fees for 

applications administered by EOIR, the Department 

acknowledged the balance between the costs of 

increased fees and the public benefit associated 

with such fees, in addition to the need to comply 

with applicable law and policy in conducting more 

regular fee reviews. 85 FR at 11870 (‘‘Although 

EOIR is an appropriated agency, EOIR has 

determined that it is necessary to update the fees 

charged for these EOIR forms and motions to more 

accurately reflect the costs for EOIR’s adjudications 

of these matters. At the same time, however, EOIR 

recognizes that these applications for relief, 

appeals, and motions represent statutorily provided 

relief and important procedural tools that serve the 

public interest and provide value to those who are 

parties to the proceedings by ensuring accurate 

administrative proceedings. . . . As DHS is the 

party opposite the alien in these proceedings, 

EOIR’s hearings provide value to both aliens 

seeking relief and the Federal interests that DHS 

represents. Given that EOIR’s cost assessment did 

not include overhead costs or costs of non-salary 

benefits (e.g., insurance), recovery of the processing 

costs reported herein is appropriate to serve the 

objectives of the IOAA and the public interest. The 

proposed fees would help the Government recoup 

some of its costs when possible and would also 

protect the public policy interests involved. EOIR’s 

calculation of fees accordingly factors in both the 

public interest in ensuring that the immigration 

courts are accessible to aliens seeking relief and the 

public interest in ensuring that U.S. taxpayers do 

not bear a disproportionate burden in funding the 

immigration system.’’). 

18The Department also reiterates that the 

availability of fee waivers for appeals and motions 

to reopen, 8 CFR 1003.8(a)(3) and 8 CFR 1003.24(d), 

addresses the principal concern raised by 

its pending caseload. 85 FR at 52492. 

The number of appeals pending is 

currently at a record high, with 84,673 

case appeals pending as of the end of FY 

2020. EOIR, Adjudication Statistics: 

Case Appeals Filed, Completed, and 

Pending, Oct. 13, 2020, available at 

https://www.justice.gov/eoir/page/file/ 

1248501/download. Accordingly, the 

Department has reviewed EOIR’s 

regulations regarding the procedures for 

BIA appeals to determine what changes 

can be implemented to promote 

increased efficiencies and taken steps to 

address the BIA’s growing caseload. In 

this manner, this rule builds on prior 

similar procedural reviews and 

amendments to the BIA’s regulations. 

See, e.g., Board of Immigration Appeals: 

Procedural Reforms To Improve Case 

Management, 67 FR 54878 (Aug. 26, 

2002) (final rule that revised the 

structure and procedures of the BIA, 

provided for an enhanced case 

management procedure, and expanded 

the number of cases referred to a single 

Board member for disposition).14

Similarly, commenters are incorrect 

that the rule is intended to have an 

effect on immigration rates or an alien’s 

opportunity to be heard. As part of the 

Department of Justice, EOIR’s mission 

remains to ‘‘to adjudicate immigration 

cases by fairly, expeditiously, and 

uniformly interpreting and 

administering the Nation’s immigration 

laws.’’ EOIR, About the Office, Aug. 14, 

2018, available at https://

www.justice.gov/eoir/about-office. 

Instead, as part of the Department’s 

intention to increase efficiencies, the 

Department believes that the rule will 

have the effect of reducing the time 

required for the adjudication of appeals 

by DHS in cases where the immigration 

judge or the BIA has found the alien 

merits relief or protection from removal. 

In short, the changes to the rule should 

help both meritorious claims be 

adjudicated more quickly, which will 

benefit aliens, and meritless claims 

adjudicated more quickly, which will 

benefit the public and the government. 

Commenters’ statements regarding 

possible effects on aliens who are 

denied relief or who may be subject to 

removal are purely speculative. 

Moreover, such speculative effects exist 

currently and independently of the rule, 

as alien appeals may be denied or 

dismissed under current procedures. 

Further, nothing in the rule prevents or 

inhibits case-by-case adjudication by the 

Board in accordance with the evidence 

and applicable law for each such case. 

Accordingly, the Department finds 

commenters’ concerns on this point 

unpersuasive. 

Finally, the Department acknowledges 

that it has published multiple proposed 

rules in 2020, including one that would 

increase the fee for an appeal to the BIA 

and for certain motions to reopen for the 

first time in over 30 years. See Executive 

Office for Immigration Review; Fee 

Review, 85 FR 11866 (Feb. 28, 2020). 

The Department also acknowledges that 

DHS has imposed a $50 fee for asylum 

applications, U.S. Citizenship and 

Immigration Services Fee Schedule and 

Changes to Certain Other Immigration 

Benefit Request Requirements, 85 FR 

46788, 46791 (Aug. 3, 2020),15 that 

would also be applicable in EOIR 

proceedings, 8 CFR 1103.7(b)(4)(ii), 

though that rule has been 

enjoined.16 Immigrant Legal Resource 

Ctr. v. Wolf, —F.Supp.3d—, 2020 WL 

5798269 (N.D. Cal. 2020); Nw. 

Immigrants Rights Proj. v. U.S. 

Citizenship & Immigration Servs., No. 

19–3283 (RDM), 2020 WL 5995206 

(D.D.C. Oct. 8, 2020). 

The Department rejects any 

assertions, however, that it is proposing 

multiple rules for any sort of nefarious 

purpose. Each of the Department’s rules 

stands on its own, includes 

explanations of their basis and purpose, 

and allows for public comment, as 

required by the APA. See Little Sisters 

of the Poor Saints Peter & Paul Home v. 

Pennsylvania, 140 S. Ct. 2367, 2385 

(2020) (explaining that the APA 

provides the ‘‘maximum procedural 

requirements’’ that an agency must 

follow in order to promulgate a rule). 

Further, the interplay and impact of all 

of these rules is speculative at the 

present time due to both ongoing and 

expected future litigation—which may 

allow all, some, or none of the rules to 

ultimately take effect—and the 

availability of fee waivers, 8 CFR 

1103.7(c), which may offset the impact 

of some of the increases. Nevertheless, 

to the extent commenters noted some 

potential overlap or joint impacts, the 

Department regularly considers the 

existing and potential legal framework 

when a specific rule is proposed or 

implemented. Moreover, even if all 

rules were in effect, the Department has 

concluded that the benefits of the 

instant rule discussed in the NPRM, e.g., 

85 FR at 52509 and herein—as well as 

the benefits discussed in the other rules, 

e.g., 85 FR at 11870 17—ultimately 

outweigh any combined impact the 

rules may have on aliens, particularly 

vis-a`-vis fee increases for appeals and 

motions to reopen.18


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commenters regarding the instant rule’s asserted 

impact on filing motions to reopen and the 

Department’s proposed fee increase for motions to 

reopen. 

19The Department notes that although the INA 

statutorily requires proceedings over which an 

immigration judge must preside to determine an 

alien’s removability in many situations, under 

sections 240(a)(1) and (3) of the Act, 8 U.S.C. 

1229a(a)(1) and (3), and acknolwedges that an 

administrative appeal may be permitted, e.g., INA 

101(a)(47)(B) and 208(d)(5)(A)(iv), 8 U.S.C. 

1101(a)(47)(B) and 1158(d)(5)(A)(iv), there is no 

constitutional or statutory right to an administrative 

appeal to the BIA. See Albathani v. INS, 318 F.3d 

365, 376 (1st Cir. 2003) (‘‘An alien has no 

constitutional right to any administrative appeal at 

all. Such administrative appeal rights as exist are 

created by regulations promulgated by the Attorney 

General.’’ (citations omitted)); Guentchev v. INS, 77 

F.3d 1036, 1037–38 (7th Cir. 1996) (‘‘The 

Constitution does not entitle aliens to 

administrative appeals. Even litigants in the federal 

courts are not constitutionally entitled to multiple 

layers of review. The Attorney General could 

dispense with the Board and delegate her powers 

to the immigration judges, or could give the Board 

discretion to choose which cases to review (a la the 

Appeals Council of the Social Security 

Administration, or the Supreme Court exercising its 

certiorari power).’’); cf. Provisional Unlawful 

Presence Waivers of Inadmissibility for Certain 

Immediate Relatives, 78 FR 536, 554–55 (Jan. 3, 

2013) (‘‘In upholding the BIA’s practice of 

‘affirmance without opinion’ of immigration judge 

decisions, for example, several courts of appeals 

have recognized that Due Process does not require 

an agency to provide for administrative appeal of 

its decisions.’’). Thus, the Department’s 

administrative appellate process involving the BIA 

already provides more due process to aliens in 

removal proceedings than is required by either the 

INA or the Constitution, and the alteration of the 

BIA’s procedures through regulations promulgated 

by the Attorney General is fully consonant with the 

provision of due process. See Barradas v. Holder, 

582 F.3d 754, 765 (7th Cir. 2009) (stating that 

immigration proceedings that meet the statutory 

and regulatory standards governing the conduct of 

such proceedings generally comport with due 

process). 

20The Department recognizes and agrees with the 

Supreme Court’s observation that ‘‘as a general 

matter, every delay works to the advantage of the 

deportable alien who wishes merely to remain in 

the United States.’’ Doherty, 502 U.S. at 323. Thus, 

it is aware that many aliens likely prefer substantial 

delays in the adjudications of their appeals by the 

BIA and, accordingly, oppose any efforts to increase 

the efficiency of such adjudications. Nevertheless, 

the Department finds any rationale for encouraging 

or supporting the dilatory adjudication of cases 

both inherently unpersuasive and wholly 

outweighed by the importance of timeliness and 

fairness—especially to aliens with meritorious 

claims—in BIA adjudications. 

Comment: At least one commenter 

stated that the rule is pretext for 

restrictions on aliens’ access to asylum 

or related relief. In support, the 

commenter argued that the rule 

provides preferential treatment to DHS 

versus aliens in proceedings and that 

the Department selectively compares the 

BIA at times to either Federal courts or 

other administrative tribunals, 

whichever best supports the restriction 

at issue. In addition, the commenter 

highlighted comments disparaging of 

immigrants or the immigration system 

by President Trump and the Attorney 

General. 

Response: The rule is not a pretext for 

any nefarious motive targeting aliens for 

any reason, and it is appropriately 

supported by applicable law and 

examples. As discussed, supra, the rule 

generally applies to aliens and DHS 

equally and does not provide 

preferential treatment to either party. To 

the extent that commenters simply 

disagree with either the law or the 

examples provided, commenters did not 

provide a persuasive justification for 

why their particular policy preferences 

are superior to those adopted by the 

Department in the rule. Moreover, as 

explained in the NPRM and herein, this 

rule is just one example of the 

Department’s actions, both recently and 

in the past, to increase efficiencies 

before the BIA and address the record 

pending caseload. The Department 

reiterates the reasoning set out in the 

proposed rule for the changes, and the 

discussion further below regarding 

commenters’ concerns with particular 

provisions of the rule. 

2. Violates Due Process 

Comment: Many commenters 

expressed broad concerns that the rule 

would erode aliens’ due process rights 

in immigration court or BIA 

proceedings. Specifically, several 

commenters claimed that the rule 

favored efficiency over fairness. 

Commenters stated that the rule claimed 

to promote efficiency, but that its 

proposed changes ‘‘would sacrifice 

fairness and due process for this 

increased efficiency.’’ Several 

commenters noted that due process 

should be more highly valued than 

efficiency in removal proceedings. For 

example, one commenter asserted that 

the rule ‘‘has everything to do with 

efficiency and nothing to do with due 

process.’’ A commenter also stated that 

that rule’s ‘‘goal should not be to create 

a more efficient production system for 

the rapid removal of litigants.’’ Another 

commenter claimed that, under the rule, 

the BIA would put efficiency above its 

duties as an appellate body, which 

would thereby violate respondents’ due 

process rights. 

Furthermore, commenters voiced 

concern that the rule was attempting to 

inappropriately speed up and 

streamline procedures in a way that 

would negatively affect due process 

protections. One commenter stated that 

the streamlining of procedures ‘‘will 

foster further inequities and affect due 

process for all people involved.’’ A 

number of commenters pointed out that 

cases should not be decided quickly and 

that due process requires that attorneys 

be given a sufficient amount of time to 

prepare their clients’ cases. Several 

other commenters raised concerns that 

the rule was an attempt by the 

Administration to prioritize 

deportations over due process 

protections. 

Numerous commenters were also 

concerned with the possible 

consequences stemming from what they 

view as a potential erosion of due 

process protections. Commenters noted 

that the level of due process in 

immigration court proceedings can 

mean the difference between a 

respondent living safely in the United 

States and being returned to danger in 

another country. 

Response: To the extent that 

commenters equate ‘‘due process’’ with 

an outcome favorable to the alien and an 

‘‘erosion’’ of due process with an 

outcome adverse to the alien—and base 

their comments accordingly on that 

view—the Department declines to 

accept both that view of due process 

and the comments based on it. The 

foundation of due process is notice and 

an opportunity to be heard, and nothing 

in the rule eliminates either an alien’s 

right to notice or an alien’s opportunity 

to be heard on a case before the 

Board.19 See LaChance v. Erickson, 522 

U.S. 262, 266 (1998) (‘‘The core of due 

process is the right to notice and a 

meaningful opportunity to be heard.’’). 

The Department does not evaluate due 

process based on outcomes for either 

party, and it accordingly declines to 

adopt comments premised on the 

intimation that due process occurs only 

when the outcome of a case is favorable 

to an alien. Cf. Pugel v. Bd. of Trs. of 

Univ. of Ill., 378 F.3d 659, 666 (7th Cir. 

2004) (‘‘Due process did not entitle 

[appellant] to a favorable result . . . 

only to a meaningful opportunity to 

present [a case].’’). 

As noted above, EOIR’s mission is ‘‘to 

adjudicate immigration cases by fairly, 

expeditiously, and uniformly 

interpreting and administering the 

Nation’s immigration laws.’’ These 

objectives are generally complementary; 

for example, unnecessary delays in the 

receipt of relief for meritorious aliens is 

itself a fairness concern. Moreover, there 

is nothing inherently unfair in ensuring 

that a case is adjudicated by the Board 

within approximately 11 months—i.e., 

335 days—of its filing. To the contrary, 

excessive delay in adjudication, 

especially when issues of human 

welfare are at stake, may raise concerns 

themselves and increase the risk of 

litigation.20 See, e.g., Telecomms. Rsch. 


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and Action Ctr. v. FCC, 750 F.2d 70, 80 

(D.C. Cir. 1984) (outlining several 

factors for deciding unreasonable delay 

claims under the Administrative 

Procedures Act, including 

acknowledging ‘‘delays that might be 

reasonable in the sphere of economic 

regulation are less tolerable when 

human health and welfare are at stake’’). 

Commenters are incorrect that the 

provisions of this rule impede aliens’ 

due process rights in the manner 

alleged. Although the rule refines timing 

and other procedural requirements, the 

rule does not affect any party’s 

fundamental rights to notice or an 

opportunity to be heard by the BIA. 

Moreover, the rule does not make 

proceedings before the BIA ‘‘so 

fundamentally unfair that the alien was 

prevented from reasonably presenting 

his case.’’ Gutierrez v. Holder, 662 F.3d 

1083, 1091 (9th Cir. 2011) (citations and 

quotation marks omitted). None of the 

changes in the rule limit aliens in 

immigration proceedings before EOIR 

from filing appeals, briefs, or other 

evidence such that it prevents aliens 

from reasonably presenting their appeal. 

Further, many commenters assessed the 

rule through only a one-sided lens 

related to aliens and did not 

acknowledge that (1) most of the 

changes apply equally to DHS and (2) 

some of the changes—e.g., the 

elimination of simultaneous briefing for 

non-detained cases—fall much more 

heavily on DHS than on aliens. In short, 

as the Department explained in the 

NPRM and reiterates in the final rule, 

the changes are designed for the benefit 

of all parties and the adjudicators and 

do not affect either party’s entitlement 

to due process in immigration 

proceedings. 

3. Specific Concerns With the NPRM

a. BIA Jurisdiction by Certification (8

CFR 1003.1(c))

Comment: Numerous commenters 

expressed concern over the 

Department’s removal of the BIA’s selfcertification authority at 8 CFR 

1003.1(c). 

At least one commenter expressed 

dismay as to why the Department would 

retract the BIA’s self-certification 

authority rather than retaining the 

authority but defining ‘‘exceptional 

circumstances,’’ which the commenter 

believed would be less costly and more 

beneficial. 

Commenters were concerned that the 

removal of the BIA’s self-certification 

authority will negatively impact aliens 

in proceedings, particularly pro se 

respondents. For example, a commenter 

explained that the changes would 

disproportionately impact pro se aliens 

because they are ‘‘the parties least likely 

to have a sophisticated notion of when 

an appeal to the BIA is worth taking.’’ 

Another commenter noted that removal 

of the self-certification authority would 

prevent the BIA from addressing defects 

in an alien’s Notice of Appeal, which 

may be the result of factors outside the 

alien’s control, such as mail delays, 

illness, or language ability. 

One commenter characterized the 

change as removing an important check 

on immigration judge misconduct. 

Taking issue with the Department’s 

supposed analogy to Federal courts, 

another commenter claimed that Federal 

courts were distinct from immigration 

courts because the ‘‘process of filing a 

notice of appeal in federal court is 

straightforward, [ ] the Federal Rules of 

Civil Procedure provide ample 

protection for pro se parties who make 

mistakes, [and] the stakes in most civil 

suits arising in federal district court are, 

unlike the stakes in most immigration 

court cases, not a matter of life and 

death.’’ 

Response: As an initial point, the 

Department notes that many 

commenters objected to the limitation of 

the Board’s certification authority solely 

because they perceived that authority to 

be beneficial only to respondents. Those 

comments, however, support the 

Department’s concern about the 

inappropriate and inconsistent usage of 

that authority and its decision to limit 

that authority because it may be applied 

in a manner that benefits one party over 

the other. 

As the Department discussed in the 

NPRM, the BIA’s use of its selfcertification authority has been subject 

to inconsistent usage, if not abuse, by 

the BIA in the past. For example, 

despite clear language that required the 

BIA to have jurisdiction in order to 

exercise its self-certification authority, 

BIA members often inverted that 

principle and used the self-certification 

authority to establish jurisdiction. See, 

e.g., Matter of Carlos Daniel JarquinBurgos, 2019 WL 5067262, at *1 n.1

(BIA Aug. 5, 2019) (‘‘On March 29,

2019, we accepted the respondent’s

untimely appeal. To further settle any

issues of jurisdiction, we accept this

matter on appeal pursuant to 8 CFR

1003.1(c).’’), Matter of Daniel

Tipantasig-Matzaquiza, 2016 WL

4976725, at *1 (BIA Jul. 22, 2016) (‘‘To

settle any issues regarding jurisdiction,

we will exercise our discretionary

authority to accept this appeal on

certification. See 8 CFR 1003.1(c).’’),

and Matter of Rafael Antonio Hanze

Fuentes, 2011 WL 7071021, at *1 n.1

(BIA Dec. 29, 2011) (‘‘In order to avoid

any question regarding our jurisdiction 

over this appeal, we take jurisdiction 

over this matter by certification 

pursuant to 8 CFR 1003.1(c).’’). 

Commenters’ own suggestions that 

removing this authority would harm 

alien appellants because the BIA often 

uses its self-certification authority 

inappropriately and contrary to existing 

case law to avoid finding appeals 

untimely or correct filing defects 

provide further support for the 

Department’s decision. See Matter of 

Jean, 23 I&N Dec. 373, 380 n.9 (A.G. 

2002) (the Board’s certification 

authority, like its sua sponte authority, 

‘‘is not meant to be used as a general 

cure for filing defects or to otherwise 

circumvent the regulations, where 

enforcing them might result in 

hardship’’ (internal citation and 

quotation marks omitted)). Further, 

commenters did not explain how the 

Board could exercise jurisdiction 

through certification without 

determining its jurisdiction in the first 

instance. See 85 FR at 52506. Finally, 

most commenters did not acknowledge 

that the withdrawal of certification 

authority would also impact cases in 

which it may have been used contrary 

to precedent to accept appeals in favor 

of DHS. In other words, as the 

Department has noted, the impact of 

this provision is equally applicable to 

both parties and is not directed at one 

over the other. 

The Department finds that the same 

risks would continue should the 

Department provide further definition of 

‘‘exceptional circumstances’’ rather than 

remove the certification authority, as 

suggested by commenters. Indeed, the 

existence of a standard for ‘‘exceptional 

circumstances’’ applicable to BIA selfcertification since at least 2002, see 

Matter of Jean, 23 I&N Dec. at 380 n.9, 

has not precluded the Board members 

from disregarding that standard as both 

the NPRM, 85 FR at 52506, and 

commenters recognize. Accordingly, the 

Department finds that further attempts 

to refine that standard would likely be 

unhelpful, if not futile, especially 

because there is no effective check on its 

usage to ensure consistency. Moreover, 

creating an additional definitional 

standard for ‘‘exceptional 

circumstances’’ would also create 

additional adjudicatory delays and 

arguments surrounding whether a case 

genuinely met that standard. 

Regarding the possible impact of the 

rule on pro se aliens, the Department 

first notes that most aliens—i.e., 86 

percent, EOIR, Current Representation 

Rates, Oct. 13, 2020 [hereinafter 

Representation Rates], available at 

https://www.justice.gov/eoir/page/file/ 


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21 In an appeal to the Board in removal 

proceedings, ‘‘the person concerned shall have the 

privilege of being represented (at no expense to the 

Government) by such counsel, authorized to 

practice in such proceedings, as he shall choose.’’ 

INA 292, 8 U.S.C. 1362. Despite this statutory right 

to counsel at no expense to the Government in 

appeals to the BIA in removal proceedings, the 

Department recognizes that some aliens do not 

obtain representation before the BIA. The 

Department understands that some aliens do not 

secure representation because they do not wish to 

pay the fee charged by a potential representative. 

The Department also understands that many 

representatives, due to ethical or professional 

responsibility obligations, will not take cases of 

aliens who are ineligible for any relief or protection 

from removal (e.g., an alien with an aggravated 

felony drug trafficking conviction who has no fear 

of persecution or torture in his or her home 

country) because they do not wish to charge money 

for representation when representation will not 

affect the outcome of the proceeding. These 

situations illustrate only that some aliens may not 

ultimately secure counsel for reasons common to 

issues of representation in all civil cases—i.e., the 

cost of the representation and the strength of the 

case—not that aliens are limited or prohibited from 

obtaining representation. See United States v. 

Torres-Sanchez, 68 F.3d 227, 231 (8th Cir. 1995) 

(‘‘Although Torres-Sanchez expressed some 

frustration over his attempt to obtain counsel, that 

frustration, in our view of the record, stemmed from 

his realization that he faced the inevitable 

consequence of deportation, not from a lack of 

opportunity to retain counsel. In any event, the 

mere inability to obtain counsel does not constitute 

a violation of due process.’’). As the Department is 

not involved in discussions between respondents 

and potential representatives, it cannot definitively 

state every reason that an alien who seeks 

representation may not obtain it. Nevertheless, it 

can state that this rule does not limit or restrict any 

alien’s ability to obtain representation in 

accordance with section 292 of the Act, 8 U.S.C. 

1362. 

22 In addition, as discussed elsewhere in this rule, 

the Department emphasizes that EOIR provides 

numerous resources to assist pro se individuals 

with self-representation and participation in their 

proceedings. For example, EOIR’s Office of Policy 

seeks to increase access to information and raise the 

level of representation for individuals in hearings 

before immigration courts and the BIA. See EOIR, 

Office of Legal Access Programs (Feb. 19, 2020), 

available at https://www.justice.gov/eoir/office-oflegal-access-programs. In addition, EOIR has 

developed a thorough electronic resource for 

individuals in proceedings. EOIR, Immigration 

Court Online Resource, available at https://

icor.eoir.justice.gov/en/. 

23Although the Board has not formally adopted 

such a rule, by practice, it also construes pro se 

filings liberally. At least one court of appeals has 

held that the Board is legally required to liberally 

construe pro se filings. See Higgs v. Att’y Gen. of 

the U.S., 655 F.3d 333, 339–40 (3d Cir. 2011). 

1062991/download—whose cases are 

considered by the Board have 

representation. For those who do not, 

there are multiple avenues they may 

pursue to obtain representation.21 For 

example, the Department maintains a 

BIA Pro Bono Project in which ‘‘EOIR 

assists in identifying potentially 

meritorious cases based upon criteria 

determined by the partnering volunteer 

groups.’’ EOIR, BIA Pro Bono Project, 

Oct. 16, 2020, available at https://

www.justice.gov/eoir/bia-pro-bonoproject.22 Additionally, certain 

procedural doctrines, such as equitable 

tolling, may excuse noncompliance with 

filing deadlines for pro se aliens.23

Moreover, immigration judges have a 

duty to develop the record in cases 

involving pro se aliens which will assist 

such aliens in pursuing appeals if 

needed. See Mendoza-Garcia v. Barr, 

918 F.3d 498, 504 (6th Cir. 2019) 

(collecting cases). The Department has 

fully considered the possible impacts of 

this rule on the relatively small pro se 

population of aliens with cases before 

the Board. However, the rule neither 

singles such aliens out for particular 

treatment under the Board’s procedures, 

nor does it restrict or alter any of the 

avenues noted above that may assist pro 

se aliens. 

Ultimately, however, unless a 

doctrine such as equitable tolling is 

applicable, BIA procedures are not 

excused for pro se respondents, just as 

they are not excused generally for pro se 

civil litigants. See, e.g., McNeil v. 

United States, 508 U.S. 106, 113 (1993) 

(‘‘[W]e have never suggested that 

procedural rules in ordinary civil 

litigation should be interpreted so as to 

excuse mistakes by those who proceed 

without counsel.’’); Edwards v. INS, 59 

F.3d 5, 8–9 (2d Cir. 1995) (rejecting a 

pro se alien litigant’s arguments for 

being excused from Federal court 

procedural requirements due to his pro 

se status). Although the Department 

appreciates the challenges faced by pro 

se litigants and recommends that all 

aliens obtain representation, but see 

note 21, supra (explaining why aliens 

may not obtain representation), it 

declines to establish two separate 

procedural tracks for appeals depending 

on whether an alien has representation. 

Further, weighing the possibility of 

abuses of the certification process 

described above and in the NPRM, 85 

FR at 52506–07, the size of the pro se 

population with cases before the BIA, 

and the well-established avenues of 

assistance for pro se aliens, the 

Department disagrees that it is necessary 

or appropriate to keep the certification 

process simply due to the possibility of 

its use as a means of relieving a party 

of his or her compliance with particular 

procedural requirements. 

The Department is unsure why a 

commenter claimed the Department’s 

underlying logic on this issue relied on 

an analogy to Federal court, as the entire 

section describing the changes is silent 

as to Federal appellate courts. Id. at 

52506–07. Accordingly, the Department 

cannot provide an informed response to 

that comment. 

As to removing a necessary 

procedural check on immigration 

judges, the Department notes that the 

regular appeals process to the BIA is 

unchanged, and parties that believe an 

immigration judge erred in his or her 

decision should seek an appeal at the 

BIA consistent with those procedures. 

Commenters did not provide an 

explanation as to why the certification 

process would provide a check that the 

regular appeal process would not, nor 

did they explain why EOIR’s wellestablished complaint process for 

immigration judge misconduct would 

also not be a sufficient check on 

immigration judge behavior. See EOIR, 

Summary of EOIR Procedures for 

Handling Complaints Concerning EOIR 

Adjudicators, Oct. 15, 2018, available at 

https://www.justice.gov/eoir/page/file/ 

1100946/download (last visited Nov. 24, 

2020). In short, commenters did not 

persuasively explain why the BIA selfcertification process, which is subject to 

inconsistent application and potential 

abuse, is superior to the normal 

appellate process and EOIR’s 

immigration judge misconduct 

complaint process for monitoring 

immigration judge behavior; 

accordingly, the Department declines to 

accept the commenters’ suggestions on 

that issue. 

b. Administrative Closure (8 CFR 

1003.1(d)(1)(ii), 1003.10) 

Comment: Commenters raised 

concerns with the rule’s general 

prohibition on administrative closure, 

explaining that the prohibition would 

prevent adjudicators from efficiently 

organizing and prioritizing cases on 

their dockets, resulting in increased 

backlogs. For example, commenters 

stated that immigration judges would 

not be able to prioritize terrorism 

suspects over persons who overstayed 

visas and have apparent eligibility for 

relief. 

Commenters further explained that 

eliminating administrative closure 

would result in unfairly harsh 

consequences for persons who have 

pending applications with the United 

States Citizenship and Immigration 

Services (‘‘USCIS’’), such as U visas and 

applications for Special Immigrant 

Juvenile Status. Instead of allowing for 

administrative closure of their removal 

proceedings while those applications 

are being processed by USCIS, the 

commenters explained that persons 

would likely be required to appeal a 

removal order or file a motion to reopen 

once USCIS approves their application, 

potentially while the person is outside 

the United States. Moreover, 

commenters noted that this would 


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24The Department notes that there are other 

potential tools available to respondents with 

pending relief or actions outside of EOIR, including 

requesting a continuance or working with DHS 

counsel to file a motion to dismiss. See 8 CFR 

1003.29, 1239.2(c). 

create inefficiencies due to 

simultaneous adjudications by EOIR 

and USCIS. Similarly, commenters 

noted that the rule would also prejudice 

persons with pending matters in State or 

Federal courts as well, such as direct 

appeals of criminal convictions or other 

post-conviction relief. 

Commenters raised multiple concerns 

about the rule’s effects on persons 

applying for provisional unlawful 

presence waivers with DHS. 

Commenters alleged that the rule 

conflicts with section 212(a)(9)(B)(v) of 

the Act, 8 U.S.C. 1182(a)(9)(B)(v), which 

provides for an unlawful presence 

hardship waiver. Commenters explained 

that the Secretary of Homeland Security 

implemented regulations at 8 CFR 

212.7(e)(4)(iii) interpreting the waiver 

statute as allowing persons in removal 

proceedings to apply for a provisional 

waiver if their removal proceeding is 

administratively closed. In 

implementing this rule, the commenter 

alleges that the Department is implicitly 

amending the DHS regulation by 

rendering DHS’s administrative closure 

language superfluous. As a result, 

commenters believe that the rule 

infringes on the Secretary’s authority to 

interpret section 212(a)(9)(B)(v) of the 

Act, 8 U.S.C. 1182(a)(9)(B)(v). 

Moreover, commenters also stated 

that, as a practical matter, the rule 

would act as a bar to persons in removal 

proceedings from obtaining provisional 

unlawful presence waivers from DHS in 

order to consular process because the 

waiver applicants would no longer be 

able to receive administrative closure, as 

required by DHS regulations. One 

commenter noted that, instead of 

administrative closure, immigration 

courts have been recently using status 

dockets to handle cases that have 

applications pending with USCIS. 

However, the commenter noted that 

status dockets do not allow persons to 

apply for provisional unlawful presence 

waivers because their removal cases 

remain pending. 

Relatedly, at least one commenter 

stated that the administrative closure 

prohibition will push more aliens into 

filing applications for cancellation of 

removal, since they will be unable to 

administratively close their removal 

proceedings in order to apply for a 

provisional unlawful presence waiver. 

The commenter stated this would raise 

costs for EOIR since adjudicating 

cancellation of removal applications 

costs more than administratively closing 

proceedings in order for DHS to 

adjudicate the waiver applications. 

As a general matter, commenters 

alleged that the Department’s 

explanation for the administrative 

closure changes were insufficient and 

incapable of justifying the changes 

under the APA, including claiming that 

EOIR relied on flawed and misleading 

statistics and that the Department’s 

reliance on Matter of Castro-Tum, 27 

I&N Dec. 271 (A.G. 2018) is misplaced 

because Castro-Tum was wrongly 

decided. Commenters alleged that the 

Department’s statements that 

prohibiting administrative closure will 

improve efficiency is not supported in 

the proposed rule and that 

administrative closure actually 

contributes to shrinking the backlog by 

allowing respondent to pursue ancillary 

relief. Moreover, commenters stated that 

the Department should have consulted 

with DHS to ensure that adjudications 

between the two agencies are consistent. 

At least one commenter also raised 

constitutional concerns with the rule’s 

administrative closure changes. The 

commenter alleged that the rule violates 

due process by depriving persons in 

removal proceedings of the right to 

submit applications for provisional 

unlawful presence waivers and by 

depriving United States citizens of the 

opportunity to live with their noncitizen spouse while the spouse’s 

provisional unlawful presence waiver is 

being adjudicated by USCIS. The 

commenter similarly alleged that the 

rule violates the Equal Protection Clause 

because persons in removal proceedings 

will be prevented from applying for a 

provisional unlawful presence waiver 

simply because they are in removal 

proceedings when persons who have 

been ordered removed are allowed to 

apply for a waiver. 

Response: EOIR is tasked with the 

efficient adjudication of immigration 

proceedings. See, e.g., 8 CFR 1003.10(b) 

(explaining that ‘‘immigration judges 

shall seek to resolve the questions 

before them in a timely and impartial 

manner’’). As such, indefinitely 

delaying immigration court proceedings 

in order to allow aliens to pursue 

speculative relief that may take years to 

resolve does not comport with EOIR’s 

mission to expeditiously adjudicate 

cases before it. See, e.g., Matter of L-AB-R-, 27 I&N Dec. 405, 416 (A.G. 2018) 

(denying a continuance in part because 

an indefinite request would undermine 

administrative efficiency). With EOIR’s 

pending caseload reaching record highs, 

EOIR simply cannot allow indefinite 

delays that prolong adjudication any 

longer than necessary for immigration 

judges to decide the issues squarely 

before them. See Hernandez-Serrano v. 

Barr, —F.3d—, 2020 WL 6883420, *3 

(6th Cir. Nov. 24, 2020) (‘‘The result of 

administrative closure, . . . is that 

immigration cases leave an IJ’s active 

calendar and, more often than not, never 

come back. Thus the reality is that, in 

hundreds of thousands of cases, 

administrative closure has amounted to 

a decision not to apply the Nation’s 

immigration laws at all.’’). Therefore, 

the Department does not believe that 

administrative closure is a proper tool 24

for efficiently adjudicating proceedings 

and, as a result, is using its authority to 

clarify its own regulations to preclude 

immigration judges and the BIA from 

granting administrative closure, with 

limited exceptions. See INA 103(g)(2), 8 

U.S.C. 1103(g)(2) (granting the Attorney 

General the authority to issue 

regulations as necessary for carrying out 

his authority as it relates to EOIR). 

Additionally, the Department finds it 

necessary to provide this clarification to 

resolve competing interpretations of 8 

CFR 1003.1(d)(1)(ii) and 1003.10(b) that 

have resulted in the inconsistent 

nationwide application of 

administrative closure authority. 

Compare Matter of Castro-Tum, 27 I&N 

Dec. at 271 (holding that neither 

immigration judges nor the BIA have a 

general authority to indefinitely 

suspend immigration proceedings 

through administrative closure), and 

Hernandez-Serrano, 2020 WL 6883420 

at *4 (‘‘Indeed no one—neither 

Hernandez-Serrano, nor the two circuit 

courts that have rejected the Attorney 

General’s decision in Castro-Tum—has 

explained how a general authority to 

close cases administratively can itself be 

lawful while leading to such facially 

unlawful results.’’), with Meza Morales 

v. Barr, 973 F.3d 656 (7th Cir. 2020) 

(rejecting Castro-Tum and holding that 

immigration judges are not precluded 

from administratively closing cases), 

and Romero v. Barr, 937 F.3d 282 (4th 

Cir. 2019) (same). These conflicting 

decisions, and the possibility of 

additional such decisions, create 

uncertainty for immigration judges and 

the BIA, which this rule seeks to remedy 

through a consistent nationwide policy. 

Cf. Meza Morales, 973 F.3d at 667 

(noting that the Attorney General may 

amend the regulations through the 

proper procedures to remove any 

perceived administrative closure 

authority). 

The Department disagrees with 

commenters that the agency did not 

provide sufficient reasons for the change 

in the NPRM, or that the given reasons 

were false, erroneous, or relied on 

incorrect or misleading statistics. 


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25The final rule does not prohibit administrative 

closure altogether, and commenters did not 

generally acknowledge or account for those aliens 

who may still benefit from administrative closure 

under the rule in their assertions about the rule’s 

impact. 

Rather, the Department explained that 

the general authority to administratively 

close cases ‘‘failed as a policy matter 

and is unsupported by the law.’’ See 85 

FR at 52504. In the NPRM, the 

Department noted that, following the 

expansion of administrative closure in 

Matter of Avetisyan, 25 I&N Dec. 688 

(BIA 2012), the backlog of immigration 

court cases has grown significantly. See 

also Adjudication Statistics: Pending 

Cases, New Cases, and Total 

Completions, Oct. 13, 2020, available at 

https://www.justice.gov/eoir/page/file/ 

1242166/download. While the use of 

administrative closure is not solely 

responsible for this growth, the need for 

prompt adjudication of pending cases 

has only increased. Administrative 

closure merely delays a decision until 

an unknown future date, thus allowing 

the total number of cases at the 

immigration courts to grow, rather than 

requiring the immigration judge to 

adjudicate the issues before them in 

order to promptly move cases to 

completion. 

The Department also explained in the 

NPRM that the agency believes the 

Attorney General’s holding in Matter of 

Castro-Tum is correct that 8 CFR 

1003.1(d)(1)(ii) and 1003.10(b) do not 

provide for general administrative 

closure authority, citing the Attorney 

General’s explanations that general 

administrative closure authority 

conflicts with the regulatory ‘‘timely’’ 

requirements, 27 I&N Dec. at 284; that 

the regulations do not ordinarily 

include the authority to suspend cases 

indefinitely, id. at 285; and that specific 

delegations that prior Attorneys General 

have made would be rendered 

superfluous, id. at 287–88, among 

others. See also Hernandez-Serrano, 

2020 WL 6883420 at *1, *4 (stating that 

‘‘[a]s of October 2018, more than 

350,000 of those [administratively 

closed] cases had not been reopened. An 

adjudicatory default on that scale strikes 

directly at the rule of law’’ and that 

‘‘[t]he result of administrative closure, 

. . . is that immigration cases leave an 

IJ’s active calendar and, more often than 

not, never come back. Thus the reality 

is that, in hundreds of thousands of 

cases, administrative closure has 

amounted to a decision not to apply the 

Nation’s immigration laws at all.’’). 

Further, the Department also 

explained in the NPRM that the agency 

believes general administrative closure 

authority improperly allows 

immigration judges to determine which 

immigration cases should be 

adjudicated and which ones should not. 

See 85 FR at 52503. Similar to 

continuances, administrative closure is 

a tool to delay cases in certain instances. 

However, in practice, unlike 

continuances, administrative closure 

has at times been used to effectively 

terminate cases through indefinite 

delay. Thus, the Department believes 

that such authority is improper as a 

policy matter unless expressly provided 

for by regulation or judicially approved 

settlement. 

Lastly, the Department also explained 

in the NPRM that existing regulations 

make clear that authority to defer the 

adjudication of cases lies with EOIR 

leadership and not with individual 

members of the BIA or immigration 

judges. See 8 CFR 1003.0(b)(1)(ii), 

1003.1(a)(2)(i)(C), 1003.9(b)(3). 

The Department also disagrees with 

commenters that this rule conflicts with 

section 212(a)(9)(B)(v) of the Act, 8 

U.S.C. 1182(a)(9)(B)(v), as interpreted by 

DHS in 8 CFR 212.7(e)(4)(iii), which 

makes a person in removal proceedings 

ineligible for a provisional unlawful 

presence hardship waiver unless the 

proceedings are administratively closed. 

Regulations solely promulgated by and 

binding on DHS do not confer 

independent authority on immigration 

judges or the Board, and DHS does not 

have the power to provide immigration 

judges with the general authority to 

grant administrative closure or to 

prohibit EOIR from interpreting its own 

regulations, so any interpretation of 

§ 212.7(e)(4)(iii) attempting to do 

sowould be erroneous. See INA 

103(a)(1), 8 U.S.C. 1103(a)(1) (providing 

the Attorney General with the authority 

to make ‘‘controlling’’ determinations of 

the immigration laws); see also CastroTum, 27 I&N Dec. at 287 n.9 (‘‘Because 

only the Attorney General may expand 

the authority of immigration judges or 

the Board, that regulation [8 CFR 

212.7(e)(4)(iii)] cannot be an 

independent source of authority for 

administrative closure.’’). The 

Department has considered the 

interplay of EOIR and DHS’s regulations 

regarding provisional unlawful presence 

waivers and has decided to continue 

with a general prohibition on 

administrative closure in immigration 

proceedings before EOIR. DHS chose to 

limit the eligibility for provisional 

unlawful presence waivers as a matter 

of policy. See 78 FR at 544 (explaining 

that DHS chose to limit eligibility to 

aliens with administratively closed 

removal proceedings in order to be 

‘‘consistent with [DHS’s] established 

enforcement priorities’’). DHS may 

choose to update their regulations as a 

result of the Department’s amendments 

regarding administrative closure 

authority, but any concerns with DHS’s 

policy decisions are outside the scope of 

this rule. 

Commenters did not identify an 

explicit conflict between the language of 

INA 212(a)(9)(B)(v), 8 U.S.C. 

1182(a)(9)(B)(v), and the Department is 

unaware of any. That statutory 

provision refers to a waiver of 

inadmissibility based on an alien’s 

unlawful presence in the United States, 

and this final rule does not purport to 

interpret, alter, or even address that 

provision. Rather, commenters assert 

that this rule’s restriction on the use of 

administrative closure presents an 

undesirable policy choice to the extent 

that it may limit eligibility for that 

waiver based on DHS’s current 

regulatory language. The Department 

acknowledges commenters’ policy 

disagreement and has considered it. 

Nevertheless, the benefits of the final 

rule far outweigh its alleged costs, even 

crediting commenters’ speculative 

assertions.25 Moreover, regardless of 

policy preferences, the Attorney General 

has determined that the expansive 

version of administrative closure 

preferred by commenters is 

incompatible with existing law and does 

not warrant a delegation of such 

authority. Matter of Castro-Tum, 27 I&N 

Dec. at 292 (‘‘The current practice of 

administrative closure lacks a valid 

legal foundation, and I do not believe it 

would be appropriate to delegate such 

authority.’’); cf. Hernandez-Serrano, 

2020 WL 6883420 at *4 (‘‘Those 

concessions imply that the permanent 

closure of some 350,000 immigration 

cases was largely contrary to law. 

Indeed no one—neither HernandezSerrano, nor the two circuit courts that 

have rejected the Attorney General’s 

decision in Castro-Tum—has explained 

how a general authority to close cases 

administratively can itself be lawful 

while leading to such facially unlawful 

results.’’). In short, the Department finds 

no basis to contradict the Attorney 

General and adopt commenters’ policy 

preferences. 

The Department believes that any 

increase in cancellation of removal 

applications in response to this 

unrelated rule is purely speculative. 

Further, even if commenters’ 

predictions turn out to be accurate, the 

Department is well-equipped to handle 

an increase in such applications as its 

adjudicators have considered them for 

decade and the relevant law is wellestablished. Additionally, commenters’ 

speculation on this point implies that 

the majority of such applications would 


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26The Department notes that Matter of CastroTum did not incorporate all of the legal arguments 

presented in the NPRM regarding whether 

immigration judges and Board members have freefloating authority to defer adjudication of cases. 

E.g., 85 FR at 52503 (discussing tension created by 

interpreting 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to 

allow free-floating authority to administratively 

close cases with references in those provisions to 

the ‘‘disposition’’ of cases and with the provisions 

of 8 CFR 1003.1(a)(2)(i)(C) and 8 CFR 1003.9(b)(3) 

which assign authority to defer case adjudications 

to the Board Chairman and the Chief Immigration 

Judge rather than to all Board members and all 

immigration judges); accord Hernandez-Serrano, 

2020 WL 6883420 at *4 (‘‘To the contrary, the 

regulations expressly limit their delegation to 

actions ‘necessary for the disposition’ of the case. 

And that more restricted delegation cannot support 

a decision not to decide the case for reasons of 

administrative ‘convenience’ or the ‘efficient 

management of the resources of the immigration 

courts and the BIA.’ ’’ (emphases in original). Thus, 

circuit court decisions abrogating Matter of CastroTum did not necessarily address all arguments 

surrounding administrative closure. Accordingly, 

independent of Matter of Castro-Tum, immigration 

judges and Board members may still come to the 

conclusion that they generally lack free-floating 

authority to administratively close cases. 

27Although this rule codifies the result of Matter 

of Castro-Tum, its bases are broader than just that 

decision. See supra text accompanying note 26. 

28The Department notes that simply delaying an 

alien’s removal is not a compelling policy basis for 

declining to promulgate this rule. See Nken v. 

Holder, 556 U.S. 418, 436 (2009) (‘‘There is always 

a public interest in prompt execution of removal 

orders: The continued presence of an alien lawfully 

deemed removable undermines the streamlined 

removal proceedings IIRIRA established, and 

permits and prolongs a continuing violation of 

United States law.’’ (internal citations and 

quotation marks omitted)). 

be meritless; otherwise, the aliens 

would have already filed such 

applications because an approved 

application for cancellation of removal 

for non-permanent residents provides 

lawful permanent residence which is a 

preferable outcome to the limbo-like 

nature of adnministrative closure. The 

Department finds that a potential 

increase in meritless applications for 

relief is not a persuasive reason for 

altering this final rule, and any 

adjudicatory costs associated with such 

an increase are outweighed by the 

benefits of the rule. 

The Departments disagree that the 

administrative closure provisions raise 

any constitutional concerns. There is no 

cognizable due process interest in 

access to or eligibility for a 

discretionary, provisional unlawful 

presence waiver of inadmissibility. See, 

e.g., Champion v. Holder, 626 F.3d 952, 

957 (7th Cir. 2010) (‘‘To articulate a due 

process claim, [the individual] must 

demonstrate that she has a protected 

liberty or property interest under the 

Fifth Amendment. Aliens have a Fifth 

Amendment right to due process in 

some immigration proceedings, but not 

in those that are discretionary.’’) 

(citations omitted). Moreover, this rule’s 

administrative closure changes do not 

violate the concept of equal protection— 

in either the Equal Protection Clause of 

the Fourteenth Amendment or as a 

component of the Fifth Amendment’s 

Due Process Clause—as they do not 

impose any classifications that would 

invoke the doctrine. To the extent the 

administrative closure changes would 

have a disparate impact on persons in 

removal proceedings as compared to 

persons not in proceedings, the 

Departments note that the changes are 

rationally related to the Department’s 

interest in efficiently allocating EOIR’s 

limited adjudicatory capacity in order to 

decide cases in a timely manner. Cf. 

DeSousa v. Reno, 190 F.3d 175, 184 (3d 

Cir. 1995) (‘‘[D]isparate treatment of 

different groups of aliens triggers only 

rational basis review under equal 

protection doctrine. Under this minimal 

standard of review, a classification is 

accorded ‘a strong presumption of 

validity’. . . .’’ (internal citations 

omitted)). 

Overall, as discussed in more detail, 

infra, the Department has weighed the 

relevant equities of the rule’s 

administrative closure provision. The 

Department does not believe that the 

administrative closure provision will 

have a significant impact on the public, 

as most immigration courts—63 out of 

67, all but those in Arlington, Baltimore, 

Charlotte, and Chicago 26—currently 

follow either Matter of Castro-Tum itself 

or an applicable Federal court 

decisioning affirming it, e.g., 

Hernandez-Serrano, 2020 WL 6883420 

at *5 (‘‘In summary, therefore, we agree 

with the Attorney General that 

§§ 1003.10 and 1003.1(d) do not 

delegate to IJs or the Board ‘the general 

authority to suspend indefinitely 

immigration proceedings by 

administrative closure.’’’ (quoting 

Matter of Castro-Tum, 27 I&N Dec. at 

272)). Therefore, the effect of this rule 

simply codifies the existing limitations 

on immigration judges’ general 

authority to grant administrative 

closure.27 Moreover, to the extent that 

commenters simply disagree with the 

decision in Matter of Castro-Tum as a 

policy matter, the Department has 

explained that the legal and policy 

issues implicated by the free-floating 

use of administrative closure and the 

efficiency that would follow from 

clearly delineating the circumstances of 

its usage outweigh the policy arguments 

advanced by commenters. See also 

Hernandez-Serrano, 2020 WL 6883420 

at *1 (‘‘A regulation delegating to 

immigration judges authority to take 

certain actions ‘[i]n deciding the 

individual cases before them’ does not 

delegate to them general authority not to 

decide those cases at all. Yet in more 

than 400,000 cases in which an alien 

was charged with being subject to 

deportation or (after April 1, 1997) 

removal, immigration judges or the 

Board of Immigration Appeals have 

invoked such a regulation to close cases 

administratively—meaning the case was 

removed from the IJ’s docket without 

further proceedings absent some 

persuasive reason to reopen it. As of 

October 2018, more than 350,000 of 

those cases had not been reopened. An 

adjudicatory default on that scale strikes 

directly at the rule of law.’’). 

Further, for those courts that are not 

bound by Matter of Castro-Tum, the 

Department disagrees that the change 

will result in unnecessary removal 

orders, as immigration judges are 

already tasked with resolving the 

proceedings before them, including 

determining removability and issuing 

removal orders if required. See, e.g., 8 

CFR 1003.10(b) (‘‘In all cases, 

immigration judges shall seek to resolve 

the questions before them in a timely 

and impartial manner consistent with 

the Act and regulations.’’). The 

Department declines to adopt 

commenters’ speculation as to the 

counter-factual outcomes of cases that 

have been administratively closed, and 

commenters did not support their 

assertion that only cases in which an 

alien will be ordered removed are 

administratively closed.28 To the 

contrary, aliens have sought 

recalendaring of their proceedings in 

order to apply for relief from removal 

for which they believe they are eligible, 

suggesting that in many cases, aliens 

themselves do not believe that a case 

that has been administratively closed 

would necessarily have otherwise 

resulted in a removal order. See, e.g., 

Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 

2017) (‘‘[The respondent] filed a timely 

application for asylum and related relief 

and protection, which he seeks to have 

the Immigration Judge review in 

removal proceedings. The respondent 

argues that the administrative closure of 

his case prevents him from pursuing 

that relief.’’), overruled by Matter of 

Castro-Tum, 27 I&N Dec. at 272. 

As the Department asserted, freefloating authority to unilaterally 

administratively close cases is in 

significant tension with existing law, 

including regulations and longstanding 

Board case law. 85 FR at 52503–05. To 

the extent that commenters suggested 

the Department should retain the status 

quo and its problematic tension with 


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29Furthermore, as reiterated herein, because 

Matter of Castro-Tum was issued in 2018, aliens 

and their representatives in jurisdictions following 

Castro-Tum should not be currently relying on the 

expectation of administrative closure to pursue 

provisional unlawful presence waivers. 

existing law, the Department simply 

disagrees. 

The question of unlawful presence 

waivers was already addressed by 

Matter of Castro-Tum, 27 I&N Dec. at 

278 n.3, 287 n.9, and this final rule does 

not impact such waivers accordingly. 

Moreover, the regulation identified by 

commenters, 8 CFR 212.7(e)(4)(iii) has 

no analogue in chapter V of title 8, and 

that regulation is not binding on the 

Department. Additionally, such a 

waiver is both ‘‘provisional’’ and 

‘‘discretionary,’’ 8 CFR 212.7(e)(2)(i); 

like administrative closure itself, an 

alien has no right to such a waiver; and, 

a provisional and discretionary waiver 

to which an alien lacks any entitlement 

cannot be seen as necessary to the 

disposition of the alien’s case in 

immigration proceedings. See GutierrezMorales v. Homan, 461 F.3d 605, 610 

(5th Cir. 2006) (‘‘We have squarely held 

that ‘neither relief from removal under 

discretionary waiver nor eligibility for 

such discretionary relief is entitled to 

due process protection.’ Stated 

differently, an alien has no due process 

right to a hearing to determine his 

eligibility for relief that is purely 

discretionary.’’ (footnotes omitted, 

emphasis in original)). 

Further, although aliens in removal 

proceedings (unless administratively 

closed) and aliens with administratively 

final orders of removal are barred from 

obtaining the waiver, 8 CFR 

212.7(e)(4)(iii) and (iv), an alien with an 

administratively final order of voluntary 

departure is not, and by definition, 

aliens must voluntarily depart the 

United States in order to receive the 

benefit of such a waiver. Thus, the 

availability of administrative closure 

has no bearing on an alien’s ability to 

receive and effectuate an order of 

voluntary departure, which is a 

practical prerequisite for obtaining the 

benefit of the waiver, and commenters 

did not explain why the restriction on 

administrative closure would have any 

impact at all on an alien’s ability to 

obtain an order of voluntary departure 

and then a provisional waiver before 

departing to receive the final waiver 

abroad. Although the Department has 

considered the link between such 

waivers and administrative closure— 

just as the Attorney General did in 

Matter of Castro-Tum—that link is too 

attenuated to outweigh the significant 

legal and policy concerns raised by the 

Department regarding administrative 

closure. 

Similarly, concerns about putative 

reliance interests are misplaced. First, as 

discussed, infra, the rule applies, in 

general, only prospectively, so it does 

not disturb cases that have already been 

administratively closed. Second, and 

relatedly, all changes in the law may 

impact matters of attorney strategy in 

interactions with clients, but that is an 

insufficient basis to decline to change 

the law.29 To find otherwise would 

effectively preclude any law from ever 

being changed. Third, nothing in the 

rule prohibits a practitioner from 

seeking administrative closure; rather, it 

more clearly delineates the situations in 

which administrative closure is legally 

authorized. Fourth, a representative may 

not ethically guarantee any result in a 

particular case; thus, to the extent 

commenters suggest that the final rule 

restricts or interferes with an attorney’s 

ability to guarantee an alien both a grant 

of administrative closure and the 

approval of a provisional waiver, the 

Department finds such a suggestion 

unavailing. See Model Rules of Prof’l 

Conduct R. 7.1 cmt. 3 (2020) (‘‘A 

communication that truthfully reports a 

lawyer’s achievements on behalf of 

clients or former clients may be 

misleading if presented so as to lead a 

reasonable person to form an unjustified 

expectation that the same results could 

be obtained for other clients in similar 

matters without reference to the specific 

factual and legal circumstances of each 

client’s case.’’); id. cmt. 4 (‘‘It is 

professional misconduct for a lawyer to 

engage in conduct involving dishonesty, 

fraud, deceit or misrepresentation.’’) 

(quoting R. 8.4(c)); id. R. 8.4(e) (‘‘It is 

professional misconduct for a lawyer to 

. . . state or imply an ability to 

influence improperly a government 

agency or official or to achieve results 

by means that violate the Rules of 

Professional Conduct or other law.’’). 

In short, the Department 

appropriately considered potential 

alternatives as well as the relevant 

interests and alleged costs in issuing the 

final rule regarding administrative 

closure. On balance, however, 

commenters’ suggestions would not 

resolve the issues identified by the 

Department, and the concerns raised by 

commenters are far outweighed by both 

the significant legal and policy issues 

raised by the Department in the NPRM 

regarding administrative closure and the 

increased efficiency that a formal 

clarification of its use will provide. 

With regards to the alleged costs to 

persons in removal proceedings who 

allegedly may no longer be eligible to 

obtain a provisional unlawful presence 

waiver without administrative closure, 

the Department first reiterates that 

situation is already the status quo in all 

but four immigration courts and has 

been so since 2018. As Matter of CastroTum was issued in 2018, aliens and 

their representatives in jurisdictions 

following Castro-Tum should not be 

currently relying on the expectation of 

administrative closure to pursue 

provisional unlawful presence waivers. 

Consequently, this final rule does not 

change the status quo regarding the 

availability of a provisional unlawful 

presence waiver for the overwhelming 

majority of aliens currently in removal 

proceedings, and commenters generally 

did not distinguish the reality of the 

status quo in making their speculative 

projections. Further, the Department 

believes that the strong interest in the 

efficient adjudication of cases and the 

legal and policy issues identified in the 

NPRM outweigh the potential inability 

of aliens at 4 out of 67 immigration 

courts to obtain provisional unlawful 

presence waivers, something to which 

they are not entitled to in the first 

instance. The Department notes that 

these persons may still apply for an 

unlawful presence waiver from outside 

the United States, and that DHS may 

choose, as a matter of policy, to amend 

their regulations to remove the 

administrative closure requirement for 

persons in removal proceedings 

applying for a provisional waiver. 

The Department also disagrees that 

the general prohibition on 

administrative closure does not 

harmonize with DHS regulations 

regarding provisional unlawful presence 

waivers. As a Federal circuit court 

recently noted, the presence of 

references to administrative closure in 

existing regulations ‘‘presuppose only 

the existence of a general practice of 

administrative closure, not its legality.’’ 

Hernandez-Serrano, 2020 WL 6883420 

at *4. Thus, assuming counterfactually—but as commenters asserted— 

that 8 CFR 212.7(e)(4)(iii) controlled the 

Department and that no aliens would be 

eligible to have their cases 

administratively closed after this final 

rule—and, thus, no aliens in 

immigration proceedings were eligible 

for a provisional waiver under 8 CFR 

212.7(e)(4)(iii)—those factors, even if 

factually accurate, would not provide a 

strong policy basis to overrule the 

Attorney General’s decision in Matter of 

Castro-Tum for all of the reasons given 

by the Department in the NPRM and 

this final rule. See also HernandezSerrano, 2020 WL 6883420 at *4 

(‘‘neither the IJs nor the Board [nor 

parties] enjoy a right of adverse 

possession as to the Attorney General’s 


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regulations.’’). The Department 

considered the interplay of EOIR and 

DHS’s regulations and, due to the strong 

equities in favor of limiting 

administrative closure, decided to 

continue with a general prohibition on 

administrative closure in immigration 

proceedings before EOIR. DHS chose to 

limit the eligibility for provisional 

unlawful presence waivers as a matter 

of policy, and DHS may choose to 

update their more specific regulations 

accordingly as a result of this rule. 

c. Enhanced BIA Factfinding (8 CFR 

1003.1(d)(3)(iv)) 

i. Administrative Notice 

Comment: As a general matter, many 

commenters asserted that the provisions 

regarding administrative notice were 

biased in favor of DHS, thereby 

demonstrating the allegedly partisan 

nature of the BIA and, more broadly, the 

Department. Similarly, one commenter 

explained that the administrative notice 

provisions were ‘‘problematic’’ because, 

as the commenter alleged, DHS could 

submit new evidence but the alien was 

not permitted to submit counter 

evidence under the new rules. 

Commenters expressed concern about 

the types of items the rule would allow 

the BIA to administratively notice items 

‘‘not reasonably subject to dispute.’’ 8 

CFR 1003.1(d)(3)(iv)(A). Overall, 

commenters predicted disputes at both 

the BIA and the Federal courts over 

whether particular facts fit any of the 

listed exemplary categories of such 

evidence or otherwise constitute such 

items. 8 CFR 1003.1(d)(3)(iv)(A)(1)–(4). 

Such disputes, commenters alleged, 

would undermine the efficiency goals of 

the rule. One commenter explained that 

‘‘[m]ost of this information—especially 

that contained within government 

documents—will be adverse to 

respondents. The rule thus creates a 

one-sided system in which information 

favorable to DHS may be considered by 

the BIA, but information favorable to 

respondents may not be.’’ Commenters 

claimed that the rule’s inclusion of all 

of these facts was arbitrary and 

capricious. 

Further, commenters specifically 

alleged that the ‘‘the contents of official 

documents outside the record,’’ 8 CFR 

1003.1(d)(3)(iv)(A)(2), are subject to 

reasonable dispute because DHS 

records, including records from CBP 

and ICE, ‘‘routinely contain [ ] egregious 

errors and coerced statements.’’ 

Commenters also stated that current 

events, 8 CFR 1003.1(d)(3)(iv)(A)(1), 

could similarly be subject to reasonable 

dispute. Commenters stated that the 

contours of the category of facts from 

government sources was unclear, 

despite it being limited to ‘‘facts that 

can be accurately and reliably 

determined,’’ 8 CFR 

1003.1(d)(3)(iv)(A)(3), because DHS 

records are unreliable. In addition, at 

least one commenter stated that the rule 

did not explain why facts that can be 

administratively noticed by the BIA may 

only be sourced from official or 

universally acclaimed documents. 

At least one commenter alleged that 

the administrative notice provisions 

would allow the BIA to consider and act 

upon facts not raised by either party, 

thereby considering ‘‘facts that did not 

constitute part of the immigration 

judge’s decision-making.’’ The 

commenter alleged that this would 

allow the BIA to act as prosecutor 

instead of a neutral arbiter. The 

commenter explained that because DHS 

rarely submits a brief on appeal, the 

administrative notice changes would 

disproportionately affect pro se 

individuals. 

Several commenters stated that the 

provisions regarding notice and an 

opportunity to respond were 

insufficient because a response may 

require witnesses and additional 

clarifying evidence. Commenters 

explained that witnesses and additional 

evidence were more appropriately 

introduced at the immigration court 

level, given the immigration judge’s 

unique position to assess facts and 

determine credibility and the general 

prohibition against factfinding by the 

BIA. Commenters also emphasized that 

the rule failed to consider that the BIA 

would need to give notice to the parties 

and an opportunity to respond if the 

BIA intended to administratively notice 

a fact that was outside the record and 

would serve as the basis for overturning 

a removal order or denial of relief. The 

commenter explained that the BIA does 

not appear to be neutral when it must 

only administratively notice facts that 

could be used to deny relief that was 

previously granted. 

One commenter explained that the 

rule’s changes to administrative notice 

would affect the standard of review for 

factual findings on appeal at the 

appellate court level. The commenter 

explained that the current use of the 

‘‘substantial evidence’’ standard would 

not be justified, given that some factual 

findings would have been made only by 

the BIA in the first instance. Thus, the 

commenter suggested that the ‘‘clearly 

erroneous’’ standard replace the 

‘‘substantial evidence’’ standard in these 

cases. 

Response: As an initial point, the 

Department notes that the Board’s 

ability to take administrative notice of 

certain facts is already well-established 

in both existing regulations, e.g., 8 CFR 

1003.1(d)(3)(iv) (2019) (allowing the 

Board to take administrative notice of 

current events and the contents of 

official documents), and case law, e.g., 

Sankoh v. Mukasey, 539 F.3d 456, 465 

(7th Cir. 2008) (‘‘The Board has the 

authority to take administrative notice 

of uncontroverted facts, meaning facts 

that can be characterized as commonly 

acknowledged.’’ (internal citation and 

quotation marks omitted)). Thus, to the 

extent that commenters assert the Board 

should not be able to take 

administrative notice of facts not 

reasonably subject to dispute, they did 

not explain why the Department should 

reverse the Board’s longstanding 

authority to do so. 

Similarly, commenters did not 

persuasively explain why Federal Rule 

of Evidence 201(b), which is wellestablished in Federal jurisprudence 

and governs judicial notice by appellate 

courts, In re Omnicare, Inc. Securities 

Litigation, 769 F.3d 455, 466 (6th Cir. 

2014) (‘‘[Federal Rule of Evidence 

201(b)] applies to appellate courts 

taking judicial notice of facts supported 

by documents not included in the 

record on appeal.’’ (quoting United 

States v. Ferguson, 681 F.3d 826, 834 

(6th Cir. 2012)), was not an appropriate 

model for the Board to follow. Without 

such explanations as to why the 

Department should overturn these 

longstanding and well-established 

principles, the Department finds 

commenters’ unsupported policy 

preferences on this point unpersuasive. 

Additionally, commenters’ 

suggestions about the allegedly ‘‘onesided’’ nature of this change belie both 

a misunderstanding of the rule and an 

acknowledgement of its importance to 

ensure that only meritorious claims are 

granted. First, contrary to the assertions 

of many commenters, the rule applies 

equally to DHS and to respondents. 

Thus, the Board may take administrative 

notice of facts both favorable and 

adverse to either party, as long as those 

facts are not reasonably subject to 

dispute. Second, the broad, hyperbolic, 

and unsupported assertion that official 

government documents should not be 

administratively noticed because they 

contain only information adverse to 

respondents is both inaccurate factually, 

e.g., Dahal v. Barr, 931 F.3d 15, 19 (1st 

Cir. 2019) (‘‘Thus, far from undercutting 

Dahal’s fears, the [Department of State] 

Country Report on the elections 

recognizes a remaining threat of Maoist 

persecution.’’), and in tension with 

well-established Federal practice in 

which courts may take judicial notice of 

official government documents, e.g., 


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Wells Fargo Bank, N.A. v. Wrights Mill 

Holdings, LLC, 127 F. Supp. 3d 156, 166 

(S.D.N.Y. 2015) (‘‘Under Federal Rule of 

Evidence 201, a court may take judicial 

notice, at ‘any stage of the proceeding,’ 

of any fact ‘that is not subject to 

reasonable dispute because’ it ‘can be 

accurately and readily determined from 

sources whose accuracy cannot 

reasonably be questioned.’ Fed. R. Evid. 

201(b)(2), (d). . . . Pursuant to Rule 

201, courts have considered newspaper 

articles, documents publicly filed with 

the SEC or FINRA, documents filed with 

a Secretary of State, documents filed 

with governmental entities and 

available on their official websites, and 

information publicly announced on 

certain non-governmental websites, 

such as a party’s official website.’’); 

Kramer v. Time Warner Inc., 937 F.2d 

767, 774 (2d Cir.1991) (‘‘[A] . . . court 

may take judicial notice of the contents 

of relevant public disclosure documents 

. . . as facts ‘capable of accurate and 

ready determination by resort to sources 

whose accuracy cannot reasonably be 

questioned.’ ’’ (quoting Fed. R. Evid. 

201(b)(2)). 

Moreover, this suggestion 

misapprehends the nature of the rule 

and—perhaps unintentionally by the 

commenter—offers further support for 

maintaining it. The rule allows the 

Board to take administrative notice of 

‘‘[f]acts that can be accurately and 

readily determined from official 

government sources and whose 

accuracy is not disputed.’’ 8 CFR 

1003.1(d)(3)(iv)(A)(3). Commenters did 

not explain why facts whose accuracy is 

not disputed and that are unfavorable to 

an alien should not be considered by 

individuals adjudicating claims made 

by aliens—except that ignoring such 

facts would potentially increase the 

likelihood that non-meritorious claims 

would be granted, which is an outcome 

preference tacitly supported by many 

commenters. The Department finds it 

vitally important that all undisputed, 

accurate facts bearing on a claim should 

be considered in order to reduce 

adjudication errors and to ensure that 

meritorious claims are granted in a 

timely manner while unmeritorious 

ones are efficiently addressed. In short, 

the Department disagrees with the 

implicit suggestion of commenters that 

the Board should intentionally turn a 

blind eye to relevant, undisputed facts, 

regardless of which party those facts 

allegedly favor. 

The rule does not authorize the BIA 

to rely on facts that did not constitute 

part of the immigration judge’s decisionmaking, except when such ‘‘facts [ ] are 

not reasonably subject to dispute.’’ 8 

CFR 1003.1(d)(3)(iv)(A) (proposed); see 

also Matter of J-Y-C-, 24 I&N Dec. 260, 

261 n.1 (BIA 2007) (providing that 

issues not raised before an immigration 

judge are waived). The BIA must take 

administrative notice of those facts. 8 

CFR 1003.1(d)(3)(iv)(A). Further, if the 

BIA were to reverse a grant of relief or 

protection from removal based on such 

facts, the BIA must give the parties 

notice and not less than 14 days to 

respond. 8 CFR 1003.1(d)(3)(iv)(B). 

Accordingly, contrary to commenters’ 

assertions, an alien whose grant of relief 

or protection may be subject to reversal 

will have an opportunity to respond, 

including by submitting additional 

arguments and evidence such as 

affidavits or declarations. 

Furthermore, the administrative 

notice provisions are not the product of 

partisanship or favoritism toward DHS, 

and contrary to an implicit assertion 

made by most commenters, they apply 

equally to both parties. The BIA has 

long been able to take administrative 

notice of commonly known facts and 

official government records, and these 

changes build on this prior practice. 

Moreover, contrary to the assertion of at 

least one commenter, the Department 

intends to ensure that an alien receives 

notice and an opportunity to respond if 

the BIA were to rely on a fact outside 

the record to reverse a grant of relief or 

protection from removal. If anything, 

the provision treats respondents more 

favorably than DHS because it does not 

require the BIA to provide notice to 

DHS if it intends to rely on facts outside 

the record to reverse an immigration 

judge’s denial of relief or protection, yet 

many commenters failed to 

acknowledge this discrepancy or to 

explain why the Department should not 

adopt such a provision. 

The Department emphasizes that 

regulations, not statute, determine 

appellate procedures at the BIA. See 

generally 8 CFR part 1003, subpart A; 

see also 85 FR at 52492. Accordingly, 

the Department properly exercised its 

rulemaking authority under section 

103(g)(2) of the Act, 8 U.S.C. 1103(g)(2), 

to promulgate the administrative notice 

provisions to clarify appellate 

procedures at the BIA, with the 

overarching goal of increasing 

efficiencies and consistency in cases 

before the BIA. 

The Department disagrees with 

commenters’ suggestions that the 

regulation’s list of facts that may be 

administratively noticed include 

disputable facts, as whether any given 

fact is ‘‘disputable’’ will depend on the 

putative fact at issue and the overall 

circumstances of the case. The 

Department recognizes that parties may 

disagree over whether a fact is truly 

undisputed, but factual disputes are 

already a common feature of 

immigration proceedings and can be 

resolved under existing law. Moreover, 

respondents will have at least 14 days 

to argue otherwise if the Board intends 

to rely on a fact ‘‘not reasonably subject 

to dispute’’ outside the record in order 

to reverse a rant of relief or protection. 

8 CFR 1003.1(d)(3)(iv)(B). 

Further, the Department rejects any 

allegation that official documents or 

government documents contain 

‘‘egregious errors’’ and ‘‘coerced 

statements,’’ or are ‘‘unreliable,’’ as 

commenters claimed. Government 

documents, broadly speaking, provide 

reliable data and cite to reliable sources 

in support of the ideas presented and 

are meant to inform the public. Second, 

the Department disagrees with the 

commenters’ concerns that all but 

paragraph (d)(3)(iv)(A)(4) could be 

disputable. The Department disagrees 

that administrative notice of any of 

those facts creates a biased system. 

Inclusion of these facts is not arbitrary 

or capricious; both ‘‘current events’’ and 

‘‘official documents’’ were carried over 

from existing regulations. The ‘‘official 

government sources’’ category provides 

further clarification and distinction 

from the ‘‘official documents’’ category. 

In providing this list, the Department 

sought to delineate clear categories of 

facts that were indisputable, and the 

rule concurrently included the 

provision requiring notice and an 

opportunity to respond to ensure that 

both sides may address administratively 

noticed facts. Commenters’ concerns 

regarding prolonged disputes at the BIA 

and the Federal courts are speculative, 

as are commenters’ concerns regarding 

efficiency that stem from those 

litigation-related concerns. More 

specifically, all disputes at the BIA may 

potentially result in Federal litigation, 

including disputes over the 

appropriateness of the Board taking 

administrative notice of undisputed 

facts. The near-certainty of litigation, 

which has grown considerably in the 

immigration field well before the NPRM 

was published, is an insufficient basis, 

however, to decline to adopt the rule. 

In regard to administratively noticed 

documents, those listed at 8 CFR 

1003.1(d)(3)(iv)(A)(1)–(4) are examples 

of documents, as indicated by the words 

‘‘such as’’ preceding the list provided at 

paragraphs (d)(3)(iv)(A)(1)–(4), that 

would generally raise facts not 

reasonably subject to dispute. The rule 

did not require that sources be ‘‘official’’ 

or ‘‘universally acclaimed,’’ as 

commenters claimed. Rather, the rule 

required that administratively noticed 

facts, regardless of their sources, be ‘‘not 


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30Most applications cannot be granted in 

immigration proceedings—at the BIA or 

otherwise—without the completion and clearance 

of identity, law enforcement, or security 

investigations or examinations. 8 CFR 1003.47. A 

similar statutory restriction applies specifically to 

asylum applications. INA 208(d)(5)(A)(i), 8 U.S.C. 

1158(d)(5)(A)(i). 

reasonably subject to dispute.’’ 

Although official or universally 

acclaimed documents typically raise 

facts that are not in dispute, those are 

not the exclusive sources from which 

the BIA may administratively notice 

facts. 

Because facts that may 

administratively noticed are not 

reasonably subject to dispute, the BIA 

does not act as a ‘‘prosecutor’’ when it 

takes administrative notice of such facts. 

Further, the regulation requires the BIA 

to provide parties at least 14 days to 

respond if it takes administrative notice 

of facts. 8 CFR 1003.1(d)(3)(iv)(B). Thus, 

regardless of whether DHS files a brief 

on appeal and regardless of whether an 

alien is represented, the alien is 

afforded an opportunity to respond to 

administratively-noticed facts outside 

the record if those facts will be used to 

overturn a grant or relief or protection. 

This rule also does not impose any 

specific limits on such a response, 

though the Board’s ordinary rules for 

service and filing would still apply. 

Although the Department agrees that 

immigration courts are generally bestpositioned to engage in factfinding, see 

generally 85 FR at 52500–01, there are 

circumstances—similar to those 

recognized by Federal courts—in which 

procedural efficiency counsels in favor 

of being noticed on appeal in order to 

avoid remanding a case to address a fact 

that is undisputed. Thus, the 

Department has determined that certain 

facts described in 8 CFR 

1003.1(d)(3)(iv)(A)(1)–(4) may 

appropriately be raised before the BIA. 

See id. at 52501. 

Some commenters alleged that the 

rule permits DHS to submit new 

evidence and prevents the alien from 

submitting new evidence to counter 

DHS’s new evidence. However, the rule 

does not permit either party to submit 

new evidence in this regard. To the 

extent that commenters framed this 

concern as one regarding exceptions 

related to factual issues raised by 

identity, law enforcement, or security 

investigations or examinations, or other 

investigations noted in 85 FR at 52500 

n.21, that issue is distinct from the issue 

of administratively noticed facts and, for 

asylum applications, has a statutory 

foundation, INA 208(d)(5)(A)(i), 8 U.S.C. 

1158(d)(5)(A)(i) (‘‘[A]sylum cannot be 

granted until the identity of the 

applicant has been checked against all 

appropriate records or databases 

maintained by the Attorney General and 

by the Secretary of State, including the 

Automated Visa Lookout System, to 

determine any grounds on which the 

alien may be inadmissible to or 

deportable from the United States, or 

ineligible to apply for or be granted 

asylum’’). For further discussion on 

issues related to identity, law 

enforcement, or security investigations 

or examinations, see section II.C.3.e. 

Commenters’ concerns regarding use 

of the clearly erroneous standard in 

place of the substantial evidence 

standard is outside the scope of this 

rulemaking, as this rule does not 

propose or affect standards of review for 

factual findings at the appellate court 

level. The Department does not have the 

authority to issue a rule that would alter 

the standard of review employed by a 

Federal circuit court. This rule does not 

affect the commenters’ ability to lobby 

Congress or advise other attorneys in 

regard to this concern. 

ii. BIA Factfinding Remands 

Comment: Commenters opposed the 

rule’s prohibition on the BIA to remand 

a case for further factfinding, explaining 

that oftentimes combining excluded 

evidence with evidence in the record 

could determine the outcome of a case. 

Overall, one commenter explained that 

the rule ‘‘defied logic’’ by categorically 

restricting the BIA from exercising 

discretion to determine whether 

additional facts must be adduced. The 

commenter stated that the Department 

provided no data to support the rule’s 

changes to the BIA’s long-standing 

factfinding efforts, nor did the rule 

explain how restricting the BIA’s 

factfinding capabilities would increase 

efficiency and consistency. 

Commenters voiced general concern 

for pro se individuals, alleging that the 

rule’s removal of the BIA’s ability to 

remand a case sua sponte for further 

factfinding ‘‘appears designed to 

quickly, and with finality, remove those 

without representation who would be 

least likely to understand that they have 

the ability to seek remand and would 

therefore most heavily rely on EOIR to 

protect their rights.’’ More specifically, 

especially in the case of pro se 

individuals, commenters were 

concerned that respondents who were 

unaware of what was necessary to meet 

their burden would also similarly not 

have attempted to ‘‘adduce the 

additional facts before the immigration 

judge,’’ as required by proposed 8 CFR 

1003.1(d)(3)(iv)(D)(2) for the BIA to 

remand a case. One commenter further 

explained that this provision would 

‘‘require respondents to predict a future 

that will be created by actors beyond 

their control in order to obtain the 

lawful status that is otherwise 

statutorily available to them.’’ 

Similarly, commenters opposed 

proposed 8 CFR 1003.1(d)(3)(iv)(D)(1) 

requiring that an issue be ‘‘preserved’’ 

before the immigration judge because, 

the commenters explained, the 

respondent would be unaware of what 

factfinding the immigration judge had 

conducted until the decision is issued. 

Accordingly, commenters alleged that 

the respondent would have to ‘‘interrupt 

the IJ as the IJ is dictating her ruling. Or, 

even worse, the [r]espondent wouldn’t 

even have the opportunity to object 

because he received his decision by 

postal mail.’’ Citing the performance 

metrics for immigration judges, 

commenters were concerned that 

immigration judges would have ‘‘little 

incentive’’ to take the time to develop 

the record in cases ‘‘where there is no 

possibility that the case could be 

remanded for failure to do so.’’ 

Commenters also disagreed with 

proposed 8 CFR 1003.1(d)(3)(iv)(D)(3), 

which requires the BIA to first 

determine whether additional 

factfinding would ‘‘alter the outcome of 

the case.’’ Commenters alleged that 

making such determination constituted 

factfinding on the part of the BIA, 

contradicting the general opposition to 

factfinding by the BIA. 

Commenters disagreed with the 

clearly erroneous standard in proposed 

8 CFR 1003.1(d)(3)(iv)(D)(5). 

Commenters explained that it should 

not make a difference whether an 

immigration judge’s findings were 

erroneous if an alien should have been 

granted asylum in the first instance. 

Other commenters voiced general 

support for the current system, which 

they explained required the BIA to 

determine whether an immigration 

judge made a clearly erroneous factual 

finding that prejudiced the alien. One 

commenter alleged that, under the rule, 

the BIA would be forced to issue ‘‘poor 

decisions based on incomplete facts and 

conjecture.’’ 

Response: Again, as an initial point, 

the Department notes that the assertions 

of many commenters reflect either an 

unsubstantiated, tendentious 

interpretation of the rule or a 

fundamental misunderstanding of the 

procedures of adversarial civil 

proceedings, including immigration 

proceedings. Except for issues related to 

identity, law enforcement, or security 

investigations or examinations, which 

are required by other regulations or 

statutes,30 the changes in the rule 

regarding factfinding apply to both 


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parties equally. Thus, both DHS and an 

alien must comply with the rule’s 

provisions in order to seek a remand for 

factfinding. 

Because the parties themselves are 

responsible for meeting any applicable 

burdens of proof before the immigration 

judge, 8 CFR 1240.8, and because the 

Board acts a neutral arbiter between the 

parties—rather than as an advocate for 

one party over the other—there is 

generally no reason for the Board to 

remand a case on its own for further 

factfinding unless a question of 

jurisdiction has arisen that requires 

such factfinding. To do otherwise, the 

Board would, in essence, be acting on 

behalf of a party in order to advance that 

party’s arguments, which is 

inappropriate. 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.’’ (emphasis added)); 5 CFR 

2635.101(b)(8) (‘‘Employees [of the 

federal government] shall act 

impartially and not give preferential 

treatment to any private organization or 

individual.’’); BIA Ethics and 

Professionalism Guide at sec. V (‘‘A 

Board Member shall act impartially and 

shall not give preferential treatment to 

any organization or individual when 

adjudicating the merits of a particular 

case.’’). In other words, it is not the 

Board’s role to correct deficiencies in a 

party’s case or to provide a second or 

additional opportunity for a party to do 

so. It is the Board’s role to ‘‘review . . . 

administrative adjudications under the 

Act . . . . [R]esolve the questions before 

it in a manner that is timely, impartial, 

and consistent with the Act and 

regulations . . . . [And] provide clear 

and uniform guidance to the [DHS], the 

immigration judges, and the general 

public on the proper interpretation and 

administration of the Act and its 

implementing regulations.’’ 8 CFR 

1003.1(d)(1). The final rule recognizes 

the Board’s appropriate role, and to the 

extent that commenters suggest the 

Board should employ procedures in 

resolving appeals that favor one party 

over the other, the Department declines 

to adopt such a suggestion to avoid 

compromising the Board’s impartiality. 

The rule reflects several wellestablished principles that commenters 

did not persuasively challenge or 

address. First, it requires that the party 

seeking remand for factfinding on an 

issue to have preserved that issue 

below. Issues not preserved in front of 

an immigration judge are generally 

waived. See Matter of Edwards, 20 I&N 

Dec. 191, 196 n.4 (BIA 1990) (noting 

that an issue not preserved in front of 

the immigration judge is waived). Thus, 

it is both inefficient and inconsistent 

with existing case law to remand a case 

for further factfinding on issue that has 

already been waived on appeal. 

Commenters did not explain why EOIR 

should allow the Board to remand cases 

for further factfinding on issues that 

have already been waived, and the 

Department is unaware of any logical or 

persuasive basis to do so. 

Second, the rule requires the party 

seeking remand, if it bore the burden of 

proof below, to have attempted to 

adduce the additional facts before the 

immigration judge. There is no logical 

reason for a party to choose not to 

attempt to adduce facts sufficient to 

meet its burden of proof before an 

immigration judge, and this requirement 

merely recognizes both the inefficiency 

and the gamesmanship that would 

follow if parties were relieved of an 

obligation to attempt to bring out facts 

to meet a burden of proof before an 

immigration judge. Again, commenters 

did not explain why parties—including 

both aliens and DHS—should be 

relieved of that burden, particularly 

since they, presumably, should already 

have attempted to meet it. 8 CFR 1240.8. 

Third, the rule requires that the 

additional factfinding alter the outcome 

or disposition of the case. To do 

otherwise would be to remand a case for 

no purpose since the remand would not 

affect the outcome or disposition of the 

case. In short, it would be a remand for 

no reason. The Department is unaware 

of any need to remand a case for no 

reason, and commenters did not provide 

one. 

Fourth, and relatedly, the rule 

requires that the additional factfinding 

would not be cumulative of the 

evidence already presented or contained 

in the record. Again, to do otherwise 

would largely be purposeless. The 

Department is unaware of any reason to 

remand a case for factfinding that is 

cumulative or already present in the 

record, and commenters did not 

advance one. 

Fifth, the rule requires, inter alia, that 

the immigration judge’s factual findings 

were clearly erroneous. The Board 

already reviews immigration judge 

factual findings under a clearly 

erroneous standard, and the rule does 

not change that standard. Id. 

§ 1003.1(d)(3)(i). Rather, the rule 

recognizes that additional factfinding in 

cases in which an immigration judge’s 

factual findings are not clearly 

erroneous could mean only one of two 

possibilities. It could mean that a party 

failed to meet its burden of proof but the 

Board believes—for some unknown or 

unstated reason—that the party warrants 

another chance to meet that burden to 

bring out additional facts. Such a 

decision would effectively convert the 

Board into an advocate for the party 

seeking a remand, and in that case, the 

Board would be abdicating its role as an 

impartial or neutral arbiter. See id. 

1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA 

Ethics and Professionalism Guide at sec. 

V. Commenters did not offer persuasive 

reasons for the Board to abandon its 

need for impartiality, and to the extent 

that commenters alleged multiple 

reasons for not adopting the rule, the 

Department finds that the need for the 

Board to remain an impartial body is 

more compelling than those reasons. 

Alternatively, additional factfinding 

in cases in which an immigration 

judge’s factual findings are not clearly 

erroneous could mean that the 

immigration judge made an error of law 

which will necessitate additional 

factfinding on remand. For example, an 

immigration judge may err as a matter 

of law in failing to sufficiently develop 

the record for a pro se respondent, 

which would inherently require further 

factfinding. Although that interpretation 

would be based on a legal determination 

and the rule does not restrict the Board’s 

ability to remand a case due to a legal 

error, the Department recognizes that 

some cases of legal error may require 

additional factfinding on remand. The 

Department did not intend the rule to 

prohibit factfinding on remand when 

the remand is based on a legal error— 

subject to other requirements—and the 

final rule clarifies that point to avoid 

confusion. 8 CFR 1003.1(d)(3)(iv)(D)(5). 

Contrary to commenters’ contentions, 

the rule did not ‘‘categorically restrict’’ 

the BIA from exercising discretion to 

determine whether additional facts may 

be adduced. For example, the BIA may 

exercise discretion to determine that 

additional facts not reasonably subject 

to dispute may be administratively 

noticed. The rule did, however, clarify 

the extent to which the BIA may engage 

in factfinding on appeal and the 

circumstances in which the BIA may 

remand for further factfinding, 

consistent with applicable law and 

regulations. 85 FR at 52500–01. 

The rule cited various data, see id. at 

52492, to demonstrate the significant 

increase in cases and related challenges, 

which the Department believes would 

be unsustainable under the BIA system 

pre-dating this rule and thus prompted 

the Department’s decision to review the 

BIA’s regulations in order to address 

and reduce unwarranted delays in the 


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31To the extent that commenters asserted that the 

Department provided no data regarding the BIA’s 

factfinding procedures, the Department notes that 

granular data on how many BIA remands for 

factfinding that do not affect the outcome of cases 

and that are for factfinding that is cumulative to 

facts already found in the record is not available 

and is likely untraceable due to the inherently factspecific nature of each case and the somewhat 

counter-factual of such data. Moreover, commenters 

did not suggest that such data was available or 

could be obtained, nor did they even suggest how 

to calculate or measure the ‘‘inappropriateness’’ or 

‘‘incorrectness’’ of a remand that would be 

necessary to track such data. As discussed, the 

remaining parts of the rule follow from wellestablished legal principles (e.g., waiver, burden of 

proof, and standard of review for factfinding) and 

are not intended to turn on data. Overall, the 

Department reiterates that the rule explained how 

restricting the BIA’s factfinding capabilities would 

increase efficiency and consistency. 

32The Department notes that individuals in 

removal proceedings before an immigration judge 

and the BIA have the ‘‘privilege of being 

represented (at no expense to the Government) by 

such counsel, authorized to practice in such 

proceedings, as [the alien] shall choose.’’ INA 292, 

8 U.S.C. 1362; see also INA 240(b)(4)(A), 8 U.S.C. 

1229a(b)(4)(A); 8 CFR 1240.10(a)(1). 

33Whether a pro se alien knowingly waived an 

issue may also be a relevant consideration in 

appropriate cases. See Matter of Samai, 17 I&N Dec. 

242 (BIA 1980) (objection to improper notice raised 

for the first time on appeal by a previously 

unrepresented respondent could still be considered 

by the Board). 

appeals process and ensure efficient use 

of resources.31

Contrary to commenters’ claims, the 

Department maintains that it explained 

in the NPRM how proposed changes to 

the BIA’s factfinding abilities would 

increase efficiency and consistency. For 

example, in support of the 

administrative notice provisions, the 

Department explained that there was no 

operational or legal reason to remand a 

case for factfinding if the record already 

contained evidence of undisputed facts. 

Id. at 52501. Thus, the Department 

clarified that the BIA could rely on such 

facts without remanding the case, 

thereby reducing an unwarranted delay. 

Overall, the proposed changes were 

made ‘‘to more clearly delineate the 

circumstances in which the BIA may 

engage in factfinding on appeal.’’ Id. 

Clarifying such circumstances 

inherently facilitates a more efficient 

and consistent process because 

adjudicators need not spend time 

determining, for example, whether 

factfinding is appropriate or whether 

previous adjudicators otherwise 

engaged in factfinding in similar 

circumstances. 

The Department promulgated this rule 

to reduce unwarranted delays and 

ensure efficient use of resources, given 

the significant increase in pending cases 

in the immigration courts that has led to 

an increase in appeals. See id. at 52492. 

In no way are these changes intended 

for the purpose of harming or quickly 

removing pro se individuals. To the 

contrary, EOIR’s Office of Policy (OP) 

seeks to increase access to information 

and raise the level of representation for 

individuals in hearings before 

immigration courts and the BIA. In 

addition, EOIR has developed a 

thorough electronic resource for 

individuals in proceedings. EOIR, 

Immigration Court Online Resource, 

available at https://icor.eoir.justice.gov/ 

en/ (last visited Nov. 27, 2020); see also 

EOIR Launches Resources to Increase 

Information and Representation, Oct. 1, 

2020, https://www.justice.gov/eoir/pr/ 

eoir-launches-resources-increaseinformation-and-representation. In 

short, EOIR’s OP, the private bar, and 

other non-governmental organizations 

all may assist individuals with their 

immigration proceedings,32 which 

include providing information which 

may assist individuals in preserving 

issues or attempting to adduce 

additional facts before the immigration 

judge. 

Regarding the possible impact of the 

rule on pro se aliens, as noted 

previously, the Department first 

reiterates that most aliens—i.e., 86 

percent, Representation Rates, supra— 

whose cases are considered by the 

Board have representation. For those 

who do not, there are multiple avenues 

they may pursue to obtain 

representation. For example, the 

Department maintains a BIA Pro Bono 

Project in which ‘‘EOIR assists in 

identifying potentially meritorious cases 

based upon criteria determined by the 

partnering volunteer groups.’’ BIA Pro 

Bono Project, supra. Further, 

immigration judges have a duty to 

develop the record in cases involving 

pro se aliens, which will ensure that 

such aliens attempt to adduce relevant 

facts to meet their burdens of proof and 

reduce the likelihood that aliens 

inadvertently waive an issue.33 See 

Mendoza-Garcia, 918 F.3d at 504. 

To be sure, BIA procedures are not 

excused for pro se respondents, just as 

they are not excused generally for pro se 

civil litigants. See, e.g., McNeil, 508 U.S. 

at 113 (‘‘[W]e have never suggested that 

procedural rules in ordinary civil 

litigation should be interpreted so as to 

excuse mistakes by those who proceed 

without counsel.’’); Edwards, 59 F.3d at 

8–9 (rejecting a pro se alien litigant’s 

arguments for being excused from 

Federal court procedural requirements 

due to his pro se status). Moreover, 

issues not raised below may be deemed 

waived even for pro se individuals. See, 

e.g., Tannenbaum v. United States, 148 

F.3d 1262, 1263 (11th Cir. 1998) (‘‘Pro 

se pleadings are held to a less stringent 

standard than pleadings drafted by 

attorneys and will, therefore, be 

liberally construed. But, issues not 

raised below are normally deemed 

waived.’’ (internal citations omitted)). 

However, those standards have existed 

for years and exist independently of the 

rule, and nothing in the rule alters or 

affects their applicability. 

The Department has fully considered 

the possible impacts of this rule on the 

relatively small pro se population of 

aliens with cases before the Board. 

However, the rule neither singles such 

aliens out for particular treatment under 

the Board’s procedures, nor does it 

restrict or alter any of the avenues noted 

above that may assist pro se aliens. 

Further, commenters’ concerns related 

to pro se aliens and these provisions are 

based almost entirely on a speculative, 

unfounded belief that immigration 

judges will disregard their duty to 

develop the record in pro se cases. The 

Department declines to accept such a 

view of immigration judges as either 

incompetent or unethical and declines 

to accept commenters’ suggestions on 

that basis. Chem. Found., Inc., 272 U.S. 

at 14–15 (‘‘The presumption of 

regularity supports the official acts of 

public officers, and, in the absence of 

clear evidence to the contrary, courts 

presume that they have properly 

discharged their official duties.’’). 

Finally, weighing the complete lack of 

necessity—and corresponding 

inefficiency—of factfinding remands 

where the facts are either irrelevant to 

the disposition of the case or cumulative 

to facts already in the record, the 

importance of maintaining the Board’s 

impartiality, the duty of immigration 

judges to develop the record in cases of 

pro se aliens, the size of the pro se 

population with cases before the BIA, 

and the well-established avenues of 

assistance for pro se aliens, the 

Department finds, as a matter of policy, 

that the clarity and efficiency added by 

factfinding provisions in the rule far 

outweigh the speculative and 

unfounded concerns raised by 

commenters, particularly since many 

commenters misapprehended that the 

rule applies to both DHS and 

respondents. 

Although commenters provided 

examples of challenges individuals 

would face in complying with the 

regulatory provisions at proposed 8 CFR 

1003.1(d)(3)(iv)(D)(1) and (2), the 

Department finds the examples 

unpersuasive or inapposite. The 

commenters’ examples do not 

demonstrate a bar to preserving issues 

or adducing additional facts for use on 

appeal. Indeed, some commenters’ 


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examples assume that issues can only be 

preserved or additional facts be adduced 

for use on appeal during an immigration 

judge’s issuance of a decision, which is 

inaccurate. Throughout the course of 

proceedings, individuals may raise 

evidentiary or factfinding issues as the 

record is developed. See generally 8 

CFR 1240.10 (explaining the course of 

the hearing, during which an alien may, 

for example, examine and make 

objections to evidence against him and 

present evidence on his behalf); see also 

8 CFR 1240.9 (detailing the contents of 

the record, including ‘‘testimony, 

exhibits, applications, proffers, and 

requests, the immigration judge’s 

decision, and all written orders, 

motions, appeals, briefs, and other 

papers filed in the proceedings’’). 

Moreover, if a party objects to an 

immigration judge’s exclusion of 

evidence from the record, the 

regulations provide that an affected 

party may submit a brief. Id. 1240.9. 

Accordingly, numerous avenues exist 

through which individuals may comply 

with the proposed provisions at 8 CFR 

1003.1(d)(3)(iv)(D)(1) and (2). 

The Department reiterates that 

immigration judges and the BIA will 

continue to exercise independent 

judgment and discretion to adjudicate 

cases before them in accordance with 

applicable law and regulations. See Id. 

§ 1003.1(d)(1)(ii), 1003.10(b), 1240.1(a). 

Circuit courts have held that under 

section 240(b)(1) of the Act, 8 U.S.C. 

1229a(b)(1), immigration judges have an 

obligation to develop the record. See, 

e.g., Yang v. McElroy, 277 F.3d 158, 162 

(2d Cir. 2002); Mekhoukh v. Ashcroft, 

358 F.3d 118, 130 (1st Cir. 2004); 

Mendoza-Garcia, 918 F.3d at 504. The 

Department rejects any speculative 

contention—rooted in a tacit assertion 

that immigration judges are either 

unethical or incompetent—that 

immigration judges would simply shirk 

their obligation, including developing 

the record, in favor of completing more 

cases. 

The Department disagrees that the 

BIA’s determination in accordance with 

proposed 8 CFR 1003.1(d)(3)(iv)(D)(3), 

constitutes factfinding on the part of the 

BIA. Whether ‘‘additional factfinding 

would alter the outcome or disposition 

of the case’’ is well within the BIA’s 

proper scope of review under 8 CFR 

1003.1(d)(3) and inherent in the BIA’s 

responsibility to decide appeals. 

Because the BIA generally cannot 

consider new evidence on appeal or 

engage in further factfinding, 8 CFR 

1003.1(d)(3)(iv), subject to some 

exceptions, the rule sought to clearly 

establish limitations on the BIA’s ability 

to remand for further factfinding. As 

explained in the NPRM, the INA 

contains few details in regard to the 

appeals process; thus, EOIR’s 

regulations govern specific procedural 

requirements for appeals. 85 FR at 

52493. Consequently, in accordance 

with its statutory authority under 

section 103(g)(2) of the Act, 8 U.S.C. 

1103(g)(2), to promulgate regulations, 

the Department determined that it 

would condition remand on a 

determination that either the 

immigration judge’s factual findings 

were clearly erroneous or that remand is 

warranted following de novo review. 

As the Department explained in the 

NPRM, the current system for 

adjudicating appeals does not always 

operate in an effective and efficient 

manner. As explained in the NPRM, the 

Department believed it was necessary to 

reevaluate its regulations governing the 

BIA, as it routinely does, see id. at 

52494. As a result, the Department 

determined that the current system 

could be amended in various ways to 

reduce unwarranted delays and ensure 

efficient use of resources, given the 

significant increase in pending cases in 

the immigration courts that has led to an 

increase in appeals. See id. Moreover, 

changes made by this rulemaking will 

best position the Department to address 

the growing caseload and related 

challenges. Id. at 52492–93. 

The Department strongly disagrees 

with commenters that the rule would 

force the BIA to issue ‘‘poor decisions 

based on incomplete facts and 

conjecture.’’ Again, this comment 

suggests that Board members are 

incompetent and cannot perform their 

functions fairly and efficiently, a 

suggestion the Department categorically 

rejects. The Department is confident 

that the BIA will continue to 

competently resolve issues in a manner 

that is timely, impartial, and consistent 

with applicable law and regulations. See 

8 CFR 1003.1(d)(1). BIA members 

exercise independent judgment and 

discretion and ‘‘may take any action 

consistent with their authorities under 

the Act and the regulations as is 

appropriate and necessary for the 

disposition of the case.’’ Id. 

§ 1003.1(d)(1)(ii). 

d. BIA Affirmance on Any Basis 

Supported by the Record (8 CFR 

1003.1(d)(3)(v)) 

Comment: Commenters expressed 

concerns about new paragraph 8 CFR 

1003.1(d)(3)(v) that would enable the 

BIA to affirm the underlying decision of 

the immigration judge or DHS on ‘‘any 

basis’’ supported by the record, 

including a ‘‘basis supported by facts 

that are not reasonably subject to 

dispute’’ or ‘‘undisputed facts.’’ 

Commenters argued that this change 

creates inefficiencies instead of 

efficiencies for a variety of reasons. For 

example, commenters expressed a belief 

that this provision will inevitably 

require respondents before the BIA to 

litigate every possible issue that could 

be raised by the record in order to 

preserve their arguments for future 

appeals, regardless of the particular 

rulings by the IJ. Commenters noted that 

this in turn creates inefficiencies as 

opposed to efficiencies in BIA 

procedures. In addition, commenters 

stated that this provision will in effect 

lead to a full second adjudication of 

every case by the BIA instead of the BIA 

only analyzing the specific issues posed 

by the parties. Citing SEC v. Chenery 

Corp., 318 U.S. 80 (1943), commenters 

argued that respondents should not 

have to guess at what bases the BIA 

might have for its decisions. 

Commenters disputed the 

Department’s citation to Helvering v. 

Gowran, 302 U.S. 238, 245 (1937) in 

support of the change, explaining that 

the Supreme Court in that case provided 

the parties with an opportunity to 

establish additional facts that would 

affect the result under the new theory 

first presented at the Court of Appeals. 

Commenters expressed concern that 

this provision will inevitably lead to the 

BIA engaging in impermissible factfinding and that the rule is 

insufficiently clear as to what is a 

‘‘disputed’’ or undisputed fact. 

Commenters stated that this change is 

internally inconsistent with other 

provisions of the rule because it allows 

the BIA to affirm a decision based on 

arguments not raised in the proceedings 

below but prohibits the BIA from 

similarly remanding based on 

arguments not raised below. 

Response: As an initial point, few 

commenters acknowledged that this 

standard is analogous to the one 

employed by Federal appellate courts 

reviewing Federal trial court decisions 

and is, thus, a well-established principle 

of appellate review. See, e.g., Keyes v. 

School Dist. No. 1, 521 F.2d 465, 472– 

73 (10th Cir. 1975) (‘‘An appellate court 

will affirm the rulings of the lower court 

on any ground that finds support in the 

record, even where the lower court 

reached its conclusions from a different 

or even erroneous course of 

reasoning.’’). Relatedly, few, if any, 

commenters offered an explanation or 

rationale for why that appellate 

principle would be inappropriate to 

apply to Board review of immigration 

judge decisions, particularly since 

Federal appellate courts handle cases of 


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34For further discussion of administrative 

closure, see section II.C.3.b above. 

pro se litigants and complex records 

from trial courts below just as the Board 

does. Further, few, if any, commenters 

acknowledged that the Board already 

possesses the authority to base its 

decision on a review of the record as a 

whole even if a party has not raised an 

issue. See, e.g., Ghassan v. INS, 972 

F.2d 631, 635 (5th Cir. 1992) (‘‘First, he 

argues that the BIA should not have 

disregarded the IJ’s finding, because the 

INS did not challenge that finding in its 

brief. We disagree. . . . In the instant 

case, the BIA based its decision upon 

the administrative record as a whole. 

There was no procedural impropriety.’’). 

To the extent that commenters failed to 

engage with a principal foundation for 

this provision of the rule, the 

Department finds their comments 

unpersuasive. See Home Box Office, 567 

F.2d at 35 n.58 (‘‘Moreover, comments 

which themselves are purely 

speculative and do not disclose the 

factual or policy basis on which they 

rest require no response. There must be 

some basis for thinking a position taken 

in opposition to the agency is true.’’). 

As the Department also explained in 

the proposed rule, 85 FR at 52501 n.23, 

clarifying that the BIA may affirm the 

decision of the immigration judge or 

DHS on any basis supported by the 

record is consistent with long standing 

principles of judicial review. See, e.g., 

Chenery Corp., 318 U.S. at 88 

(describing the principle that a 

reviewing court must affirm the result of 

the lower court if the result is correct, 

even if the lower court relied upon a 

wrong ground or wrong reason as 

‘‘settled rule’’) (citing Helvering, 302 

U.S. at 245)). Indeed, as the Supreme 

Court explained, it would be wasteful 

for an appellate body to have to return 

a case to the lower court based on 

grounds already in the record and 

within the power of the BIA to 

formulate. Id. 

The Department emphasizes, 

however, that the BIA may only affirm 

a decision on a basis that is supported 

by the record as developed by the 

immigration judge or any facts not 

reasonably subject to dispute and of 

which the BIA takes administrative 

notice. 8 CFR 1003.1(d)(3)(iv). 

Accordingly, despite commenters’ 

unsupported predictions, the rule 

would not enable the BIA to engage in 

de novo factfinding as a way to affirm 

the underlying immigration judge or 

DHS decision. Cf. Chenery Corp., 318 

U.S. at 88 (‘‘[I]t is also familiar appellate 

procedure that where the correctness of 

the lower court’s decision depends 

upon a determination of fact which only 

a jury could make but which has not 

been made, the appellate court cannot 

take the place of the jury.’’). Because the 

BIA’s review is limited to the record in 

this manner, the Department disagrees 

with the commenters’ speculation that 

the BIA review will be less efficient 

because it would become an alleged 

second complete adjudication. Instead— 

just as in Federal appellate courts—this 

provision only creates efficiencies by 

making it clear that the BIA does not 

have to turn a blind eye to undisputed 

facts that are clear from the record that 

relate to the correctness of the 

underlying decision. 

In addition, the Department finds 

unpersuasive commenters’ concerns 

that aliens must address all possible 

issues in their briefing or other 

arguments or else risk ceding a future 

argument on appeal to Federal court due 

to failure to exhaust the issue. The 

Department already expects an 

appealing party to address all relevant 

issues on appeal; otherwise, the party 

risks summary dismissal of the appeal, 

8 CFR 1003.1(d)(2)(i)(A) (authorizing 

summary dismissal when a party does 

not specify the reasons for appeal on the 

Notice of Appeal), waiver of the issue 

before the Board, see Matter of 

Cervantes, 22 I&N Dec. 560, 561 n.1 

(BIA 1999) (expressly declining to 

address an issue not raised by party on 

appeal), and potentially dismissal of a 

petition for review due to a failure to 

exhaust an issue before the Board, see, 

e.g., Sola v. Holder, 720 F.3d 1134, 1135 

(9th Cir. 2013) (‘‘A petitioner’s failure to 

raise an issue before the BIA generally 

constitutes a failure to exhaust, thus 

depriving this court of jurisdiction to 

consider the issue.’’). The rule imposes 

no additional consequences for a party 

who fails to raise issues on appeal to the 

BIA beyond those that already exist, and 

a party choosing to address some issues 

but not others on appeal does so at its 

own risk. Consequently, the Department 

does not see why a party would choose 

not to raise an issue on appeal, even 

under the current regulations, and 

rejects the assertion that the rule 

imposes a new requirement in this 

regard. 

As a practical matter, the Department 

is also unaware of how such a scenario 

posited by commenters would occur. 

For example, an alien appealing an 

adverse decision by an immigration 

judge regarding an application for relief 

or protection will have necessarily 

argued to the immigration judge all of 

the elements required to grant such an 

application; otherwise, the alien will 

have waived issues not argued anyway. 

Further, even if the immigration judge 

denied the application on one basis— 

and did not address others—and even if 

the Board affirmed the denial on 

another basis, the alien will not be 

deemed to have failed to exhaust the 

issue even if the alien did not include 

the issue in the Notice of Appeal. See, 

e.g., Abebe v. Gonzales, 432 F.3d 1037, 

1040–41 (9th Cir. 2005) (stating that 

when the BIA reviews the entire record, 

considers issues argued before an 

immigration judge but not raised by an 

alien in a Notice of Appeal, and issues 

its decision based on such issues after 

reviewing the entire record, alien is not 

barred from raising the issue in a 

petition for review due to exhaustion). 

In short, commenters’ concerns are 

unfounded, and the Department 

declines to credit them accordingly. 

e. Changes to BIA Procedures for 

Identity, Law Enforcement, or Security 

Investigations or Examinations (8 CFR 

1003.1(d)(6)) 

Comment: Commenters expressed 

concern regarding the rule’s proposed 

changes to the BIA procedures for 

identity, law enforcement, or security 

investigations or examinations. See 8 

CFR 1003.1(d)(6)(ii) and (iii); see also 82 

FR at 52499. 

At least one commenter stated that the 

changes conflict with the Department’s 

reasoning for the rule’s amendments 

regarding administrative closure.34 For 

example, the commenter stated that the 

BIA does not have the regulatory 

authority to place a case on hold 

indefinitely. 

Other commenters expressed dueprocess related and other concerns 

about the rule’s procedures for 

communications between the BIA and 

DHS and the alien regarding the status 

of background checks and to allow the 

BIA to deem an application abandoned 

if DHS alleges that an alien failed to 

comply with its biometrics instructions. 

See 8 CFR 1003.1(d)(6)(ii) and (iii). 

Specifically, one commenter stated the 

procedures fail to protect respondents’ 

due process rights because they require 

the BIA to deem an application 

abandoned and accordingly deny relief 

if DHS states that the respondent failed 

to comply with its instructions but do 

not provide adequate opportunity for 

the alien to contest that they did not 

receive notice from DHS about the 

requirements or to otherwise establish 

good cause for failing to comply. To 

illustrate this risk, the commenter cited 

a hypothetical that ‘‘the BIA could deem 

an otherwise approvable application 

abandoned because DHS reports to the 

BIA that the applicant failed to timely 

comply with biometrics, but where DHS 

had inadvertently sent the biometrics 


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35Collection and Use of Biometrics by U.S. 

Citizenship and Immigration Services, 85 FR 56338 

(Sept. 11, 2020). 

36Background and Security Investigations in 

Proceedings Before Immigration Judges and the 

Board of Immigration Appeals, 70 FR 4743 (Jan. 31, 

2005). 

instructions to the wrong address.’’ The 

commenter also noted that due to recent 

changes by DHS to the biometrics 

procedures,35 new individuals, 

including children under the age of 14, 

will be subject to biometrics 

requirements for the first time, 

increasing the likelihood of removal 

orders for respondents who otherwise 

would qualify for relief from removal. 

Another commenter expressed concern 

that although the alien’s deadline to 

comply begins to run from the date the 

BIA sends out a notice to the alien that 

DHS will be providing further 

information, DHS in turn has no 

deadline to contact the alien. 

Another commenter also raised issues 

of disparate treatment, stating that, 

while respondents would be barred 

from submitting new evidence on 

appeal that would likely change the 

result of the case, the Department would 

be expressly permitted to submit new 

evidence that is the result of ‘‘identity, 

law enforcement, or security 

investigations.’’ See 8 CFR 

1003.1(d)(6)(ii). 

Response: Neither the BIA nor an 

immigration judge may grant an alien 

most forms of relief or protection unless 

DHS has certified that the alien’s 

identity, law enforcement, or security 

investigations have been completed and 

are current. See 8 CFR 1003.1(d)(6)(i), 

1003.47(g); see also INA 208(d)(5)(A)(i), 

8 U.S.C. 1158(d)(5)(A)(i). When the 

Department first implemented the 

background check procedures in 2005,36

the Department provided the BIA with 

two options in cases where the identity, 

law enforcement, or security 

investigations or examinations have not 

been completed or are no longer current: 

remand to the immigration judge with 

instructions or place the case on hold 

until the investigations or examinations 

are completed or updated. 8 CFR 

1003.1(d)(6)(ii)(A) and (B). 

At the time, the Department explained 

that the expectation was that the BIA 

and DHS would be able to make greater 

use of the procedure for holding 

pending appeals without the need to 

resort to a remand. 70 FR at 4748. 

Contrary to this prediction, however, it 

has become common practice for the 

BIA to remand cases to the immigration 

judge rather than holding the case for 

the completion of or updates to the 

required investigations and 

examinations. See, e.g., Matter of S–A– 

K– and H–A–H– 24 I&N Dec. 464, 466 

(BIA 2008) (order sustaining appeal and 

remanding the case to the immigration 

judge for DHS to complete or update 

background checks). Because this 

practice creates unnecessary delays in 

the resolution of cases given the 

overburdened resources and size of the 

caseload at the immigration court level, 

the Department proposed to remove the 

option at 8 CFR 1003.1(d)(6)(ii)(A) for 

the BIA to remand cases for the 

completion or update of the checks and 

investigations and proposed procedural 

changes in those cases that remain 

subject to BIA holds under the amended 

8 CFR 1003.1(d)(6)(ii). 

This procedure, which has existed 

since 2005, does not conflict with the 

rule’s changes regarding administrative 

closure. First, when the BIA places a 

case on hold for the completion of or 

updates to the required identity, law 

enforcement, or security investigations 

or examinations, the hold is not 

‘‘indefinite.’’ Instead, the hold is at most 

180 days. See 8 CFR 1003.1(d)(6)(iii) 

(instructing the BIA to remand the case 

to the immigration judge for further 

proceedings under 8 CFR 1003.47(h) if 

DHS fails to report the result of the 

investigations or examinations within 

180 days). Second, even to the extent 

that the BIA hold process may be 

erroneously compared to an 

administrative closure, such practice 

would be an example of an 

administrative closure that is authorized 

by a regulation promulgated by the 

Department of Justice. See 8 CFR 

1003.1(d)(1)(ii); see also Matter of 

Castro-Tum, 27 I&N Dec. at 283 (holding 

that immigration judges only have the 

authority to grant administrative closure 

if a regulation or settlement agreement 

has expressly conferred such authority). 

In addition, the Department disagrees 

that the instructions in the proposed 

rule for the BIA regarding when to deem 

an application abandoned for failure to 

comply with biometrics requirements 

violate due process. As the commenter 

noted, during the respondent’s initial 

hearing, the immigration judge must 

‘‘specify for the record when the 

respondent receives the biometrics 

notice and instructions and the 

consequences for failing to comply with 

the requirements.’’ 8 CFR 1003.47(d). 

Accordingly, respondents before the 

BIA have already been generally 

informed about the biometrics process 

and have fulfilled the requirements at 

least once and understand how to 

comply with the requirements for any 

needed identity, law enforcement, or 

security investigations or examinations. 

Moreover, the Board’s notice to the alien 

will also be part of the record so that it 

is clear when the alien was served with 

the notice. 

Nevertheless, the Department has 

included two changes from the 

proposed rule in this section to account 

for the commenters’ concerns. First, this 

rule contains an additional requirement 

that, if DHS is unable to independently 

update any required identity, law 

enforcement, or security investigations, 

DHS shall provide a notice to the alien 

with appropriate instructions, as DHS 

does before the immigration courts 

under 8 CFR 1003.47(d), and 

simultaneously serve a copy of the 

notice with the BIA. Second, while the 

NPRM would have begun the alien’s 90- 

day timeline for compliance with the 

biometrics update procedures at the 

time the Board provided notice to the 

alien, the final rule aligns the 90-day 

time period to begin running at the time 

DHS submits the notice to the alien in 

situations in which DHS is unable to 

independently update any required 

checks. The Department agrees with the 

commenters’ concerns that without 

these changes, the provisions of the 

proposed rule could have resulted in 

situations where the alien is unable to 

effectively comply with the biometrics 

requirements due to possible delays by 

DHS or lack of sufficient notice. 

Finally, commenters’ concerns about 

alleged disparate treatment between 

DHS and aliens are unpersuasive. The 

rule does not generally allow any party 

to file a motion to remand based on new 

evidence pertaining to an issue that was 

not raised below. Rather, DHS may 

submit limited evidence solely with 

respect to information yielded from 

completed identity, law enforcement, or 

security investigations or based on the 

alien’s failure to comply with biometrics 

requirements, 8 CFR 1003.1(d)(6)(iii), at 

which time the alien would also have 

the opportunity to file evidence in 

response. Accordingly, the alien would 

not be prejudiced by remands for such 

issues. 

Further, such a requirement is fully 

consistent with existing law, e.g., 8 CFR 

1003.47 and INA 208(d)(5)(A)(i), 8 

U.S.C. 1158(d)(5)(A)(i). To the extent 

that commenters disagree with those 

longstanding and well-established 

provisions, those concerns are beyond 

the scope of this rule. 

f. BIA Authority To Issue Final Orders 

(8 CFR 1003.1(d)(7)(i)) 

Comment: One commenter stated that 

the rule’s focus on the BIA’s ability to 

issue orders of removal in the first 

instance without a similar focus on the 

BIA’s ability to grant relief in the first 

instance would result in an unfair 

process that favors DHS over aliens in 


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proceedings. Another commenter 

speculated that allowing the BIA to 

issue orders of removal without a 

remand to the immigration judge would 

impede respondents’ ability to 

ultimately seek a petition for review in 

Federal court. 

Response: First, the commenter who 

stated that the rule is focused on 

enabling the BIA to issue a removal 

order misconstrues the Department’s 

amendment regarding the BIA’s 

authority to issue final orders. The rule 

amends 8 CFR 1003.1(d)(7)(i) to clarify 

that the BIA has the authority to issue, 

inter alia, both final orders of removal 

and orders granting relief from removal. 

Accordingly, the commenter is incorrect 

that these amendments favor either 

party to proceedings before the BIA. 

Second, without further explanation, 

the Department is unable to further 

respond to the commenter’s speculation 

that the BIA issuing a removal order 

would impede a respondent’s ability to 

seek a petition for review in Federal 

court. An alien who receives an order of 

removal, whether from the BIA or the 

immigration judge, may file a petition 

for review subject to the requirements of 

section 242 of the Act, 8 U.S.C. 1252, 

and nothing in this rule affects that 

statutory provision. 

g. BIA Remands Changes 

(1003.1(d)(7)(ii) and (iii)) 

i. Issues With Respect to Limitations on 

BIA’s Authority To Remand 

Comment: Numerous commenters 

expressed concern about limiting the 

BIA’s authority to remand cases. For 

example, commenters were concerned 

that the rule would shift more authority 

to the immigration judge, while tying 

the hands of BIA members who 

observed errors and that the rule would 

provide the BIA with no choice but to 

affirm an immigration judge’s denial 

despite concerns that the record was not 

sufficiently developed. Another 

commenter stated that the BIA is the 

consummate authority on immigration 

law and that they have enough expertise 

and experience to make determinations 

on their own without being limited by 

the rule. Some commenters suggested 

that the BIA should be permitted to 

remand cases to the immigration court 

for any purpose. 

Commenters stated that the proposed 

changes have no basis in the law, depart 

from agency practice, violate the right to 

present evidence on one’s own behalf, 

and in many cases, would result in 

orders of removal that were issued 

notwithstanding meritorious defenses 

and dispositive collateral challenges in 

criminal matters. One commenter stated 

that prohibiting motions to remand 

would prejudice respondents with cases 

that were delayed through no fault of 

their own. 

Commenters objected to the rule on 

the basis that it would not allow the BIA 

to remand cases where there has been a 

change in the law. At least one 

commenter specifically objected to the 

BIA’s limited remand authority in 

asylum cases, where, the commenter 

stated, eligibility rules are in a constant 

state of flux, and individuals should be 

permitted to seek remand for cases that 

were denied based on rules that are 

under litigation. The commenter further 

specified that the UNHCR has 

recommended that appellate bodies look 

to both facts and law using updated 

information and take any such new and 

relevant information into consideration. 

The commenter listed, as an example, 

asylum seekers who were denied 

asylum under the third-country transit 

bar, which was later vacated by a 

Federal court, and alleged that such 

individuals may now be eligible for 

asylum. See CAIR Coal. et al. v. Trump, 

No. 19–2117, 2020 WL 3542481 (D.D.C. 

June 30, 2020). The commenter stated 

that, in this case, the immigration judge 

may not have fully developed the record 

below because the third-country bar 

analysis would not require evaluation of 

all bases for asylum. The commenter 

asserted that such records should be 

remanded to the immigration judge for 

further fact finding. 

At least one commenter stated that the 

rule does not account for legal issues 

that arise during the hearing itself, such 

as the immigration judge conducting the 

hearing in an unfair manner, which the 

commenter states, would necessarily not 

be included in briefing that had been 

drafted before the hearing. 

Commenters alleged that the rule 

would unfairly disadvantage 

individuals who are unrepresented, 

unfamiliar with the law, and nonEnglish speaking. 

One commenter objected to the 

NPRM’s statement that a party seeking 

to introduce new evidence in 

proceedings should file a motion to 

reopen. 85 FR at 52500. The commenter 

stated that a motion to reopen while an 

appeal is pending at the BIA does not 

make sense because an order is not final 

until the BIA resolves the appeal under 

8 CFR 1241.1(a). 

One commenter suggested that it 

would be unfair for EOIR to require that 

the respondent’s counsel fully brief 

every issue before the hearing and not 

to require the same of DHS’s counsel. 

Response: As noted elsewhere, to the 

extent that commenters erroneously 

believe this rule applies only to 

respondents and not to DHS, they are 

mistaken. Further, to the extent that 

commenters assert the BIA should be 

allowed unfettered discretion to remand 

cases for any purpose, such a suggestion 

is inconsistent with the Board’s limited, 

and regulatorily defined, authority. 

Additionally, as discussed, supra, the 

rule does not preclude the Board from 

remanding a case in which the 

immigration judge committed an error 

of law by insufficiently developing the 

record. To the extent that commenters 

misconstrue the rule or suggest changes 

to the rule that are inconsistent with the 

Board’s authority, the Department 

declines to accept those suggestions. 

Commenters are incorrect that this 

rule has no basis in the law, departs 

from agency practice, violates the right 

to present evidence on one’s own 

behalf, and could result in orders of 

removal that were issued 

notwithstanding meritorious defenses 

and dispositive collateral challenges in 

criminal matters. As noted in the 

NPRM, the Supreme Court has 

recognized that ‘‘the BIA is simply a 

regulatory creature of the Attorney 

General, to which he has delegated 

much of his authority under the 

applicable statutes.’’ 85 FR at 52492 n.1 

(quoting Doherty, 502 U.S. at 327). 

Although there is a reference to the BIA 

in section 101(a)(47)(B) of the Act, 8 

U.S.C. 1101(a)(47)(B), that reference 

occurs only in the context of 

establishing the finality of an order of 

deportation or removal after the BIA has 

affirmed the order or the time allowed 

for appeal to the BIA has expired. It 

does not address the scope of the BIA’s 

authority or its procedures. 

Accordingly, the Department is well 

within its authority to limit the scope of 

remands to the immigration courts, as it 

doing now in order to improve 

efficiency. 

At the same time, the Department 

recognizes the BIA’s expertise in 

appellate immigration adjudications. 

Indeed, one purpose for this rulemaking 

is to better empower the BIA to make 

final decisions where possible, as the 

Department recognizes it is capable of 

doing. To that end, the Department 

agrees with commenters who noted the 

Board’s expertise and experience, and it 

notes that this provision fully 

effectuates that expertise and experience 

by allowing the Board to render final 

decisions in certain circumstances. 

Further, nothing in the rule precludes 

a respondent from submitting evidence 

on his or her own behalf during the 

course of removal proceedings before 

the immigration judge, although the rule 

does, within its authority, limit the 

BIA’s authority to remand a decision 


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37The Department notes that at least one 

commenter appears to have misunderstood the 

procedural posture at which a respondent would 

file a motion to reopen, expressing concern that it 

would not be sensible for the alien to file a motion 

to reopen while removal proceedings were still 

pending. The Department clarifies that, as 

contemplated by the statute, an alien would file a 

motion to reopen to submit new evidence after 

proceedings have concluded. Otherwise, there is no 

removal order or proceeding to, in fact, reopen. 

38The Department also notes that in the asylum 

context, which appears to the principal area of 

concern for commenters, superseding or intervening 

law that indisputably affects an alien’s claim will 

likely be rare because each asylum application is 

adjudicated based on its own facts and evidentiary 

support. In the asylum context, case law does not 

establish categorical bases for granting or denying 

asylum claims. See, e.g., SER.L. v. Att’y Gen., 894 

F.3d 535, 556 (3d Cir. 2018) (‘‘Consequently, it does 

not follow that because the BIA has accepted that 

one society recognizes a particular group as distinct 

that all societies must be seen as recognizing such 

a group. . . . Thus, as a matter of logic, it is invalid 

to assert that proof in one context is proof in all 

contexts.’’). Consequently, intervening case law that 

categorically renders an alien eligible for relief in 

the asylum context—but does not affect the alien’s 

removability—will be rare. 

39The Department notes that statutory changes 

providing opportunities for relief typically include 

provisions regarding application of the changes to 

existing cases, and those changes would be 

applicable on their own terms. See, e.g., EOIR, 

Policy Memorandum 20–06: Section 7611 of the 

National Defense Authorization Act of 2020, Public 

Law 116–92 (Jan. 13, 2020), available at https://

www.justice.gov/eoir/page/file/1234156/download 

(explaining the application of the availability of a 

new statutory form of relief for certain Liberian 

nationals to cases before EOIR, including cases at 

the BIA). 

back to the immigration judge on the 

basis of new evidence at the 

administrative-appeals stage. 8 CFR 

1003.1(d)(3)(iv)(D), (d)(3)(7)(ii). The 

Department notes that motions to 

remand are an administrative, 

adjudicatorily-created concept, not 

rooted in statute, which was later 

codified by the regulations. Further, as 

the NPRM explained, the BIA has 

treated new evidence submitted on 

appeal inconsistently, despite both case 

law and regulations addressing such 

situations. 85 FR at 52500–01. The 

concerns raised by commenters do not 

outweigh the need for uniform and 

consistent treatment to ensure that all 

aliens who obtain allegedly new 

evidence and wish to submit it after an 

immigration judge has rendered a 

decision are treated in a similar fashion. 

Moreover, the INA explicitly provides 

a statutory avenue to address new 

evidence: A motion to reopen. See INA 

240(c)(7), 8 U.S.C. 1229a(c)(7).37 While 

the changes require that a party comply 

with the statutory requirements for a 

motion to reopen in order to submit 

such evidence, the rule does not impact 

motions to reopen. To the contrary, the 

rule recognizes that motions to remand 

are generally considered analogous to 

motions to reopen or reconsider and 

that due to the inconsistent treatment of 

allegedly new evidence on appeal 

through the lens of a motion to remand, 

it is both more efficient and more likely 

to promote uniformity and 

consistency—and also more likely to 

reduce gamesmanship on appeal—to 

simply rely on the established motion to 

reopen procedure. Thus, because the 

sole statutorily created process to 

consider new evidence is still available, 

the Department finds that aliens’ rights 

regarding the submission of new 

evidence, including evidence of 

criminal-related issues, remain intact. 

Cf. Sankoh, 539 F.3d at 466 (‘‘As we 

have held many times, however, 

administrative notice does not violate 

the alien’s due process rights because an 

alien can challenge any factual finding 

through a motion to reopen.’’ (citing 

Kaczmarczyk v. INS, 933 F.2d 588, 594 

(7th Cir. 1991))). Additionally, to the 

extent that the Board makes an error of 

law or fact in its decision, the rule does 

not affect the ability of a party to file a 

motion to reconsider. 8 CFR 1003.2(b). 

In short, the rule does not alter the 

availability of established mechanisms 

for addressing new evidence or new 

issues; instead, it simply eliminates an 

inconsistently applied and confusing 

procedural avenue that is redundant 

given those clearer, established 

mechanisms. 

For reasons stated, supra, the 

Department rejects the assertion that the 

rule would have a singular effect on 

aliens who are unrepresented, 

unfamiliar with the law, and nonEnglish speaking. These concerns are 

speculative, unsupported by evidence, 

and contrary to decades of experience 

adjudicating appeals in immigration 

cases. Such aliens already participate in 

BIA procedures under existing 

regulations—and have done so for many 

years—including through the 

submission of motions to reopen, and 

nothing in the rule treats them in a 

categorically different manner. Further, 

commenters did not explain why such 

aliens would be able to file a motion to 

remand but not a motion to reopen nor 

how such aliens would be able to 

comprehend the BIA’s confusing and 

inconsistent standards for new 

evidence, 85 FR at 52500–01, if they 

were retained. To the extent that 

commenters’ concerns are, thus, 

unfounded or internally inconsistent, 

the Department declines to incorporate 

them into this final rule. 

With respect to commenter concerns 

that the BIA would be unable to remand 

a decision even where presented with 

superseding or intervening case law, 

including litigation surrounding 

regulations or precedential decisions 

that were the basis for denying relief, 

the Department rejects such comments 

because they are based on either a 

deliberately obtuse or wholly incorrect 

reading of the rule. Nothing in the rule 

prohibits the BIA from remanding a case 

when an immigration judge has made an 

error of law, a legal question of 

jurisdiction has arisen, or an alien is no 

longer removable, subject to other 

requirements. 8 CFR 1003.1(d)(7)(ii). 

Thus, to the extent that superseding or 

intervening law caused the immigration 

judge to make an error of law, raised a 

question of jurisdiction, or caused an 

alien to no longer be removable, the 

Board can still remand on those bases 

under this final rule. 

If the superseding or intervening legal 

development did not raise a question of 

jurisdiction, cause the immigration 

judge’s decision to be an error of law, 

or affect an alien’s removability, then 

the BIA may not remand the case on 

that basis; however, commenters did not 

persuasively argue why an irrelevant 

change in law should form the basis for 

a remand. To the extent that 

commenters focus solely on changes in 

law related to applications for relief or 

protection, the Department believes that 

the majority of superseding intervening 

law would be relevant to legal 

arguments that had already been 

presented below, thus mooting 

commenter concerns for the vast 

majority of cases.38 In the rare case in 

which intervening law categorically 

established an alien’s eligibility for 

relief on a basis that the alien did not 

address below and the intervening law 

did not state how it should be applied 

to pending cases,39 an alien remains 

eligible to file a motion to reopen to 

have that claim considered. See INA 

240(c)(7), 8 U.S.C. 1229a(c)(7). 

The Department disagrees that 

requiring the alien to utilize statutorybased methods for presenting new 

evidence after an immigration judge has 

rendered a decision, rather than motions 

to remand, would lead to delays or 

conflict with the purpose of the rule. As 

discussed in the NPRM, the BIA’s 

treatment of new evidence on appeal is 

confusing and inconsistently applied. 

85 FR at 52500–01. An additional 

principal concern of the rule is to 

reduce unnecessary remands and ensure 

the BIA is able to move forward 

independently with adjudicating as 

many appeals as possible. As noted in 

the NPRM, id. at 52501, motions to 

remand created confusion, inconsistent 

results, gamesmanship, and an 

operational burden on the immigration 

judge, who has already used significant 

judicial resources during the underlying 


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proceeding. After reviewing 

commenters’ concerns, weighing 

alternatives, including retaining the 

status quo, and assessing the 

significance of the operational burdens 

imposed by motions to remand, the 

availability of more uniform treatment 

of new evidence than currently exists, 

and the importance of encouraging the 

presentation of all available and 

probative evidence at the trial level, the 

Department has determined that the 

burden of potential motions to reopen 

based on new evidence—which are also 

already routinely filed independently of 

the rule and have generally increased in 

recent years, EOIR, Adjudication 

Statistics: Motions, Oct. 13, 2020, 

available at https://www.justice.gov/ 

eoir/page/file/1060896/download—is 

ultimately less than the burden of 

addressing motions to remand through 

unclear and inconsistent practices, 

including practices that create 

downstream burdens on immigration 

judges due to improper remands or 

gamesmanship by aliens who have 

received unfavorable decisions from 

immigration judges and merely seek a 

second bite at the apple with the 

concomitant delay in the resolution of 

proceedings that such a request entails. 

Commenters are incorrect that BIA 

members would not have the authority 

to remand in instances where they 

observe unjust or incorrect immigration 

judge decisions. The rule generally 

authorizes the BIA to remand a case 

where, applying the appropriate 

standard of review, it has identified an 

error of law or fact. 8 CFR 

1003.1(d)(7)(ii). The regulation specifies 

some limitations to this general 

authority in order to ensure that 

remands are only ordered where legally 

appropriate to ensure the fair 

disposition of the case, but none of 

these exceptions would prevent the BIA 

from ordering a remand, in an 

appropriate case, where the immigration 

judge has committed reversible error on 

a dispositive issue in the case. 

The first limitation states that the BIA 

cannot remand a case where it has not 

first specified the standard of review 

that it applied and identified the 

specific error or errors made by the 

adjudicator below in order to ensure 

that the BIA’s order to remand is based 

upon the correct legal standards and 

provides the immigration judge below 

and the parties with clarity over the 

basis for a finding of reversible error. 

See 8 CFR 1003.1(d)(7)(ii)(A). To the 

extent commenters objected to this 

provision, they did not persuasively 

explain why it is inappropriate to 

require an appellate body to specify the 

standard of review it employed when 

remanding a case, and the Department 

is unaware of any such reason. Such 

specification assists the parties, the 

immigration judge, and potentially a 

Federal court, and commenters did not 

persuasively explain why it should not 

be a part of a BIA remand decision. 

The second limitation provides that 

the BIA cannot remand based upon a 

‘‘totality of the circumstances’’ standard, 

which, as noted in the NPRM, is not a 

standard authorized by the governing 

law and regulations. See 8 CFR 

1003.1(d)(7)(ii)(B). The Department 

discusses comments on this provision in 

more detail, infra. 

Third, the BIA may not remand a 

decision based upon a legal argument 

that was not presented below, unless it 

pertains to jurisdiction or a material 

change in fact or law underlying a 

removability ground that arose after the 

date of the immigration judge’s decision 

and where substantial evidence 

indicates that change vitiated all 

grounds of removability applicable to 

the alien. See 8 CFR 1003.1(d)(7)(ii)(C). 

Such a limitation is consistent with 

long-standing requirements that 

appealing parties must have preserved 

the issue for appeal below. Matter of J– 

Y–C–, 24 I&N Dec. at 261 n.1 (‘‘Because 

the respondent failed to raise this claim 

below, it is not appropriate for us to 

consider it for the first time on 

appeal.’’); Matter of Edwards, 20 I&N 

Dec. at 196 n.4 (‘‘We note in passing, 

however, that because the respondent 

did not object to the entry of this 

document into evidence at the hearing 

below, it is not appropriate for him to 

object on appeal.’’). This is also 

consistent with other appellate court 

standards, which are instructive. See 

Arsdi v. Holder, 659 F.3d 925, 928 (9th 

Cir. 2011) (‘‘As we have often reiterated, 

it is a well-known axiom of 

administrative law that if a petitioner 

wishes to preserve an issue for appeal, 

he must first raise it in the proper 

administrative forum.’’) (internal 

quotations omitted). Again, commenters 

did not explain why the Department 

should abandoned these wellestablished principles, and the 

Department is unaware of any 

persuasive reason for doing so. 

Fourth, the BIA may not remand a 

decision through an exercise of sua 

sponte authority, for reasons discussed 

below at Part II.C.3.k. See 8 CFR 

1003.1(d)(7)(ii)(D). 

Fifth, the BIA may not remand a 

decision solely to consider a request for 

voluntary departure or failure to issue 

advisals following a grant of voluntary 

departure where other parts of this 

rulemaking authorize the BIA to issue 

final decisions in such matters. See 8 

CFR 1003.1(d)(7)(ii)(E), (d)(7)(iv). The 

Department further discusses this 

provision, infra. 

Sixth, the BIA may generally not 

remand the case for further factfinding 

unless the following criteria are met: the 

party seeking remand preserved the 

issue below; the party seeking remand, 

if it bore the initial burden of proof, 

attempted to adduce the additional facts 

below, additional factfinding would 

alter the outcome or disposition of the 

case, the additional factfinding would 

not be cumulative of the evidence 

already presented or contained in the 

record; and either the immigration 

judge’s factual findings were clearly 

erroneous or remand to DHS is 

warranted following de novo review. 8 

CFR 1003.1(d)(3)(iv)(D). The 

Department addresses commenters’ 

concerns on this provision in more 

detail, supra. 

The Department disagrees with 

commenters’ concerns that limiting the 

BIA’s authority to order remands to 

exclude issues that were not raised 

below, with specified exceptions, would 

not permit parties to request a remand 

based on legal issues that arose during 

a hearing, such as the immigration judge 

conducting the hearing in an unfair 

manner. Commenters did not explain 

why such an example would not be 

raised on appeal in the normal course, 

and existing waiver principles 

independent of this rule would 

currently preclude its consideration if it 

were not raised on appeal. In short, if a 

party believes that the immigration 

judge’s decision should be vacated on 

the basis that the immigration judge 

conducted the hearing in an unfair 

manner, it is unclear why the party 

would not be able to raise that issue 

when filing his or her appeal, as the 

facts upon which the party based his or 

her decision would have clearly been 

available to the party at that time. See 

8 CFR 1003.3(b) (‘‘The party taking the 

appeal must identify the reasons for the 

appeal in the Notice of Appeal (Form 

EOIR–26 or Form EOIR–29) or in any 

attachments thereto, in order to avoid 

summary dismissal pursuant to 

§ 1003.1(d)(2)(i). The statement must 

specifically identify the findings of fact, 

the conclusions of law, or both, that are 

being challenged.’’). 

Comment: Commenters were opposed 

to the rule’s prohibition on the BIA 

remanding cases based on the ‘‘totality 

of the circumstances.’’ 8 CFR 

1003.1(d)(7)(ii)(B). 

One commenter noted that the 

‘‘totality of the circumstances’’ standard 

inherently includes clearly erroneous 

findings of fact or prejudicial errors of 

law. Specifically, the commenter stated, 


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40This distinction is best illustrated by the 

Board’s decision in Matter of Miranda-Cordiero, 27 

I&N Dec. at 554 which was cited by at least one 

commenter. In that decision, the Board noted that 

‘‘[w]hether proceedings should be reopened sua 

sponte is a discretionary determination to be made 

based on the totality of circumstances presented in 

each case,’’ but it did not apply or purport to apply 

such a standard on appellate review. Matter of 

Miranda-Cordiero, 27 I&N Dec. at 554–55. Rather, 

it appropriately applied a de novo standard of 

review to that question of discretion, consistent 

with 8 CFR 1003.1(d)(3)(ii). Id. at 555 (‘‘Upon our 

de novo review, we find that the respondent’s case 

does not present an exceptional situation that 

warrants the exercise of discretion to reopen sua 

sponte, regardless of the availability of a provisional 

waiver.’’ (emphasis added)). 

that on a record where no findings of 

fact were clearly erroneous, and if no 

errors of law occurred, then a totality of 

the circumstances review would never 

permit remand. 

Commenters asserted that the 

Department did not consider relevant 

precedential case law from the Supreme 

Court and Federal courts of appeals 

which, the commenter claims, impose a 

‘‘totality of the circumstances’’ standard 

in a variety of circumstances, many of 

which are applicable to immigration 

removal proceedings. For example, one 

commenter cites Jobe v. INS, which 

stated that legislative history of that 

provision of the Act reflected Congress’s 

concern with fairness and required the 

Attorney General to ‘‘look at the totality 

of circumstances to determine whether 

the alien could not reasonably have 

expected to appear’’ 212 F.3d 674 (1st 

Cir. 2000) (quoting H.R. Conf. Rep. 101– 

955 (1990)) (withdrawn at request of 

court). The commenter noted that the 

BIA has previously recognized that the 

statute’s legislative history requires an 

adjudicator to evaluate the totality of the 

circumstances to resolve this issue, 

citing Matter of W–F–, 21 I&N Dec. 503, 

509 (BIA 1996). The commenter also 

stated that the rule was contrary to 

decades of past precedent, citing, inter 

alia, Matter of Miranda-Cordiero, 27 

I&N Dec. 551, 554 (BIA 2019); Matter of 

W–F–, 21 I&N Dec. at 509; Jobe, 212 F.3d 

674; and Alrefae v. Chertoff, 471 F.3d 

353, 360–61 (2d Cir. 2006) (Sotomayor, 

J.). 

At least one commenter noted that the 

rule mentioned that there is no statutory 

or regulatory basis for the totality of the 

circumstances standard but failed to 

acknowledge that statutes and 

regulations are not the only types of law 

applicable in removal proceedings or 

other proceedings reviewed by the BIA. 

Accordingly, the commenter stated, the 

Department’s failure to consider other 

sources of law, many of which utilize 

the ‘‘totality of the circumstances’’ 

standard of review, renders the rule’s 

allegation—that remands justified by 

review of a totality of the circumstances 

are without merit—highly questionable. 

Another commenter further stated 

that the totality of the circumstances 

standard was particularly important for 

the BIA’s review of in absentia motions, 

in order to resolve whether exceptional 

circumstances exist pursuant to section 

240(b)(5)(C)(i) of the Act, 8 U.S.C. 

1229a(b)(5)(C)(i). The commenter also 

disagreed with the Department’s 

position that there was no statutory or 

regulatory basis for the ‘‘totality of the 

circumstances’’ standard. 

One commenter criticized the 

Department for proposing such a rule 

change where it did not allege that the 

‘‘totality of the circumstances’’ standard 

had resulted in incorrect or unfair case 

outcomes. Another commenter stated 

that the ‘‘totality of the circumstances’’ 

standard should be maintained because 

decisions should not be permitted on a 

single factor or on some factors, without 

taking into account the totality of the 

circumstances because it would allow 

adjudicators to pick the facts that they 

wish to use to make a decision that 

could be based upon pre-existing 

prejudices, which would violate fairness 

and justice. A commenter stated that, 

without the totality of the circumstances 

standard, parties could not provide 

details that were not apparent in the 

initial case, either through 

misinterpretation or misunderstanding, 

or through recently obtained 

documents. 

Response: As an initial point, the 

Department notes that many, if not all, 

commenters confused an appellate 

standard of review with a trial-level 

determination of ‘‘totality of the 

circumstances.’’ Neither the INA nor 

applicable regulations has ever 

authorized a ‘‘totality of the 

circumstances’’ standard of review by 

the BIA. Prior to 2002, the BIA reviewed 

all aspects of immigration judge 

decisions de novo. Regulatory changes 

in 2002 authorized the Board to review 

immigration judge factual findings for 

clear error and all other aspects of such 

decisions de novo. 8 CFR 1003.1(d)(3); 

Matter of S–H–, 23 I&N Dec. 462 (BIA 

2002); See 67 FR at 54902. Accordingly, 

the BIA has never been authorized to 

review decisions based on the ‘‘totality 

of the circumstances,’’ and the rule 

merely codifies that principle. 

Further, the Department is unaware of 

any appellate court—and commenters 

did not provide an example—employing 

a ‘‘totality of the circumstances’’ 

standard of review for questions of law, 

fact, discretion, judgment or other 

appellate issues similar to those 

considered by the BIA. 8 CFR 

1003.1(d)(3). The Department agrees 

that ‘‘totality of the circumstances’’ may 

be a relevant trial-level consideration in 

various situations and that an appellate 

body may review an underlying 

determination by the trial entity of the 

‘‘totality of the circumstances’’; 

however, that is not the same as using 

‘‘totality of the circumstances’’ as a 

standard for appellate review. See, e.g., 

Cousin v. Sundquist, 145 F.3d 818, 832 

(6th Cir. 1998) (‘‘We therefore undertake 

de novo review of the district court’s 

analysis of the totality of the 

circumstances[.]’’). 

To the commenter’s point about the 

BIA’s review of in absentia motions and 

the totality of the circumstances 

standard, the Department notes again 

that the commenter misapprehends a 

distinction between the legal standard 

that an adjudicator should apply in 

making determinations about whether 

an individual has been properly ordered 

removed in absentia and the standard 

for review of an appeal. Although the 

question of whether ‘‘exceptional 

circumstances’’ have been established 

for purposes of considering a motion to 

reopen an in absentia removal order 

may involve a consideration of the 

totality of the circumstances, that 

question is distinct from the standard of 

review employed by the BIA in 

reviewing the immigration judge’s 

resolution of such a question on appeal. 

In other words, the BIA should evaluate 

the immigration judge’s decision under 

the appropriate standard of review, but 

that standard is not one of ‘‘totality of 

the circumstances.’’ More specifically, 

assuming arguendo that an individual 

seeking remand on the basis that the 

immigration judge wrongly applied a 

totality of the circumstances standard, 

the motion to remand would not be, 

itself, based on a totality of the 

circumstances standard, but rather 

based on the immigration judge’s 

alleged error of law in applying that 

standard.40

Although the Department recognizes 

that the BIA may have suggested or 

intimated that it was using such a 

standard of review in individual cases 

in the past, its lack of clarity clearly 

supports the change in this rule. 

Whether the Board previously failed to 

apply a correct or appropriate standard 

of review when remanding a case based 

on the totality of the circumstances or 

whether it merely was unclear about the 

standard it was actually applying, the 

rule ensures that all parties are now 

aware that there is no such standard of 

review and that the Board will be 

clearer in the future on this issue. 

Contrary to commenters’ suggestions, 

neither the lack of clarity nor the 

potential to apply an incorrect standard 


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of review are persuasive reasons to 

continue the Board’s occasional prior 

practice on this issue in perpetuity. 

Rather, the Department believes it is 

important to reiterate the BIA’s 

commitment to adhering to regulatory 

standards in order to ensure consistent 

adjudication of similarly situated cases. 

Commenters’ suggestions that, 

without a ‘‘totality of the 

circumstances’’ standard of review, 

adjudicators would specifically select 

facts that would allow them to deny 

remands for otherwise meritorious cases 

is both contrary to the existing 

regulations—which do not permit such 

a standard—and unsupported by any 

evidence. Members of the BIA will 

consider whether remand for any of the 

permitted purposes would be 

appropriate after an impartial 

examination of the record and applying 

the correct standard of review, without 

reference to a regulatory atextual—and 

almost wholly subjective—totality of the 

circumstances standard of review. See 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.’’). Indeed, the Department 

believes that the nebulous and vague 

‘‘totality of the circumstances’’ standard 

that the BIA may have previously 

applied is itself ripe for exactly the kind 

of unfair ‘‘cherry picking’’ that the 

commenter fears. 

Regarding commenters’ discussion of 

case law and the totality of the 

circumstances standard, the Department 

first notes that the BIA and Federal 

appellate courts do not necessarily 

employ parallel standards of review. 

Compare Sandoval-Loffredo v. 

Gonzales, 414 F.3d 892, 895 (8th Cir. 

2005) (applying ‘‘deferential substantial 

evidence standard’’ to review agency 

findings of fact), with, e.g., 8 CFR 

1003.1(d)(3)(i) (establishing a clear error 

standard for reviewing immigration 

judge findings of fact). Nevertheless, as 

discussed, supra, the Department is 

unaware of any Federal appellate court 

that uses a ‘‘totality of the 

circumstances’’ standard of review, and 

commenters did not provide any such 

examples. 

The Department disagrees with 

commenter concerns regarding whether 

the ‘‘totality of the circumstances’’ 

standard has resulted in incorrect or 

unfair case outcomes. Regardless of 

whether this putative standard of 

review, which is not authorized by 

statute or regulation, results in 

‘‘incorrect’’ or ‘‘unfair’’ case outcomes, 

which are subjective determinations 

made by commenters, the Department is 

issuing this rule to make clear that there 

is no existing statutory or regulatory 

basis for applying this standard of 

review even though the BIA, arguably, 

may have utilized it in the past without 

authority. 85 FR at 52501. In short, the 

risk of continued confusion over 

whether the Board applied the correct 

standard of review—and whether there 

exists a standard of review outside of 

the regulatory text that is applied only 

as the BIA subjectively sees fit in 

individual cases—significantly 

outweighs commenters’ concerns that it 

should remain as a nebulous quasiequitable authority whose provenance is 

unknown and whose application 

approaches an ad hoc basis. 

Nonetheless, in light of the confusion 

evidenced by commenters, the 

Department in this final rule is making 

clear that the Board cannot remand a 

case following a totality of the 

circumstances standard of review, 

though an immigration judge’s 

consideration of the totality of the 

circumstances may be a relevant subject 

for review under an appropriate 

standard. 

Finally, to the extent that commenters 

objected to the specific prohibition on 

the Board’s ability to remand cases in 

the ‘‘totality of circumstances’’ solely 

because they perceived such remands as 

being beneficial only to respondents, the 

Department finds that an unpersuasive 

basis for declining to issue this rule. 

Rather, those comments support the 

Department’s concern about the 

inappropriate use of such a putative 

standard of review and its decision to 

codify the inapplicability of such a 

standard to the extent that it has been 

applied in a manner that benefits one 

party over the other and, thus, raises 

questions regarding the Board’s 

impartiality. See 8 CFR 1003.1(d)(1); 5 

CFR 2635.101(b)(8); BIA Ethics and 

Professionalism Guide at sec. V. 

i. Issues With Respect to Limiting Scope 

of Remand to Immigration Court 

Comment: Commenters also raised 

concerns regarding the Department’s 

proposed changes that would limit the 

scope of a remand to the immigration 

court. For example, commenters 

suggested, the rule would unfairly 

impact individuals who had been 

subject to ineffective assistance of 

counsel before the immigration court 

but whose cases had been wrongly 

decided for other reasons. Such 

individuals, the commenter suggested, 

should not be limited to their prior, 

poorly developed record on remand 

when they might be represented by new 

counsel. One commenter suggested that 

limiting the scope of a remand does not 

improve efficiency because once the 

case is back before the immigration 

judge, he or she may take new evidence 

and engage in fact finding to resolve 

issues that may later have to be 

addressed in a motion to reopen. 

Commenters also suggested that an 

individual should not be bound to the 

record before the immigration judge 

where a new avenue of relief had 

become available in the intervening 

period of time when he or she was 

waiting for their new individual 

hearing. One commenter stated that they 

opposed what they characterized as the 

Department’s attempt to force 

immigration judges to improperly issue 

removal orders for the purposes of 

eliminating confusion for immigration 

judges. The commenter suggested that 

this rule would harm both respondents 

and immigration judges. 

Commenters stated that the rule 

change arbitrarily precluded the 

immigration judge from considering 

new facts or law and would not improve 

efficiency because it would force 

litigation of such issues to be 

contemplated upon a separate motion to 

reopen, after the conclusion of 

proceedings, when it could be more 

efficiently addressed on remand. The 

commenter also suggested that there 

would be increased litigation about the 

constitutionality of the rule which 

would also decrease efficiency and 

increase inconsistent outcomes. Another 

commenter stated that issues that could 

have previously been resolved with a 

‘‘simple remand’’ and straightforward 

adjudication in immigration court 

would now require the BIA to produce 

a transcripts, order briefing, and review 

briefing by both sides before rendering 

a decision. 

Response: The Department disagrees 

with commenter concerns regarding 

limiting the scope of remand to the 

immigration court. The rule is intended 

to alleviate confusion for immigration 

judges regarding the scope of a remand. 

‘‘[E]ven where the [BIA] clearly intends 

a remand to be for a limited purpose[,]’’ 

an immigration judge interpreting the 

remand as a ‘‘general remand’’ would 

allow consideration, litigation, or 

relitigation, of the myriad of issues that 

had either already been addressed or 

were unrelated to the initial 

proceedings. See 85 FR at 52502. 

Commenters did not explain why an 

immigration judge should not be bound 

by the intent of a Board remand nor why 

the Board should not adopt the same 

principle used by Federal appellate 

courts distinguishing between general 

and limited remands. See, e.g., United 

States v. Campbell, 168 F.3d 263, 265 

(6th Cir. 1999) (‘‘Remands, however, can 

be either general or limited in scope. 


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Limited remands explicitly outline the 

issues to be addressed by the district 

court and create a narrow framework 

within which the district court must 

operate. General remands, in contrast, 

give district courts authority to address 

all matters as long as remaining 

consistent with the remand.’’ (internal 

citations omitted)). As the NPRM 

explained, all Board remands are 

currently de facto general remands, even 

when the intent of the remand is clearly 

limited. 85 FR at 52496; see BermudezAriza v. Sessions, 893 F.3d 685, 688–89 

(9th Cir. 2018) (‘‘We think it likely that 

the BIA limited the scope of remand to 

a specific purpose in this case by stating 

that it was remanding ‘for further 

consideration of the respondent’s claim 

under the Convention Against Torture.’ 

That said, the BIA’s remand order 

nowhere mentioned jurisdiction, much 

less expressly retained it. Thus, 

irrespective of whether the BIA 

qualified or limited the scope of 

remand, the IJ had jurisdiction to 

reconsider his earlier decisions under 8 

CFR 1003.23.’’). However, the 

Department sees no basis to retain such 

an anomalous system or to continue to 

preclude the BIA from exercising its 

appellate authority to issue limitedscope remands. 

Commenters did not explain why 

such an inefficient limitation—and one 

that encourages the re-litigation of 

issues already addressed by an 

immigration judge and the Board— 

should be retained. Requiring every 

remand to constitute a general remand 

both increases inefficiency—by 

requiring the parties to potentially reargue issues previously addressed—and 

undermines finality by allowing a 

second chance to argue and appeal 

issues to the Board that the Board has 

already ruled upon once. 

Additionally, it is not appropriate for 

the immigration court to, without 

explicit directive, expand the scope of 

its decision beyond that which is 

desired by its reviewing court. Cf. 8 CFR 

1003.1(d)(1) (‘‘The Board shall function 

as an appellate body charged with the 

review of those administrative 

adjudications under the Act that the 

Attorney General may by regulation 

assign to it.’’). The Department notes 

that, should a respondent disagree with 

the immigration judge’s determinations 

made on remand, he or she may appeal 

that determination to the BIA. Thus, the 

respondent would not be prejudiced by 

limiting the scope of the remand to 

issues as directed by the appellate body. 

To the extent that new relief becomes 

available in the intervening time while 

a case is being rescheduled before the 

immigration court on remand, the 

respondent may file a motion to 

reconsider the scope of the BIA’s 

remand decision. Alternatively, the 

respondent may file a motion to reopen 

or reconsider with the immigration 

judge after the judge enters a new 

decision following the remand. The 

Department further notes that such 

issues may generally be appealed to the 

Federal circuit courts of appeals. 

Commenters are correct that aliens 

would submit motions to reopen after 

the BIA’s adjudications, but the 

Department disagrees that this 

procedure would lead to delays or 

conflict with the purpose of the rule. 

Instead, one of the main animating 

purposes of the rule is to reduce 

unnecessary and inefficient remands 

and to ensure the BIA is able to move 

forward independently with as many 

appeals as possible, and maintaining a 

general remand rule erodes both of 

those goals. 

The Department disagrees with the 

commenter’s concerns that limiting the 

scope of remand would unfairly impact 

individuals who have been subject to 

ineffective assistance of counsel. As an 

initial point, the commenter did not 

explain how such a claim would arise 

in either a general or limited remand 

situation, as claims of ineffective 

assistance of counsel on direct appeal 

are relatively rare; nevertheless, such 

claims could be considered by the Board 

as with any other appellate argument. 

Moreover, individuals who have been 

subjected to ineffective assistance of 

counsel may pursue reopening of their 

proceedings pursuant to Matter of 

Lozada, 19 I&N Dec. 637 (BIA 1988). In 

short, nothing in this final rule affects 

an alien’s ability to raise claims of 

ineffective assistance of counsel through 

established channels. 

The Department agrees with 

commenters that administrative 

appellate review is an important part of 

removal proceedings; however, the 

Department believes that at least some 

commenters have mischaracterized the 

role of administrative appeals as 

maintaining ‘‘court[] checks and 

balances and separation of powers.’’ 

Rather, the BIA exists to review 

immigration court decisions for 

accuracy and adherence to the law, as 

well as providing guidance to 

adjudicators. See 8 CFR 1003.1(d)(1). 

This role is unrelated to the concepts of 

checks and balances and separation of 

powers as they exist between separate, 

coequal branches of government. 

To the extent that commenters 

objected to the codification of the 

Board’s authority to issue limited 

remands solely because they perceived 

such remands as being beneficial only to 

respondents, the Department finds that 

an unpersuasive basis for declining to 

issue this rule. First, to reiterate, the 

rule applies to both parties, and general 

remands may benefit or hinder either 

party. It is just as likely that DHS may 

acquire additional evidence or submit 

additional arguments following a 

general remand as the respondent 

would. Consequently, the Department 

focuses on the efficiency aspects of 

eliminating the current ‘‘only general 

remands’’ principle, rather than its use 

to obtain any specific results. Second, to 

the extent that there is a misperception 

that the general remand rule aids only 

aliens, those comments support the 

Department’s decision to authorize the 

Board to issue both limited and general 

remands in order to ensure that the 

Board remains impartial in its treatment 

of both parties. See 8 CFR 1003.1(d)(1); 

5 CFR 2635.101(b)(8); BIA Ethics and 

Professionalism Guide at sec. V. 

Overall, after weighing the potential 

burdens and commenters’ concerns, as 

well as the Board’s position as an 

impartial appellate body, the 

Department has concluded that the 

benefits of expressly allowing the Board 

to issue limited remands, including 

increased efficiency and better 

alignment with the Board’s status as an 

appellate authority, outweigh concerns 

raised by commenters that parties 

should continue to be able to raise all 

issues again on remand, even if they 

have previously been litigated. 

h. New Evidence on Appeal (8 CFR 

1003.1(d)(7)(v)) 

Comment: Numerous commenters 

expressed general concerns about the 

amendments at 8 CFR 1003.1(d)(7)(v) 

regarding the BIA’s consideration of 

new evidence on appeal. For example, 

at least one commenter characterized 

the change as ‘‘banning the submission 

of new evidence.’’ Other commenters 

expressed that the changes were a 

‘‘blatant power grab’’ and offensive to 

the constitution, principles of basic 

decency, and fundamental fairness. 

Commenters explained that motions to 

reopen are inadequate substitutes for 

motions to remand for consideration of 

new evidence due to the strict time and 

number limitations that apply. See INA 

240(c)(7)(C)(i), 8 U.S.C. 1229a(c)(7)(C)(i). 

Commenters stated that motions to 

remand on account of new evidence are 

critical to protecting aliens’ due process 

rights in immigration proceedings and 

that, by banning motions to remand for 

new evidence, the rule would violate 

aliens’ rights at section 240(b)(4)(B) of 

the Act, 8 U.S.C. 1229a(b)(4)(B), to 

present evidence on their behalf. 

Commenters explained that these 


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41The Department recognizes commenters’ 

concerns that motions to reopen are limited by 

statute to certain time and number requirements. 

See INA 240(c)(7)(C)(i), 8 U.S.C. 1229a(c)(7)(C)(i). 

Such limitations are the product of congressional 

judgment and otherwise outside the Department’s 

authority to set or amend. Nevertheless, the 

Department also recognizes that equitable tolling, 

which commenters generally did not acknowledge, 

may also be available in certain circumstances to 

ameliorate time limitations. 

42See Matter of Coelho, 20 I&N Dec. 464, 470– 

71 (BIA 1992). 

motions to remand allow aliens to 

account for situations when evidence 

that is material was formerly 

unavailable. Commenters noted that 

new evidence may be necessary for 

consideration due to intervening 

changes in the law. 

Similarly, commenters disagreed with 

the Department’s characterization of the 

basis for these changes as 

gamesmanship by the parties, noting 

that it frequently takes time for an alien 

to obtain evidence from other sources. 

Commenters also noted that the 

Department did not provide concrete 

evidence or citations in support of these 

characterizations. See 85 FR at 52501. 

In general, commenters expressed 

concern that this provision would allow 

the BIA to remand a case when there is 

derogatory information about an alien as 

a result of the identity, law enforcement, 

or security investigations or 

examinations but prevent aliens from 

seeking a remand for new and favorable 

evidence. This difference, according to 

commenters, gives ‘‘the appearance of 

impropriety and favoritism toward one 

party in the beginning.’’ Another 

commenter alleged that such an 

appearance ‘‘damages the public trust in 

the neutral adjudication process.’’ 

Extending the allegations, a commenter 

claimed that these changes resulted in 

the decision makers no longer being 

neutral or unbiased, a constitutional 

requirement, according to the 

commenter, that was established in 

Mathews v. Eldridge, 424 U.S. 319 

(1976). Commenters noted that allowing 

remands due to information uncovered 

in the investigations without restrictions 

conflicts with the Department’s 

efficiency-based justification for the 

rule. 

Commenters similarly stated that the 

rule favors DHS because all three 

exceptions to remands for consideration 

of new evidence at 8 CFR 

1003.1(d)(7)(v)(B) relate to types of 

evidence more likely to benefit DHS’s 

case or arguments than the alien’s. 

Other commenters warned that this 

change would increase the backlog at 

the immigration courts, the BIA, and the 

circuit courts. For example, at least one 

commenter argued that the change 

would lead to unnecessary delays by 

requiring the BIA to affirm a removal 

order that would be subsequently 

reopened since the BIA could not grant 

a remand to account for new evidence 

while the case is still pending. 

Similarly, commenters stated that 

forcing cases to first have a removal 

order before evidence could be 

considered with a motion to reopen 

unnecessarily starts the removal process 

and creates complications. 

Other commenters voiced concern 

that pro se aliens who improperly label 

their motion to the BIA as a motion to 

remand rather than a motion to reopen 

will have their motions dismissed and 

their new evidence would be 

‘‘foreclosed from consideration.’’ 

Another commenter echoed this 

concern and noted that the government, 

which will always be represented by 

counsel, would not be required to meet 

the same motion formalities as aliens in 

order for the BIA to remand due to 

derogatory information. 

Concerned about refoulement, a 

commenter stated that the Department 

should not make it more difficult for 

asylum seekers, who often have limited 

access to evidence due to harms from 

abusers or traffickers or post-traumatic 

stresses, to submit whatever evidence 

they are able to procure. Similarly, at 

least one commenter noted the 

difficulties faced by children in 

proceedings. 

Commenters described a range of 

situations when they believe the rule 

would prevent aliens from submitting 

new evidence that is relevant or needed. 

Examples include when an alien has 

been approved for a U-visa but has not 

actually received it and when an 

immigration judge unreasonably limited 

the record and the alien needs to 

establish that the immigration judge 

abused her discretion in a prejudicial 

manner. 

Response: The Department has 

addressed many of these comments 

regarding the submission of new 

evidence on appeal, supra, and 

incorporates and reiterates its previous 

response here. Further, the Department 

notes that the rule does not ban the 

submission or consideration of new 

evidence following the completion of 

immigration court proceedings. Instead, 

the changes require that a party comply 

with the statutory requirements for a 

motion to reopen to submit such 

evidence.41 A motion to remand, which 

is an administratively created concept 42

that was later codified into the 

regulations, was never imagined as part 

of the statutory scheme. However, the 

statutory scheme of the INA included an 

avenue to address new evidence—a 

motion to reopen—and the NPRM does 

not impact motions to reopen. Because 

the sole statutorily created process to 

consider new evidence is still available, 

the Department finds that aliens’ due 

process rights regarding the submission 

of new evidence remain intact. 

Commenters mischaracterize the 

Department’s basis for these changes. 

While the Department noted that the 

procedures and availability of motions 

to remand create opportunities for 

gamesmanship, such possible 

gamesmanship was not alone the reason 

for the changes. 85 FR at 52501. Instead, 

as the Department noted, such motions 

have resulted in inconsistent 

applications of the law, particularly 

given the general prohibition on the 

BIA’s consideration of new evidence on 

appeal. 85 FR at 52500–01. Further, 

prohibiting the BIA from considering 

new evidence on appeal is in keeping 

with the immigration judge’s authority 

to manage the filing of applications and 

collection of relevant documents. Under 

8 CFR 1003.31(c), a party who fails to 

file an application or document within 

the time set by the immigration judge is 

deemed to have waived the opportunity 

to file that application or document. 

Further, commenters are incorrect 

that the rule demonstrates bias or 

particular aid to DHS. The NPRM 

contains three exceptions: New 

evidence that (1) is the result of identity, 

law enforcement, or security 

investigations or examination; (2) 

pertains to an alien’s removability under 

the provisions of 8 U.S.C. 1182 and 

1227; or (3) calls into question an aspect 

of the jurisdiction of the immigration 

courts. These are the three situations in 

which the Department determined that 

the need for remand ‘‘overrides any 

other consideration because the new 

evidence calls into question the 

availability or scope of proceedings in 

the first instance.’’ 85 FR at 52501. 

Only the first basis applies solely to 

DHS, and as the Department has 

discussed, supra, that basis is consistent 

with statutes and regulations that are 

beyond the scope of this rule. 8 CFR 

1003.47; INA 208(d)(5)(A)(i), 8 U.S.C. 

1158(d)(5)(A)(i). The second and third 

bases apply equally to both parties and 

allow, for example, a respondent to 

submit new evidence of United States 

citizenship (which would call into 

question the jurisdiction of the 

proceedings) or new evidence that 

suggests the respondent is no longer 

removable. Both parties have vested 

interests in ensuring that removal 

proceedings do not occur in 

circumstances when a respondent is not 

amenable to removal, and the 

Department accordingly disagrees with 


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43To the extent commenters are concerned about 

removal pending a motion to reopen given these 

changes, the Department notes that aliens may seek 

stays of removal from DHS or, as appropriate, the 

BIA. 8 CFR 241.6 and 1241.6. 

44Nevertheless, the Department reiterates that 

approximately 86 percent of aliens are represented 

upon appeal. EOIR Workload and Adjudication 

Statistics, Current Representation Rates, Oct. 13, 

2020, available at https://www.justice.gov/eoir/ 

page/file/1062991/download. 

commenters that these circumstances 

are in any way one-sided or beneficial 

solely or primarily to DHS. 

Further, it is a mischaracterization to 

isolate the first exception, remands for 

evidence that is the result of the alien’s 

identity, law enforcement, or security 

investigations or examinations, as 

particular evidence that the provision is 

biased in favor of the government. As 

discussed in the NPRM, by statute, no 

alien may be granted asylum ‘‘until the 

identity of the applicant has been 

checked against all appropriate records 

or databases maintained by the Attorney 

General and by the Secretary of State, 

including the Automated Visa Lookout 

System, to determine any grounds on 

which the alien may be inadmissible to 

or deportable from the United States, or 

ineligible to apply for or be granted 

asylum.’’ INA 208(d)(5)(A)(i), 8 U.S.C. 

1158(d)(5)(A)(i). As such, the BIA must 

be able to remand on account of 

unfavorable findings resulting from 

identity and security investigations or 

the BIA would not be complying with 

the statutory requirements, and aliens 

would not have an opportunity to 

present relevant evidence in response. 

Commenters are correct that aliens 

may submit motions to reopen after the 

BIA’s adjudication, but the Department 

disagrees that this procedure, compared 

with the submission of new evidence on 

appeal, would lead to delays or conflict 

with the purpose of the rule. As 

discussed in the NPRM, 85 FR at 52500– 

01, and reiterated, supra, the BIA’s 

inconsistent treatment of new evidence 

submitted on appeal warrants a change 

in the regulations, and commenters 

suggestions to the contrary are 

unpersuasive. After weighing the 

relevant equities—including the need 

for clarity and consistency, the 

availability of alternatives such as 

motions to reopen, the burden of 

immigration judges caused by improper 

consideration of new evidence on 

appeal, and the importance of 

encouraging parties to submit all 

available and probative evidence at the 

trial level—the Department decided that 

the benefits of the rule outweigh the 

concerns raised by commenters, 

particularly due to the availability of 

motions to reopen.43

As to the commenters’ concerns 

regarding the risk of unrepresented 

aliens submitting improperly titled 

motions, the issue is not novel, and the 

BIA is familiar in handling such 

matters.44 The BIA reviews each 

submission for its substance. In 

addition, EOIR provides reference 

materials to the public regarding 

procedures before EOIR, which provide 

pro se aliens with assistance when 

engaging in self-representation. See 

generally BIA Practice Manual; see also 

EOIR, Immigration Court Online 

Resource, supra; EOIR, Self-Help 

Materials (Aug. 1, 2019), available at 

https://www.justice.gov/eoir/self-helpmaterials. Thus, the Department does 

not find that mistitled or 

mischaracterized motions will be an 

undue burden on the BIA or present a 

particular risk that aliens’ opportunity 

to have new evidence considered will 

be denied due to formalities. 

The Department finds that the various 

scenarios when motions to remand for 

consideration of new evidence would be 

used do not compel reconsideration of 

the rule. The three exceptions provide 

safeguards that allow for the 

consideration of evidence when it calls 

into question the availability or scope of 

proceedings, and motions to reopen 

remain the appropriate recourse for 

aliens with newly discovered or 

previously unavailable evidence. 

Similarly, a motion to reopen provides 

the proper avenue for newly acquired 

evidence for asylum seekers or others 

concerned about refoulement; thus, 

aliens in that situation are not 

‘‘arbitrarily blocked’’ from presenting 

such evidence. 

i. BIA Timelines (8 CFR 1003.1(e)(1), 

(8)) 

i. Issues With Respect to Screening 

Panel Deadlines 

Comment: Commenters expressed 

concern that the rule’s 14-day timeframe 

for the BIA to conduct its initial 

screening for summary dismissal and 

30-day timeframe for the BIA to issue a 

decision would lead to erroneous 

dismissals in light of the number of 

cases pending before the BIA. 

Specifically, the commenters stated that 

BIA staff conducting the initial 

screening would not know whether the 

case could be summarily dismissed 

until after they have screened the case, 

and that the ‘‘mandatory adjudicatory 

timeframes’’ would pressure screeners 

to review cases quickly rather than 

accurately. Another commenter stated 

that the ‘‘screening panel’’ consisted of 

only one BIA member, who would not 

have sufficient time to meaningfully 

review the appeal. Commenters 

similarly expressed concern that the 

rule’s requirement that a single BIA 

member decide whether to issue a 

single-member decision or refer the case 

for three-member review will cause BIA 

members to emphasize speed over 

fairness in reviewing case records, 

which could result in erroneous denials. 

The commenters suggested that these 

timelines were arbitrary. One 

commenter stated that it supported 

extending the existing regulatory 

deadlines, rather than shortening them. 

One commenter cited several Ninth 

Circuit cases that determined that the 

BIA had erred in its summary dismissal 

of an appeal. See, e.g., Vargas-Garcia v. 

INS, 287 F.3d 882, 885–86 (9th Cir. 

2002) (holding that the BIA Notice of 

Appeal form was inadequate for an 

unrepresented respondent given the 

BIA’s standards of specificity and lack 

of notice in summarily dismissing the 

appeal); Casas Chavez v. INS, 300 F.3d 

1088, 1090 & n.2 (9th Cir. 2002) 

(holding that the notice of the reasons 

for appeal sought by the summary 

dismissal regulation can be met either in 

the Notice of Appeal or in the brief and 

‘‘there is an underlying assumption in 

the regulation that both requirements 

need not be satisfied as long as 

sufficient notice is conveyed to the BIA’’ 

and reasoning that ‘‘[i]f this were not 

true, the constitutionality of the 

regulation would be called into question 

on the basis of denial of due 

process. . . . In the context of 

deportation proceedings, due process 

requires that aliens who seek to appeal 

be given a fair opportunity to present 

their cases.’’) (internal citations and 

quotations omitted); 

Response: Most, if not all, of the 

commenters’ concerns appear to be 

based on a tacit assertion that either 

Board members are incompetent and 

cannot screen an incoming case within 

two weeks or Board members are 

incompetent or unethical and will issue 

summary dismissal orders for reasons 

unrelated to the merits or the law. The 

Department categorically rejects those 

assertions and any comments based on 

such presumptions. Chem. Found., Inc., 

272 U.S. at 14–15 (‘‘The presumption of 

regularity supports the official acts of 

public officers, and, in the absence of 

clear evidence to the contrary, courts 

presume that they have properly 

discharged their official duties.’’). 

There is no evidence—and 

commenters did not provide any—that 

establishing a 14-day timeframe within 

which the BIA must conduct its initial 

screening for summary dismissal and 

30-day timeframe for issuing a decision 


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will result in erroneous denials. The 

BIA has already established such 

internal requirements by policy, see PM 

20–01 at 2 without any known 

degradation in the quality of its 

screening or issuance of summary 

dismissals. 

Contrary to the suggestion of at least 

one commenter, the screening panel is 

comprised of multiple Board members, 

not just one, and the panel consists of 

a ‘‘sufficient number of Board members’’ 

to carry out screening functions. 8 CFR 

1003.1(e). The rule does not alter the 

existence or composition of the 

screening panel. Further, commenters 

did not provide any evidence—and the 

Department is unaware of any—that the 

screening panel is insufficient to carry 

out its functions under the rule. 

As noted in the NPRM, 85 FR at 

52507, the regulations currently direct 

the BIA to screen and ‘‘promptly’’ 

identify cases subject to summary 

dismissal, 8 CFR 1003.1(d)(2)(ii), and 

few commenters acknowledged that 

promptness requirement nor explained 

why an undefined promptness 

requirement is preferable to a clear one 

set at 30 days. These regulatory 

timelines will both improve efficiency 

at the BIA, so that there is more time for 

BIA members and staff to devote to 

cases involving more substantive, 

dispositive issues. They will also benefit 

the parties by offering more expedient 

resolution of appeals amenable to 

summary dismissal allowing more time 

to be devoted to meritorious cases. The 

Department believes that 14 and 30 days 

are ample periods of time to both screen 

and issue decisions, respectively, on 

such limited matters, and these 

timelines will not negatively affect the 

quality or accuracy of such 

adjudications. 

Finally, the Department notes the 

commenter’s citation to cases regarding 

incorrect usage of the BIA’s summary 

dismissal procedures. The BIA may 

dismiss an appeal summarily without 

reaching its merits in the following 

circumstances: Failure to adequately 

inform the BIA of the specific reasons 

for the appeal on either the Notice of 

Appeal (Form EOIR–26) or any brief or 

attachment; failure to file a brief if the 

appealing party has indicated that a 

brief or statement would be filed; the 

appeal is based on a finding of fact or 

conclusion of law that has already been 

conceded by the appealing party; the 

appeal is from an order granting the 

relief requested; the appeal is filed for 

an improper purpose; the appeal does 

not fall within the BIA’s jurisdiction; 

the appeal is untimely; the appeal is 

barred by an affirmative waiver of the 

right of appeal; the appeal fails to meet 

essential statutory or regulatory 

requirements; or the appeal is expressly 

prohibited by statute or regulation. See 

8 CFR 1003.1(d)(2)(i). The cases 

identified by commenters, however, are 

inapposite to this rule, which does not 

amend the circumstances under 8 CFR 

1003.1(d)(2)(i) when the BIA may 

summarily dismiss a case. 

ii. Issues With Respect to Other Appeals 

Comment: One commenter asserted 

that the changes to the BIA’s timelines 

were designed to codify an October 

2019 EOIR policy memo, but the 

commenter stated that the Department 

did not point to any increased efficiency 

or productivity since those new casemanagement procedures were 

implemented. Other commenters 

similarly criticized the Department for 

not adequately explaining how its 

objectives to achieve higher consistency, 

efficiency, and quality of decisions 

would be furthered by limiting BIA 

discretion to manage its own caseload. 

Commenters likened their concerns 

with the new timelines to concerns with 

the BIA’s procedures for affirmances 

without opinion. 

Commenters stated that the rule 

would lead the BIA to issue rushed, not 

quality, decisions. For example, 

commenters stated that BIA decisions 

would be inconsistent since achieving 

consistency requires reviewing previous 

decisions and understanding important 

distinctions between different cases. 

Commenters stated that decisions made 

without sufficient consideration of the 

facts and law would be more likely to 

be overturned for errors, which 

decreases efficiency. 

The commenters also stated that this 

rule would incentivize BIA members to 

decide and deny cases themselves rather 

than determine that a case requires 

three-member review, which is required 

to reverse an immigration judge’s 

decision, because it is faster for a single 

member to affirm an immigration 

judge’s decision. 

Commenters criticized that the 

Department did not explain why the 

BIA would benefit from such 

adjudication timelines when other 

courts can issue rulings only when they 

are prepared to do so. 

One commenter stated that the time 

period proposed for EOIR adjudicators 

is much less than many other 

administrative tribunals. The 

commenter listed, as examples, the 

Board of Veterans Appeals, which the 

commenter alleged took an average of 

247 days to decide an appeal in FY 

2017, and the Social Security 

Administration Appeals Council, which 

the commenter alleged had an average 

processing time for an appeal of 364 

days in FY 2016. 

Response: Again, many, if not all, of 

the commenters’ concerns appear to be 

based on a tacit underlying assertion 

that Board members are either 

incompetent or unethical and, thus, 

cannot or will not perform their duties 

properly in a timely manner, 

notwithstanding the longstanding 

regulatory directive for them to ‘‘resolve 

the questions before [them] in a manner 

that is timely, impartial, and consistent 

with the Act and regulations.’’ 8 CFR 

1003.1(d)(1). The Department 

categorically rejects those assertions and 

any comments based on such 

presumptions. Chem. Found., Inc., 272 

U.S. at 14–15 (‘‘The presumption of 

regularity supports the official acts of 

public officers, and, in the absence of 

clear evidence to the contrary, courts 

presume that they have properly 

discharged their official duties.’’). 

Although aspects of PM 20–01 

informed this rule, it was not the sole 

consideration nor the basis of authority 

for the rulemaking. The Attorney 

General is statutorily authorized to issue 

regulations to carry out his authority in 

the INA. INA 103(g)(2), 8 U.S.C. 

1101(g)(2). Further, the Director 

exercises delegated authority from the 

Attorney General to ensure the 

‘‘efficient disposition of all pending 

cases, including the power, in his 

discretion, to set priorities or time 

frames for the resolution of cases.’’ 8 

CFR 1003.0(b)(1)(i). Additionally, the 

Director may ‘‘[e]valuate the 

performance of the Board of 

Immigration Appeals . . . and take 

corrective action where needed[.]’’ Id. 

§ 1003.0(a)(1)(iv). 

The Department notes that this 

rulemaking, and other recent 

rulemakings, designed to improve 

efficiencies at the BIA, in addition to the 

measures outlined in the policy 

memorandum, to the extent that they 

are not included in the rulemaking will 

work in conjunction to improve 

efficiencies at the BIA. See, e.g., 

Organization of the Executive Office for 

Immigration Review, 84 FR 44537 (Aug. 

26, 2019); 85 FR 18105. The Department 

also notes that the Board has already 

demonstrated improved efficiency by 

completing over 40,000 cases in the first 

full fiscal year (FY) after PM 20–01 was 

issued, which was its highest 

completion total since FY 2008. EOIR, 

Adjudication Statistics: All Appeals 

Filed, Completed, and Pending, Oct. 13, 

2020, available at https://

www.justice.gov/eoir/page/file/1248506/ 

download. 

Contrary to commenters’ assertions, 

this rule does not encourage any 


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45Because an alien may appeal a BIA decision to 

Federal court, this asserted behavior would not be 

efficient or rational—and, thus, would be unlikely 

to occur, contrary to commenters’ allegations— 

because improper adjudications will simply lead to 

more cases being remanded from Federal court. 

Moreover, although commenters did not 

acknowledge it, the Department is cognizant that 

DHS cannot petition a Federal court for review of 

a BIA decision. Thus, if BIA adjudicators were to 

ignore their ethical obligations, disregard the law 

and evidence in each case, and adjudicate cases 

based solely on regulatory timelines in the manner 

alleged by commenters, they would actually have 

an incentive to rule in favor of aliens—contrary to 

the assertions of commenters—because there is 

little likelihood of a subsequent reversal. Thus, if 

commenters were correct about an asserted 

relationship between efficiency and outcomes, then 

that relationship would logically favor aliens, 

which is, paradoxically, a result favored by most 

commenters opposing the rule. Nevertheless, the 

Department reiterates that the improved efficiency 

created by the rule is outcome-neutral, and it 

expects that all Board members will carry out their 

duties in an impartial and professional manner 

consistent with the regulations. See 8 CFR 

1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA Ethics and 

Professionalism Guide at sec. V. 

46Numerous comments refer to a 355 day 

deadline which appears to be a typographical error, 

as the time period set forth in the NPRM was 335 

days, and there is no discussion of a 355 day time 

period in the NPRM. See 8 CFR 1003.1(e)(8)(v) 

(proposed). The Department has reviewed and 

addressed such comments for substance as if they 

had correctly stated that there was a 335 day 

deadline. 

particular result of an appellate 

adjudication; rather, the outcome of an 

appeal remains wholly dependent on 

the merits of the appeal and the 

applicable law. This rule does not 

encourage the denial of appeals or the 

issuance of legally deficient decisions, 

and the Department again rejects the 

insinuation that its adjudicators would 

abdicate their duties or are too 

incompetent to perform them correctly. 

Further, this provision regarding the 

BIA’s timelines are intended to improve 

efficiency and encourage the timeliness 

of appeals, not to affect the disposition 

of appeals. The NPRM clearly states that 

‘‘this delegation of authority to the 

Director does not change the applicable 

law that the Board or the Director must 

apply in deciding each appeal[.]’’ 85 FR 

at 52508. BIA members are directed by 

regulation to ‘‘exercise independent 

judgment and discretion in considering 

and determining the cases coming 

before the [BIA.]’’ 8 CFR 1003.1(d)(1)(ii). 

Such determinations must be made in 

accordance with applicable statutes, 

regulations, and binding case law. 

Additionally, BIA members receive 

‘‘comprehensive, continuing training,’’ 

administered by the Director, in order to 

promote adjudicative quality. Id. 

§ 1003.0(b)(1)(vi), (vii). Furthermore, 

BIA members, who are adjudicators 

within EOIR, were hired to serve EOIR’s 

mission to adjudicate cases in a fair, 

expeditious, and uniform manner. See 

EOIR, About the Office, Aug. 14, 2018, 

available at https://www.justice.gov/ 

eoir/about-office. The Department 

rejects commenters’ insinuations that 

BIA members would act outside of that 

mission by affirming an immigration 

judge’s decision solely to dispose of an 

appeal more expediently due to the 

timelines.45 The Department disagrees 

with commenters’ concerns that, given 

the number of cases pending before the 

BIA, it would not be possible for BIA 

members to adjudicate appeals within 

the given timeframes or other 

allegations that the 335-day time period 

is insufficient. As noted in the NPRM, 

most appeals are already decided within 

the given parameters. 85 FR at 52508. 

Accordingly, commenters’ comparisons 

to other courts or administrative bodies 

with different processing timelines and 

averages are inapposite, though the 

Department notes that the BIA’s 

timeline falls between the two examples 

given, which actually supports the rule. 

For such cases that are atypical, and 

for which it would be appropriate for 

the BIA to devote additional time to 

completing adjudication, the regulations 

provide for an extension of the 

adjudication time period. 8 CFR 

1003.1(e)(8)(ii) (‘‘[I]n exigent 

circumstances . . . in those cases where 

the panel is unable to issue a decision 

within the established time limits, as 

extended, the Chairman shall either 

assign the case to himself or a Vice 

Chairman for final decision within 14 

days or shall refer the case to the 

Director for decision.’’); 

1003.1(d)(6)(ii)(B) (allowing BIA to 

place a case on hold while it awaits the 

completion or updating of all identity, 

law enforcement, or security 

investigations or examinations); 

1003.1(e)(8)(iii) (permitting BIA Chief 

Appellate Immigration Judge to hold a 

case pending a decision by the U.S. 

Supreme Court or a U.S. Court of 

Appeals, in anticipation of a BIA en 

banc decision, or in anticipation of an 

amendment to the regulations). 

Therefore, as noted in the NPRM, the 

Department expects few, if any, appeals 

to not be resolved within the regulatory 

time frames. 85 FR at 52508. In short, 

commenters simply did not 

persuasively explain why it would be 

neither feasible nor desirable for the BIA 

to adjudicate cases within 11 months, 

subject to certain exceptions contained 

in the rule. 

iii. Issues With Respect to Referral to the 

Director 

Comment: Commenters also 

expressed a range of disagreements with 

the rule’s procedures for the referral of 

appeals that have been pending for more 

than 335 days 46 to the Director. The 

commenters asserted that this would 

promote the denial of appeals. The 

commenters also expressed concerns 

that this would consolidate final 

decision-making authority with one 

allegedly politically appointed person, 

the Director, whom, the commenters 

alleged, would not have the necessary 

information or knowledge of the case to 

issue a decision. Commenters alleged 

that the Director’s decision in referred 

cases would be made based on the rules, 

without taking the appropriate time to 

evaluate the case. 

Further, commenters objected that the 

rule would undermine the perception of 

neutrality, politicize the appellate 

process and violate substantive Due 

Process by allowing the Director, a 

political appointee, rather than a career 

adjudicator to adjudicate hundreds or 

thousands of cases. One commenter 

asserted that it is not the role of the 

Director to adjudicate decisions, and 

that the position is a non-adjudicatory 

position that is meant to run EOIR 

operations and does not have expertise, 

training, or impartiality necessary to 

decide cases. The commenter stated 

that, as an executive position, the 

Director would make decisions based on 

the priorities of the executive branch 

rather than the requirements of the law. 

Numerous commenters opposed the 

335-day period before referrals because 

it is not much longer than the 323-day 

median case appeal time period. 

One commenter criticized the 

rulemaking because the Department did 

not address how the Director would 

have time to personally write decisions 

or, alternatively, who would write them 

under the Director’s name. The 

commenter further criticized that the 

NPRM did not discuss what kind of 

training and oversight such individuals 

would receive or what metrics they 

would use. 

Some commenters offered anecdotal 

evidence about appeals that were 

pending for more than 335 days and 

noted that such delays have become 

even increasingly common in light of 

the COVID–19 epidemic. One 

commenter stated that every nondetained BIA appeal filed under the 

current administration had been 

pending for well over 335 days, and 

that, accordingly, the rule would result 

in the Director issuing decisions for 

every respondent. 

One commenter asserted that referring 

decisions to the Director would 

undermine rule’s efficiency purpose 

because it would introduce a third level 


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47Most, if not all, of the comments opposing the 

NPRM because the Director is an alleged political 

appointee assume that any employee appointed to 

an agency position by an agency head, such as the 

Attorney General, is necessarily a political 

appointee. By statute, regulation, policy, or to 

comply with the Appointments Clause of the 

Constitution, approximately 545 positions at EOIR 

currently require appointment by the Attorney 

General, including Board members, immigration 

judges, and administrative law judges. The fact that 

the Attorney General, who is a political appointee, 

appoints an individual to a position does not 

convert that position to a political position. 

Moreover, even if the Director position were filled 

by a political appointment, that fact alone would 

not render the individual a biased adjudicator 

incapable of adjudicating cases under the 

regulations. Cf. Matter of L-E-A-, 27 I&N Dec. at 585 

(rejecting arguments that the Attorney General is a 

biased adjudicator of immigration cases in the 

absence of any personal interest in the case or 

public statements about the case). After all, the 

functions of EOIR are vested in the Attorney 

General, who is a political appointee, and the INA 

specifically provides that determinations in 

immigration proceedings are subject to the Attorney 

General’s review. 28 U.S.C. 503, 509, 510; INA 

103(g), 8 U.S.C. 1103(g). 

of administrative review. Instead, 

commenters asserted that it would be 

more efficient to allow the BIA member 

or BIA panel that has already reviewed 

the case and the record to make the 

ultimate disposition in the case. 

At least one commenter alleged that 

the rule would result in increased 

appeals to the Federal courts. 

Commenters asserted that it would 

not be possible for the BIA to adequately 

review the number of pending BIA cases 

in the given timeframe to avoid referrals 

to the EOIR Director. For example, 

commenters stated, based on DOJ 

statistics, that there were over 70,000 

cases pending before the BIA at the end 

of FY 2019, and that for a 23-member 

BIA, each BIA member would have to 

complete 3,043 cases per year to comply 

with the 335-day deadline. 

Commenters also raised concerns 

with imposing quotas on judicial 

processes, and stated that the same 

concerns apply to both BIA adjudicators 

and immigration judges. 

Response: As an initial point, the 

Director is not a political appointee. A 

political appointee is a full-time, noncareer presidential or vice-presidential 

appointee, a non-career Senior 

Executive Service (‘‘SES’’) (or other 

similar system) appointee, or an 

appointee to a position that has been 

excepted from the competitive service 

by reason of being of a confidential or 

policy-making character (Schedule C 

and other positions excepted under 

comparable criteria) in an executive 

agency. See, e.g., E.O. 13770, sec. 2(b) 

(Jan. 28, 2017) (‘‘Ethics Commitments by 

Executive Branch Appointees’’); see also 

Edward ‘Ted’ Kaufman and Michael 

Leavitt Presidential Transitions 

Improvements Act of 2015, Public Law 

114–136, sec. 4(a)(4), (5), Mar. 18, 2016, 

130 Stat. 301. No employee currently at 

EOIR, including the Director, falls 

within these categories. See 

Organization of the Executive Office for 

Immigration Review, 85 FR 69465, 

69467 (Nov. 3, 2020) (‘‘In short, all of 

EOIR’s federal employees, including the 

Director and the Assistant Director for 

Policy, are career employees chosen 

through merit-based processes, and 

none of EOIR’s employees are political 

appointees.’’). 

EOIR has no Schedule C positions or 

positions requiring appointment by the 

President or Vice President. The 

Director is a career appointee within the 

SES. SES positions are specifically 

designed to ‘‘provide for an executive 

system which is guided by the public 

interest and free from improper political 

interference.’’ 5 U.S.C. 3131(13). 

Although the Director and Deputy 

Director are general SES positions, they 

have traditionally been filled only by 

career appointees, and the incumbent 

Director serves through a career 

appointment. In short, all of EOIR’s 

Federal employees, including the 

Director, are career employees chosen 

through merit-based processes, and 

contrary to commenters’ assertions, 

none of EOIR’s employees, including 

the Director, are political appointees.47

Similarly, some commenters objected 

to the NPRM by asserting that the 

Director is merely an administrator with 

no adjudicatory role and no subject 

matter expertise regarding immigration 

law. Longstanding regulations make 

clear, however, that the Director must 

have significant subject matter expertise 

in order to issue instructions and policy, 

including regarding the implementation 

of new legal authorities. See 8 CFR 

1003.0(b)(1)(i). The position of Director 

requires a significant amount of subjectmatter expertise regarding immigration 

laws. The Director is charged with, inter 

alia, directing and supervising each 

EOIR component in the execution of its 

duties under the Act, which include 

adjudicating cases; evaluating the 

performance of the adjudicatory 

components and taking corrective action 

as necessary; providing for performance 

appraisals for adjudicators, including a 

process for reporting adjudications that 

reflect poor decisional quality; 

‘‘[a]dminister[ing] an examination for 

newly appointed immigration judges 

and Board members with respect to 

their familiarity with key principles of 

immigration law before they begin to 

adjudicate matters, and evaluat[ing] the 

temperament and skills of each new 

immigration judge or Board member 

within 2 years of appointment’’; and, 

‘‘[p]rovid[ing] for comprehensive, 

continuing training and support for 

Board members, immigration judges, 

and EOIR staff in order to promote the 

quality and consistency of 

adjudications.’’ Id. § 1003.0(b)(1). Each 

of these responsibilities necessarily 

requires some manner of subject-matter 

expertise to carry out effectively. 

Moreover, the Director was given 

explicit adjudicatory review authority 

involving recognition and accreditation 

(‘‘R&A’’) cases in January 2017, well 

before the NPRM was promulgated. See 

Recognition of Organizations and 

Accreditation of Non-Attorney 

Representatives, 81 FR 92346, 92357 

(Dec. 19, 2016) (‘‘Additionally, the final 

rule provides that organizations whose 

requests for reconsideration are denied 

may seek administrative review by the 

Director of EOIR. See final rule at 8 CFR 

1292.18. This provision responds to 

concerns that [the Office of Legal Access 

Programs (‘‘OLAP’’)] would be the sole 

decision-maker regarding recognition 

and accreditation and that another 

entity should be able to review OLAP’s 

decisions.’’). In short, existing 

regulations already require some level of 

subject-matter knowledge by the 

Director and provide for the Director to 

have an adjudicatory role in addition to 

administrative duties. See, e.g., Matter 

of Bay Area Legal Services, 27 I&N Dec. 

837 (Dir. 2020) (decision by the Director 

in R&A proceedings). Accordingly, to 

the extent that commenters’ objections 

to this provision are based on an 

inaccurate understanding of the Director 

position, the Department finds those 

objections unsupported and 

unpersuasive. 

Further, the Director, like members of 

the BIA, exercises independent 

judgment and discretion in accordance 

with the statutes and regulations to 

decide any case before him for a final 

decision pursuant to 8 CFR 

1003.1(e)(8)(v) due to the BIA’s failure 

in that case to meet the established 

timelines. See 8 CFR 1003.0(c) (‘‘When 

acting under authority [to adjudicate 

cases], the Director shall exercise 

independent judgment and discretion in 

considering and determining the cases 

and may take any action consistent with 

the Director’s’s authority as is 

appropriate and necessary for the 

disposition of the case.’’); cf. 8 CFR 

1003.1(d)(1)(ii) (‘‘Board members shall 

exercise their independent judgment 

and discretion in considering and 

determining the cases coming before the 

Board[.]’’). Further, the Director’s 

decisions are subject to review by the 

Attorney General, either at the Director’s 

or Attorney General’s request. Id. 

§ 1003.1(e)(8)(v). And as the final 


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agency decision, such decisions would 

be subject to further review in Federal 

court. INA 242, 8 U.S.C. 1252. Thus, the 

Director’s authority on such cases 

would not necessarily be ‘‘final’’ to any 

extent greater than BIA’s authority is 

‘‘final.’’ 

Regarding the commenters’ concerns 

about the lack of information in the rule 

regarding the particular support staff or 

other internal procedures that the EOIR 

Director would utilize for issuing 

decisions referred under the rule, the 

Department notes that such details 

regarding internal staffing models are 

not generally the topic of regulations. 

Nevertheless, the regulations do make 

clear that the Director may employ 

sufficient staff as needed to carry out 

EOIR’s functions, 8 CFR 1003.0(a) 

(‘‘EOIR shall include . . . such . . . staff 

as the Attorney General or the Director 

may provide.’’); 28 CFR 0.115(a) (same), 

just as they make clear that the Director 

is integral to ensuring the Board itself 

has sufficient staff, 8 CFR 1003.1(a)(6) 

(‘‘There shall also be attached to the 

Board such number of attorneys and 

other employees as the Deputy Attorney 

General, upon recommendation of the 

Director, shall from time to time 

direct.’’). 

The Department further notes that it 

is not uncommon for someone other 

than the adjudicator to prepare a 

decision draft for the adjudicator’s 

review and signature and that EOIR has, 

for many years, hired judicial law clerks 

to assist with drafting decisions. See 

Dept. of Justice, Honors Program 

Participating Components, Aug. 25, 

2020, available at https://

www.justice.gov/legal-careers/honorsprogram-participating-components 

(‘‘EOIR Honors Program hires serve 2 

year judicial clerkships . . . .’’). It is a 

common practice for both BIA and 

immigration court adjudicators to have 

supporting staff prepare decision drafts. 

Such decisions are still ultimately 

issued by the adjudicator, which in the 

case of untimely adjudications that have 

been referred is the Director—not the 

staff who prepared the draft. Moreover, 

the Department notes that the Director 

has the power to ‘‘[p]rovide for 

comprehensive, continuing training and 

support for Board members, 

immigration judges, and EOIR staff in 

order to promote the quality and 

consistency of adjudications[,]’’ 

including adjudications that are referred 

to him. See 8 CFR 1003.0(b)(1)(vii). 

Contrary to the commenters’ 

concerns, the proposed changes would 

not undermine due process. The essence 

of due process in an immigration 

proceeding is notice and an opportunity 

to be heard. LaChance, 522 U.S. at 266 

(‘‘The core of due process is the right to 

notice and a meaningful opportunity to 

be heard.’’). Nothing in the rule 

eliminates notice of charges of 

removability against an alien, INA 

239(a)(1), 8 U.S.C. 1229(a)(1), or the 

opportunity for the alien to make his or 

her case to an immigration judge, INA 

240(a)(1), 8 U.S.C. 1229a(a)(1), or on 

appeal, 8 CFR 1003.38. Further, 

although due process requires a fair 

tribunal, In re Murchison, 349 U.S. 133, 

136 (1955), generalized, ad hominem 

allegations of bias or impropriety are 

insufficient to ‘‘overcome a presumption 

of honesty and integrity in those serving 

as adjudicators.’’ Withrow v. Larkin, 421 

U.S. 35, 47 (1975). Commenters 

identified no reason—other than ad 

hominem dislike, crude suppositions, 

and unfounded, tendentious accusations 

of bias—why it would be inappropriate 

for a career, non-political SES official 

with no pecuniary or personal interest 

in the outcome of immigration 

proceedings and with both subjectmatter expertise and adjudicatory 

experience, such as the Director, to 

adjudicate appeals in limited, specific 

circumstances. Cf. Matter of L-E-A-, 27 

I&N Dec. 581, 585 (A.G. 2019) (rejecting 

arguments that the Attorney General is 

a biased adjudicator of immigration 

cases in the absence of any personal 

interest in the case or public statements 

about the case). 

Additionally, the Department notes 

that the Attorney General oversees EOIR 

and has statutory authority to, among 

other responsibilities, review 

administrative determinations in 

immigration proceedings; delegate 

authority; and perform other actions 

necessary to carry out the Attorney 

General’s authority over EOIR. INA 

103(g), 8 U.S.C. 1103(g). Over time, the 

Attorney General has promulgated 

regulations pursuant to this statutory 

authority that reflect the full range of his 

authority and oversight in section 103(g) 

of the Act, 8 U.S.C. 1103(g). Among 

many examples, in 8 CFR 1003.1(h), the 

Attorney General codified the authority 

to review BIA decisions, and in 8 CFR 

1003.0(a), the Attorney General 

delegated authority to the Director to 

head EOIR. Despite this delegated 

authority, EOIR remains subject to the 

Attorney General’s oversight, and it is 

reasonable and proper that the Attorney 

General continue to exercise that 

oversight by way of such delegations of 

administrative review. 

In accordance with 8 CFR 1003.0(a), 

the Director, who is appointed by the 

Attorney General, exercises delegated 

authority from the Attorney General 

related to oversight and supervision of 

EOIR. See also INA 103(g)(1), 8 U.S.C. 

1103(g)(1); 28 CFR 0.115(a). The 

Director may only act in accordance 

with the statutes and regulations and 

within the authority delegated to him by 

the Attorney General; put differently, 

the statute and regulations provide the 

Attorney General with the authority to 

act, and the Attorney General, in turn, 

determines the extent of the Director’s 

authority. The Attorney General, by 

regulation, provides a list of the 

Director’s authority and responsibilities 

at 8 CFR 1003.0(b), which includes the 

authority to ‘‘[e]xercise such other 

authorities as the Attorney General may 

provide.’’ 8 CFR 1003.0(b)(1)(ix). Such 

delegation supersedes the restrictions 

related to adjudication outlined in 8 

CFR 1003.0(c) due to that paragraph’s 

deference to 8 CFR 1003.0(b). 

The Director’s authority provided in 

the rule to adjudicate BIA cases that 

have otherwise not been timely 

adjudicated constitutes ‘‘such other 

authorities’’ provided to the Director by 

the Attorney General, based on the 

powers to delegate and conduct 

administrative review under 

section103(g) of the Act, 8 U.S.C. 

1103(g). See 8 CFR 1003.0(c), 

1003.1(e)(8). To reiterate, the Attorney 

General’s authority to review 

administrative determinations does not 

violate due process; thus, the proper 

delegation of that authority to the 

Director pursuant to statute and preexisting regulations does not violate due 

process—specifically in light of the fact 

that those decisions ultimately remain 

subject to the Attorney General’s review 

under 8 CFR 1003.1(e)(8). To the extent 

that commenters are concerned about 

such an appearance, the Department 

emphasizes the clear, direct intent of 

Congress in statutorily authorizing such 

delegations, and the Attorney General is 

acting within the bounds of his statutory 

authority by issuing the rule. INA 

103(g)(2), 8 U.S.C. 1103(g)(2); see also 

Chevron v. Nat. Res. Def. Council, 467 

U.S. 837, 842 (1984). In issuing the rule, 

the Attorney General properly delegates 

adjudicatory authority to the Director to 

review certain administrative decisions 

that are otherwise untimely. 8 CFR 

1003.1(e)(8). This delegation aligns with 

the Attorney General’s longstanding 

authority to issue regulations and 

delegate that authority, in line with 

principles of due process. 

The Department disagrees that these 

procedures would introduce 

inefficiency or a third level of review. 

Under this rulemaking, the Director 

would not review appeals that the BIA 

had adjudicated in a timely fashion. 

Rather, the Director will, acting with the 

same authority as a BIA adjudicator 

would have, issue decisions on appeals 


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48For similar reasons, the final rule also makes 

changes to 8 CFR 1003.1(d)(3)(iv) to clarify that 8 

CFR 1003.1(d)(3)(iv)(A) applies to all cases at the 

Board, whereas 8 CFR 1003.1(d)(3)(iv)(D) applies 

only to direct appeals of immigration judge 

decisions. None of these changes effect any 

substantive alteration of the applicable regulations 

governing the BIA’s functioning. 

that have been pending for longer than 

the prescribed regulatory period. Id. 

§ 1003.1(e). 

Commenters are also incorrect that 

the referral of appeals that have not 

been timely decided could be 

characterized as an improper 

consolidation of power under one 

individual. Cases would be referred to 

the Director only where the BIA has 

taken more than 335 days to adjudicate 

an appeal, in order to ensure timely 

disposition of a case. As noted by the 

NPRM, ‘‘absent a regulatory basis for 

delay, there is no reason for a typical 

appeal to take more than 335 days to 

adjudicate—including time for 

transcription, briefing, and adherence to 

the exiting 90- or 180- day time frames 

for decision.’’ 85 FR at 52508. Moreover, 

commenters did not explain why aliens 

with meritorious appeals should have to 

wait more than 335 days for a decision, 

and the Department is unaware of any 

reason for doing so. To the contrary, 

allowing the Director to adjudicate 

appeals which have languished for 

almost a year without adjudication will 

help ensure that aliens with meritorious 

claims receive the decision they warrant 

in a timely manner. 

Additionally, for such cases that are 

atypical, and for which it would be 

appropriate for the BIA to devote 

additional time to completing 

adjudication, the regulations provide for 

an extension of the adjudication time 

period. 8 CFR 1003.1(e)(8)(ii) (‘‘[I]n 

exigent circumstances . . . in those 

cases where the panel is unable to issue 

a decision within the established time 

limits, as extended, the Chairman shall 

either assign the case to himself or a 

Vice Chairman for final decision within 

14 days or shall refer the case to the 

Director for decision.’’); 

1003.1(d)(6)(ii)(B) (allowing BIA to 

place a case on hold while it awaits the 

completion or updating of all identity, 

law enforcement, or security 

investigations or examinations); 

1003.1(e)(8)(iii) (permitting BIA 

Chairman to hold a case pending a 

decision by the U.S. Supreme Court or 

a U.S. Court of Appeals, in anticipation 

of a BIA en banc decision, or in 

anticipation of an amendment to the 

regulations). The Attorney General has 

delegated decision-making authority to 

the Director pursuant to 8 CFR 

1003.1(e)(8)(ii), subject to possible 

further review by the Attorney General. 

The Director may only adjudicate cases 

that have surpassed the articulated 

deadlines, and the rule is clear that the 

Director’s scope of review is limited to 

only a narrow subset of EOIR cases. 

Nevertheless, the Department 

recognizes commenters’ concerns 

regarding the potential volume of cases 

that could conceivably be subject to 

referral, as well as the interaction 

between the referral procedures and 

other changes to the rule. To that end, 

the final rule adds four further 

exceptions to 8 CFR 1003.1(e)(8)(v) in 

which cases would not be referred. 

Cases on hold pursuant to 8 CFR 

1003.1(d)(6)(ii) to await the results of 

identity, law enforcement, or security 

investigations or examinations will not 

be subject to referral if the hold causes 

the appeal to remain pending beyond 

335 days. Cases whose adjudication has 

been deferred by the Director pursuant 

to 8 CFR 1003.0(b)(1)(ii) will not be 

subject to referral if the deferral causes 

the appeal to remain pending beyond 

335 days. Cases remanded by the 

Director under 8 CFR 1003.1(k) will not 

be subject to referral if the case remains 

pending beyond 335 days after the 

referral. Cases that have been 

administratively closed pursuant to a 

regulation promulgated by the 

Department of Justice or a previous 

judicially approved settlement that 

expressly authorizes such an action will 

not be subject to referral if the 

administrative closure occurred prior to 

the elapse of 335 days and causes the 

appeal to remain pending beyond 335 

days. 

These changes, which are 

incorporated through a stylistic 

restructuring of 8 CFR 1003.1(e)(8)(v) for 

clarity, recognize additional situations 

in which a case may appropriately 

remain pending beyond 335 days 

without adjudication or when referral 

back to the Director would be 

incongruent because the Director had 

remanded the case immediately prior to 

the referral. They also recognize, in 

response to commenters’ concerns, that 

the Director may defer adjudication of 

BIA cases, consistent with authority 

under 8 CFR 1003.0(b)(1)(ii), in order to 

avoid needing to have those cases 

referred to himself. In short, although 

most commenters’ concerns are 

inaccurate, unfounded, or hyperbolic, 

the Department recognizes that the BIA 

should exercise default appellate 

adjudicatory authority in immigration 

cases and that referral of cases to the 

Director should be the exception, rather 

than the rule. 

Finally, in response to comments 

about the clarity and scope of the 

NPRM’s changes to the BIA’s case 

management procedures, the final rule 

also makes edits to eliminate confusion 

over the scope of 8 CFR 1003.1(e). As 

both the title of that paragraph (‘‘Case 

management system’’) and its general 

introductory language (‘‘The Chairman 

shall establish a case management 

system to screen all cases and to manage 

the Board’s caseload.’’) make clear, the 

provisions of the paragraph apply to 

‘‘cases.’’ 8 CFR 1003.1(e) (emphasis 

added). In turn, ‘‘the term case means 

any proceeding arising under any 

immigration or naturalization law.’’ 8 

CFR 1001.1(g). At the Board, cases may 

be initiated in one of three ways: the 

filing of a Notice of Appeal, the filing 

of a motion directly with the Board (e.g., 

a motion to reconsider or a motion to 

reopen), or the receipt of a remand from 

a Federal court, the Attorney General, 

or—under this rule—the Director. In 

other words, the Board adjudicates 

multiple types of cases, not just appeals. 

Although the existing language of 8 CFR 

1003.1(e) is clear that it applies to all 

types of cases at the Board, regardless of 

how they are initiated, the inconsistent, 

subsequent use of ‘‘appeals’’ throughout 

that paragraph creates confusion as to 

its scope since appeals are not the only 

type of case the Board considers. See, 

e.g., 8 CFR 1003.1(e)(3) (in describing 

the Board’s merits review process, using 

‘‘case’’ in the first sentence, ‘‘case’’ and 

‘‘appeal’’ in the second sentence, and 

‘‘appeal’’ in the third sentence, all is 

describing a unitary process). To avoid 

continued confusion and to ensure that 

the scope of the other changes in the 

final rule regarding the Board’s case 

management process are clear, the final 

rule makes edits to 8 CFR 1003.1(e) to 

ensure that it is clearly applicable to all 

cases before the Board, not solely cases 

arising through appeals.48

iv. Other Issues 

Comment: One commenter objected to 

the rule’s limitation of the Board 

Chairman’s authority to hold a decision 

in anticipation of a pending decision by 

a U.S. Court of Appeals or an 

amendment to the regulations. The 

commenter stated that such a change 

was not necessary and irrational 

because the Board Chairman’s existing 

authority to place cases on hold is 

permissive. The commenter stated that 

the proposed change would eliminate 

the Board Chairman’s discretion to hold 

cases when changes to the case law or 

regulations would benefit immigrants. 

The commenter stated that making the 

Board Chairman’s determination to hold 

a case subject to the concurrence by the 

Director was intended to enhance the 

Director’s influence over appellate 


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49 In contrast, the term of the Supreme Court is 

well-established, and decisions for a particular term 

are ordinarily expected by the end of June. 

decision making and ensure that cases 

are held only when it would further the 

administration’s political agenda, and 

not in the administration of justice. 

Response: The Department disagrees 

with this comment and finds it 

unpersuasive for several reasons. First, 

the regulatory process is unpredictable, 

and both the timing and final substance 

of any given regulation cannot be 

predicted with sufficient accuracy to 

warrant holding adjudications for future 

regulations. Similarly, there is no 

reliable method of predicting how long 

an adjudication at a circuit court of 

appeals will take or when, precisely, a 

circuit court will render a decision.49

Moreover, the proliferation of 

immigration litigation in recent years 

has increased the likelihood both that a 

circuit court panel’s decision may not 

be the last word on the issue—due to 

the possibility of rehearing en banc or 

a petition for certiorari filed with the 

Supreme Court—and that multiple 

circuits may reach different 

conclusions. Thus, there is little reason 

to place cases on hold to await an 

individual circuit court decision since 

the timing of that decision is unknown, 

it may not be the final decision, and it 

may conflict with other circuit courts 

causing the Board to pause some cases 

but not others even though the cases 

raise the same issues. 

Additionally, requiring the Director to 

concur with the BIA Chairman about 

whether to hold cases is not irregular, 

and the Department rejects the 

insinuation that the concurrence 

process would be used for nefarious, 

political, or otherwise inappropriate 

ends. The Chairman is, by regulation, 

generally subject to the supervision of 

the Director. 8 CFR 1003.1(a)(2); 28 CFR 

0.115(a). As explained above, the 

Director is not a political appointee, and 

the Director’s decisions regarding EOIR 

procedures, including whether an 

appeal is of such a nature so as to 

warrant further delay in adjudication, 

will be made in accordance with his 

general supervisory authority. 

Moreover, both the Director and the 

Board Chairman already possess 

longstanding authority to defer 

adjudication of Board cases, 8 CFR 

1003.0(b)(1)(ii) and 1003.1(a)(2)(i)(C), 

and there is no evidence either has used 

that authority inappropriately. 

Accordingly, there is no basis to expect 

that they would apply the hold 

authority in 8 CFR 1003.1(e)(8)(iii) 

inappropriately. 

Comment: One commenter asserted 

that the NPRM improperly characterized 

the BIA’s decreased efficiency as 

paradoxical. Rather, the commenter 

asserted, this resulted from ‘‘massive 

changes that the current administration 

has wrought in immigration 

proceedings.’’ The commenter stated 

that there have been constant and 

repeated changes to the law, as well as 

national, regional, and local injunctions 

of such changes, making it difficult to 

keep track of the current law and 

causing appeals adjudications to take 

longer as adjudicators research the 

current state of the law. Another 

commenter offered as a specific 

example, the Attorney General’s 

decision in Matter of Castro-Tum, 27 

I&N Dec. 271, which, the commenter 

alleged, added 330,211 previously 

completed cases back on to the pending 

caseload. 

One commenter asserted, without 

providing further detail, that the 

Department’s claim about the length of 

time that it takes to adjudicate most 

appeals is ‘‘patently false’’ and a factual 

misrepresentation. 

Commenters also raised concerns 

with imposing quotas on judicial 

processes, and stated that the same 

concerns apply to both BIA adjudicators 

and immigration judges. 

At least one commenter asserted that 

the Department had failed to consider 

other alternatives to improving 

efficiencies and offered alternative 

suggestions to the timeline-related 

changes. For example, at least one 

commenter suggested the preparation of 

reports concerning longstanding cases, 

akin to the reports submitted to 

Congress concerning district court 

motions and cases that have been 

pending adjudication for a long time. 

This alternative, the commenter 

suggested, would explain why specific 

cases required longer-than-usual 

adjudication times. The commenter also 

proposed, as another alternative, 

recommended timelines that required 

brief explanations when such timelines 

were exceeded. The commenter 

proposed a third alternative where, as 

part of the initial screening, the BIA 

could subcategorize cases assigned to 

single BIA members or three-member 

panels based upon their apparent 

complexity, with different timelines 

assigned to each subcategory. 

At least one commenter expressed 

support for the 30-day interlocutory 

appeal timeline but asserted that the 

rule would be meaningless without an 

enforcement method. The commenter 

suggested that the Department consider 

adding a privately enforceable cause of 

action against the BIA if it failed to 

adjudicate appeals in the timespan 

proposed in the rule. The commenter 

stated that, if expediency of 

adjudications was the administration’s 

priority, subjecting adjudicators to such 

lawsuits would give adjudicators the 

extra incentive to meet applicable 

deadlines. 

Commenters suggested that survivors 

of gender-based violence, children, and 

detained individuals without 

representation might be particularly 

negatively impacted by the rule’s 

timelines. 

One commenter compared criticism 

from the BIA’s practice of issuing 

affirmances without opinion (‘‘AWOs’’) 

to the NPRM because ‘‘[e]ncouraging 

even quicker and more opaque decisionmaking from an overworked, underresourced, and now highly politicized 

appellate body’’ was both arbitrary and 

capricious and result in legally 

erroneous, and possibly biased, decision 

making. 

Response: With respect to criticism of 

the rule pertaining to the Department 

setting new regulatory case-management 

procedures, the Department maintains 

that it has acted with the appropriate 

authority do so. Case management 

procedures have been in place regarding 

Board adjudications for many years, 

including 90-day and 180-day timelines 

for the adjudication of appeals, and the 

Department’s authority to maintain such 

procedures is not seriously subject to 

question. As discussed in the NPRM, 85 

FR at 52493, the case-management 

procedures also respond to concerns 

raised by the Department’s Office of the 

Inspector General (‘‘OIG’’) regarding 

how EOIR manages the timely 

adjudication of cases at the BIA. 

Nor were the Department’s decisions 

about the timelines arbitrary. Rather, 

they were based on experience and 

consideration of the average amount of 

time that it has taken the BIA to 

adjudicate appeals. See 85 FR at 52508 

n.38. Moreover, as noted supra, 

commenters have not seriously 

questioned why it is impossible or 

improper to expect the BIA to be able 

to complete a case within 11 months. To 

the contrary, the cases of delayed 

adjudication cited by commenters 

provide support for the rule’s timeline, 

and the Department agrees that the 

provisions of this final rule will respond 

to commenters’ concerns about any 

excessive delays in case adjudications. 

The Department shares a commenter’s 

concern regarding the Board’s decreased 

efficiency. To the extent that the Board’s 

efficiency decreased even as its number 

of adjudicators increased or held steady 

prior to FY 2020, the Department does 

find that paradoxical. Nevertheless, 


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regardless of the precise basis for the 

Board’s decreased efficiency, the 

Department believes it must be 

addressed and that the NPRM sets forth 

well-supported ways of doing so. 

Regarding the commenter who 

asserted that the decision in Matter of 

Castro-Tum added 330,211 previously 

completed cases back to the pending 

caseload, the Department notes first that 

an administratively closed cases is not 

a completed case. Thus, the assertion 

that the cases mentioned were 

‘‘completed’’ is erroneous. See Matter of 

Lopez-Barrios, 20 I&N Dec. 203, 204 

(BIA 1990) (‘‘[A]dministrative closing is 

merely an administrative 

convenience. . . . However, it does not 

result in a final order.’’); HernandezSerrano, 2020 WL 6883420 at *3 

(‘‘Administrative closure typically is not 

an action taken ‘[i]n deciding’ a case 

before an IJ; instead, as shown above, it 

is typically a decision not to decide the 

case. Nor is administrative closure 

typically an action ‘necessary for the 

disposition’ of an immigration case. 

Administrative closure is not itself a 

‘disposition’ of a case, as HernandezSerrano concedes in this appeal.’’). 

Second, the Department notes that cases 

that have been administratively closed 

remain pending even while they are 

closed; thus, those cases never went 

away and, accordingly, were not added 

by Matter of Castro-Tum. 

The Department is unable to respond 

to the commenter who alleged that the 

median time to complete an appeal 

represented by the Department was false 

without providing further detail. The 

Department maintains that its 

calculation was accurate. Further, most 

commenters, who have experience 

practicing before the Board and are 

familiar with its timelines, did not 

dispute the idea that, on average, the 

Board takes, roughly, just over 10 

months to adjudicate cases. 

The rule does not impose any 

‘‘quotas’’ on Board members, nor does it 

establish any type of case completion 

goal for BIA members. To the extent that 

commenters believe that the 90-day and 

180-day timelines establish a quota, 

those timeframes have existed for many 

years, and the rule does not alter them, 

though it harmonizes when they begin 

in response to criticism and confusion 

over the years, including by the 

Department’s OIG, 85 FR at 52493. 

Regarding proposed alternatives, the 

Department finds that preparing a report 

would not address issues with the 

Board’s efficiency. To the contrary the 

regulations already require the Board 

Chairman to prepare a report ‘‘assessing 

the timeliness of the disposition of cases 

by each Board member on an annual 

basis,’’ 8 CFR 1003.1(e)(8)(v), and that 

existing requirement, which does not 

appear to have been followed with any 

diligence prior to 2019, has not aided 

the Board’s efficiency. Similarly, 

explanations for why timelines have 

been exceeded are useful for 

understanding why cases may move at 

different speeds, and the regulations 

already contemplate situations in which 

case processing may be delayed due to 

specific explanations. See id. 

§ 1003.1(e)(8)(i)–(iii). Explanations 

themselves, however, do not ensure that 

cases are processed in a timely and fair 

manner, which is the Board’s goal. 

Finally, the commenter’s suggestion of 

subcategorization is already built into 

the screening process and the 

differential timelines for single-member 

versus panel decisions. Although the 

Department appreciates the 

commenter’s suggestions and has fully 

considered them, it believes they are 

either already contemplated by the 

regulations or would not otherwise 

improve the efficiency of the Board’s 

adjudications. 

The Department appreciates one 

commenter’s support for a 30-day 

interlocutory appeal timeline but notes 

that it does not possess the legal 

authority to establish a cause of action 

in Federal court to ensure that timeline 

is met. 

Although commenters suggested that 

survivors of gender-based violence, 

children, and detained individuals 

without representation might be 

particularly negatively impacted by the 

rule’s timelines, they did not explain 

how or why that would be the case. The 

timelines are not case-specific and do 

not depend on the facts of any particular 

case. The Department has explained, 

supra, that the rule would not have a 

deleterious impact on individuals 

without representation, and there is no 

basis to believe that the rule will apply 

differently to children or survivors of 

violence. To the extent that commenters 

are concerned about cases of detained 

aliens, existing regulations already 

prioritize such cases, 8 CFR 1003.1(e) 

(prioritizing ‘‘cases or custody appeals 

involving detained aliens’’), and the 

Department maintains a longstanding 

goal developed pursuant to the 

Government Performance and Results 

Act, Public Law 103–62, Aug. 3, 1993, 

107 Stat. 285, of completing 90 percent 

of detained appeals within 150 days of 

filing. PM 20–01 at 6. In short, the rule 

has no impact on the efficiency of 

adjudicating appeals of detained aliens, 

as such cases are already adjudicated 

expeditiously in the normal course 

under existing principles. 

Commenter criticisms of AWOs, 

comparison with other agency 

adjudication timelines, which involve 

completely different factors for 

consideration, and concerns over 

‘‘flooding’’ the circuit courts of appeals, 

are outside of the scope of this 

rulemaking, although the Department 

reiterates that it does not believe that 

this rulemaking would encourage speed 

over quality of decisions, but rather 

believes that it strikes an appropriate 

balance. The Department acknowledges 

commenter anecdotes about appeals that 

have been pending for longer than the 

335-day regulatory period for various 

stated reasons and notes that stating a 

median, by definition, will include 

cases that have been pending for longer. 

Nevertheless, the Department 

acknowledges that these anecdotes 

further support the Department’s efforts 

to resolve cases more expeditiously 

through this rule. 

j. Immigration Judge Quality Assurance 

Certification (8 CFR 1003.1(k)) 

Comment: Some commenters 

expressed concern regarding the 

establishment of new quality assurance 

procedures that allow immigration 

judges to certify cases, in certain limited 

circumstances, to the Director. 8 CFR 

1003.1(k). 

Commenters opined the quality 

assurance procedures would undermine 

the BIA in a variety of manners. For 

example, at least one commenter stated 

that quality assurance certifications 

undermine the BIA’s integrity by 

dispossessing it of its full appellate 

authority. Other commenters stated that 

the procedures will erode a fundamental 

purpose of the BIA: National 

consistency. Commenters further opined 

that the NPRM would undermine the 

adversarial nature of BIA proceedings. 

Others claimed that the procedures 

would remove discretion from the BIA, 

which the commenter likened to other 

changes by the Department that the 

commenter felt have removed discretion 

from immigration judges. Commenters 

further alleged that the rule would have 

a chilling effect on the BIA as it would 

heighten their concerns about job 

security over fairness and impartiality. 

At least one commenter expressed a 

belief that quality assurance 

certifications are not needed because 

every opinion the commenter received 

from the BIA was ‘‘highly professional 

[and] based on the Board members’ 

evaluation of the law and the facts of the 

particular case.’’ Another commenter 

opined that there were easier ways to 

change a typographical error. 

According to commenters, the bases 

for the quality assurance certifications 


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are so broad that an immigration judge 

who simply disagrees with the BIA’s 

decision—or the decision’s impact on 

the immigration judge’s performance 

metrics—can certify the case to the 

Director. See id. § 1003.1(k)(1)(i)–(iv). 

Commenters expressed concerns 

regarding the appropriateness of the 

Director receiving such quality 

assurance certifications and the 

Director’s ability to appropriately 

respond to and manage the certifications 

he would receive. For example, 

commenters predicted that the Director 

could receive thousands of cases from 

the BIA due to other changes in the rule 

as well as the cases certified from 

immigration judges. Due to the caseload, 

a commenter claimed that the Director 

would simply ‘‘rubber stamp denials.’’ 

Commenters described the position of 

the Director as managerial and nonadjudicatory and accordingly opined 

that the individual appointed to it does 

not necessarily possess the ‘‘expertise, 

training, or impartiality necessary to 

decide cases.’’ Others expressed concern 

about the Director’s role reviewing and 

responding to quality assurance 

certifications due to the commenters’ 

perception that the Director is a political 

appointee or otherwise is politically 

motivated. Some commenters alleged 

that the Director is not subject to the 

same the ethics and professionalism 

guidelines applicable to BIA members 

and the decisions of the Director cannot 

be remedied through EOIR’s procedure 

for addressing complaints against EOIR 

adjudicators. 

Other commenters requested that the 

neutral arbiter be other experts in 

immigration law or another body. 

Other commenters worried that 

regardless of the Director’s decision, it 

would be unreviewable by any 

adjudicator, while another commenter 

claimed that appeals would flood the 

circuit courts. 

Commenters claimed that the 

Department mischaracterized HALLEX 

I–3–6–10. For example, one commenter 

stated that the cited section allows for 

clarity but not for Administrative Law 

Judges to ‘‘protest’’ or question 

decisions on their cases in the same 

manner immigration judges would be 

allowed to do for BIA decisions. 

Other commenters were concerned 

with procedural issues. Some 

commenters claimed that the parties 

and the BIA should receive notice that 

the immigration judge certified a case. 

Commenters requested that parties be 

allowed to object to certification and file 

briefs accordingly and noted that the 

non-moving party has a chance to 

respond in the current scheme to 

address BIA errors. At least one 

commenter expressed concern about the 

implications on the immigration judge’s 

posture in the proceedings and claimed 

that immigration judges who issue 

certifications would have to recuse 

themselves in case of remand because 

the certification is in effect an appeal by 

the judge that equates the judges to an 

advocate in the proceedings. 

Other commenters expressed concern 

that the certification procedures curtail 

aliens’ due process rights. 

Commenters opined that the quality 

assurance certifications, when 

combined with the restriction on the 

BIA considering new evidence, will 

result in numerous certifications 

because the BIA will fail to consider a 

material factor pertinent to the issue(s) 

before the immigration judge. 

Some commenters claimed that the 

rule would increase inefficiency 

because, in order for the case to be 

resolved, the Director must refer the 

case to a different adjudicator. 

Response: As an initial point, the 

Department notes that many of the same 

commenters who criticized other parts 

of this final rule because it would 

allegedly allow the BIA to deny 

meritorious appeals for inappropriate 

reasons also criticized this provision by 

claiming it would undermine the 

professionalism and expertise of the BIA 

in deciding cases. To the extent that 

commenters inconsistently asserted that 

the BIA is both unprofessional and 

professional—depending solely on 

which view allowed the commenter to 

oppose a particular provision of this 

final rule—the Department finds such 

tendentious criticism insufficient to 

warrant changes to the final rule. 

Further, any implication that these 

quality assurance certifications divests 

the BIA of its appellate jurisdiction and 

role in the immigration system is 

incorrect. The new procedures at 8 CFR 

1003.1(k) do not create a higher 

secondary appellate review body. 

Rather, they provide a quality control 

measure to ensure that the BIA’s 

decisions consistently provide 

appropriate and sufficient direction to 

immigration judges. The distinction is 

evident in the certification process and 

the actions available to the Director. 

Cases may only be certified to the 

Director if they fall within limited, and 

specifically delineated, circumstances: 

(1) The BIA decision contains a 

typographical or clerical error affecting 

the outcome of the case; (2) the BIA 

decision is clearly contrary to a 

provision of the INA, any other 

immigration law or statute, any 

applicable regulation, or a published, 

binding decision; (3) the BIA decision is 

vague, ambiguous, internally 

inconsistent, or otherwise did not 

resolve the basis for the appeal; or (4) a 

material factor pertinent to the issue(s) 

before the immigration judge was 

clearly not considered in the BIA 

decision. 8 CFR 1003.1(k)(1)(i)–(iv). 

These narrow situations are all tailored 

to quality control—not to express 

disagreement with the BIA’s wellfounded legal analysis, which is how 

another layer of appellate review would 

function. 

Further, the Director only has a 

limited number of options available 

upon certification. The Director may: (1) 

Dismiss the certification and return the 

case to the immigration judge; (2) 

remand the case back to the BIA for 

further proceedings; (3) refer the case to 

the Attorney General; (4) or issue a 

precedent decision that does not 

include an order of removal, a request 

for voluntary departure, or the grant or 

denial of an application for relief or 

protection from removal. Id. 

§ 1003.1(k)(3). Thus, the quality 

assurance procedures do not vest the 

Director with any final adjudicatory 

power of cases that have been certified, 

and the Director must return the case to 

either the BIA or the immigration judge 

in order for the case to be resolved. 

Accordingly, commenters are incorrect 

that the rule creates an additional level 

of appellate review. 

The Department appreciates the 

commenter’s compliments that the 

decisions that they have received from 

the BIA have been faithful to the law 

and highly professional, though it notes 

that other commenters insinuated that 

the BIA’s decisions are not always 

faithful to the law. Regardless, the 

Department cannot rely on anecdotal 

evidence to maintain quality control in 

all cases in the context of the evergrowing BIA with a mounting caseload, 

see 85 FR at 52492; EOIR, Adjudication 

Statistics: Case Appeals Filed, 

Completed, and Pending, Oct. 23, 2019, 

available at https://www.justice.gov/ 

eoir/page/file/1198906/download, and 

the Department is aware of examples 

from immigration judges raising 

questions about the quality or accuracy 

of BIA decisions. The Department 

believes that the rule creates a clear and 

efficient mechanism to ensure that the 

commenter’s remarks that the BIA’s 

decisions are accurate and dispositive 

are, and remain, true. The Department 

does not believe that a quality control 

process that is aimed toward full and 

accurate decisions would have any 

other substantial impact that to cause 

increased attention to the accuracy and 

completeness of decisions. Overall, the 

Department finds that the certification 

process as laid out in the rule will, in 


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a timely manner, ensure that BIA 

decisions are accurate and dispositive, 

which is the purpose of the changes. 

In regards to commenters’ allegations 

that immigration judges could simply 

certify cases with which they disagree, 

particularly for political or other 

personal reasons, the Department 

specifically reiterates that merely 

disagreeing with decisions or objecting 

to specific legal interpretations is not a 

basis for certification. 85 FR at 52503. 

Some commenters worried that the 

bases for certification are so broad that 

an immigration judge could solely 

object to a particular legal interpretation 

and still certify the case by sweeping it 

into one of the four criteria, specifically 

that the decision is ‘‘vague.’’ To this, the 

Department notes that vagueness is 

included in the criteria in order to 

address a specific problem: Immigration 

judges receiving orders that are 

confusing and need additional 

clarification or explanation. See 85 FR 

at 52496. ‘‘Vagueness’’ is not so broad 

as to contain within it a myriad of legal 

objections to specific legal 

interpretations; certainly, it cannot be 

stretched to contain personal or political 

objections to such legal interpretations. 

Moreover, although few commenters 

acknowledged it, immigration judges 

already possess the authority to certify 

a case to the BIA following a remand 

and the issuance of another decision, 8 

CFR 1003.7, and some immigration 

judges have used that procedure in 

order to seek clarification of the BIA’s 

decision. That indirect process, 

however, is both burdensome to the 

parties, who must wait until the 

immigration judge issues another 

decision (even if the immigration judge 

considers the Board’s decision unclear 

or vague), and inefficient in that it 

results in a case being sent back to the 

same body which remanded it in the 

first instance without further 

clarification. The Department’s quality 

assurance process will ensure clearer 

and more timely resolution of 

disagreements, within four narrow 

categories, between immigration judges 

and the BIA by a neutral third-party 

who supervises each. 

As far as the authority of the Director, 

the Attorney General is authorized to 

decide the Director’s authority. INA 

103(g)(1), 8 U.S.C. 1103(g)(1); 28 CFR 

0.115(a). Reviewing certified cases falls 

within the ‘‘such other authorities’’ 

provided to the Director by the Attorney 

General, based on the powers to 

delegate and conduct administrative 

review under INA 103(g) (8 U.S.C. 

1103(g)). See 8 CFR 1003.0(b)(1)(ix) and 

(c), 1003.1(e)(8)(ii). This delegation 

supersedes the restrictions related to 

adjudication outlined in 8 CFR 

1003.0(c) due to that paragraph’s 

deference to 8 CFR 1003.0(b). 

Moreover, the Director is responsible 

for the supervision of the immigration 

judges and the BIA members and 

already possesses the authority to 

ensure that adjudications are conducted 

in a timely manner. See id. 

§ 1003.0(b)(1)(ii). Accordingly, the 

Director is in a well-positioned to 

address errors made by the BIA and to 

remedy them in a timely manner. The 

Director is also in a direct position to 

implement changes to address repeat 

errors. Because the delegation of 

authority is proper, the process requires 

notice, and the process involves a 

neutral decisionmaker who lacks 

authority to issue a final order, it does 

not violate due process. 

In response to commenters concerns 

that the delegation of authority, even if 

proper, will appear improper, the 

Department responds that Congress’ 

intent is clear and explicit in statutorily 

authorizing such delegations, and the 

Attorney General is acting within the 

bounds of his statutory authority when 

by issuing the rule. INA 103(g)(2), 8 

U.S.C. 1103(g)(2); see also Chevron, 467 

U.S. at 842. In issuing the rule, the 

Attorney General properly delegates the 

Director the authority to review certified 

cases from the immigration judges. This 

delegation aligns with the Attorney 

General’s longstanding authority to 

issue regulations and delegate that 

authority, in line with principles of due 

process. 

Regarding commenters concerns 

about perceived political influence or 

politicization of the Director position, 

the Department reiterates its response to 

similar concerns raised and discussed, 

supra. The Department again notes that 

the Director is a career appointee, who 

is selected based on merit, independent 

of any political influence, and a member 

of the SES. The position requires a 

significant amount of subject-matter 

expertise regarding immigration laws as 

demonstrated by various duties of the 

Director: ‘‘[a]dminister an examination 

for newly-appointed immigration judges 

and Board members with respect to 

their familiarity with key principles of 

immigration law before they begin to 

adjudicate matters, . . . [p]rovide for 

comprehensive, continuing training and 

support for Board members, 

immigration judges, and EOIR staff[, 

and] [i]mplement a process for 

receiving, evaluating, and responding to 

complaints of inappropriate conduct by 

EOIR adjudicators.’’ 8 CFR 

1003.0(b)(1)(vi)–(viii). Additionally, 

reviewing certified cases would require 

no more expertise than administratively 

reviewing certain types of decisions in 

recognition and accreditation cases, 

which the Director has been tasked with 

the authority to do since 2017 with no 

noted objection at that time. See id. 

§ 1292.18(a). Further, the Director is 

held to the same professionalism and 

ethical standards as all Department 

employees. In short, commenters’ 

concerns appear to be rooted in either 

a personal dislike for the incumbent 

Director or disagreement with the 

overall policies of the Department, 

rather than any specific or genuine 

concern about the Director position 

itself. 

In response to commenters’ concerns 

over the workload for the Director that 

quality assurance certifications may 

cause, the Director may utilize all 

appropriate support staff to assist with 

his responsibility. Nevertheless, because 

of the narrow scope of issues subject to 

certification and the procedural 

requirements which will dissuade filing 

frivolous or meritless certifications— 

particularly because immigration judges 

already have generally full dockets of 

cases to adjudicate—the Department 

expects that these procedures will be 

employed infrequently. Accordingly, 

although the Department appreciates 

commenters’ concerns about the 

Director’s workload, the rule already 

anticipates and limits the number of 

cases expected to be subject to this 

process. 

In regards to the reviewability of the 

Director’s decision, the Department 

notes first that the Director’s decision is 

not final and that, regardless of what 

action the Director does take, the 

ultimate, underlying final EOIR 

administrative decision may be 

appealed to the circuit court. See INA 

242, 8 U.S.C. 1252. 

Regarding commenters’ accusations of 

the mischaracterization of HALLEX I–3– 

6–10, the Department notes that it 

referenced Social Security’s protest 

criteria for decisions by administrative 

law judges or its administrative appeals 

body, the Appeals Council, in the 

context of explaining the narrow set of 

criteria for certification set out in the 

rule. 85 FR at 52502 (‘‘These criteria are 

used in similar circumstances at other 

adjudicatory agencies.’’) The 

Department was not attempting to claim 

that the two processes exactly mirror 

one another, nor was it attempting to 

claim that it structured the certification 

procedure to directly mimic the Social 

Security Administration. The 

Department believes although the two 

procedures are not identical, the degree 

of similarity—as well as the underlying 

purpose, i.e., to ensure correct, quality 


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50Whether the result of a case is ‘‘correct’’—e.g., 

whether an application or appeal should have been 

granted or denied—is often solely based on the 

narrative seeking to be advanced by the evaluator, 

and there is no accepted way of determining 

whether an adjudicator’s decision is normatively 

‘‘correct.’’ See Barry C. Edwards, Why Appeals 

Courts Rarely Reverse Lower Courts: An 

Experimental Study to Explore Affirmation Bias, 68 

Emory L.J. On. 1035, 1046 (2019) (‘‘Given a sample 

of . . . court cases, no researcher could practically 

determine what the courts got ‘right’ and what they 

got ‘wrong.’ There is no reliable method of coding 

how cases ‘‘should’’ have been decided and, thus, 

no reliable way of assessing whether the [decision] 

rate is ‘too high’ using observational data.’’). 

51Further to the commenter’s point, the 

Department notes that because the BIA retains sua 

sponte authority to reconsider a decision to correct 

a typographical error under this rule, 8 CFR 1003.2, 

situations in which an immigration judge may use 

this quality assurance process on that basis alone 

should be extremely rare. 

52The Department notes that this suggestion 

suffers from an additional infirmity. Due to privacy 

restrictions and confidentiality regulations, e.g., 8 

CFR 1208.6, the Department cannot simply make all 

BIA decisions public without redactions, and the 

requirement for redactions would necessarily 

inhibit the ability to determine whether those 

decisions were of appropriate quality. Further, the 

Department notes that many BIA decisions are 

already available through commercial databases, 

but that availability has not ensured that the Board 

issues a quality or correct decision in every case. 

decisions by adjudicators—is enough to 

warrant analogy. 

Regarding commenters’ requests that 

the various parties should receive notice 

at the time of certification, the 

Department notes that the rule, in fact, 

requires the immigration judge to 

provide notice of certification to both 

parties. 8 CFR 1003.1(k)(2)(iii). 

However, the Department disagrees with 

commenters’ argument that the parties 

should have opportunities for objections 

and additional briefing at the time of 

certification, particularly because the 

case was likely already briefed to the 

Board prior to the certification to the 

Director. The certification procedures 

allow immigration judges to quickly 

determine a potential error by the BIA 

and to timely seek a remedy to that 

error, all without placing an additional 

burden on the parties. The Department 

determined that the current incomplete 

and piecemeal system of various parties 

filing various motions or appeals was 

cumbersome, time consuming, and may 

not fully address the error. 85 FR at 

52502. Adding time for objections and 

briefs, as suggested by some 

commenters, would morph the process 

in the rule into a portion of what it was 

created to avoid: A cumbersome and 

time consuming process. Moreover, 

regardless of whether the Director 

returns the case to the immigration 

judge or to the Board, the parties will 

have an opportunity to raise appropriate 

arguments or issues before a final 

decision is rendered. Nevertheless, the 

Department recognizes that in discrete 

cases, additional briefing or filings may 

be helpful to the Director in reviewing 

a certified case. Accordingly, the final 

rule provides that the Director, in his or 

her discretion, may request additional 

briefs or filings from the parties when 

reviewing a certified case through the 

quality-control process. 

Additionally, the Department rejects 

any claim that the immigration judges 

are acting as advocates and would thus 

have to recuse themselves. Again, this 

assertion suggests that immigration 

judges will behave unethically or 

partially in violation of regulations and 

their code of conduct. 8 CFR 1003.10 

(‘‘In all cases, immigration judges shall 

seek to resolve the questions before 

them in a timely and impartial manner 

consistent with the Act and 

regulations.’’) (emphasis added)); 5 CFR 

2635.101(b)(8) (‘‘Employees [of the 

federal government] shall act 

impartially and not give preferential 

treatment to any private organization or 

individual.’’); IJ Ethics and 

Professionalism Guide at sec. V (‘‘An 

Immigration Judge shall act impartially 

and shall not give preferential treatment 

to any organization or individual when 

adjudicating the merits of a particular 

case.’’); see also Chem. Found., Inc., 272 

U.S. at 14–15 (‘‘The presumption of 

regularity supports the official acts of 

public officers, and, in the absence of 

clear evidence to the contrary, courts 

presume that they have properly 

discharged their official duties.’’). The 

Department categorically rejects this 

suggestion. 

In the context of the quality assurance 

process, the immigration judge is 

flagging an issue and relaying it to the 

Director for examination. While the 

immigration judge is required to 

‘‘specify the regulatory basis for the 

certification and summarize the 

underlying procedural, factual, or legal 

basis,’’ this is necessary to relay the 

immigration judge’s determination of 

error by the BIA to the Director in order 

to both qualify for certification and to 

expedite the process. Moreover, this 

process is substantively similar to the 

existing certification process utilized by 

immigration judges for many years, 8 

CFR 1003.7. Commenters did not 

provide any evidence that this existing 

process has raised questions about 

immigration judges becoming advocates, 

and the Department is unaware of any. 

Regarding commenters’ concerns 

about the Department not supporting 

the rule with data, the Department notes 

that such quality assurance issues are 

not subject to tracking or amenable to 

particular data points. For instance, 

commenters did not indicate how the 

Department would measure the 

‘‘correctness’’ of Board remand 

decisions in order to calculate the data 

they sought, and the Department is 

unaware of any metric for measuring the 

‘‘correctness’’ or ‘‘appropriateness’’ of 

remand decisions by an appellate 

court.50 Further, since no quality 

assurance system is currently in place, 

there is no baseline for data to provide. 

Moreover, even without specific further 

data, the Department is still well within 

its authority to create a certification 

process that ensures the quality of BIA 

decisions. 8 CFR 1003.0(b)(1)(ii). 

Commenters are incorrect that the 

quality assurance certification 

procedures are incompatible with the 

restriction on the BIA’s consideration of 

new evidence. In order for a case to be 

certified, the BIA decision must have 

clearly not considered ‘‘a material factor 

pertinent to the issue(s) before the 

immigration judge.’’ Id. 

§ 1003.1(k)(1)(iv). The only such 

material factors would be those that 

were already before the judge and, 

accordingly, not new evidence before 

the BIA only at the appeal. Thus, no 

new evidence that the BIA was barred 

from considering based on the 

regulations would amount to a ‘‘material 

factor’’ before an immigration judge. 

As to a commenter’s assertion that 

there must be an easier way to correct 

typographical errors, the Department 

notes that the certification process 

involves more than just typographical 

errors. The quality assurance provisions 

are designed to address wider examples 

of quality concerns at the BIA level, of 

which typographical errors are just one 

kind.51

Further, while the Department 

appreciates commenters suggestions for 

other methods to meet the Department’s 

quality assurance goals, such as 

suggestions that the Department make 

BIA decisions public,52 increase threemember panel decisions, or increase the 

number of detailed and reasoned 

precedential decisions, the Department 

finds that they would not provide an 

efficient and accurate process to ensure 

that BIA decisions are dispositive and 

accurate. Instead, such suggestions 

represent a continuation of the status 

quo rather than the real introduction of 

new procedures for immigration judges 

to bring issues to the forefront for 

consideration. Moreover, commenters 

did not explain how increased threemember panel decisions or an increased 

number of precedential decisions, both 

actions by the BIA, would improve 

quality in each individual BIA 

adjudication or how such actions 


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address immigration judge concerns 

about the quality of BIA decisions. 

Finally, to the extent that most, if not 

all, commenters focused on how this 

process would affect cases of aliens, the 

Department reiterates that it would 

affect both parties equally. Moreover, 

many commenters appear to not have 

recognized that the process is primarily 

designed for EOIR’s adjudicators and to 

improve quality decisionmaking at both 

the trial and appellate levels, rather than 

being a process designed to favor one 

party over another. 

k. Removal of Sua Sponte Motion To 

Reopen Authority (8 CFR 1003.2(a), 

1003.23(b)(1)) 

i. Due Process Concerns 

Comment: Commenters opposed the 

rule’s removal of the BIA and 

immigration judge’s authority to sua 

sponte reopen proceedings. Commenters 

alleged that the Department failed to 

consider due process and explained that 

sua sponte authority was a ‘‘vital tool’’ 

for ‘‘curing errors and injustices’’ that 

may have occurred during removal 

proceedings. Further, commenters 

explained that even if a BIA member 

saw good reason to reopen a case, such 

as in the case of an untimely or numberbarred motion to reopen, the member 

would be unable to do so without the 

sua sponte authority. 

Response: As an initial point, the 

Department notes that several courts 

have acknowledged that sua sponte 

reopening (or the lack thereof) cannot 

implicate due process rights because it 

is entirely discretionary, so there is no 

liberty interest in it that would 

implicate any of an alien’s rights in 

proceedings. See, e.g., Mejia v. 

Whitaker, 913 F.3d 482, 490 (5th Cir. 

2019); Gyamfi v. Whitaker, 913 F.3d 168 

(1st Cir. 2019); Salgado-Toribio v. 

Holder, 713 F.3d 1267, 1271 (10th Cir. 

2013); see also Matter of G-D-, 22 I&N 

Dec. 1132, 1137 (BIA 1999) (‘‘We see no 

procedural due process concerns arising 

from our discretionary decision 

declining to exercise our independent 

reopening powers on behalf of the 

respondent. The respondent’s right to a 

full and fair hearing on his asylum 

claim has not been compromised.’’). 

As explained in the NPRM, sua 

sponte authority is entirely a creature of 

regulation based on a delegation of 

authority from the Attorney General. 8 

CFR 1003.2(a), 1003.23(b)(1); see also 85 

FR at 52504. It is also not the only tool 

available to address possible errors in 

immigration proceedings; thus, removal 

of sua sponte authority, in and of itself, 

does not constitute a violation of due 

process. 

In addition, commenters confuse sua 

sponte authority with motions to 

reopen. Filing a motion to reopen, 

regardless of whether it is time or 

number-barred as commenters describe, 

does not invite the BIA to exercise sua 

sponte authority; it requests the BIA to 

reopen a proceeding in response to the 

motion. See Malukas v. Barr, 940 F.3d 

968, 969 (7th Cir. 2019) (‘‘Reopening in 

response to a motion is not sua sponte; 

it is a response to the motion and thus 

subject to the time-and-number 

limits.’’). Thus the rule’s removal of sua 

sponte authority does not itself preclude 

the BIA from reopening a case in 

accordance with applicable law. See, 

e.g., 8 CFR 1003.2(c)(3)(iii), 

1003.23(b)(4)(iv). Rather, it ensures that 

reopening occurs in meritorious 

situations authorized by statute or 

regulation, rather than through the BIA’s 

subjective and largely unchecked view 

of what constitutes an exceptional 

circumstance. Accordingly, contrary to 

commenters’ assertions, the rule 

promotes fairness due to ‘‘the lack of a 

meaningful standard to guide a decision 

whether to order reopening or 

reconsideration of cases through the use 

of sua sponte authority, the lack of a 

definition of ‘exceptional situations’ for 

purposes of exercising sua sponte 

authority, the resulting potential for 

inconsistent application or even abuse 

of this authority, the inherent problems 

in exercising sua sponte authority based 

on a procedurally improper motion or 

request, and the strong interest in 

finality’’ by withdrawing an authority 

subject to inconsistent and potentially 

abusive usage. 85 FR at 52505. 

Further, as discussed in the NPRM, 

the Department recognizes that the BIA 

has, in the past, exercised what it 

termed ‘‘sua sponte authority’’ in 

response to a motion and, arguably, 

contrary to law. 85 FR at 52504 n.31 

(‘‘Despite this case law to the contrary, 

the Board has sometimes granted 

motions using what it erroneously labels 

as ‘sua sponte’ authority.’’). To the 

extent that the commenters oppose the 

change in this practice—particularly 

based on the perception that it favors 

aliens—the Department has 

acknowledged that the rule would no 

longer provide an avenue for the Board 

to use its sua sponte authority to grant 

a motion to use such authority. Indeed, 

one of the reasons stated for the rule 

was ‘‘the inherent problems in 

exercising sua sponte authority based 

on a procedurally improper motion or 

request.’’ Id. at 52505. The rule seeks to 

end the practice of the Board taking 

allegedly sua sponte action in response 

to a motion and to thereby reduce the 

incentive for filing such procedurally 

improper motions. Id. 

In short, the rule returns the focus on 

motions to reopen to the merits of the 

motions themselves and the applicable 

law, rather than the BIA’s subjective and 

inconsistent invocation of its sua sponte 

authority. Finally, as discussed, supra, 

and noted in the NPRM, the Supreme 

Court has recognized that ‘‘the BIA is 

simply a regulatory creature of the 

Attorney General, to which he has 

delegated much of his authority under 

the applicable statutes.’’ Id. at 52492 n.1 

(quoting Doherty, 502 U.S. at 327 

(1992)). Accordingly, to the extent that 

the Attorney General can delegate 

authority to the BIA, he can also 

unquestionably remove that delegation. 

The removal of such authority, which is 

solely the Attorney General’s to 

delegate, does not violate due process. 

Comment: Similarly, commenters 

were concerned that the rule would 

foreclose reopening the cases of 

respondents who later became eligible 

for relief, providing some of the 

following examples: An approved 

immediate immigrant relative petition, 

an approved application for SIJ status, 

an approved application for U visa 

status, or derivative asylum status 

through a spouse or parent. Commenters 

noted that these applications typically 

take years to adjudicate. Commenters 

were also concerned that the rule would 

deny protection to the most vulnerable 

populations in immigration 

proceedings, such as by foreclosing 

reopening the cases of respondents who 

were victims of fraud or ineffective 

assistance of counsel, non-English 

speakers or others with language 

barriers, and children who failed to 

appear for their hearings by no fault of 

their own. One commenter further 

described the effects on unaccompanied 

alien children (‘‘UAC’’) generally, 

explaining that sua sponte authority 

was an important safeguard to protect 

children because critical details and 

information in children’s cases typically 

emerge over time. 

At least one commenter alleged that 

the Department purposefully 

promulgated these provisions as an 

‘‘attack’’ on asylum seekers and 

migrants. 

As with other provisions of the rule, 

commenters explained that the 

Department should not remove the sua 

sponte authority because ‘‘fairness is 

more important than finality’’ or quick 

removals. 

Response: As an initial point, the 

Department notes that many of its 

responses to comments regarding the 

withdrawal of the BIA’s certification 

authority discussed, supra, are equally 


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applicable to comments regarding the 

withdrawal of sua sponte reopening 

authority. On balance, the inconsistent 

application of such authority, even with 

a well-established standard, and the 

existence of equally functional 

alternatives, particularly as equitable 

tolling has advanced as a doctrine to 

extend filing deadlines for motions to 

reopen, militate in favor of removing the 

Attorney General’s delegation of such 

authority. 

The Department did not promulgate 

this rule as an attack on anyone. As 

discussed herein, the rule applies 

equally to DHS and respondents, it 

applies to all types of cases (not just 

asylum cases), and it addresses 

significant issues of inconsistent 

adjudications and efficiency, among 

others. Commenters generalized policy 

disagreements with the rule do not 

effectively engage with its provisions 

and, thus, do not provide a useful basis 

for the Department to respond. 

In general, commenters’ concerns that 

respondents will be unable to reopen 

their cases without the BIA’s sua sponte 

authority are based on an erroneous 

understanding or assumption that 

respondents are entitled to such a 

reopening. The Department emphasizes 

that the vehicle by which such 

respondents should seek reopening is a 

motion to reopen. See Malukas, 940 

F.3d at 969 (‘‘Reopening in response to 

a motion is not sua sponte; it is a 

response to the motion and thus subject 

to the time-and-number limits.’’). The 

Attorney General has already 

determined that sua sponte authority 

may not be used to circumvent timing 

and numerical limits, see Doherty, 502 

U.S. at 323; INS v. Abudu, 485 U.S. 94, 

107 (1988). Further, Congress included 

such limitations to promote finality in 

proceedings. Matter of Monges-Garcia, 

25 I&N Dec. 246, 250 (BIA 2010) 

(explaining that, by requiring the 

Department to promulgate motion time 

and number limits by regulation as part 

of the Immigration Act of 1990, 

‘‘Congress clearly intended that the time 

and number limitations on motions 

would further the statute’s purpose of 

bringing finality to immigration 

proceedings’’). 

Nevertheless, aliens who reach 

agreement with DHS regarding the 

validity of their changed claim may 

jointly file a motion to reopen with DHS 

regardless of the amount of time that has 

passed since the underlying final order. 

8 CFR 1003.2(c)(3)(iii), 1003.23(b)(4)(iv). 

The rule does not affect that pre-existing 

exception to the time and number 

limitations on motions to reopen. In 

addition, the deadline for filing a 

motion to reopen by aliens who have 

been the victim of fraud, ineffective 

assistance of counsel, and other harms 

may be subject to equitable tolling. 

Salazar-Gonzalez v. Lynch, 798 F.3d 

917, 920 (9th Cir. 2015) (stating that the 

deadline for filing a motion to reopen is 

subject to equitable tolling). 

Regarding commenters’ concerns for 

UAC, the Department has considered 

whether there would be any specific 

impacts of the rule on UAC in 

particular—as distinguished from other 

categories of aliens—but has identified 

none. As discussed, supra, there is no 

right to a motion to reopen sua sponte 

for any classification of aliens, many 

aliens (not just UAC) are subject to 

remote visa priority dates, and many 

aliens (not just UAC) may become 

putatively eligible for relief well after 

their immigration proceedings have 

concluded. Commenters also did not 

identify any specific impacts on UAC 

that would not also fall on the general 

population of aliens in immigration 

proceedings. Moreover, even if the rule 

did have particular impacts on UAC, the 

Department finds that those impacts are 

far outweighed by the benefits provided 

the rule, namely more consistent 

application of the law, more efficient 

adjudication of cases, and a more 

appropriate emphasis on the importance 

of finality in immigration proceedings. 

The Department further emphasizes 

that safeguards for UAC seeking asylum 

remain in place under provisions on 

motions to reopen that are premised on 

changed country conditions, see INA 

240(c)(7)(C)(ii), 8 U.S.C. 

1229a(c)(7)(C)(ii); 8 CFR 1003.2(c)(3)(ii), 

1003.23(b)(4)(i). Further, nothing in the 

rule singles out UAC for adverse 

treatment, and available avenues for 

untimely motions to reopen—e.g., joint 

motions and motions based on equitable 

tolling—continue to exist independent 

of the rule. The law does not guarantee 

UAC a right to sua sponte reopening, 

just as it does not guarantee any 

particular alien such a right for the 

reasons stated in this rule, and 

commenters did not point to any 

provision claiming such a right. For 

similar reasons, commenters’ allegation 

that the generally applicable provision 

is specifically targeted at asylumseekers, is without merit. The 

withdrawal of sua sponte authority 

applies to all cases and all parties, and 

it is well within the Attorney General’s 

authority to withdraw a delegation of 

authority that he alone has provided. 

Underlying many of the comments on 

this provision is a tacit claim that an 

alien who establishes eligibility for 

relief long after immigration 

proceedings have concluded—e.g., 

aliens whose visa numbers become 

current or who obtain the potential for 

derivative status—should be granted 

reopening sua sponte as a matter of right 

and that, accordingly, the rule will 

deprive such aliens of a ‘‘right’’ to 

reopen their cases and obtain relief from 

removal. This view, however, is 

unsupported by law in multiple ways 

and, thus, unpersuasive. 

First, as discussed, supra, there is no 

right to reopening of a removal 

proceeding, and the Board may even 

deny a motion to reopen when the alien 

establishes a prima facie claim for relief. 

8 CFR 1003.2(a) (‘‘The Board has 

discretion to deny a motion to reopen 

even if the party moving has made out 

a prima facie case for relief.’’). Second, 

as also discussed, supra, a motion to 

reopen sua sponte is an ‘‘oxymoron’’ 

and represents an improper filing that 

should ordinarily be rejected. Third, 

Board case law makes clear that 

untimely motions to reopen to pursue 

adjustment of status should ordinarily 

be denied, indicating that it ordinarily 

would not exercise sua sponte 

reopening authority in such situations 

either. See Matter of Yauri, 25 I&N Dec. 

103, 105 (BIA 2009) (‘‘We emphasize 

that untimely motions to reopen to 

pursue an application for adjustment of 

status, even for cases that do not involve 

an ‘arriving alien,’ do not fall within any 

of the statutory or regulatory exceptions 

to the time limits for motions to reopen 

before the Board and will ordinarily be 

denied.’’ (emphasis added)); cf. Vithlani 

v. Att’y Gen., 823 F. App’x 104, 105–06 

(11th Cir. Aug. 10, 2020) (‘‘The BIA 

denied the motion [to reopen based on 

asserted eligibility for adjustment of 

status], finding that it was untimely and 

number-barred, and that it did not 

demonstrate an exceptional situation 

warranting sua sponte reopening. The 

BIA later also denied her motion to 

reconsider, stating that becoming 

eligible for adjustment of status was not 

an exceptional situation warranting the 

grant of an untimely motion to reopen. 

In 2019, Vithlani . . . . sought sua 

sponte reopening, again seeking to 

apply for adjustment of status. . . . The 

IJ denied Vithlani’s motion to reopen 

. . . . stat[ing] that becoming eligible to 

adjust status was not uncommon. . . . 

[and finding] that the motion did not 

demonstrate an exceptional situation to 

warrant sua sponte reopening.’’). 

The Department emphasizes that, as 

stated throughout this final rule, the 

changes to Board procedures are 

intended to promote consistency and 

efficiency in proceedings. To the extent 

that commenters assert as a policy 

matter that the Board should retain sua 

sponte authority solely as a vehicle for 

aliens to file motions seeking to evade 


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the usual time and number limitations 

and possibly delay removal, cf. Doherty, 

502 U.S. at 323 (‘‘[A]s a general matter, 

every delay works to the advantage of 

the deportable alien who wishes merely 

to remain in the United States.’’), or that 

the Department should not seek to 

correct the inconsistent and potentially 

inappropriate usage of that authority, 

the Department finds such policy 

arguments unpersuasive for the reasons 

given in the NPRM and this final rule. 

Further, commenters are incorrect 

that the respondents whom they alleged 

would be unable to reopen their cases 

if the BIA can no longer exercise sua 

sponte authority. As discussed in the 

NPRM, 85 FR at 52504–05 and supra, 

those respondents are not truly 

requesting that the BIA exercise sua 

sponte authority; in actuality, they seek 

a response to their filed motion. See 

Salazar-Marroquin v. Barr, 969 F.3d 

814, 816 n.1 (7th Cir. 2020) (‘‘Describing 

the motion as seeking a ‘sua sponte’ 

reopening is a common but unfortunate 

misnomer and even an oxymoron. Board 

action on a motion would not be sua 

sponte.’’). Nothing in the rule prohibits 

the BIA from adjudicating motions to 

reopen filed by aliens in accordance 

with well-established principles of law. 

Further, the Attorney General has 

already determined that sua sponte 

authority may not be used to circumvent 

timing and numerical limits. Matter of 

J-J-, 21 I&N Dec. 976, 984 (BIA 1997). 

Thus, to the extent that commenters 

assert sua sponte authority has been 

used to circumvent those limits 

previously, the BIA’s prior failure to 

follow the law in individual cases is not 

a compelling or persuasive reason to 

retain such authority. To the contrary, it 

would further reinforce the 

Department’s decision to remove the 

delegation of such authority. 

Additionally, contrary to commenters’ 

concerns, regulations at 8 CFR 

1003.2(c)(3), 1003.23(b)(4)(iv), 

214.11(d)(9)(ii), and 214.14(c)(5)(i)—in 

addition to the ability to file a joint 

motion to reopen, 8 CFR 

1003.2(c)(3)(iii)—would continue to 

provide exceptions to the time and 

numerical limits in appropriate cases, 

and none of those are affected by this 

rulemaking. Similarly, the availability of 

equitable tolling in particular cases, 

which many commenters did not 

acknowledge, would also allow aliens 

the ability to evade strict adherence to 

statutory time limitations. 

Other than highlighting its incorrect 

usage to evade time and number 

limitations contrary to Matter of J-J-, 

commenters did not explain how the 

withdrawal of sua sponte authority 

would affect any discrete populations, 

particularly when those populations 

could not file a putative motion to 

reopen sua sponte in the first instance. 

As a delegation of procedural authority, 

sua sponte reopening authority does not 

apply differently to different types of 

cases; accordingly, its withdrawal will 

not affect any specific populations. 

Finally, to the extent commenters 

alleged that the withdrawal of sua 

sponte authority would impact aliens 

with in absentia removal orders, the 

Department notes there is already no 

time limit on such motions if they are 

based on a lack of notice. INA 

240(b)(5)(C)(ii), 8 U.S.C. 

1229a(b)(5)(C)(ii). Thus, the withdrawal 

of sua sponte authority would not affect 

the ability of an alien to file a motion 

to reopen an in absentia removal order 

based on a lack of notice. Similarly, an 

alien who fails to appear due to 

exceptional circumstances may file a 

motion to reopen any resulting in 

absentia removal order within 180 days. 

INA 240(b)(5)(C)(i), 8 U.S.C. 

1229a(b)(5)(C)(i). Commenters did not 

explain why an alien who failed to 

appear due to exceptional 

circumstances would wait longer than 

180 days to file such a motion, and the 

Department declines to speculate as to 

such reasons. Nevertheless, the 

Department notes that even in that 

unlikely situation, an alien may seek to 

have the 180-day deadline equitably 

tolled. In short, the withdrawal of sua 

sponte reopening authority has no 

impact on existing and well-established 

avenues for aliens to reopen in absentia 

removal orders. 

ii. Limited Current Use and Abuse of 

Authority 

Comment: Commenters generally 

opposed the Department’s removal of 

sua sponte authority, stating that the 

Department did not provide any specific 

examples of abuse in the rule and that 

immigration judges or BIA members do 

not need much time to consider requests 

to reopen. 

Commenters explained that 

immigration judges and BIA members 

currently use sua sponte authority 

sparingly and only for the most 

compelling cases. Accordingly, the 

commenter believes that the authority is 

neither abused by adjudicators nor 

evidence of finality issues as the rule 

suggested. 

Commenters stated further that there 

was no reason to believe that 

adjudicators could not properly apply 

the appropriate standards for sua sponte 

reopening. 

Response: As the Departments 

explained in the NPRM, use of sua 

sponte authority facilitates inconsistent 

application and possible abuse, due to 

the lack of a meaningful standard to 

evaluate the use of sua sponte authority, 

see 85 FR at 52505 (collecting cases); the 

lack of a definition for ‘‘exceptional 

circumstances’’ required to exercise 

such authority; and, the problems 

resulting from a procedurally improper 

motion or request. Contrary to 

commenters’ assertions, the Department 

did provide examples of cases in which 

sua sponte authority appears to have 

been improperly used. Id. Considering 

all of those reasons together, the 

Department determined that use of sua 

sponte authority severely undermines 

finality in immigration proceedings, see 

85 FR at 52493, in which there lies a 

strong public interest in bringing 

litigation to a close, consistent with 

providing a fair opportunity to the 

parties to develop and present their 

cases. See Abudu, 485 U.S. at 107. 

Comment: Commenters alleged that 

immigration judges and the BIA 

‘‘frequently have unfettered discretion 

in deciding when to order removal 

proceedings.’’ Accordingly, the 

commenters explained that removing 

sua sponte authority due to concerns of 

abuse of such authority was 

‘‘laughable.’’ 

The commenters further explained 

that removing such authority would 

exacerbate the backlog because BIA 

members would be unable to remand a 

case to further develop the facts, which 

another commenter asserted would 

conflict with Congress and the Attorney 

General’s trust in the BIA and 

immigration judges ‘‘to intervene in 

cases where fundamental fairness and 

the interests of justice so warrant.’’ 

Similarly, commenters alleged that the 

Department failed to explain in the rule 

why speed in this context was not 

favored, given that sua sponte action 

would be faster than waiting for a 

motion to reopen. Commenters 

explained that removing such authority 

would increase the number of appeals 

and the BIA’s workload. 

Response: The Department does not 

have ‘‘unfettered discretion’’ in regard 

to removal proceedings. As an initial 

matter, EOIR’s jurisdiction in 

proceedings is bound by the INA and 

the regulations. See, e.g., INA 240, 8 

U.S.C. 1229a. Second, immigration 

judges exercise independent judgement 

and discretion in applying applicable 

law and regulations. See 8 CFR 

1003.10(b), 1240.1(a). Likewise, BIA 

members resolve issues before them in 

a manner that is timely, impartial, and 

consistent with applicable law and 

regulations, in an exercise of their 

independent judgment and discretion. 

See 8 CFR 1003.1(d)(1) introductory 


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text, (d)(1)(ii). Nevertheless, the 

authority of immigration judges and 

Board members to reopen cases is 

circumscribed by law, and neither class 

of adjudicator possesses free-floating 

authority to reopen cases in 

contravention of established law or in 

the absence of clear legal authority. 

The Department’s decision to 

withdraw sua sponte authority would 

not exacerbate the backlog, and the 

Department finds this particular 

comment somewhat illogical. By 

definition, sua sponte authority to 

reopen a case would apply only to cases 

that are already administratively final 

and, thus, not part of the pending 

caseload. In fact, also by definition, the 

continued use of sua sponte authority 

would necessarily increase the pending 

caseload because it would allow the 

Board to reopen proceedings even in 

cases in which there was otherwise no 

legal basis to do so. Similarly, there is 

no basis to believe that withdrawing sua 

sponte reopening authority would 

increase the number of appeals to the 

Board because, again, that authority 

would only be used for a case that is 

already final and, thus, not subject to 

further appeal. 

The commenter’s concern about speed 

is also misplaced. The Department’s 

withdrawal of sua sponte authority does 

not indicate that the Department favored 

speed in this context. Rather, the 

Department explained the multitude of 

reasons, considered together, that 

prompted its decision. See generally 85 

FR at 52505–06. These reasons invoke 

concerns over finality and consistency, 

which are distinct from speed. Further, 

regardless of whether sua sponte 

reopening or a motion to reopen is 

‘‘faster’’ to adjudicate in the abstract— 

a question for which the Department 

does not believe an appropriate metric 

exists—the need to manage the 

inappropriate and inconsistent use of 

sua sponte reopening authority would 

outweigh whatever marginal ‘‘speed’’ 

benefits may be obtained from its usage. 

In other words, the expediency of the 

usage of sua sponte authority does not 

outweigh the need to ensure its correct 

and consistent application. 

iii. Standard of Review 

Comment: Commenters disagreed 

with the rule’s assertion that Federal 

circuit courts had no meaningful 

standard of review with which to review 

an exercise of sua sponte authority. 

Rather, the commenters, citing Lenis v. 

United States, 525 F.3d 1291, 1292 

(11th Cir. 2008), explained that the 

Federal circuit courts declined to review 

because they lacked jurisdiction. 

Commenters nevertheless disagreed 

that the Department was unable to 

check inconsistencies or abuses that 

may result from the exercise of sua 

sponte because they asserted that the 

Attorney General could review BIA 

decisions regarding whether to exercise 

sua sponte authority instead. 

Response: The Department agrees 

with the commenters that the court in 

Lenis declined to review for lack of 

jurisdiction; however, that court 

explained that it lacked such 

jurisdiction under 5 U.S.C. 701(a)(2), 

which prohibits judicial review of 

decisions ‘‘committed to agency 

discretion.’’ Lenis, 525 F.3d at 1293. The 

court explained this exception was 

extremely narrow, applicable only 

where ‘‘statutes are drawn in such broad 

terms that in a given case there is no law 

to apply.’’ Id. (quoting Citizens to 

Preserve Overton Park, Inc. v. Volpe, 

401 U.S. 402, 410 (1971)). The court 

explained that: 

[n]either the statute nor the regulation at 

issue today provides any ‘‘meaningful 

standard against which to judge the agency’s 

exercise of discretion.’’ Indeed, no statute 

expressly authorizes the BIA to reopen cases 

sua sponte; rather, the regulation at issue 

derives from a statute that grants general 

authority over immigration and 

nationalization matters to the Attorney 

General, and sets no standard for the 

Attorney General’s decision-making in this 

context. 

Id. Accordingly, that case supports the 

Department’s position that no 

meaningful standard exists, which 

prompted, in part, the Department’s 

decision to withdraw this authority. 

Further, as discussed, supra, 

regarding the Board’s certification 

authority, precedential decisions, 

including by the Attorney General, e.g., 

Matter of J-J-, 21 I&N Dec. at 984, have 

been ineffective at checking inconsistent 

or abusive usages of sua sponte 

authority. Thus, the Department finds 

that further Attorney General review of 

such authority would not necessarily 

address the concerns regarding its use. 

Moreover, the current—and 

comparatively inefficient—case-by-case 

nature of determining ‘‘exceptional 

circumstances,’’ the inconsistent 

application of that standard and its 

consideration through an open-ended 

and largely subjective lens by Board 

members and immigration judges, and 

the lack of an effective and efficient 

corrective measure for addressing 

improper reopenings under that 

authority (e.g., in response to a motion 

or to cure filing defects or circumvent 

regulations), all make the subject of sua 

sponte reopening authority both ripe for 

rulemaking and, ultimately, withdrawal 

of such authority. See Lopez v. Davis, 

531 U.S. 230, 244 (2001) (observing that 

‘‘a single rulemaking proceeding’’ may 

allow an agency to more ‘‘fairly and 

efficiently’’ address an issue than would 

‘‘case-by-case decisionmaking’’); MarinRodriguez v. Holder, 612 F.3d 591, 593 

(7th Cir. 2010) (‘‘An agency may 

exercise discretion categorically, by 

regulation, and is not limited to making 

discretionary decisions one case at a 

time under open-ended standards.’’). 

Comment: Commenters explained 

that, under Ekimian v. INS, 303 F.3d 

1153, 1158 (9th Cir. 2002), sua sponte 

decisions are not reviewable simply as 

a result of their discretionary nature, 

which the commenter alleged was not a 

reasonable or sufficient justification to 

retract the authority since other 

discretionary matters were not so 

scrutinized. 

Response: Sua sponte authority is 

distinct from other discretionary forms 

of relief. As aptly explained in Lenis, 

sua sponte authority is subject to an 

exception prohibiting judicial review, 5 

U.S.C. 701(a)(2), because the statute 

from which it derives is ‘‘drawn in such 

broad terms that in a given case there is 

no law to apply.’’ 525 F.3d at 1293 

(quoting Citizens to Preserve Overton 

Park, Inc., 401 U.S. at 410). Other forms 

of discretionary relief, such as asylum, 

do not meet this exception. 

Accordingly, the commenters’ 

comparison of sua sponte authority to 

any other discretionary form of relief is 

incorrect; moreover, the Department did 

not justify withdrawing sua sponte 

authority based solely on its 

discretionary nature, though that nature 

has contributed to inconsistent 

application. 

Comment: Commenters explained that 

the Department’s citations to circuit 

court decisions upholding the denial of 

a request for sua sponte reopening does 

not support the Department’s concern 

that the sua sponte authority is being 

abused; instead, the commenters 

contend that those cases demonstrate 

that immigration judges and the BIA are 

applying the BIA’s precedents limiting 

the use of that authority to truly 

exceptional situations. Commenters 

further explained that courts have only 

limited jurisdiction to review the BIA’s 

decision not to use its sua sponte 

authority to reopen a case based on legal 

or constitutional errors. Accordingly, 

the commenters asserted that the BIA’s 

decision on sua sponte authority is 

generally final and thus does not 

contribute to inefficiencies in the 

immigration courts or the BIA. 

Response: The Department’s reference 

to circuit court decisions in the NPRM, 

85 FR at 52505, was not meant to 


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53Consistent with the general tenor of comments 

focusing only on the rule’s alleged impact on aliens, 

commenters also failed to acknowledge that the 

Board has exercised sua sponte authority in 

response to motions filed by DHS. See, e.g., 

Chehazeh v. Att’y Gen., 666 F.3d 118, 124 (3d Cir. 

2012). In such circumstances at least one circuit 

court has questioned whether the Board’s decision 

to exercise sua sponte authority was an abuse of 

that authority. Id. at 140 (‘‘The BIA has plainly 

stated that its sua sponte authority is not designed 

to ‘circumvent the regulations.’ Matter of J-J-, 21 

I&N Dec. at 984. That authority may, of course, have 

the effect of circumventing the regulations when an 

exceptional situation calls for it, but wherever the 

line between an unexceptional situation and an 

exceptional situation lies, we wonder whether—on 

this record—this case is near it.’’). 

demonstrate abuse of the authority. 

Instead, the Department collected cases 

to underscore the fact that, generally, 

‘‘no meaningful standards exist to 

evaluate the BIA’s decision not to 

reopen or reconsider a case based on 

sua sponte authority.’’ Id. Moreover, 

commenters did not acknowledge that 

DHS lacks authority to appeal BIA 

decisions to Federal court; accordingly, 

there necessarily will be few circuit 

court decisions holding that the BIA 

abused its sua sponte authority in 

reopening a case in which reopening 

inured to the benefit of the alien.53

Commenters are correct that some 

courts have held that there is 

jurisdiction to review the BIA’s denial 

of a motion to reopen sua sponte for 

constitutional or legal error. However, 

the Department’s finality and 

consistency concerns still stand—absent 

the rule, sua sponte authority may still 

be exercised by either immigration 

judges or the BIA in an inconsistent or 

inappropriate manner, which 

undermines the importance of 

decisional finality. Moreover, the 

acknowledged lack of meaningful 

standards invites inconsistent 

application which is at odds with both 

decisional finality and principle of 

treating similar cases in a similar 

manner. Given all of these issues and 

understanding commenters’ concerns, 

the Department maintains that 

withdrawing sua sponte authority, on 

balance, represents an appropriate 

course of action. 

iv. Obligations Under International and 

Domestic Law and Treaties 

Comment: Various commenters stated 

that removing sua sponte authority 

violated the United States’ obligations 

under international law, specifically the 

American Declaration, to ‘‘protect and 

preserve the rights of individuals (both 

U.S. citizens and noncitizens) to 

establish a family.’’ Commenters 

explained that ‘‘refugee law’’ provides 

for a ‘‘ ‘refugee sur place,’ meaning that 

something has changed to create a fear 

of return to the country of origin.’’ 

Commenters stated that sua sponte 

authority allowed for reopening such 

cases and other related circumstances. 

Commenters explained that sua sponte 

authority facilitates compliance with the 

UN Protocol and Convention Relating to 

the Status of Refugees, the UN 

Convention Against Torture (CAT), and 

the TVPRA because adjudicators may 

reopen cases in which newly discovered 

or previously unavailable material 

evidence relevant to a persecution claim 

is discovered more than 90 days after a 

decision becomes administratively final. 

Accordingly, the commenters alleged 

that refoulement would increasingly 

occur. Commenters also explained that 

removing sua sponte authority 

conflicted with UNHCR guidelines that 

provide that an applicant should ‘‘not 

be prohibited from presented new 

evidence at the appeals stage.’’ 

Commenters reasoned that sua sponte 

authority may be an alien’s only way to 

present new evidence on appeal, thus, 

removal of such authority would 

conflict with the UNHCR guidelines. 

Response: As an initial point, as 

discussed, supra, an alien has no right 

to file a ‘‘motion to reopen sua sponte,’’ 

and such a motion is an ‘‘oxymoron.’’ 

See Malukas, 940 F.3d at 970. To the 

extent that commenters assert that the 

withdrawal of sua sponte authority 

infringes upon such a right, they are 

simply mistaken as a matter of law. 

Further, no domestic law or 

international convention enshrines a 

right to sua sponte reopening, and the 

withdrawal of such authority, which 

exists solely through a delegation from 

the Attorney General, does not 

contravene any binding body of law. 

Further, because the rule does not 

foreclose other mechanisms that may be 

used as exceptions to time and number 

limits, as discussed, supra, withdrawal 

of sua sponte authority does not 

constitute denial of protection for 

particular populations, nor does it 

contradict the United States’ obligations 

under international and domestic law 

and various treaties. The United States 

continues to fulfill its obligations under 

international and domestic law, 

including the 1967 Protocol, the CAT, 

the TVPRA, and any other applicable 

treaties. This rulemaking does not 

violate those obligations. Moreover, this 

rule does not affect the ability of aliens 

to file a motion to reopen to apply for 

asylum or statutory withholding of 

removal based on changed country 

conditions and supported with new, 

material evidence. INA 240(c)(7)(C)(ii), 

8 U.S.C. 1229a(c)(7)(C)(ii). Further, the 

Department continues to provide all 

aliens, including refugees and children, 

a meaningful opportunity to resolve 

their claims, in accordance with 

applicable law, regulations, and 

obligations under international law. In 

short, this rule does nothing to restrict 

an alien’s ability to seek asylum, 

statutory withholding of removal, or 

other protections as permitted by statute 

and regulation. 

v. Alternatives to Sua Sponte Authority 

Comment: Commenters disagreed 

with the rule’s assertion that a joint 

motion to reopen was a viable 

alternative to sua sponte authority 

because, as commenters explained, DHS 

and immigrants are ‘‘rarely in 

agreement’’ in regard to motions to 

reopen. The commenters explained that 

the joint motion process places ultimate 

authority to reopen or reconsider a case 

on DHS, which is not the case with sua 

sponte requests; thus, the joint motion 

was not an equitable alternative. 

Commenters explained that removing 

sua sponte reopening while at the same 

time removing the BIA’s ability to 

remand a case for consideration of new 

evidence presented by the respondent, 

instead instructing the respondent to 

file a motion to reopen, was particularly 

‘‘harsh.’’ Further, commenters averred 

that the Department could not claim 

there were ‘‘sufficient avenues 

available’’ to present claims for relief 

when the Department had both 

restricted the BIA’s ability to remand a 

case and had eliminated sua sponte 

reopening. 

Commenters explained that although 

the rule mentions the ability to toll the 

time and number limitations on motions 

to reopen, equitable tolling and the 

Department’s procedures for motions to 

reopen are difficult for lawyers, much 

less pro se parties, to understand. 

Accordingly, commenters claimed that 

equitable tolling and motions to reopen 

were not viable avenues for relief. 

Commenters suggested that instead of 

removing sua sponte authority, the 

Department should define ‘‘exceptional 

circumstances.’’ The commenters 

explained that this would preserve the 

flexibility associated with sua sponte 

action while also providing the circuit 

courts with a meaningful standard of 

review to review sua sponte reopening 

or reconsideration. Commenters 

explained that although exercising sua 

sponte authority should be rare, it was 

‘‘worthy of consideration,’’ especially in 

cases where DHS does not oppose the 

motion to reopen. Commenters 

suggested that the BIA and the 

immigration judges could reject 

‘‘improper invitations’’ to invoke sua 

sponte authority, rather than remove the 

authority altogether. One commenter 


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explained that the rule’s failure to 

consider these alternatives renders the 

rule arbitrary and capricious in 

violation of the APA. 

Response: The Department maintains 

that the rule does not disturb various 

viable alternatives to sua sponte 

authority. Indeed, the Department 

reiterates that respondents have no right 

to an adjudicator’s sua sponte exercise 

of authority and that a motion to reopen 

sua sponte is an ‘‘oxymoron.’’ See 

Malukas, 940 F.3d at 970. Although the 

contours of such alternatives may differ 

to some extent from sua sponte 

authority, the alternatives noted remain 

viable alternatives for aliens, both with 

and without representation. 85 FR at 

52505–06. Aliens may seek a motion to 

reopen under well-established statutory 

and regulatory procedures, including to 

submit a new application for relief or 

protection. They may seek a joint 

motion with DHS. They may seek 

equitable tolling of time limitations, as 

appropriate, based on case law. The rule 

itself codifies new exceptions to time 

and number limitations for motions to 

reopen. 8 CFR 1003.1(c)(3)(v). Thus, 

there remain multiple, significant 

avenues for an alien to have his or her 

case reopened as appropriate. 

Regarding commenters’ assertion that 

removing sua sponte reopening while at 

the same time removing the BIA’s 

ability to remand a case for 

consideration of new evidence 

presented by the respondent, instead 

instructing the respondent to file a 

motion to reopen, was particularly 

‘‘harsh,’’ the Department again reiterates 

both that an alien has no right to sua 

sponte reopening and that the concept 

of a motion to reopen sua sponte is an 

oxymoron. Thus, the withdrawal of the 

delegation of the BIA’s sua sponte 

reopening authority is not ‘‘harsh’’— 

regardless of any other changes— 

because there is no right to the exercise 

of such authority in the first instance. 

Moreover, as discussed, supra, multiple 

avenues remain for an alien to have his 

or her case reopened as appropriate. 

Further, an alien who wished to submit 

additional evidence during the 

pendency of an appeal would 

presumably be able to submit that 

evidence with a motion to reopen 

within the applicable time period for 

such a motion and, thus, would have no 

need to avail himself of the BIA’s sua 

sponte authority. In short, the 

Department disagrees with commenters 

that it changes are ‘‘harsh’’ and further 

notes that any alleged ‘‘harshness’’ is 

outweighed by the benefits provided by 

the rule discussed herein. 

The rule does not affect the alien’s 

ability to argue for equitable tolling of 

a time limit or to seek a joint motion 

with DHS. The alleged difficulty of 

arguments for equitable tolling is belied 

by the frequency with which it has been 

argued before the BIA and Federal 

courts, and every Federal court to have 

considered the issue has found it to be 

applicable to deadlines for motions to 

reopen. See, e.g., Avila-Santoyo v. U.S. 

Att’y Gen., 713 F.3d 1357, 1364 (11th 

Cir. 2013) (per curiam) (collecting 

cases). Furthermore, one commenter’s 

suggestion that sua sponte authority 

should be used when DHS does not 

oppose a motion to reopen—though, as 

noted, supra, sua sponte authority is not 

exercised in response to a motion— 

actually suggests that a joint motion 

with DHS would be a viable alternative, 

at least in the case identified by the 

commenter. 

The Department also considered the 

alternatives advanced by commenters. 

As discussed elsewhere, a standard for 

‘‘exceptional circumstances’’ has existed 

since 1997, Matter of J-J-, 21 I&N Dec. 

at 984, but that standard has not 

prevented inconsistent or improper 

usage of sua sponte authority. Thus, the 

Department does not believe that further 

elaboration of that standard would 

address the concern. Because sua sponte 

authority is not properly exercised in 

response to a motion or ‘‘invitation,’’ 85 

FR at 52504–05, the Department does 

not see how limiting the use of such 

authority to only ‘‘proper’’ invitations 

would be appropriate, even if it could 

devise a workable and consistently 

applied distinction between ‘‘proper’’ 

and ‘‘improper’’ invitations. Similarly, 

situations in which DHS does not 

oppose a motion to reopen are not 

appropriate for the exercise of sua 

sponte authority because such authority 

is not exercised in response to a motion. 

Id. Rather, such situations appear 

amenable to a joint motion which the 

rule does not alter. 8 CFR 

1003.2(c)(3)(iii). In short, the 

Department has considered 

commenters’ concerns about the 

available alternatives to the exercise of 

sua sponte authority, but finds them 

unpersuasive or legally inapposite for 

the reasons given. 

Finally, to the extent that 

commenters’ concerns are based on a 

belief that sua sponte authority should 

be retained because it allows aliens to 

file motions to reopen sua sponte in 

order to circumvent time and number 

bars to motions to reopen, the 

Department reiterates that the exercise 

of sua sponte authority is not proper in 

response to a motion and that its use to 

circumvent regulatory or statutory 

deadlines contravenes established case 

law and, accordingly, supports the 

Department’s decision to withdraw that 

authority. 

vi. Other Concerns 

Comment: Commenters alleged that 

although the Department addressed the 

use of sua sponte authority in 

precedential decisions, the Department 

failed to address whether the BIA’s use 

of sua sponte authority in nonprecedential decisions forms the vast 

majority of its docket. The commenters 

claimed that EOIR was in the ‘‘better 

position’’ to address this issue but that 

it failed to analyze the issue. 

Response: The extent to which sua 

sponte authority is used in nonprecedential decisions did not and 

would not affect the Department’s 

conclusion that such authority is no 

longer appropriate. As described in the 

NPRM, the Department withdrew sua 

sponte authority for several reasons: 

‘‘the exceptional nature of a situation 

required to invoke sua sponte authority 

in the first instance, the general lack of 

use of genuine sua sponte authority 

since 2002, and the availability of 

multiple other avenues to reopen or 

reconsider cases and to alleviate the 

hardships imposed by time and number 

deadlines.’’ 85 FR at 52506. Although 

the Department noted the extremely 

limited use of sua sponte authority in 

precedential decisions, the Department 

did not withdraw sua sponte authority 

based on that consideration alone. The 

Department’s conclusion, was multifaceted, and regardless of the nature of 

cases in which sua sponte authority is 

exercised, the Department has 

determined that it is appropriate to 

withdraw sua sponte authority because, 

inter alia, there are multiple viable 

alternatives for both parties, its use 

undermines efficiency by encouraging 

improper motions, and its potentially 

inconsistent and borderline ad hoc 

usage is both inappropriate and 

inefficient to the extent that it is used 

to reopen cases contrary to law. 

Comment: Without further 

explanation, one commenter alleged 

that removing sua sponte authority 

would violate principles of ‘‘equal 

protection under the law for all.’’ Also 

without further explanation, a 

commenter stated that limiting sua 

sponte motions to reopen would 

continue the family separation policy. 

One commenter disagreed with the rule, 

stating that its fixation on the phrase 

sua sponte ‘‘converts an important issue 

of fairness and justice into a debate over 

semantics.’’ Commenters explained that 

removing sua sponte authority violated 

the APA because Congress did not enact 

limits on such authority, thereby 


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54The text of 8 CFR 1003.2(a) in the NPRM 

inadvertently removed the phrase ‘‘or reconsider’’ 

from the first sentence of that paragraph. This final 

rule reinserts that phrase to ensure that parties and 

the BIA are clear that the Board can reconsider a 

decision sua sponte in order to correct a 

typographical error or defect in service. 

55Notably, although the regulatory changes in 

1997 only explicitly codified the exception to the 

time and number limitations filed by the 

government in removal proceedings before the 

immigration court, commenters at the time 

understood the changes to apply to motions to 

reopen filed by the government before the BIA and 

the immigration courts. See 62 FR at 10321 (‘‘A 

number of commenters pointed out that §§ 3.2(d) 

and 3.23(b) subject all parties to time and numerical 

limits for motions to reopen in deportation and 

exclusion proceedings, but apply those limits only 

to aliens in removal proceedings.’’). 

infringing on congressional authority to 

create laws. 

Response: The Department disagrees 

with commenters that these provisions 

generally violate equal protection. The 

Department continues to equally apply 

applicable law and regulations to all 

aliens in proceedings before the agency. 

In addition, the Department rejects 

allegations, which contained no further 

explanation, that the rule furthers any 

family separation ‘‘policy.’’ To the 

extent the commenter was referring to 

the prosecution of criminal aliens along 

the southwest border in late spring 2018 

which involved the separation of alien 

criminal defendants from their families 

while those defendants were being 

prosecuted—consistent with the 

treatment of most criminal defendants 

subject to arrest in the United States— 

there is no identifiable linkage between 

this rule and that situation. 

As previously explained, sua sponte 

authority is a product of regulation; 

Congress has not statutorily established 

this authority. Accordingly, 

withdrawing this authority does not 

violate the APA or infringe on 

congressional authority. To the contrary, 

preventing the Attorney General from 

withdrawing authority that is his alone 

to delegate in the first instance would 

infringe upon his statutory authority. 

INA 103(g), 8 U.S.C. 1103(g). Further, 

courts afford broad deference to an 

agency’s policy changes. ‘‘Agencies are 

free to change their existing policies as 

long as they provide a reasoned 

explanation for the change.’’ Encino 

Motor Cars v. Navarro, 136 S. Ct. 2117, 

2125 (2016) (citing Nat’l Cable & 

Telecomm. Assn. v. Brand X internet 

Services, 545 U.S. 967, 981–982 (2005)). 

The Department provided an extensive 

discussion in the NPRM, supplemented 

by this final rule, to explain its 

reasoning for withdrawing sua sponte 

authority. 85 FR at 52504–06. This 

discussion did not ‘‘fixate’’ on 

semantics or any one reason to justify 

withdrawing sua sponte authority. 

Rather, the Department provided a 

fulsome discussion, supplemented by 

this final rule, of the many reasons that, 

considered together, prompted 

withdrawal of sua sponte authority.54

l. DHS Motions To Reopen Time and 

Number Limitations (8 CFR 

1003.2(c)(3)(vii)) 

Comment: Commenters expressed 

concern that the NPRM’s proposed 

changes regarding the time and number 

limitation for DHS motions to reopen 

before the BIA are unfair and would 

create different rules for the government 

and for aliens in proceedings, noting 

that both aliens and the government at 

times have good cause to file motions to 

reopen that exceed the normal time and 

number limitations. Commenters were 

concerned that the change would give 

DHS favorable or preferential treatment. 

Commenters noted that allowing DHS to 

file motions to reopen without regard to 

any time or number limitations would 

prevent aliens who have been in 

proceedings from ever feeling confident 

that the decision in their case is final. 

At least one commenter stated the 

Department should restrict DHS’s ability 

to file motions to reopen before the BIA 

and create parity between the parties 

rather than have the same unequal 

procedures before both the immigration 

courts and the BIA. 

Response: In 1996, Congress amended 

the INA and provided specific 

restrictions regarding motions to reopen 

filed by aliens in proceedings. See INA 

240(c)(7), 8 U.S.C. 1229a(c)(7). The INA 

restricts aliens to file one motion to 

reopen proceedings within 90 days of 

the date of the entry of a final order of 

removal, subject to time and number 

exceptions based on lack of notice and 

when the motion to reopen is premised 

on changed country conditions in 

support of an application for asylum. Id. 

Notably, however, Congress did not 

provide any similar restriction on 

motions to reopen filed by the 

government. Accordingly, the 

Department previously removed the 

time and number limitation on motions 

to reopen filed by the government as 

part of the regulatory changes 

implemented following the enactment 

of the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 

(‘‘IIRIRA’’), Public Law 104–208, Sept. 

30, 1996, 108 Stat. 1796. See Inspection 

and Expedited Removal of Aliens; 

Detention and Removal of Aliens; 

Conduct of Removal Proceedings; 

Asylum Procedures, 62 FR 10312, 10321 

(Mar. 6, 1997) (explaining, in response 

to public comments that the same 

limitations on motions to reopen should 

apply to all parties, that ‘‘IIRIRA 

specifically mandates that ‘[a]n alien 

may only file one motion to reopen’ in 

removal proceedings. Congress has 

imposed limits on motions to reopen, 

where none existed by statute before, 

and specifically imposed those limits on 

the alien only.’’).55

Here, the rule’s amendment to 8 CFR 

1003.2(c)(3)(vii) regarding motions to 

reopen filed by DHS similarly aligns the 

BIA’s regulations with the INA’s 

limitation only on alien-filed motions to 

reopen. By ensuring that EOIR’s 

regulations provide clarity for the public 

regarding the requirements and 

restrictions set out by Congress in the 

INA, commenters are incorrect that the 

Department is providing DHS with any 

favorable or preferential treatment. 

To the extent that commenters are 

concerned that aliens will be unable to 

have confidence that their cases will be 

subject to an infinite number of motions 

to reopen for an indefinite amount of 

time, the Department first emphasizes 

that any motion to reopen filed by DHS 

is not automatically granted by the BIA. 

Instead, like all motions to reopen, DHS 

must ‘‘state the new facts that will be 

proven at a hearing to be held if the 

motion is granted,’’ support the motion 

with ‘‘affidavits or other evidentiary 

material,’’ and demonstrate that the 

‘‘evidence sought to be offered is 

material and was not available and 

could not have been discovered or 

presented at the former hearing.’’ 8 CFR 

1003.2(c)(1). As with all motions and 

appeals, the BIA considers the merits of 

each motion to reopen individually. 

Moreover, DHS has possessed the 

authority to file motions to reopen at the 

immigration court level without being 

subject to the general time and number 

bars since 1997, and there is no 

evidence that it has engaged in a 

practice of filing infinite motions over 

an indefinite period. Accordingly, the 

Department finds that commenters’ 

concerns are overstated, if not wholly 

unfounded, in light of the applicable 

regulatory requirements and DHS’s 

practice before the immigration courts. 

Finally, apart from being statutorily 

atextual and ahistorical regarding DHS 

practice, commenters’ suggestion that 

the rule provides DHS with preferable 

treatment fails to acknowledge the 

various exceptions to time and number 

limitations afforded motions to reopen 

filed by aliens. First, there is not a 

limitation when the motion to reopen is 


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56See BIA Practice Manual at Ch. 3.3(c)(iii) 

(limiting briefs to 25 pages absent a motion to 

increase the page limit). 

57 In FY 2019, respondents filed 50,129 appeals 

from immigration judge decisions, compared to 

5,636 appeals filed by DHS and 116 cases in which 

both parties filed an appeal. Preliminary data from 

FY 2020 paints a similar picture: Respondents filed 

45,117 appeals from immigration judge decisions, 

compared to 5,965 appeals filed by DHS and 117 

cases in which both parties filed an appeal. Because 

the appellant filed the initial brief under the prior 

regulation, in approximately 90 percent of appeals 

in FY 2019 and approximately 88 percent of 

appeals in FY 2020, the change to simultaneous 

briefing would have had no impact on the timing 

of the brief filed by a respondent. 

58 67 FR 54878. 

59 In an analogous situation, EOIR’s Office of the 

Chief Administrative Hearing Officer (OCAHO) also 

utilizes a simultaneous 21-day briefing schedule for 

cases reviewed by the CAHO following the decision 

of an administrative law judge. 28 CFR 68.54(b)(1) 

(‘‘In any case in which administrative review has 

been requested or ordered pursuant to paragraph (a) 

of this section, the parties may file briefs or other 

written statements within twenty-one (21) days of 

the date of entry of the Administrative Law Judge’s 

order.’’). OCAHO cases under the provisions of INA 

274A and 274C, 8 U.S.C. 1324a and 1324c, involve 

violations of worksite enforcement laws, including 

violations related to completion of Form I–9, and 

document fraud, and they are just as complex or 

involved as cases in immigration court, if not more 

so. Yet, the Department is unaware of any challenge 

to OCAHO’s simultaneous 21-day briefing schedule 

for administrative reviews or any reason why it is 

not an appropriate model or analogy for such a 

schedule before the BIA. 

for the purpose of applying or 

reapplying for asylum or withholding of 

removal based on changed country 

conditions ‘‘if such evidence is material 

and was not available and could not 

have been discovered or presented at 

the previous hearing.’’ 8 CFR 

1003.2(c)(3)(ii). Second, as discussed, 

supra, aliens may rely on equitable 

tolling in certain circumstances to avoid 

a strict application of the time deadlines 

for motions to reopen. Third, the rule 

itself provides a new avenue for aliens 

to file a motion to reopen when a 

‘‘material change in fact or law . . . 

vitiates all grounds of removability 

applicable to the alien.’’ 8 CFR 

1003.2(c)(3)(v). In short, the rule retains 

significant options for aliens to file 

motions to reopen which offset the 

unsupported allegations of allegedly 

favorable treatment, even if such 

treatment were not rooted in statutory 

text. 

m. Briefing Schedule Changes (8 CFR 

1003.3(c)) 

i. General Concerns 

Comment: Commenters raised 

concerns with the rule’s changes to the 

briefing schedule process, claiming that 

the changes favor speed over fairness 

and that the limited time savings does 

not sufficiently outweigh the 

disadvantages to the parties. 

Response: The Department expects 

the Board to adjudicate cases fairly and 

efficiently, 8 CFR 1003.1(d)(1) (noting 

that Board members will resolve cases 

in both a ‘‘timely’’ and ‘‘impartial’’ 

manner (emphasis added)), and does not 

view ‘‘speed’’ and ‘‘fairness’’ as 

mutually exclusive objectives. 

Consequently, the rule not favor one 

goal over the other, and commenters’ 

suggestion amounts to a false dichotomy 

that cases cannot be handled both fairly 

and efficiently. 

As explained in the NPRM, due to the 

growing BIA caseload, the Department 

finds it necessary to implement these 

briefing schedule reforms to ensure that 

appeals are adjudicated in a timely 

manner. 85 FR at 52492–93. In doing so, 

the Department disagrees with 

commenters’ unsubstantiated alleged 

potential difficulties caused by the 

briefing schedule changes outweigh the 

benefits of more prompt adjudication. 

Further discussion of commenters 

concerns with specific briefing-related 

changes follows below. 

ii. Simultaneous Briefing 

Comment: Regarding the rule’s change 

to require simultaneous briefing in all 

cases, commenters noted that almost 

every appellate adjudication system in 

the United States uses sequential 

briefing in order to allow the parties to 

respond to each other’s arguments. By 

contrast, commenters claimed that 

under this rule, the non-appealing party 

will not receive sufficient notice of 

which arguments to focus on in their 

brief, as the appealing party may 

include multiple issues in the Notice of 

Appeal but only brief a few of those 

issues. Commenters allege that this will 

result in briefs with cursory coverage of 

every topic rather than focused 

arguments on the few key issues raised 

in the appellant’s brief. Commenters 

stated this would be particularly 

problematic in cases with difficult legal 

issues, such as unaccompanied children 

or gender-based asylum claims. 

Commenters also claimed that 

simultaneous briefing would require the 

BIA to expend additional effort in 

reviewing the appeal record, as the 

parties would no longer be vetting each 

other’s arguments through sequential 

briefing and instead may focus on 

different issues. Commenters further 

argued that non-detained cases have 

larger administrative records due to 

non-detained persons generally having 

greater relief eligibility and do not 

invoke the same liberty interests as 

detained cases, which makes 

simultaneous briefings less appropriate. 

Commenters also noted that briefing 

every potential issue would also 

inevitably conflict with the BIA’s page 

limit requirements.56 As a result, one 

commenter recommended changing all 

briefing, including detained cases, to 

non-simultaneous sequential briefing. 

Response: Commenters generally 

failed to engage the specific reasons put 

forth by the Department—both in the 

NPRM and previously when it proposed 

simultaneous briefing in 2002, 85 FR at 

52498–99—for adopting simultaneous 

briefing in all cases or to acknowledge 

that a change to simultaneous briefing 

falls principally on DHS because the 

vast majority of Board appeals are filed 

by respondents whose initial brief 

timing as an appellant is unchanged by 

this rule.57 To the extent that 

commenters simply disagree as a policy 

matter that Board cases should be 

completed in a timely manner, see 8 

CFR 1003.1(d); cf. Doherty, 502 U.S. at 

323 (‘‘as a general matter, every delay 

works to the advantage of the deportable 

alien who wishes merely to remain in 

the United States’’), or that the 

Department should take measures, 

consistent with due process, to ensure 

the timely completion of such cases, the 

Department finds such policy 

disagreements unpersuasive for the 

reasons given in the NPRM and this 

final rule. 

The BIA has used simultaneous 

briefing for detained appeals for nearly 

20 years,58 with no apparent issues for 

the parties or the BIA.59 Conforming 

non-detained appeals to the same 

simultaneous briefing schedules will 

provide consistency across all appeals 

while helping to more efficiently 

process the growing appeals caseload. 

As such, the Department disagrees with 

commenters requesting that all appeal 

move to non-simultaneous briefing. 

Commenters’ suggestion that the nonappealing party will not receive 

sufficient notice of which arguments to 

focus on in their brief because the 

appealing party may include multiple 

issues in the Notice of Appeal but only 

brief a few of those issues is both 

conjectural and illogical, as party who 

fails to raise an issue in a brief risks 

having that issue deemed waived. Thus, 

the Department would expect that all 

issues raised in the Notice of Appeal 

will be briefed. 

The Department also disagrees with 

commenters that the non-appealing 

party will have difficulty drafting a 

simultaneous brief without first having 

the appealing party’s brief to review. To 

reiterate, this system already occurs in 

the context of appeals of detained cases, 

and commenters did not explain why 

that system has not experienced the 

problems alleged to necessarily result 


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60Commenters did not challenge 8 CFR 1003.3(b), 

which has been in effect for many years, or suggest 

that its requirements were inappropriate. To the 

extent that commenters assert that parties do not 

comply with this regulatory requirement, such 

regulatory noncompliance is not a persuasive basis 

to adopt commenters’ objections. The Department 

expects both parties to comply with all regulatory 

requirements regarding appeals adjudicated at the 

Board. 

from utilizing the same system for nondetained cases on appeal. Further, as 

explained in the NPRM, the appealing 

party must identify the reasons for the 

appeal in the Notice of Appeal (Form 

EOIR–26 or Form EOIR–29) or in any 

accompanying attachments. 8 CFR 

1003.3(b). In doing so, the appealing 

party must already comply with the 

following well-established requirements 

which are unaltered by the final rule: 

• The party taking the appeal must 

identify the reasons for the appeal in the 

Notice of Appeal (Form EOIR–26 or Form 

EOIR–29) or in any attachments thereto, in 

order to avoid summary dismissal pursuant 

to § 1003.1(d)(2)(i). 

• The statement must specifically identify 

the findings of fact, the conclusions of law, 

or both, that are being challenged. 

• If a question of law is presented, 

supporting authority must be cited. 

• If the dispute is over the findings of fact, 

the specific facts contested must be 

identified. 

• Where the appeal concerns discretionary 

relief, the appellant must state whether the 

alleged error relates to statutory grounds of 

eligibility or to the exercise of discretion and 

must identify the specific factual and legal 

finding or findings that are being challenged. 

Id. 

Commenters did not generally address 

why this information, which should 

already be contained in the Notice of 

Appeal, is insufficient to apprise the 

opposing party of the issues on 

appeal.60 See also BIA Practice Manual 

at Ch. 4.4(b)(iv)(D) (‘‘The statement of 

appeal is not limited to the space on the 

form but may be continued on 

additional sheets of paper . . . Parties 

are advised that vague generalities, 

generic recitations of the law, and 

general assertions of Immigration Judge 

error are unlikely to apprise the Board 

of the reasons for appeal.’’). As a result, 

the Department believes these 

statements provide the non-appealing 

party with ample information to draft a 

simultaneous brief in non-detained 

cases, just as it has in detained cases for 

many years. 

Finally, the Department also has no 

concerns that appellees will be unable 

to follow the page limit requirements for 

briefs, and such concerns are 

unsupported by any evidence and 

wholly speculative. Moreover, increases 

are available by motion at the BIA’s 

discretion. See BIA Practice Manual at 

Ch. 3.3(c)(iii). 

iii. Briefing Extensions 

Comment: Commenters were also 

concerned about the shortened 

timeframe for briefing extensions, 

explaining that by the time a filer 

receives a response as to whether or not 

the extension is granted, the 14 days 

would be nearly expired. Moreover, 

commenters were concerned with 

limiting the briefing extension to a 

single 14-day period, noting that there 

may be issues that prevent filing within 

the 14-day extension period, including 

serious medical issues or a death in the 

family. 

Commenters were also concerned that 

the shortened briefing extension 

timeframe would lead to less legal 

representation before the BIA. 

Commenters stated that if newly 

retained counsel, including pro bono 

counsel, cannot receive a reasonable 

extension to review the record and 

prepare a brief, it is unlikely the counsel 

would accept representation in order 

prevent the possibility of providing 

ineffective representation. As a result, 

commenters were concerned that this 

rule would make pursuing appeals even 

more difficult for pro se respondents. 

One commenter stated that requiring 

the BIA to make individualized good 

cause determinations for briefing 

extensions would create a significant 

burden for the BIA. 

Commenters also raised issues with 

the NPRM’s reference to preventing 

‘‘gamesmanship’’ as a reason to shorten 

the briefing extension time period, 

stating that the Department did not 

provide support for this claim. 

Commenters claimed that the 

shortened briefing schedule changes 

would also create institutional bias 

against women, such as due to timing 

issues surrounding child birth and child 

care responsibilities. 

Another commenter stated that 

shortening the briefing extension period 

during the COVID–19 pandemic was 

improper. 

Response: As an initial matter, the 

Department notes that underlying most 

commenter objections was a tacit 

suggestion that there is an entitlement to 

briefing extensions and that they should 

be granted by the Board as a matter of 

right. That view is incorrect. Briefing 

extensions are generally disfavored, as 

parties, including newly retained 

counsel, should be completing their 

briefs in the original allotted time, 

particularly in cases where the briefing 

period only begins once transcripts are 

complete. See BIA Practice Manual at 

Ch. 4.7(c)(i), (‘‘In the interest of fairness 

and the efficient use of administrative 

resources, extension requests are not 

favored.’’). Further, there is no 

entitlement to a briefing extension, and 

to the extent that commenters opposed 

the NPRM because they believe parties 

have a right to an extension—e.g., for 

newly retained counsel—they are 

mistaken. Id. at ch. 4.7(c) (‘‘The Board 

has the authority to set briefing 

deadlines and to extend them. The filing 

of an extension request does not 

automatically extend the filing deadline, 

nor can the filing party assume that a 

request will be granted. Until such time 

as the Board affirmatively grants an 

extension request, the existing deadline 

stands.’’). 

Additionally, few commenters 

acknowledged that notwithstanding the 

existing language of 8 CFR 1003.3(c)(1), 

the Board’s longstanding policy has 

been to limit briefing extensions to 21 

days. BIA Practice Manual at Ch. 

4.7(c)(i). Nor did commenters generally 

acknowledge that the Board already 

possesses the authority to shorten the 

overall briefing period to less than 21 

days. 8 CFR 1003.3(c)(1). Consequently, 

the final rule merely codifies timelines 

that the Board itself could choose to 

adopt, and commenters did not 

persuasively explain why it would 

preferable for the Board to adopt those 

changes through policy or case-by-case 

adjudication rather than through 

rulemaking. See Lopez, 531 U.S. at 244 

(observing that ‘‘a single rulemaking 

proceeding’’ may allow an agency to 

more ‘‘fairly and efficiently’’ address an 

issue than would ‘‘case-by-case 

decisionmaking’’); Marin-Rodriguez, 

612 F.3d at 593 (‘‘An agency may 

exercise discretion categorically, by 

regulation, and is not limited to making 

discretionary decisions one case at a 

time under open-ended standards.’’). 

To the extent that commenters assert 

as a policy matter that the Board should 

always grant a briefing extension for a 

maximum amount of time because such 

extensions inherently delay 

adjudication in the case to the benefit of 

aliens, cf. Doherty, 502 U.S. at 323 (‘‘as 

a general matter, every delay works to 

the advantage of the deportable alien 

who wishes merely to remain in the 

United States’’), or that the Department 

should not take measures, consistent 

with due process, to ensure the timely 

completion of cases, the Department 

finds such policy disagreements 

unpersuasive for the reasons given in 

the NPRM and this final rule. Moreover, 

few, if any, commenters acknowledged 

that this rule applies equally to DHS, 

which will also have to comply with the 

timelines, or that this rule will benefit 

aliens with meritorious claims for relief 


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61The Department reiterates that approximately 

86 percent of aliens are represented upon appeal 

under the existing system which is largely 

condified in this rule. EOIR, Adjudication Statistics: 

Current Representation Rates, Oct. 13, 2020, 

available at https://www.justice.gov/eoir/page/file/ 

1062991/download. Thus, there is even less basis to 

assert that this rule will increase the number of pro 

se cases before the Board. 

62Although the Department is aware of anecdotal 

examples of gamesmanship and dilatory tactics 

occurring, it did not state that such activity occurs 

in every case. Rather, one of the principles 

animating this provision of the rule, as well as the 

provision related to simultaneous briefing, is to 

ensure that the risk of such activity occurring is 

reduced and, concomitantly, ensuring that the BIA’s 

regulations provide for as efficient and orderly an 

appeals system as possible. 85 FR at 52498. 

63The BIA holds oral argument infrequently and 

has not held any oral argument sessions since 

before March 2020. 

64The Department notes, contrary to the 

commenter’s suggestion, that men may also have 

childcare responsibilities. Nevertheless, the rule 

imposes no burden on any caregiver any greater 

than that which already exists for any 

representative caring for another individual. 

or protection by allowing them to 

receive a decision sooner. To the extent 

that commenters did not fully assess the 

implication of the rule—and, thus, 

provided comments without a complete 

foundation—the Department finds those 

comments unpersuasive. 

The briefing extension time period in 

this rule is sufficient for parties to file 

their briefs, and commenters have not 

persuasively explained why a total of up 

to 35 days is an insufficient amount of 

time to file a brief. Moreover, few 

commenters acknowledged that the BIA 

can ask for supplemental briefing if it 

finds that the briefs submitted are 

inadequate, which allows an additional 

opportunity for parties to submit 

arguments if the BIA believes such 

additional argument is necessary. The 

Board, rather than the parties, is 

ultimately in the best position to 

determine whether briefing is sufficient 

in a particular case, and this rule does 

not restrict the Board’s ability to request 

supplemental briefing if it believes such 

briefing is helpful. 8 CFR 1003.3(c)(1). 

In short, the procedures and time 

provided by this rule are sufficient to 

ensure that the Board receives 

appropriate information through 

briefing in order to aid its adjudication. 

Further, as noted in the NPRM, 85 FR 

at 52498–99, the parties need not wait 

until a briefing schedule is actually 

issued to begin drafting the brief, and 

they can use any extension to complete 

the brief, as appropriate. 

The Departments disagree with 

commenters’ supposition that shortened 

briefing extension time periods will lead 

to less representation at the BIA. As an 

initial point, commenters did not 

explain why a respondent would wait 

until a briefing schedule has been 

issued or a brief is due before retaining 

representation. The Department expects 

that most aliens whose cases are on 

appeal will obtain representation as 

quickly as possible, especially in the 

cases in which the respondent files the 

Notice of Appeal. Commenters did not 

explain what incentive an alien would 

have to wait until an appeal has been 

pending for a notable length of time 

before engaging representation, and the 

Department is aware of none. Moreover, 

in any litigation, newly retained counsel 

takes a client as he or she finds him, and 

as discussed above, there is no 

entitlement to a briefing extension in 

any circumstance, even for newly 

retained counsel. Consequently, the 

same concerns advanced by commenters 

already exist under the present system— 

i.e., a new representative may be 

unsuccessful at obtaining an extension 

of the briefing schedule—and are 

unaltered by the rule.61

Further, the Department’s BIA Pro 

Bono Project is not tied to the issuance 

of a briefing schedule. The Department 

reviews cases for referral through that 

Project upon the filing of a Notice of 

Appeal, not upon the issuance of a 

briefing schedule. Moreover, under 

current practice, pro bono volunteers 

who accept a case typically receive a 

copy of the alien’s file before a briefing 

schedule is issued and, like all 

representatives, may request an 

extension if appropriate. Consequently, 

there is no evidence that shortening the 

length of a briefing extension, which is 

already a disfavored practice and not 

guaranteed to any representative, will 

have any negative impact on 

representation before the BIA, 

particularly pro bono representation. 

Regarding commenters’ concerns with 

requiring the BIA to make 

individualized good cause 

determinations for briefing extensions, 

commenters are incorrect that this 

requirement will significantly burden 

the BIA. Indeed, such good cause 

determinations are already incorporated 

into the regulations, 8 CFR 1003.3(c)(1), 

and, thus, also into the current BIA 

practice. Accordingly, the final rule 

does alter the need for the Board to find 

good cause in order to grant a briefing 

extension. 

With regards to ‘‘gamesmanship,’’ the 

Department notes that the shortened 

briefing extension period may help to 

reduce any possible future 

gamesmanship attributable to lastminute extension requests in two 

respects. First, in the Board’s 

experience, it is not uncommon to 

receive a briefing extension request filed 

just before or on the date a brief is due, 

suggesting that many extension requests 

are merely last-minute delay tactics 

rather than genuine representations of 

unforeseen circumstances preventing 

adherence to the original schedule. 

Second, such last-minute requests often 

occur after the opposing party has 

already served its brief, as a party 

submitting a brief by mail will often do 

so several days in advance of the 

deadline to ensure that it is timely 

received. In such situations, if the 

extension request is granted, the party 

who sought the extension would then 

have at least a full 21 days to review the 

opposing party’s brief and tailor its 

arguments accordingly in filing an 

initial brief. 

The Department acknowledges that 

eliminating briefing extensions 

altogether would also eliminate these 

risks of dilatory tactics and 

gamesmanship. However, after 

considering that alternative, the 

Department does not believe it is 

necessary at the present time. Although 

the final rule will not end either dilatory 

tactics or gamesmanship, shortening the 

period for a briefing extension will 

reduce both the incentive to engage in 

such tactics and the impact on both the 

BIA’s efficiency and the opposing party 

when such tactics are employed.62

In response to comments about 

COVID–19, the Department recognizes 

the challenges caused by the pandemic. 

However, those challenges are largely 

inapplicable to the BIA which has 

maintained generally regular operations 

during the COVID–19 outbreak because 

it typically receives briefs by mail or 

expedited courier service, and it began 

accepting briefs by email during the 

pandemic until after it was cleared to 

enter Phase Two of the Department’s 

plan for returning to normal 

operations.63 Moreover, the BIA is 

scheduled to adopt ECAS in early 2021. 

Consequently, these challenges do not 

warrant maintaining the regulatory 

maximum length for a briefing 

extension, particularly since the BIA has 

shortened that length already by 

policy—which has remained in effect 

during the COVID–19 outbreak—with 

no noted adverse effects or challenges. 

Lastly, in response to one commenter, 

the briefing extension changes do not 

and are not intended to reflect any bias 

or adverse treatment toward women. To 

the extent that the commenter suggests 

that women are incapable of addressing 

both childbirth or childcare 64 concerns 

and professional obligations as a 

representative, the Department 

categorically rejects such a suggestion. 


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65Preliminary data from FY 2020 indicates that 

the Board set a briefing schedule in approximately 

30,000 cases; the respondent filed a brief in roughly 

21,000 cases (69 percent), and DHS filed a brief in 

roughly 11,500 cases (38 percent). In approximately 

5200 cases (17 percent), neither party filed a brief. 

As noted in the NPRM, 85 FR at 52498, n.15, these 

numbers treat the filing of a motion to summarily 

affirm the decision below as the filing of a brief and 

do not exclude cases in which a party indicated on 

the Notice of Appeal that it did not intend to file 

a separate brief. 

Female attorneys routinely practice 

before the Board without any particular 

difficulties—as they do before all types 

of courts and administrative agencies. 

Nothing in the rule singles out any 

particular gender nor suggests that 

certain genders are inherently incapable 

of compliance with generally applicable 

and established procedural rules for 

representation before a tribunal. 

Finally, the Department notes that as 

the Board received briefs from both 

parties in fewer than half of the cases in 

which it issued briefing schedules in FY 

2019—and received no brief from either 

party in approximately 18 percent of 

such cases—the impact of changes to 

briefing procedures, including a change 

to simultaneous briefing and the 

reduction in the maximum time 

allowable for a briefing extension, is far 

less than what many commenters 

speculated based on supposition and 

unsubstantiated anecdotes.65 85 FR at 

52498. The Department has considered 

the issues and concerns raised by 

commenters but finds them ultimately 

unpersuasive for the reasons noted. In 

short, weighing the need for additional 

operational efficiency, the ability of the 

Board to request additional briefing in 

any case if it believes such briefing is 

necessary, the importance of reducing 

opportunities for gamesmanship, the 

actual number of briefs filed and the 

party identity of most appeals, and the 

largely speculative or anecdotal issues 

raised by commenters, the Department 

finds that, on balance, the benefits of the 

changes in the final rule significantly 

outweigh the purported drawbacks. 

iv. Reply Briefs 

Comment: Commenters raised 

concerns that the rule would, in 

practice, prohibit the filing of reply 

briefs. Commenters stated that the 

parties would have much less than 14 

days to file a reply brief because the 

time period would be shortened by the 

length of time required to request and 

have the BIA grant leave to file the reply 

brief and by the amount of time it takes 

the opposing parties’ brief to be served 

by mail, which commenters stated 

routinely takes approximately five days 

to receive. Commenters also noted that 

the Department should take into 

account the fact that the BIA does not 

have electronic filing, which would 

allow the parties to immediately receive 

opposing briefs and grants of leave to 

file reply briefs. 

Response: The Departments first note 

that reply briefs are generally 

disfavored. See BIA Practice Manual at 

Ch. 4.6(h) (explaining that the BIA 

‘‘does not normally accept briefs outside 

the time set in the briefing schedule’’ 

such as reply briefs, but that the BIA 

may accept reply briefs in limited 

circumstances). Further, there is no 

right to file a reply brief, and the Board 

must accept it through the granting of a 

motion. Id. Most significantly, ‘‘[t]he 

Board will not suspend or delay 

adjudication of the appeal in 

anticipation of, or in response to, the 

filing of a reply brief.’’ Id. Commenters 

did not persuasively explain why 

shortening the time to file a brief that is 

already disfavored, not guaranteed to be 

accepted, and does not suspend the 

adjudication of an appeal would have 

any additional impact on such briefs 

beyond those already established. 

Moreover, parties that are allowed to file 

reply briefs should not require 

significant time to file such briefs as all 

issues should have already been covered 

in the Notice of Appeal and the initial 

simultaneous briefs; thus, any reply 

briefs should only be clarifications on 

existing issues. In short, the rule does 

not prohibit the submission of reply 

briefs, but its shortened submission 

timeline recognizes both their alreadydisfavored status and the reality of the 

likelihood that they will have a 

substantive impact on the adjudication 

of the case. 

The Department again notes that EOIR 

is currently in the process of a staggered 

nationwide deployment of the EOIR 

Court & Appeals System (‘‘ECAS’’), 

which will allow registered attorneys 

and accredited representatives to view 

electronic records of proceeding and 

electronically file against them. See 

EOIR Electronic Filing Pilot Program, 83 

FR 29575 (June 25, 2018); EOIR, EOIR 

Launches Electronic Filing Pilot 

Program (July 19, 2018), available at 

https://www.justice.gov/eoir/pr/eoirlaunches-electronic-filing-pilotprogram. Once ECAS is deployed at the 

BIA, which is expected in early 2021, 

registered attorneys and accredited 

representatives will be able to 

immediately view and download 

documents for cases with electronic 

records of proceeding, which will 

mitigate commenters’ concerns about 

mail service and its potential effect on 

briefing schedule timing. 

n. Changes to Immigration Judge 

Transcript Review Process and 

Forwarding of Record (8 CFR 1003.5) 

Comment: At least one commenter 

opposed the rule’s transcript review 

provisions, stating that immigration 

judges are best positioned to determine 

the accuracy of a transcript of a 

decision. Technology and human error, 

the commenter alleged, result in routine 

transcription errors, which the 

commenter asserted required correction 

by the immigration judge. 

Moreover commenters pointed to the 

following common transcription errors: 

Punctuation errors, which can 

drastically change the meaning of a 

sentence; mis-transcribed legal 

language, which can also change the 

meaning of a sentence; and, errors in 

names, locations, and other issues. 

Commenters disagreed with the BIA’s 

need to ‘‘guess’’ what the immigration 

judge said or listen to the audio decision 

to determine what the transcriber 

incorrectly typed, and the commenter 

alleged that without the immigration 

judge’s approval of the ultimate 

decision and transcript, the BIA would 

have ‘‘no idea if what was transcribed 

is what was actually ultimately decided 

by the immigration judge.’’ Commenters 

explained that the rule lacked any 

mechanism for the BIA to return the 

case to the immigration judge to clarify 

confusion resulting from a hastily made 

decision. Further, commenters alleged 

that sending a case back to the 

immigration judge after a briefing 

schedule has been issued would result 

in adjudication delays. The commenter 

predicted that a significant increase in 

remands from the Federal courts would 

result. 

Commenters alleged that the current 

14-day time period in which an 

immigration judge must review the 

transcript and make corrections is too 

short, given that, as the commenter 

alleged, it takes more than a year to get 

a copy of the transcript. The commenter 

suggested that hiring more transcribers 

with appropriate training to produce 

transcriptions in a timely manner or 

procuring new technology to produce 

transcriptions with fewer errors would 

increase efficiency more so than the 

provisions of the rule. 

Other commenters opposed 

elimination of the 14-day review 

process because they stated that it 

sacrificed quality in favor of speed, 

risking the possibility that errors that 

could have been corrected at an early 

stage in the appeal process absent the 

rule would now require a remand and 

further delay. The commenters alleged 


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66Since 1993, immigration judges have been 

prohibited from correcting any part of a transcript 

other than minor typographical errors. EOIR, 

Operating Policies and Procedures Memorandum 

93–1: Immigration Judge Decisions and Immigration 

Judge Orders at 2 (May 6, 1993), available at https:// 

www.justice.gov/sites/default/files/eoir/legacy/ 

2002/07/31/93-1.pdf (‘‘The ‘clean-up’ of an oral 

decision must be limited to the review of the 

transcript for corrections in punctuation, grammar 

and syntax.’’). There is no need, however, for an 

immigration judge to correct such minor errors, and 

commenters did not identify one. Moreover, there 

is also no consistent practice among immigration 

judges in reviewing transcripts of decisions. Some 

review for style and substance, whereas others 

review only for substance; some review with the 

record of proceedings at hand, whereas others do 

not. Inconsistent practices breed inefficiency and 

risk inadvertent errors. Thus, ‘‘there is simply no 

reason to retain the requirement that immigration 

judges continue to review transcripts, and removing 

this requirement will also eliminate the possibility 

of the transcript being amended incorrectly, even 

inadvertently, after a decision has been rendered.’’ 

85 FR at 52508–09. 

that subsequent efficiencies to be gained 

were minimal. 

Response: The Department 

appreciates a commenter’s supportive 

suggestion—and tacit support for 

additional resources—to hire more 

transcribers and obtain new technology 

to improve the quality and timeliness of 

transcript production. Transcription at 

the Board may occasionally become an 

issue, e.g., PM 20–01 at 3 & n.6, and the 

Department is always looking for 

additional ways in which to make the 

process more efficient and accurate. To 

that end, the Department, through this 

rulemaking, adopts the NPRM’s 

provisions on this issue without change 

because it believes such provisions 

properly balance efficiency in the 

transcription review process while 

facilitating the development and 

distribution of accurate transcripts. 

Nevertheless, further changes to internal 

transcription technologies or contracts 

are outside the scope of this rule. 

Regarding other commenters’ 

statements, in general, they did not 

explain precisely which errors 

immigration judge review would be able 

to correct. Immigration judges should 

not make substantive corrections to a 

transcript, 85 FR at 52508–09, and there 

is no operational or legal need for an 

immigration judge to correct minor 

typographical errors.66 To the extent 

that commenters identified examples of 

substantive errors, those are generally 

not the type immigration judges should 

correct, particularly since the parties are 

not able to argue whether they are 

genuinely errors before the immigration 

judge makes an edit. Id.; see also 

Mamedov v. Ashcroft, 387 F.3d 918, 920 

(7th Cir. 2004) (‘‘[I]n general it is a bad 

practice for a judge to continue working 

on his opinion after the case has entered 

the appellate process . . . .’’). 

Many commenters also did not appear 

to appreciate the distinction in the 

existing regulation that immigration 

judges review only the transcript of 

their decision, not the entire transcript 

of proceedings. 8 CFR 1003.5(a) (2019). 

Thus, many potential issues identified 

by commenters regarding errors in the 

full transcript of proceedings are 

inapposite to the change made by this 

rule. 

Additionally, an immigration judge’s 

primary role is to adjudicate cases 

expeditiously and impartially, not to 

review transcripts for errors. As 

explained in the NPRM, the Department 

uses ‘‘reliable digital audio recording 

technology,’’ 85 FR at 52508, and 

maintains a procedure through which 

parties may address defective or 

inaccurate transcripts, including the 

errors cited by commenters. See BIA 

Practice Manual at Ch. 4.2(f)(iii) 

(instructing parties that believe a 

transcript contains an error that is 

significant to their argument or the 

appeal to identify such defect in 

briefing). Moreover, pursuant to 8 CFR 

1003.1(e)(2), the BIA may also remedy 

defective transcripts through a remand 

for clarification or correction. 

Accordingly, the BIA need not ‘‘guess,’’ 

as commenters alleged, at what the 

transcript said or what the decision 

held. 

Further, the NPRM did not neglect to 

provide or overlook the need for a 

mechanism through which defective or 

inaccurate transcripts could be 

addressed. The BIA Practice Manual 

already provides such process; thus, 

concerns that litigation would 

proliferate based on the absence of such 

processes are purely speculative and 

unfounded. Despite this speculation, the 

Department reiterates the importance of 

accurate transcripts and will continue to 

have procedures, as described in the 

BIA Practice Manual and 8 CFR 

1003.1(e)(2), available to ensure that 

end. 

Circuit courts have affirmed EOIR’s 

current procedures through which 

parties may address defective or 

inaccurate transcripts in accordance 

with the BIA Practice Manual and 

regulations, and courts have criticized 

the practice of immigration judgereview of a transcript following the 

filing of an appeal. See Witjaksono v. 

Holder, 573 F.3d 968, 976 (10th Cir. 

2009); Mamedov, 387 F.3d at 920. 

Practically, removing the immigration 

judge-review period will eliminate the 

possibility that a transcript is 

incorrectly or inadvertently amended 

after the decision has been issued. See 

85 FR at 52508. Given these safeguards 

and circuit court considerations, the 

Department disagrees with commenters 

that immigration judges should 

continue to use scarce judicial resources 

to review transcripts of their decisions. 

The Department disagrees that the 

rule sacrifices quality for speed. As 

noted, supra, immigration judges should 

not make substantive corrections, and 

there is no operational need for them to 

make minor typographical corrections. 

Consequently, the current regulation 

serves little, if any, purpose and 

certainly not one that promotes either 

quality or speed. Moreover, given the 

quality of EOIR’s audio recording 

technology systems and the protections 

to ensure accuracy set out in the BIA 

Practice Manual and available remands 

to address defective transcripts, the 

Department finds removing the 

inefficiencies resulting from the 

immigration judge-review period will 

not affect the quality of transcriptions. 

Comment: At least one commenter 

stated that the Department should not 

end the practice of forwarding physical 

records to the BIA until ECAS is fully 

implemented nationwide. 

Response: The rule amends 8 CFR 

1003.5(a) in relevant part to provide that 

the immigration court shall promptly 

forward the record of proceeding to the 

BIA, ‘‘unless the Board already has 

access to the record of proceeding in 

electronic format.’’ Accordingly, this 

change does not end the practice of 

immigration courts forwarding the 

record of proceeding, but instead 

provides the immigration courts and the 

BIA with flexibilities as ECAS is 

implemented. It is illogical to require 

the immigration court to create a 

physical record of an otherwise 

electronic record simply for the 

purposes of sending it to the BIA in case 

of an appeal if the BIA has the 

capability of accessing the record 

electronically. 

o. BIA Authority To Grant Voluntary 

Departure in the First Instance (8 CFR 

1003.1(d)(7)(iv), 1240.26(k)) 

Comment: Commenters raised 

concerns about the rule’s changes 

requiring the BIA to adjudicate 

voluntary departure requests rather than 

remand them back to the immigration 

courts, explaining that the changes 

raised significant due process and 

fairness concerns. 

Commenters were concerned about 

allowing the BIA to adjudicate 

voluntary departure requests without 

allowing aliens to submit evidence to 

the BIA supporting their request. For 

example, commenters stated that 

required travel documents filed with the 


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67Because voluntary departure pursuant to INA 

240B(a), 8 U.S.C. 1229c(a), requires that the alien 

waives appeal of all issues, 8 CFR 

1240.26(b)(1)(i)(D), the Board is unlikely to see 

many appeals related to that provision. 

Nevertheless, an alien who appeals the denial of a 

request for voluntary departure under INA 240B(a), 

8 U.S.C. 1229c(a), will have necessarily raised that 

issue to the immigration judge. Similarly, by 

definition, in cases in which DHS appeals a grant 

of voluntary departure under INA 240B(a), 8 U.S.C. 

1229c(a), the alien will have raised the issue and 

offered evidence of eligibility before the 

immigration judge. 

68 In a case in which DHS appeals an immigration 

judge’s decision granting another form of relief, that 

the alien applied for and the immigration judge 

adjudicated such relief necessarily means that the 

alien was seeking voluntary departure under INA 

240B(b) at the conclusion of proceedings. Therefore, 

the record below will contain evidence regarding 

the alien’s eligibility for voluntary departure—or 

else the alien would have waived the issue before 

the immigration judge—allowing the Board to make 

a determination on that application on appeal. 

immigration court may have expired by 

the time the case reaches the BIA. 

Similarly, commenters stated that the 

alien may not have submitted all 

necessary evidence before the 

immigration court, particularly in cases 

where the immigration judge grants 

relief and does not reach the merits of 

an alternative voluntary departure 

request. Commenters also raised 

concerns that the BIA would not have 

a sufficient record on which to 

determine which conditions would be 

necessary to ensure the alien’s timely 

departure from the United States. In 

addition, commenters were concerned 

that the BIA will not have the 

immigration judge’s ability to view the 

alien’s credibility, which may go 

towards the voluntary departure 

determination. 

Separately, commenters claimed the 

rule did not provide an ability to 

challenge any BIA denial of voluntary 

departure under the rule. Commenters 

also stated that there was no mechanism 

to remedy an improperly served 

voluntary departure grant from the BIA, 

which would prevent the alien from 

being able to comply with the voluntary 

departure requirements and conditions 

and, in turn, result in an alternate order 

of removal. 

Commenters were concerned about 

the requirement that the voluntary 

departure bond must be posted within 

five business days, which commenters 

argued was too short due to the mail 

delivery time. 

Commenters were concerned that the 

rule only requires the conditions and 

consequences to be provided in writing 

to the alien, rather than in person like 

the voluntary departure regulations for 

the immigration courts. Commenters 

explained that many aliens would have 

difficulty understanding an Englishlanguage voluntary departure order, 

which could result in significant 

adverse consequences if they were 

unable to comply with the order’s 

requirements or conditions. 

Commenters noted that, in cases 

where an immigration judge grants 

another form of relief or protection, and 

DHS appeals the decision to the BIA, 

the rule would prevent the BIA from 

alternatively considering the alien’s 

voluntary departure request because, as 

written, the rule requires the 

immigration judge to have denied the 

voluntary departure request and the 

alien to have appealed that denial. 

However, in granting another form of 

relief or protection, the immigration 

judge would not have reached voluntary 

departure. 

One commenter requested 

clarification on the rule’s change 

allowing the BIA to grant voluntary 

departure. First, the commenter asked if 

noncitizens can apply for voluntary 

departure in the first instance with the 

BIA. Second, the commenter questioned 

whether the rule conflicts with existing 

regulations prohibiting the BIA from 

making findings of fact. Similarly, 

another commenter raised concerns 

about cases where DHS opposes a 

voluntary departure grant and whether 

such cases require a merits hearing and 

fact-finding before an immigration 

judge. 

Lastly, a commenter raised concerns 

that this authority would shift the 

workload of adjudicating voluntary 

departure requests from immigration 

courts to the BIA. 

Response: In general, most 

commenters’ concerns on this issue 

reflected a misunderstanding of 

immigration court procedures and 

relevant law. An alien who seeks 

voluntary departure as a form of relief 

from removal must apply for it in the 

first instance before the immigration 

judge; otherwise, the alien’s opportunity 

to seek such relief will be deemed 

waived, both by the immigration judge 

and by the Board on appeal. 8 CFR 

1003.31(c); Matter of J–Y–C–, 24 I&N 

Dec. at 261 n.1 (‘‘Because the 

respondent failed to raise this claim 

below, it is not appropriate for us to 

consider it for the first time on appeal’’); 

Matter of Edwards, 20 I&N Dec. at 196 

n.4 (‘‘We note in passing, however, that 

because the respondent did not object to 

the entry of this document into evidence 

at the hearing below, it is not 

appropriate for him to object on 

appeal.’’). Thus, the alien will have 

necessarily already raised the issue to 

the immigration judge and, particularly 

for requests for voluntary departure 

under section 240B(b) of the Act,67

introduced evidence or a proffer of 

evidence regarding the alien’s eligibility 

for voluntary departure. 

Similarly, if the alien appeals the 

immigration judge’s decision, the alien 

must raise the issue of voluntary 

departure eligibility on appeal; 

otherwise, it would be waived. See 

Matter of Cervantes, 22 I&N Dec. at 561 

n.1 (expressly declining to address an 

issue not raised by party on appeal). 

Thus, for the Board to even consider an 

alien’s eligibility for voluntary 

departure, the alien must have already 

raised the issue with the immigration 

judge—and with the Board if appealing 

the immigration judge’s adverse 

decision—and the record must already 

contain evidence—or at least a proffer of 

evidence—of the alien’s eligibility. 

Assuming that an alien did not waive 

the issue by failing to raise it with the 

immigration judge, there are no 

operational impediments to the Board 

making its own voluntary departure 

determination. The requirements for 

such relief under either 8 CFR 

1240.26(b) or (c) are straightforward and 

involve determinations that the Board 

routinely already makes, e.g., whether 

an alien has been convicted of an 

aggravated felony, has good moral 

character, and is not deportable on 

national security grounds. Further, the 

Board routinely reviews credibility 

determinations made by immigration 

judges and is well-prepared in assessing 

the credibility of an alien’s assertion or 

proffer on appeal that he or she 

possesses ‘‘the means to depart the 

United States and . . . the intention do 

so.’’ 8 CFR 1240.26(c)(1)(iv).68

Most significantly, the Board already 

routinely reviews immigration judge 

decisions about voluntary departure on 

appeal and possesses the authority to 

reinstate an immigration judge’s grant of 

such relief. 8 CFR 1240.26(c)(3)(ii). It 

further already provides advisals, which 

are required to be in writing, related to 

voluntary departure if it does reinstate 

that relief. E.g., 8 CFR 1240.26(i) (‘‘The 

Board shall advise the alien of the 

condition provided in this paragraph in 

writing if it reinstates the immigration 

judge’s grant of voluntary departure.’’). 

In short, the Board already serves as a 

de facto adjudicator of requests for 

voluntary departure, and commenters 

did not identify a particular, realistic 

scenario in which the Board would be 

unable to discern from the record 

whether an alien was eligible for 

voluntary departure and warranted a 

grant of such relief as a matter of 

discretion, especially in cases in which 

an alien maintains on appeal—and, 

thus, necessarily asserts eligibility 


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69The Department also notes that 8 CFR 

1240.26(k)(2) and (3) were duplicative in the NPRM 

and has further edited the provisions to remove the 

duplication since they apply to both types of 

voluntary departure under INA 240B, 8 U.S.C. 

1229c. 

through reference to evidence already in 

the record—that he or she warrants 

voluntary departure. 

The purpose of the changes to allow 

the Board to grant voluntary departure 

are to increase operational efficiency by 

allowing the BIA to grant voluntary 

departure rather than first requiring 

remand to the immigration court. With 

regard to the ability of aliens to submit 

evidence in support of their voluntary 

departure requests, the Department 

notes that the alien must submit all 

relevant voluntary departure evidence 

to the immigration court. The BIA will 

then adjudicate the voluntary departure 

request like any other appeal by 

reviewing the record developed at the 

immigration court. See 8 CFR 

1003.1(d)(7)(iv) (requiring the BIA to 

adjudicate voluntary departure requests 

‘‘based on the record’’). Likewise, the 

BIA will only impose necessary 

conditions to ensure the alien’s timely 

departure based on the record on 

appeal. See 8 CFR 1240.26(k)(4). 

Responding to a commenter’s 

concerns about the inability to challenge 

a BIA denial of voluntary departure, the 

Department first notes that existing 

statutory provisions already preclude 

appeals of voluntary departure 

decisions to Federal court, and this rule 

does not—and could not—change those 

provisions. INA 242(a)(2)(B)(i), 8 U.S.C. 

1252(a)(2)(B)(i) (stripping jurisdiction to 

review most discretionary 

determinations in immigration 

proceedings, including voluntary 

departure under INA 240B, 8 U.S.C. 

1229c); see also INA 240B(f), 8 U.S.C. 

1229c(f) (precluding judicial review of 

denials of voluntary departure under 

INA 240B(b), 8 U.S.C. 1229c(b)). 

Moreover, cases in which aliens seek 

only voluntary departure before an 

immigration judge—and not another 

form of relief such as asylum, which is 

commonly appealed to Federal court— 

require the waiver of appeal and are, 

thus, unlikely to be appealed to the 

Board in the first instance. 8 CFR 

1240.26(b)(1)(i)(D). Further, where the 

Board has denied voluntary departure 

aliens are not prevented from filing 

motions to reopen or reconsider if 

applicable. See generally 8 CFR 1003.2; 

cf. 8 CFR 1240.26(e)(1) (providing that 

such a motion prior to the expiration of 

the voluntary departure period 

terminates a ‘‘grant of voluntary 

departure’’). In short, the rule has no 

impact on an alien’s existing ability to 

challenge the denial of a request for 

voluntary departure through an appeal 

to Federal court or a motion to reopen, 

and commenters’ concerns on those 

points are, accordingly, unpersuasive. 

With regards to commenter’s concerns 

about being able to post a voluntary 

departure bond within five days of the 

BIA’s decision, the Department notes 

that the five-day requirement remains 

unchanged from the existing regulations 

regarding the immigration courts. See 8 

CFR 1240.26(c)(3)(i). It further notes that 

immigration judges may issue voluntary 

departure orders in written decisions 

that are mailed to aliens, and it is 

unaware of any noted problems with 

that process. Moreover, once ECAS is 

deployed to the BIA, registered 

attorneys and accredited representatives 

will be able to immediately view and 

download documents for cases with 

electronic records of proceeding, which 

will mitigate commenters’ concerns 

about mail service and its potential 

effect on complying with voluntary 

departure requirements. See generally 

EOIR, EOIR Courts & Appeals System 

(ECAS)—Online Filing (Oct. 5, 2020), 

available at https://www.justice.gov/ 

eoir/ECAS. 

Nevertheless, in recognition of the 

fact that Board orders are generally 

served by mail—unlike orders of 

immigration judges which are more 

often served in person—the final rule 

states that aliens will have ten business 

days, rather than five, to post a 

voluntary departure bond if the Board’s 

order of voluntary departure was served 

by mail. Further, as the Board is 

currently transitioning to an electronic 

filing system and expects to fully deploy 

that system within the next year, the 

final rule retains a period of five 

business days to post a voluntary 

departure bond if the Board’s order was 

served electronically. 

In response to commenters’ concerns 

about aliens being unable to understand 

English-language voluntary departure 

orders, the Department first notes that 

all orders, decisions, and notices issued 

by EOIR—including written decisions 

issued by an immigration judge granting 

voluntary departure—are in English 

and, likewise, all documents filed with 

EOIR must be in English or 

accompanied by an English-language 

translation. See, e.g., 8 CFR 1003.3(a)(3), 

1003.33. Moreover, the Department does 

not believe that an English-language 

voluntary departure order, which is 

already used in thousands of cases every 

year with no noted concerns, raises any 

due process issues, as a reasonable 

recipient would be on notice that 

further inquiry is required. See OjedaCalderon v. Holder, 726 F.3d 669, 675 

(5th Cir. 2013) (citing Nazarova v. INS, 

171 F.3d 478, 483 (7th Cir. 1999) 

(explaining that due process does not 

require notices to be in a language the 

alien can understand)). Additionally, 

the Department notes that under 

longstanding practice, a BIA order 

reinstating voluntary departure—which 

is, in all material parts, an order 

granting voluntary departure—is already 

issued in English with appropriate 

warnings. Commenters raised no 

particular issues with this existing 

process, and the Department is unaware 

of any. 

In response to commenters’ concerns 

about cases in which DHS appeals a 

separate grant of relief or protection, the 

Department is making edits from the 

NPRM to clarify the Board’s procedure 

in that situation. Although cases in 

which an alien made multiple 

applications for relief or protection 

(including voluntary departure), an 

immigration judge granted at least one 

application but did not address the 

request for voluntary departure, DHS 

appealed the immigration judge’s 

decision, the BIA determined that the 

immigration judge’s decision was in 

error and that the alien’s application(s) 

should be denied, and the BIA found a 

basis to deny all other applications 

submitted by the respondent without 

needing to remand the case, leaving 

only the request for voluntary departure 

unadjudicated, should be uncommon, 

the Department nevertheless makes 

clarifying edits to 8 CFR 1240.26(k)(2) 

and (3) 69 to indicate that the BIA may 

grant voluntary departure in cases in 

which DHS appeals provided that the 

alien requested voluntary departure 

from the immigration judge and is 

otherwise eligible. 

In response to at least one 

commenter’s concern regarding the 

expiration of an alien’s travel 

documents, the Department notes that 

current regulations do not require the 

presentation of an unexpired travel 

document in every case. See, e.g., 8 CFR 

1240.26(b)(3)(i) (presentation of a travel 

document for voluntary departure is not 

required when ‘‘[a] travel document is 

not necessary to return to [the alien’s] 

native country or to which country the 

alien is departing . . . [or] [t]he 

document is already in the possession of 

the [DHS].’’) Moreover, ‘‘[i]f such 

documentation is not immediately 

available to the alien, but the 

immigration judge is satisfied that the 

alien is making diligent efforts to secure 

it, voluntary departure may be granted 

for a period not to exceed 120 days, 

subject to the condition that the alien 

within 60 days must secure such 


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70Procedures for Asylum and Withholding of 

Removal, 85 FR 59692 (Sept. 23, 2020). 71Procedures for Asylum and Withholding of 

Removal; Credible Fear and Reasonable Fear 

Review, 85 FR 36264 (June 15, 2020). 

72The Department notes for comparison that the 

most significant regulatory change to the BIA’s case 

management process had a 30-day comment period, 

and the Department received comments from 68 

commenters. 67 FR at 54879. Although commenters 

objected to the 30-day period then as they do now, 

there is no evidence either then or now that such 

a window is insufficient. To the contrary, the 

significant increase in comments regarding a less 

comprehensive change to the BIA’s case 

management process during a comment period of 

identical length strongly suggests that the 30-day 

period was appropriate. 

documentation and present it to [DHS].’’ 

8 CFR 1240.26(b)(3)(ii). The rule adopts 

those provisions by reference and, thus, 

already addresses this concern to some 

extent. Nevertheless, the Department is 

making changes to the final rule to make 

clear that if the record does not contain 

evidence of travel documentation 

sufficient to assure lawful entry into the 

country to which the alien is 

departing—and the alien otherwise has 

both asserted a request for voluntary 

departure and established eligibility 

under the other requirements—the 

Board may nevertheless grant voluntary 

for a period not to exceed 120 days, 

subject to the condition that the alien 

within 60 days must secure such 

documentation. 

In response to one commenter’s 

question, the Department notes that 

respondents cannot apply for voluntary 

departure in the first instance with the 

BIA because they would have waived 

that opportunity on appeal by not 

raising it before the immigration judge 

below. 8 CFR 1003.31(c); Matter of J–Y– 

C–, 24 I&N Dec. at 261 n.1 (‘‘Because the 

respondent failed to raise this claim 

below, it is not appropriate for us to 

consider it for the first time on appeal’’); 

Matter of Edwards, 20 I&N Dec. at 196 

n.4 (‘‘We note in passing, however, that 

because the respondent did not object to 

the entry of this document into evidence 

at the hearing below, it is not 

appropriate for him to object on 

appeal.’’). 

In addition, the rule does not conflict 

with 8 CFR 1003.1(d)(3)(iv), which 

generally prohibits the BIA from 

engaging in fact finding. As explained in 

the NPRM, the rule does not allow the 

BIA to engage in additional fact finding 

if granting voluntary departure, but 

rather the grant ‘‘would continue to be 

a legal determination based upon the 

facts as found by the immigration judge 

during the course of the underlying 

proceedings . . . .’’ See 85 FR at 52500. 

Similarly, in cases where DHS opposed 

voluntary departure at the immigration 

court, the record will contain evidence 

of all necessary facts, or else the 

application would have been deemed 

waived or abandoned. 

In response to concerns about BIA 

workload, the Department notes that 

immigration judges will continue to 

adjudicate voluntary departure requests 

in the first instance. This rule merely 

gives the BIA the authority to grant 

voluntary departure if certain 

requirements are met, rather than 

inefficiently remanding the case back to 

the immigration judge solely to grant 

voluntary departure. Moreover, as 

noted, supra, as the BIA already reviews 

appeals related to voluntary departure 

requests and possesses the authority to 

reinstate voluntary departure, which is 

the functional equivalent of granting it, 

simply authorizing the BIA to grant 

voluntary departure rather than 

remanding a case back to an 

immigration judge to take the same 

action imposes minimal operational 

burden on the Board but reduces 

operational inefficiency for EOIR as a 

whole. 

4. Administrative Procedure Act: 

Sufficiency of 30-Day Comment Period 

Comment: Many commenters objected 

to the Department’s allowance of a 30- 

day comment period instead of a 60-day 

or longer period. Commenters cited 

Executive Order 12866 and stated that a 

60-day comment period is the standard 

period of time that should be provided 

for a complex rule like the NPRM. 

Commenters also stated that the 30-day 

comment period is insufficient in the 

context of the COVID–19 pandemic, 

which, commenters explained, has 

strained commenters’ ability to prepare 

comments due to unique childcare, 

work-life, and academic difficulties. In 

addition, commenters stated that there 

was insufficient time to prepare 

responses to this rule due to other items 

that were published or released during 

the comment period, such as the 

Department’s NPRM related to asylum 

procedures that the Department 

published in the final days of the 

comment period 70 and the Attorney 

General’s decision in Matter of A–C–A– 

A–, 28 I&N Dec. 84 (A.G. 2020). 

Similarly, commenters cited an NPRM 

that the Department jointly published 

with DHS in June 71 as an example of 

the complexity of recent rulemaking for 

which commenters need adequate time 

to prepare responses. Some commenters 

stated that there is no need for urgency 

and a short comment period given 

recent drops in asylum seekers at the 

border. Commenters argued that the 

Department should withdraw the rule 

and republish it with a longer period for 

public comment. 

Response: As an initial point, the 

Department notes that a far more 

sweeping regulatory change to the BIA’s 

procedures also had only a 30-day 

comment period, 67 FR at 54879, but 

that there is no evidence that period was 

insufficient. Further, commenters did 

not suggest or indicate what additional 

issues the comment period precluded 

them from addressing; to the contrary, 

the comments received reflect both a 

breadth and a level of detail which 

suggests that the period was more than 

sufficient. Cf. City of Waukesha v. EPA, 

320 F.3d 228, 246 (D.C. Cir. 2003) (‘‘In 

[showing prejudice] in the context of a 

violation of notice-and-comment 

requirements, petitioners may be 

required to demonstrate that, had proper 

notice been provided, they would have 

submitted additional, different 

comments that could have invalidated 

the rationale for the revised rule.’’). 

Additionally, to the extent that 

commenters referred to other proposed 

rulemakings as a basis for asserting the 

comment period should have been 

longer, their comparisons are 

inapposite. No other proposed 

rulemaking cited by commenters 

addressed a small, discrete set of 

procedures which are already wellestablished and with which aliens and 

practitioners have been quite familiar 

with for decades. In short, the 

Department acknowledges and has 

reviewed commenters’ concerns about 

the 30-day comment period, but those 

comments are unavailing for all of the 

reasons given herein. 

The Department believes the 30-day 

comment period was sufficient to allow 

for meaningful public input, as 

evidenced by the 1,284 public 

comments received, including 

numerous detailed comments from 

interested organizations.72 The APA 

does not require a specific comment 

period length, see generally 5 U.S.C. 

553(b)–(c), and although Executive 

Order 12866 recommends a comment 

period of at least 60 days, a 60-day 

period is not required. Instead, Federal 

courts have presumed 30 days to be a 

reasonable comment period length. For 

example, the D.C. Circuit has stated that 

‘‘[w]hen substantial rule changes are 

proposed, a 30-day comment period is 

generally the shortest time period 

sufficient for interested persons to 

meaningfully review a proposed rule 

and provide informed comment.’’ Nat’l 

Lifeline Ass’n v. Fed. Commc’ns 

Comm’n, 921 F.3d 1102, 1117 (D.C. Cir. 

2019) (citing Petry v. Block, 737 F.2d 

1193, 1201 (D.C. Cir. 1984)). 

Further, litigation has mainly focused 

on the reasonableness of comment 


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73The Department also notes that several portions 

of the rule, e.g., the changes to 8 CFR 1003.1(e)(8) 

and (k), reflect either internal delegations of 

authority and assignment of responsibility or 

matters of agency management, personnel, 

organization, procedure, or practice, making those 

portions a rule exempt from any period of notice 

and comment under the APA. 5 U.S.C. 553(a)(2), 

(b)(A). An internal delegation of administrative 

authority does not adversely affect members of the 

public and involves an agency management 

decision that is exempt from the notice-andcomment rulemaking procedures of the APA. See 

United States v. Saunders, 951 F.2d 1065, 1068 (9th 

Cir. 1991) (delegations of authority have ‘‘no legal 

impact on, or significance for, the general public,’’ 

and ‘‘simply effect[] a shifting of responsibilities 

wholly internal to the Treasury Department’’); 

Lonsdale v. United States, 919 F.2d 1440, 1446 

(10th Cir. 1990) (‘‘APA does not require publication 

of [rules] which internally delegate authority to 

enforce the Internal Revenue laws’’); United States 

v. Goodman, 605 F.2d 870, 887–88 (5th Cir. 1979) 

(unpublished delegation of authority from Attorney 

General to Acting Administrator of the Drug 

Enforcement Agency did not violate APA); Hogg v. 

United States, 428 F.2d 274, 280 (6th Cir. 1970) 

(where taxpayer would not be adversely affected by 

the internal delegations of authority from the 

Attorney General, APA does not require 

publication). Thus, to the extent that commenters 

complained about the sufficiency of the comment 

period regarding those provisions not subject to the 

APA’s notice-and-comment requirements, such 

complaints are also unavailing because commenters 

were not entitled to a comment period in the first 

instance. 

periods shorter than 30 days, often in 

the face of exigent circumstances. See, 

e.g., N. Carolina Growers’ Ass’n, Inc. v. 

United Farm Workers, 702 F.3d 755, 770 

(4th Cir. 2012) (analyzing the 

sufficiency of a 10-day comment 

period); Florida Power & Light Co. v. 

United States, 846 F.2d 765, 772 (D.C. 

Cir. 1988) (15-day comment period); 

Northwest Airlines, Inc. v. Goldschmidt, 

645 F.2d 1309, 1321 (8th Cir. 1981) (7- 

day comment period). Here, the 

significant number of detailed public 

comments is evidence that the 30-day 

period was sufficient for the public to 

meaningfully review and provide 

informed comment. See, e.g., Little 

Sisters of the Poor Saints Peter and Paul 

Home, 140 S. Ct. at 2385 (‘‘The object 

[of notice and comment], in short, is one 

of fair notice.’’ (citation omitted)). 

The Department also believes that the 

COVID–19 pandemic has no effect on 

the sufficiency of the 30-day comment 

period. Employers around the country 

have adopted telework flexibilities to 

the greatest extent possible, and the 

Department believes that interested 

parties can use the available 

technological tools to prepare their 

comments and submit them 

electronically. Indeed, nearly every 

comment was received in this manner. 

Further, some of the issues identified by 

commenters—e.g., childcare—would 

apply regardless of the length of the 

comment period and would effectively 

preclude rulemaking by the Department 

for the duration of the COVID–19 

outbreak. The Department finds no basis 

to suspend all rulemaking while the 

COVID–19 outbreak is ongoing. 

The Department acknowledges that 

particular commenters may have faced 

individual personal circumstances 

which created challenges to 

commenting, but that assertion is true of 

every rulemaking. Further, there is no 

evidence of a systemic inability of 

commenters to provide comments based 

on personal circumstances, and 

commenters’ assertions appear to reflect 

a desire to slow the rulemaking due to 

policy disagreements rather than an 

actual inability to comment on the 

rule.73

Overall, based on the breadth and 

detail of the comments received, the 

Department’s prior experience with a 

30-day comment period for a much 

more sweeping change to BIA 

procedures, the rule’s codification of 

established law with which 

practitioners and aliens are already 

familiar, the discrete and clear nature of 

the issues presented in the NPRM, the 

electronic receipt of most comments, 

and the essential nature of legal services 

even during the outbreak of COVID–19, 

the Department maintains that a 30-day 

comment period was ample for the 

public to comment on this rule. In short, 

none of the circumstances alleged by 

commenters appears to have actually 

limited the public’s ability to 

meaningfully engage in the notice and 

comment period, and all available 

evidence provided by commenters 

indicates that the comment period was 

sufficient. 

5. Concerns With Regulatory 

Requirements 

Comment: Commenters generally 

expressed concern that the Department 

did not comply with Executive Orders 

12866 and 13563 because the 

Departments did not adequately 

consider the costs and possible 

alternatives to the provisions in the rule 

due to the significance of many of the 

rule’s provisions. 

For example, one commenter asserted 

that removing the ability to reopen or 

reconsider cases via sua sponte 

authority constitutes ‘‘significant 

regulatory action’’ that would trigger a 

cost and benefits analysis, as required 

by Executive Order 13563. The 

commenter stated that the Department 

should have conducted a cost and 

benefits analysis for alternatives to the 

rule, including preserving the current 

system and defining ‘‘exceptional 

circumstances.’’ The commenter 

predicted that the costs would be lower 

and the benefits higher if the 

Departments simply defined 

‘‘exceptional circumstances’’ rather than 

entirely remove sua sponte authority.’’ 

Similarly, commenters claimed that 

the rule does not comply with Executive 

Orders 12866 and 13563 because EOIR 

did not assess the costs and benefits of 

available alternatives to prohibiting the 

general use of administrative closure, 

including better tracking of 

administratively closed cases or 

regulatory changes requiring the parties 

to notify the court when ancillary relief 

is adjudicated. Commenters also noted 

that EOIR did not weigh the costs of 

unnecessary removal orders that the 

administrative closure prohibition will 

cause and the effect on applicants and 

their families or the costs from the rule’s 

effects on eligibility for unlawful 

presence waivers before DHS. Similarly, 

commenters stated that EOIR should 

consider the reliance interests of 

adjustment of status applicants who 

were relying on a grant of administrative 

closure in order to apply for a 

provisional unlawful presence waiver. 

Likewise, a commenter stated that EOIR 

should consider the effect on legal 

representation agreements since the rule 

would render agreements to pursue 

administrative closure in order to apply 

for provisional unlawful presence 

waivers moot. The commenter also 

claimed that the rule violates Executive 

Order 13563’s requirement to harmonize 

rules because it contravenes 8 CFR 

212.7(e)(4)(iii). 

Response: As an initial point, the 

Department has addressed many of 

these comments, supra, particularly 

regarding proposed alternatives, and it 

reiterates and incorporates those 

discussions by reference here. 

Additionally, commenters assume or 

conjecture, without evidence, that cases 

which are administratively closed 

would otherwise necessarily result in 

removal orders. As each case is 

adjudicated on its own merits in 

accordance with the evidence and 

applicable law, the Department declines 

to accept such a sweeping 

unsubstantiated generalization and 

finds comments based on such a 

generalization unpersuasive 

accordingly. 

The Department agrees with the 

commenter that the NPRM constitutes a 

‘‘significant regulatory action.’’ 85 FR at 

52509. The Department drafted the rule 

consistent with the principles of 

Executive Orders 12866 and 13563 and 

submitted the rule to the Office of 

Management and Budget. Id. 

Nevertheless, because the Department 

believes associated costs will be 


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74The Department notes that a prior, more 

comprehensive revision of the BIA’s case 

management process did not contain a numeric 

cost-benefit analysis of the type suggested by 

commenters. 67 FR at 54900. Moreover, 

commenters did not identify what metrics would be 

appropriate to use to measure, for example, whether 

the BIA granted a motion to reopen sua sponte in 

contravention of Matter of J–J– or the predictive 

outcome of a case that has been administratively 

closed. The Department is unaware of any 

established measures of adherence to the law by 

adjudicators or for case processing questions that 

turn on the specific facts of each case. In the 

absence of such measures—and granular data which 

could be utilized to fulfill them—the Department 

asserts that its qualitative assessment of the costs 

and benefits of the rule in the NPRM and in the 

final rule, in concert with the rule’s review by 

OMB, satisfies the requirements of the relevant 

Executive Orders. 

75The Department notes that Matter of CastroTum did not incorporate all of the legal arguments 

presented in the NPRM regarding whether 

immigration judges and Board members have freefloating authority to defer adjudication of cases. 

E.g., 85 FR at 52503 (discussing tension created by 

interpreting 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to 

allow free-floating authority to administratively 

close cases with references in those provisions to 

the ‘‘disposition’’ of cases and with the provisions 

of 8 CFR 1003.1(a)(2)(i)(C) and 1003.9(b)(3) which 

assign authority to defer case adjudications to the 

Board Chairman and the Chief Immigration Judge 

rather than to all Board members and all 

immigration judges). Thus, circuit court decisions 

abrogating Matter of Castro-Tum did not necessarily 

address those arguments. Accordingly, independent 

of Matter of Castro-Tum, immigration judges and 

Board members may still come to the conclusion 

that they generally lack free-floating authority to 

administratively close cases. 

76As representatives are officers of an 

immigration court and have professional 

responsibility obligations of candor toward the 

immigration court, parties with representation 

should already be notifying an immigration court of 

a relevant change that would affect the grant of 

administrative closure. 

77For similar reasons, the Department finds that 

this rule does not violate Executive Order 13563 

regarding harmonization. To the contrary, the final 

negligible, if any, the Department 

determined that no numeric cost benefit 

analysis was necessary. As most of the 

rule is directed at internal case 

processing, it would substantially 

improve the quality and efficiency of 

the BIA appellate procedure while not 

imposing new costs on the public.74

In response to administrative closurerelated concerns regarding compliance 

with Executive Orders 12866 and 13563, 

the Departments have weighed the 

relevant costs and benefits of the rule’s 

administrative closure change in 

accordance with Executive Orders 

12866 and 13563. The Department does 

not believe that the administrative 

closure changes will have a significant 

impact on the public, as most 

immigration courts—all but those in 

Arlington, Baltimore, Charlotte, and 

Chicago 75—currently follow either 

Matter of Castro-Tum itself or an 

applicable Federal court decisioning 

affirming it, e.g., Hernandez-Serrano, 

2020 WL 6883420 at *5 (‘‘In summary, 

therefore, we agree with the Attorney 

General that §§ 1003.10 and 1003.1(d) 

do not delegate to IJs or the Board ‘the 

general authority to suspend 

indefinitely immigration proceedings by 

administrative closure.’ ’’ (quoting 

Matter of Castro-Tum, 27 I&N Dec. at 

272)). Therefore, the effect of this rule 

would simply codify the existing 

limitations on immigration judges’ 

general authority to grant administrative 

closure. For those courts that are not 

bound by Matter of Castro-Tum, the 

Department disagrees that the change 

will result in unnecessary removal 

orders, as immigration judges are tasked 

with resolving the proceedings before 

them, including determining 

removability and issuing removal orders 

if required. See, e.g., 8 CFR 1003.10(b) 

(‘‘In all cases, immigration judges shall 

seek to resolve the questions before 

them in a timely and impartial manner 

consistent with the Act and 

regulations.’’). The Department cannot 

credit commenters’ counter-factual 

speculation as to the likely outcomes of 

cases that have been administratively 

closed, for as the Department discussed, 

supra, aliens have opposed 

administrative closure in individual 

cases because it interfered with their 

ability to obtain relief. 

As the Department asserted, freefloating authority to unilaterally 

administratively close cases is in 

significant tension with existing law, 

including regulations and longstanding 

Board case law. 85 FR at 52503–05. To 

the extent that commenters suggested 

the Department should consider 

alternatives to the rule that retain that 

tension with existing law, the 

Department finds those suggestions 

unpersuasive. See Hernandez-Serrano, 

2020 WL 6883420 at *1, *4 (‘‘A 

regulation delegating to immigration 

judges authority to take certain actions 

‘[i]n deciding the individual cases 

before them’ does not delegate to them 

general authority not to decide those 

cases at all. Yet in more than 400,000 

cases in which an alien was charged 

with being subject to deportation or 

(after April 1, 1997) removal, 

immigration judges or the Board of 

Immigration Appeals have invoked such 

a regulation to close cases 

administratively—meaning the case was 

removed from the IJ’s docket without 

further proceedings absent some 

persuasive reason to reopen it. As of 

October 2018, more than 350,000 of 

those cases had not been reopened. An 

adjudicatory default on that scale strikes 

directly at the rule of law. . . . [N]o 

one—neither Hernandez-Serrano, nor 

the two circuit courts that have rejected 

the Attorney General’s decision in 

Castro-Tum—has explained how a 

general authority to close cases 

administratively can itself be lawful 

while leading to such facially unlawful 

results.’’). 

Further, in addition to not resolving 

the legal issues raised by the view that 

immigration judges and Board members 

possess some intrinsic, freestanding 

authority to administratively close 

cases, commenters’ proposed 

alternatives suffer from other infirmities 

or do not otherwise address the problem 

identified. For example, commenters 

did not explain why additional tracking 

of administratively closed cases and a 

requirement that parties notify the court 

of a situational change would effectively 

resolve the legal or policy issues 

presented. In fact, the Department 

already tracks administratively closed 

cases, EOIR, Adjudication Statistics: 

Administratively Closed Cases 

[hereinafter Administratively Closed 

Cases], Oct. 13, 2020, available at 

https://www.justice.gov/eoir/page/file/ 

1061521/download, and the parties 

should already be notifying an 

immigration court or the Board if the 

basis for an order of administrative 

closure changes; 76 yet, those items have 

not resolved the problems with 

administrative closure identified in the 

NPRM. 

The question of unlawful presence 

waivers was already addressed by 

Matter of Castro-Tum, 27 I&N Dec. at 

278 n.3, 287 n.9, and this final rule does 

not impact such waivers accordingly. 

Moreover, the regulation identified by 

commenters, 8 CFR 212.7(e)(4)(iii), has 

no analogue in chapter V of title 8, and 

that regulation is not binding on the 

Department. Further, such a waiver is 

both ‘‘provisional’’ and ‘‘discretionary,’’ 

8 CFR 212.7(e)(2)(i), and like 

administrative closure itself, an alien 

has no right to such a waiver. Further, 

although aliens in removal proceedings 

(unless administratively closed) and 

aliens with administratively final orders 

of removal are barred from obtaining the 

waiver, 8 CFR 212.7(e)(4)(iii) and (iv), 

an alien with an administratively final 

order of voluntary departure is not, and 

by definition, aliens must voluntarily 

depart the United States in order to 

receive the benefit of such a waiver. 

Although the Department has 

considered the link between such 

waivers and administrative closure— 

just as the Attorney General did in 

Matter of Castro-Tum—that link is too 

attenuated to outweigh the significant 

legal and policy concerns raised by the 

Department regarding administrative 

closure.77


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rule promotes regulatory harmonization because it 

establishes consistency—and eliminates 

superfluousness—with the authority of the Board 

Chairman and the Chief Immigration Judge to defer 

case adjudications as established in 8 CFR 

1003.1(a)(2)(i)(C) and 8 CFR 1003.9(b)(3). As 

discussed, supra, it also harmonizes briefing 

schedules between detained and non-detained 

appeals and harmonizes the starting point for the 

adjudicatory deadlines for appeals heard by single 

BIA members and by three-member panels. In short, 

the rule promotes harmonization of regulatory 

requirements in multiple ways. 

78Furthermore, as Matter of Castro-Tum was 

issued in 2018, aliens and their representatives in 

jurisdictions following Castro-Tum should not be 

currently relying on the expectation of 

administrative closure to pursue provisional 

unlawful presence waivers. 

79The Department notes that in formulating the 

NPRM, it also considered other alternatives as well 

to promote more efficient BIA processing of 

appeals. For example, the BIA reviewed prior 

suggestions to charge respondents filing and 

transcript fees more commensurate with the actual 

costs of the proceedings or to make all appeals to 

the BIA discretionary. 67 FR at 54900. Although the 

Department may revisit those proposals in the 

future, they were not incorporated into the NPRM 

and are not being included in the final rule 

accordingly. 

Similarly, concerns about putative 

reliance interests are misplaced. First, as 

discussed, infra, the rule applies, in 

general, only prospectively, so it does 

not disturb cases that have already been 

administratively closed. Second, and 

relatedly, all changes in the law may 

impact matters of attorney strategy in 

interactions with clients, but that is an 

insufficient basis to decline to change 

the law.78 To find otherwise would 

effectively preclude any law from ever 

being changed. Third, nothing in the 

rule prohibits a practitioner from 

seeking administrative closure; rather, it 

more clearly delineates the situations in 

which administrative closure is legally 

authorized. Fourth, a representative may 

not ethically guarantee any result in a 

particular case; thus, to the extent 

commenters suggest that the final rule 

restricts or interferes with an attorney’s 

ability to guarantee an alien both a grant 

of administrative closure and the 

approval of a provisional waiver, the 

Department finds such a suggestion 

unavailing. See Model Rules Prof’l 

Conduct R. 7.1 cmt. 3 (2020) (‘‘A 

communication that truthfully reports a 

lawyer’s achievements on behalf of 

clients or former clients may be 

misleading if presented so as to lead a 

reasonable person to form an unjustified 

expectation that the same results could 

be obtained for other clients in similar 

matters without reference to the specific 

factual and legal circumstances of each 

client’s case.’’), cmt. 4 (‘‘It is 

professional misconduct for a lawyer to 

engage in conduct involving dishonesty, 

fraud, deceit or misrepresentation.’’) 

(quoting r. 8.4(c)), and r.8.4(e) (‘‘It is 

professional misconduct for a lawyer to 

. . . state or imply an ability to 

influence improperly a government 

agency or official or to achieve results 

by means that violate the Rules of 

Professional Conduct or other law’’). 

In short, the Department 

appropriately considered potential 

alternatives as well as the relevant 

interests and alleged costs in issuing the 

final rule regarding administrative 

closure. On balance, however, the 

alternatives are either unavailing or 

would not resolve the issues identified 

by the Department, and the concerns 

raised by commenters are far 

outweighed by both the significant legal 

and policy issues raised by the 

Department in the NPRM regarding 

administrative closure and the increased 

efficiency and consistency that a formal 

clarification of its use will provide. 

With regards to the costs to persons in 

removal proceedings who may no longer 

be eligible to obtain a provisional 

unlawful presence waiver without 

administrative closure, the Department 

believes that the strong interest in the 

efficient adjudication of cases and the 

legal and policy issues identified in the 

NPRM outweigh the potential inability 

of these persons to obtain provisional 

unlawful presence waivers, something 

to which they are not entitled to in the 

first instance. The Department notes 

that these persons may still apply for an 

unlawful presence waiver from outside 

the United States, and that DHS may 

choose, as a matter of policy, to amend 

their regulations to remove the 

administrative closure requirement for 

persons in removal proceedings 

applying for a provisional waiver. 

Moreover, as Matter of Castro-Tum was 

issued in 2018, aliens and their 

representatives in jurisdictions 

following Castro-Tum should not be 

currently relying on the expectation of 

administrative closure to pursue 

provisional unlawful presence waivers. 

The Department also disagrees that 

the general prohibition on 

administrative closure does not 

harmonize with DHS regulations 

regarding provisional unlawful presence 

waivers. The Department considered the 

interplay of EOIR and DHS’s regulations 

and, due to the strong equities in favor 

of limiting administrative closure, 

decided to continue with a general 

prohibition on administrative closure in 

immigration proceedings before EOIR. 

DHS chose to limit the eligibility for 

provisional unlawful presence waivers 

as a matter of policy, and DHS may 

choose to update their more specific 

regulations accordingly as a result of 

this rule. 

In sum, the Department’s analysis 

fully complied with all relevant 

Executive Orders, and OMB has 

appropriately reviewed the rule.79

Comment: At least one commenter 

stated that the Department failed to 

adequately consider the costs of the rule 

on small entities, particularly 

immigration practitioners, under the 

Regulatory Flexibility Act (RFA). The 

commenter predicted that the rule 

would have a variety of effects of the 

finances of these practitioners, such as 

the need for additional appeals in 

Federal courts or limits on the number 

of cases a practitioner can ethically 

accept due to shortened filing deadlines. 

Response: As the Department stated 

in the proposed rule, this rule ‘‘does not 

limit the fees [practitioners] may charge, 

or the number of cases a representative 

may ethically accept under the rules of 

professional responsibility.’’ 85 FR at 

52509. Moreover, the comments assume, 

without evidence, that the rule will lead 

only to adverse outcomes for aliens and, 

thus, more appeals to Federal court. As 

noted, supra, that unsubstantiated 

generalization presumes that cases will 

be adjudicated either unethically or 

incompetently, and the Department 

declines to engage in such unfounded 

conjecture. As also noted, supra, the 

change in filing deadlines falls 

principally on DHS, and commenters 

neither acknowledged that point nor 

explained why a change in filing 

deadlines that affects few nongovernment practitioners would have a 

widespread effect of limiting many 

practitioners’ caseloads. Additionally, 

although the shortened filing deadlines 

may change when a particular brief is 

due to the BIA, the Department 

disagrees with the commenter’s 

speculation that it would change the 

overall amount of time required to 

prepare that brief or related filings, 

which is determined by the relative 

complexity of the case. 

The rule sets no limits on how many 

cases an ethical and competent attorney 

may accept, all courts set filing 

deadlines, and all ethical and competent 

attorneys will adjust their practices as 

needed accordingly. Contrary to an 

implicit assertion by commenters, the 

intent of the Board’s current practices is 

not to provide or ensure a minimum 

level of employment for practitioners; 

rather, the intent is to provide a fair and 

efficient system for adjudicating 

appeals. Consequently, any effects on 

employment of practitioners due to 

changes in those procedures are both 

minimal and incidental or ancillary at 

most; moreover, to the extent that an 

ancillary effect would be the provision 


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of representation by a larger cohort of 

practitioners, as logically intimated by 

commenters who claim that the rule 

will limit cases handled by individual 

practitioners, commenters did not 

explain why such an effect is 

necessarily unwelcome. In short, 

despite commenters’ unfounded 

speculation, the Department finds that 

further analysis under the RFA is not 

warranted. 

The Department has reviewed this 

rule in accordance with the RFA, 5 

U.S.C. 601–612, as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, Public Law 104– 

121, tit. II, Mar. 29, 1996, 110 Stat. 847, 

and has determined that this rule would 

not have a significant economic impact 

on a substantial number of small 

entities. The rule will not economically 

impact representatives of aliens in 

immigration proceedings. It does not 

limit the fees they may charge or the 

number of cases a representative may 

ethically accept under the rules of 

professional responsibility. 

Moreover, this determination is 

consistent with the Department’s prior 

determination regarding much more 

sweeping changes to procedures before 

the Board. See 67 FR at 54900 (‘‘The 

Attorney General, in accordance with 5 

U.S.C. 605(b), has reviewed this rule 

and, by approving it, certifies that it 

affects only Departmental employees, 

aliens, or their representatives who 

appear in proceedings before the Board 

of Immigration Appeals, and carriers 

who appeal decisions of [DHS] officers. 

Therefore, this rule does not have a 

significant economic impact on a 

substantial number of small entities.’’). 

The Department is unaware of any 

challenge to that determination 

regarding its 2002 rulemaking which 

significantly streamlined Board 

operations and made greater changes to 

Board procedures, including altering the 

Board’s standard of review for 

credibility determinations, than this 

final rule. The Department thus believes 

that the experience of implementing 

that prior, broader rule also supports its 

conclusion that there is no evidence that 

this final will have a significant impact 

on small entities as contemplated by the 

RFA. 

Additionally, the portions of the rule 

related to administrative closure would 

not regulate ‘‘small entities’’ as that term 

is defined in 5 U.S.C. 601(6). That 

portion of the rule applies to aliens in 

immigration proceedings, who are 

individuals, not entities. See 5 U.S.C. 

601(6). Nothing in that portion of the 

rule in any fashion regulates the legal 

representatives of such individuals or 

the organizations by which those 

representatives are employed, and the 

Departments are unaware of cases in 

which the RFA’s requirements have 

been applied to legal representatives of 

entities subject to its provisions, in 

addition to or in lieu of the entities 

themselves. See 5 U.S.C. 603(b)(3) 

(requiring that an RFA analysis include 

a description of and, if feasible, an 

estimate of the number of ‘‘small 

entities’’ to which the rule ‘‘will 

apply’’). To the contrary, case law 

indicates that indirect effects on entities 

not regulated by a proposed rule are not 

subject to an RFA analysis. See, e.g., 

Mid-Tex Elec. Co-op, Inc. v. FERC, 773 

F.2d 327, 342–43 (D.C. Cir. 1985) (‘‘[W]e 

conclude that an agency may properly 

certify that no regulatory flexibility 

analysis is necessary when it determines 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities that are subject 

to the requirements of the rule . . . . 

Congress did not intend to require that 

every agency consider every indirect 

effect that any regulation might have on 

small businesses in any stratum of the 

national economy. That is a very broad 

and ambitious agenda, and we think 

that Congress is unlikely to have 

embarked on such a course without 

airing the matter.’’); Cement Kiln 

Recycling Coalition v. EPA, 255 F.3d 

855, 869 (D.C. Cir. 2001) (‘‘Contrary to 

what [petitioner] supposes, application 

of the RFA does turn on whether 

particular entities are the ‘targets’ of a 

given rule. The statute requires that the 

agency conduct the relevant analysis or 

certify ‘no impact’ for those small 

businesses that are ‘subject to’ the 

regulation, that is, those to which the 

regulation ‘will apply.’. . . The rule 

will doubtless have economic impacts 

in many sectors of the economy. But to 

require an agency to assess the impact 

on all of the nation’s small businesses 

possibly affected by a rule would be to 

convert every rulemaking process into a 

massive exercise in economic modeling, 

an approach we have already rejected.’’ 

(citing Mid-Tex, 773 F.2d 327 at 343)); 

see also White Eagle Co-op Ass’n v. 

Conner, 553 F.3d 467, 480 (7th Cir. 

2009) (‘‘The rule that emerges from this 

line of cases is that small entities 

directly regulated by the proposed 

[rulemaking]—whose conduct is 

circumscribed or mandated—may bring 

a challenge to the RFA analysis or 

certification of an agency . . . . 

However, when the regulation reaches 

small entities only indirectly, they do 

not have standing to bring an RFA 

challenge.’’). 

Further, the Department has 

consistently maintained this position 

regarding immigration regulations 

aimed at aliens, rather than practitioners 

who represent aliens, including much 

broader and more sweeping 

rulemakings. See, e.g., Inspection and 

Expedited Removal of Aliens; Detention 

and Removal of Aliens; Conduct of 

Removal Proceedings; Asylum 

Procedures, 62 FR 444, 453 (Jan. 3, 

1997) (certifying that the rule would not 

have a significant impact on a 

substantial number of small entities 

because it ‘‘affects only Federal 

government operations’’ by revising the 

procedures for the ‘‘examination, 

detention, and removal of aliens’’). That 

conclusion was reiterated in the interim 

rule, 62 FR at 10328, which was 

adopted with no noted challenge or 

dispute. The parts of this final rule 

related to administrative closure are 

similar, in that they, too, affect only the 

operations of the Federal government. In 

short, the Department reiterates its 

determination that there is no evidence 

that this final will have a significant 

impact on small entities as 

contemplated by the RFA. 

6. Miscellaneous 

a. Retroactivity Concerns 

Comment: Some commenters 

expressed concerns that the rule will 

have an impermissible retroactive effect. 

First, at least one commenter argued 

that making the provisions regarding 

changes to administrative closure and 

sua sponte reopening authority effective 

on the date of publication to pending 

cases would have impermissible 

retroactive effect because doing so 

would impair the rights that asylum 

applicants have under current law. 

Second, at least one other commenter 

noted that even making changes 

applicable only to new appellate filings 

fails to account for downstream effects 

of the rule that could influence a 

respondent’s filings or other decisions 

before the immigration judge. Finally, at 

least one commenter stated that the 

Department has not sufficiently 

considered the costs to respondents of 

the retroactive elements of the rule. 

Response: As noted, supra, the 

Department is clarifying the generally 

prospective temporal application of the 

rule. The provisions of the rule 

applicable to appellate procedures and 

internal case processing at the BIA 

apply only to appeals filed, motions to 

reopen or reconsider filed, or cases 

remanded to the Board by a Federal 

court on or after the effective date of the 

final rule. As the withdrawal of a 

delegation of authority by the Attorney 

General, the provisions of the rule 

related to the restrictions on sua sponte 


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80As discussed, supra, neither party possesses a 

right to file a ‘‘motion to reopen sua sponte,’’ and 

such a motion is, in fact, an ‘‘oxymoron.’’ Thus, the 

restrictions on the use of that authority have no 

impact on the parties’ ability to seek use of that 

authority, regardless of the current status of a case. 

81To the extent that the rule merely codifies 

existing law or authority, however, nothing in the 

rule precludes adjudicators from applying that 

existing authority to pending cases independently 

of the generally prospective application of the rule. 

For example, the Department notes that 

independent of the final rule, the Attorney 

General’s decision in Matter of Castro-Tum, 27 I&N 

Dec. 271, remains binding and applicable to all 

pending cases, except in the Fourth and Seventh 

Circuits. See INA 103(a)(1), 8 U.S.C. 1103(a)(1) 

(‘‘[D]etermination and ruling by the Attorney 

General with respect to all questions of law [as to 

the INA and other laws relating to the immigration 

and naturalization of aliens] shall be controlling’’); 

INA 103(g)(2), 8 U.S.C. 1103(g)(2) (‘‘The Attorney 

General shall . . . review such administrative 

determinations in immigration proceedings . . . as 

the Attorney General determines to be necessary for 

carrying out [his authorities].’’); 8 CFR 1003.1(g)(1) 

(‘‘[D]ecisions of the Attorney General are binding on 

all officers and employees of DHS or immigration 

judges in the administration of the immigration 

laws of the United States.’’). 

82 In addition, the Department notes that the 

commenter cited INS v. St. Cyr, 533 U.S. 289, 316 

(2001) in support of the argument that the 

Department failed to consider costs, but the relevant 

discussion by the Supreme Court in that case is 

dicta surrounding the reasons that courts must first 

consider if Congress intended for legislative to have 

retroactive effect. 

83Although several commenters cited the TRAC 

report, TRAC itself did not submit a comment on 

the NPRM and appears not to have taken a position 

on it. 

reopening authority are effective for all 

cases, regardless of posture, on the 

effective date.80 The provisions of the 

rule related to restrictions on the BIA’s 

certification authority are effective for 

all cases in which an immigration judge 

issues a decision on or after the effective 

date. The provisions of the rule 

regarding administrative closure are 

applicable to all cases initiated by a 

charging document filed by DHS, 

reopened, or recalendared on or after 

the effective date.81

Commenters are incorrect that the 

rule’s amendments regarding authority 

over administrative closure and sua 

sponte reopening authority would have 

impermissible retroactive effect. First, as 

noted supra, the change regarding 

administrative closure generally applies 

prospectively and merely codifies the 

status quo for all but four immigration 

courts nationwide. Second, there is no 

right to sua sponte reopening or even to 

file such a cognizable motion. There is 

similarly no right to administrative 

closure. Thus, these changes do not 

remove any ‘‘vested rights’’ from aliens. 

In addition, in the context of the 

changes regarding administrative 

closure, the Department emphasizes that 

the alien may continue to proceed with 

their relief applications before USCIS 

and seek continuances before EOIR, see 

Matter of L–A–B–R–, 27 I&N Dec. 405. 

Similarly, aliens may continue to utilize 

motions to reopen, including those filed 

as joint motions or those based on 

equitable tolling, in lieu of filing 

improper motions to reopen sua sponte. 

Commenters broad and generalized 

concerns about alleged downstream 

effects are wholly speculative and do 

not account for either the case-by-case 

nature of adjudication or the factintensive nature of many cases. 

Hypothetical effects on procedural 

choices and tactical decisions related to 

an alien’s claims in future cases, 

including those that have not even been 

filed or reopened, are not impositions 

on an alien’s legal rights in a manner 

that has retroactivity concerns. Finally, 

as commenters’ concerns about 

retroactivity of the rule are unfounded 

for the reasons given, their concerns 

about alleged costs imposed by such 

‘‘retroactivity’’ are similarly 

unfounded.82

b. Creation of Independent Immigration 

Courts 

Comment: Multiple commenters 

stated that the rule highlighted the need 

for the immigration courts and 

immigration judges to be ‘‘independent’’ 

and outside the Executive branch and 

political influence. 

Response: These commenters’ 

recommendations are both beyond the 

scope of this rulemaking and the 

Department’s authority. Congress has 

provided for a system of administrative 

hearings for immigration cases, which 

the Departments believe should be 

maintained. See generally INA 240, 8 

U.S.C. 1229a (laying out administrative 

procedures for removal proceedings); cf. 

Strengthening and Reforming America’s 

Immigration Court System: Hearing 

before the Subcomm. On Border Sec. & 

Immigration of the S. Comm. on the 

Judiciary, 115th Cong. (2018) (written 

response to Questions for the Record of 

James McHenry, Director, Executive 

Office for Immigration Review) (‘‘The 

financial costs and logistical hurdles to 

implementing an Article I immigration 

court system would be monumental and 

would likely delay pending cases even 

further.’’). Only Congress has the 

authority to create a new Article I court 

or other changed framework for the 

adjudication of immigration cases. 

Finally, the Department reiterates that 

immigration judges and Board members 

already exercise ‘‘independent judgment 

and discretion’’ in deciding cases, 8 CFR 

1003.1(d)(1)(ii) and 1003.10(b), and are 

prohibited from considering political 

influences in their decision-making, BIA 

Ethics and Professionalism Guide at sec. 

VIII (‘‘A Board Member should not be 

swayed by partisan interests or public 

clamor.’’), IJ Ethics and Professionalism 

Guide at sec. VIII (‘‘An Immigration 

Judge should not be swayed by partisan 

interests or public clamor.’’). Thus, 

contrary to commenters’ assertions, 

immigration judges and Board members 

are already independent adjudicators 

who do not render decisions based on 

political influence or political interests. 

As commenters’ claims are unfounded 

in law or practice—and beyond the 

scope of this rulemaking—the 

Department declines to address them 

further. 

c. Transactional Records Access 

Clearinghouse (TRAC) Report 

Comment: Several commenters 

objecting to the NPRM’s provisions 

regarding administrative closure 

pointed to a press announcement and 

web page by TRAC, issued on 

September 10, 2020, during the 

comment period.83 See TRAC, What’s 

New: The Life and Death of 

Administrative Closure, Sept. 10, 2020, 

available at https://trac.syr.edu/ 

whatsnew/email.200910.html (last 

visited Nov. 25, 2020), and TRAC, The 

Life and Death of Administrative 

Closure, Sept. 10, 2020, available at 

https://trac.syr.edu/immigration/ 

reports/623/ (last visited Nov. 25, 2020) 

(‘‘TRAC Report’’). Commenters asserted 

that TRAC’s analysis undermined the 

Department’s bases for the rule related 

to administrative closure. 

Response: The Department has 

reviewed the TRAC Report referenced 

by commenters but finds it both 

unpersuasive as a basis for commenters’ 

suggestions to revise the final rule and 

largely inapposite to the issue overall. 

As an initial point, the TRAC Report 

does not address any of the legal issues 

surrounding administrative closure 

raised by the NPRM. 85 FR at 52503–05. 

Thus, for example, it does not address 

the existing regulations’ references to 

the ‘‘disposition’’ of a case, the 

superfluousness issue raised by existing 

regulations for the Board Chairman and 

the Chief Immigration Judge allowing 

them to defer adjudication of cases, or 

the propriety of authorizing an 

immigration judge or Board Member to 

infringe upon the prosecutorial 

discretion of DHS. Without engaging the 

Department’s legal concerns, the utility 

and persuasiveness of the TRAC Report 

are inherently limited. 

TRAC’s broader claims regarding 

administrative closure, framed by 

commenters as a policy challenge to the 


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84The Department does not know what analytics 

TRAC performed or the precise methods and 

definitions it employed. Accordingly, the 

Department cannot speak to the accuracy of TRAC’s 

results. Even assuming the results are accurate, 

however, TRAC’s assertions—and commenters’ 

reliance on them—are unpersuasive for the reasons 

given. 

85TRAC does not explain what it means by 

‘‘overlapping jurisdiction’’ and does not elaborate 

further on the point in its Report. 

86TRAC itself has issued reports since at least 

2009 noting the annual growth in the pending 

caseload which it terms a backlog. TRAC 

Immigration Reports, Immigration Courts, available 

at https://trac.syr.edu/phptools/reports/ 

reports.php?layer=immigration&report_type=report 

(last visited Nov. 24, 2020). TRAC also noted this 

increase in the pending caseload even at the height 

of the use of administrative closure between 2012 

and 2018. Compare TRAC Immigration Reports, 

Once Intended to Reduce Immigration Court 

Backlog, Prosecutorial Discretion Closures Continue 

Unabated (Jan. 15, 2014), available at https://

trac.syr.edu/immigration/reports/339/ (last visited 

Nov. 25, 2020) (use of administrative closure was 

intended ‘‘as a program to clear cases from the 

accumulated court backlog’’) with TRAC 

Immigration Reports, Immigration Court Backlog 

Keeps Rising (May 15, 2015), available at https:// 

trac.syr.edu/immigration/reports/385/ (last visited 

Nov. 25, 2020) (caseload still increasing in 2015) 

and TRAC Immigration Reports, Immigration 

Backlog Still Rising Despite New Judge Investitures 

(July 19, 2016), available at https://trac.syr.edu/ 

immigration/reports/429/ (last visited Nov. 25, 

2020) (caseload still increasing in 2016). 

87TRAC reports that 44 percent of cases resulted 

in the termination of proceedings after being 

administratively closed, which TRAC intuits to 

mean there was no longer a valid ground to remove 

the alien. As terminations may result from different 

bases, however, it is not clear that every termination 

resulted from the vitiation of grounds of removal 

against an alien. Moreover, TRAC’s analysis does 

not consider whether the terminations were proper 

under the law, which was recently clarified by the 

Attorney General. See Matter of S-O-G- & F-D-B-, 27 

I&N Dec. 462, 468 (A.G. 2018) (‘‘As discussed 

Department’s position, also provide 

little support for revising the rule. TRAC 

listed four conclusions it derived from 

data analysis on EOIR data 84 regarding 

administratively closed cases. Those 

conclusions, however, are of limited 

probative value and do not undermine 

the Department’s foundations for the 

rule. 

TRAC’s first conclusion is that 

‘‘administrative closure has been 

routinely used by Immigration Judges to 

manage their growing caseloads as well 

as manage the unresolved overlapping 

of jurisdictions between the EOIR and 

other immigration agencies.’’ TRAC 

Report, supra. No one, including the 

Department, has disputed that 

immigration judges previously used 

administrative closure. See, e.g., 

Administratively Closed Cases. There is 

no evidence, however, that it was used 

effectively to manage caseloads—in the 

sense of resolving cases more 

efficiently—or used to resolve issues of 

overlapping jurisdiction,85 and TRAC 

does not provide evidence to the 

contrary. TRAC merely states the 

historical frequency of the usage of 

administrative closure, which is a 

statement not in dispute or of particular 

relevance to the rule. 

Moreover, TRAC’s conclusory 

observation that ‘‘[a]dministrative 

closures have allowed judges to 

temporarily close cases and take them 

off their active docket either because 

judges wish to focus limited resources 

on higher priority removal cases or 

because jurisdictional issues were 

prolonging the case’’ is doubtful for 

several reasons. See Hernandez-Serrano, 

2020 WL 6883420 at *4 (‘‘To the 

contrary, the regulations expressly limit 

their delegation to actions ‘necessary for 

the disposition’ of the case. And that 

more restricted delegation cannot 

support a decision not to decide the 

case for reasons of administrative 

‘convenience’ or the ‘efficient 

management of the resources of the 

immigration courts and the BIA.’ ’’ 

(cleaned up, emphasis in original)). As 

both TRAC and the Department have 

noted, administratively closed cases are 

not ‘‘temporarily’’ closed in any realistic 

sense of the word; rather, they are taken 

off the docket for either at least three 

years (according to TRAC) or at least 10 

years (Administratively Closed Cases). 

See id. at *1, *4 (‘‘A regulation 

delegating to immigration judges 

authority to take certain actions ‘[i]n 

deciding the individual cases before 

them’ does not delegate to them general 

authority not to decide those cases at 

all. Yet in more than 400,000 cases in 

which an alien was charged with being 

subject to deportation or (after April 1, 

1997) removal, immigration judges or 

the Board of Immigration Appeals have 

invoked such a regulation to close cases 

administratively—meaning the case was 

removed from the IJ’s docket without 

further proceedings absent some 

persuasive reason to reopen it. As of 

October 2018, more than 350,000 of 

those cases had not been reopened. An 

adjudicatory default on that scale strikes 

directly at the rule of law. . . [N]o 

one. . . has explained how a general 

authority to close cases administratively 

can itself be lawful while leading to 

such facially unlawful results.’’). 

Further, administrative closure does 

not resolve legal questions of 

jurisdiction, and even if it did, TRAC 

does not explain why prolonging a case 

through administrative closure would 

address the issue of cases already 

prolonged due to jurisdictional 

questions. Further, TRAC does not 

explain why it is appropriate for an 

immigration judge to choose which 

cases are a ‘‘priority’’ rather than DHS, 

who—unlike EOIR and immigration 

judges—is statutorily tasked by 

Congress with ‘‘[e]stablishing national 

immigration enforcement policies and 

priorities.’’ Homeland Security Act of 

2002, Public Law 107–296, sec. 402(5), 

Nov. 25, 2002, 116 Stat. 2135, 2178 

(codified at 6 U.S.C. 202(5)). For all of 

these reasons, TRAC’s first conclusion, 

to the extent it is relied on by 

commenters, does not provide a 

persuasive basis for altering the rule. 

TRAC’s second conclusion, 

‘‘administrative closure has helped 

reduce the backlog,’’ is patently 

incorrect, as both the Department and 

TRAC’s own data establishes. TRAC 

Report, supra. As TRAC acknowledges, 

‘‘[a]dministrative closure does not 

terminate a case, it does not provide 

permanent relief from deportation, and 

it does not confer lawful status of any 

kind.’’ TRAC Report, supra; see also 

Matter of Amico, 19 I&N Dec. 652, 654 

n.1 (BIA 1988) (‘‘The administrative 

closing of a case does not result in a 

final order.’’); Matter of Lopez-Barrios, 

20 I&N Dec. at 204 (‘‘However, 

[administrative closure] does not result 

in a final order.’’). Consequently, 

because administrative closure is not a 

disposition of a case and does not result 

in a final order, the case remains 

pending, albeit inactive. In other words, 

the removal of the case from an active 

docket does not make the case 

disappear; thus, administratively closed 

cases contribute to the overall tally of 

pending cases—colloquially called a 

‘‘backlog’’—just as much as active cases 

do. Both TRAC’s data and the 

Department’s data, EOIR, Adjudication 

Statistics: Active and Inactive Pending 

Cases, Oct. 13, 2020, available at 

https://www.justice.gov/eoir/page/file/ 

1139516/download, show that the 

pending caseload, including both active 

and inactive cases, has grown 

considerably in recent years.86 This 

growth has occurred for reasons other 

than administrative closure, particularly 

since 2017. Nevertheless, the increase in 

the use of administrative closure 

beginning in FY 2012 did not reduce the 

overall pending caseload, contrary to 

the assertions of TRAC and commenters. 

TRAC’s third conclusion, ‘‘data from 

the Immigration Courts show that 

immigrants who obtain administrative 

closure are likely to have followed legal 

requirements and obtain lawful status,’’ 

is both arguable as an assertion of fact 

and, ultimately of little relevance to the 

rule. TRAC Report, supra. According to 

TRAC’s data, only 16 percent of aliens 

were awarded relief after their cases 

were administratively closed, whereas 

40 percent were ordered removed or 

received an order of voluntary 

departure.87 Id. Those numbers belie the 


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above, however, immigration judges have no 

inherent authority to terminate removal 

proceedings even though a particular case may pose 

sympathetic circumstances.’’). Accordingly, it is not 

clear that the data, even if it is accurate, supports 

the assertion that aliens whose cases have been 

terminated ‘‘followed legal requirements and 

obtain[ed] lawful status.’’ TRAC Immigration 

Reports, The Life and Death of Administrative 

Closure (Sept. 10, 2020) available at https://

trac.syr.edu/immigration/reports/623/ (last visited 

11/25/2020). 

88TRAC did not distinguish cases that would 

remain eligible for administrative closure under the 

final rule. Nevertheless, the Department notes that 

because an appropriate exercise of administrative 

closure under the rule includes regulations and 

settlement agreements that allow aliens to seek 

different types of relief from removal, Matter of 

Castro-Tum, 27 I&N Dec. at 276–78, the fact that 

only 16 percent of aliens overall obtain relief after 

their cases are administratively closed is further 

evidence that the impact of the rule is much less 

than commenters assert. 

89 In contrast, when the Department does 

calculate a per-immigration judge completion 

average, it controls for judges who did not hear 

regular dockets of cases throughout the fiscal year. 

See, e.g., EOIR, Executive Office for Immigration 

Review Announces Case Completion Numbers for 

Fiscal Year 2019, Oct. 10, 2019, available at https:// 

www.justice.gov/opa/pr/executive-officeimmigration-review-announces-case-completionnumbers-fiscal-year-2019 (‘‘On average, 

immigration judges who performed over the whole 

year completed 708 cases each in FY19.’’) 

(emphasis added)). 

90The Department notes in passing two 

additional concerns about TRAC’s analysis on this 

point. First, TRAC divides its analysis by 

Presidential administration even though the ability 

of an immigration judge to administratively close a 

case continued for over a year into the current 

administration. Second, TRAC does not 

acknowledge that even under its methodology, perimmigration judge case completions increased in 

FY 2019. Thus, it is not clear that its overall 

assertion—a clear decline in per-immigration judge 

productivity under the current administration—is 

even factually accurate. 

assertion that aliens whose cases have 

been administratively closed are likely 

to obtain lawful status.88 Moreover, 

whatever outcomes may or may not 

result following the administrative 

closure of a case, those outcomes, which 

are based on specific evidence in each 

case and applicable law and may cut 

both for and against the parties, do not 

effectively outweigh the concerns noted 

by the Department in issuing the rule. 

TRAC’s fourth conclusion, ‘‘the EOIR 

significantly misrepresented the data it 

used to justify this rule,’’ is simply 

wrong. TRAC Report, supra. TRAC 

bases its claim primarily on the fact that 

EOIR does not include administrative 

closure decisions as completed cases; 

however, TRAC itself acknowledges that 

administratively closed cases are not 

final and, thus, not complete. Id. 

(‘‘Administrative closure does not 

terminate a case, it does not provide 

permanent relief from deportation, and 

it does not confer lawful status of any 

kind.’’); cf. Hernandez-Serrano, 2020 

WL 6883420 at *3 (‘‘Administrative 

closure typically is not an action taken 

‘[i]n deciding’ a case before an IJ; 

instead, as shown above, it is typically 

a decision not to decide the case. Nor 

is administrative closure typically an 

action ‘necessary for the disposition’ of 

an immigration case. Administrative 

closure is not itself a ‘disposition’ of a 

case, as Hernandez-Serrano concedes in 

this appeal.’’). Moreover, TRAC does not 

explain why an administratively closed 

case should be considered completed in 

light of longstanding BIA case law that 

such cases are not, in fact, completed. 

See Matter of Amico, 19 I&N Dec. at 654 

n.1 (‘‘The administrative closing of a 

case does not result in a final order.’’); 

Matter of Lopez-Barrios, 20 I&N Dec. at 

204 (‘‘However, [administrative closure] 

does not result in a final order.’’). 

Similarly, TRAC asserts that EOIR 

that did not consider the average 

number of completed cases by 

immigration judges over time which 

TRAC asserts has declined in recent 

years. As an initial point, the 

Department notes that TRAC includes 

decisions of administrative closure as 

‘‘completions’’ in its analysis which is 

contrary to both TRAC’s own view and 

the relevant case law, as discussed 

above. Nevertheless, even if 

administratively closed cases were 

included as completed cases, TRAC’s 

analysis presents an additional flaw. 

The Department does not generally 

provide average, per-immigration judge 

completion numbers and did not rely on 

any such statistics in the rule. Further, 

TRAC’s reliance on the raw number of 

immigration judges to calculate its own 

average—suggesting that perimmigration judge completions have 

declined from 737 to 657—illustrates 

the problem with calculating such an 

average. Immigration judges are hired 

throughout the year, they may be 

promoted at different times in the year, 

and they may retire, separate, or die 

during the year. Further, new 

immigration judges do not begin hearing 

full dockets of cases immediately upon 

hire, and immigration judges may also 

be off the bench for extended periods 

due to leave, military obligations, or 

disciplinary action. Thus, the number of 

immigration judges frequently fluctuates 

throughout the year and is not static. 

Consequently, using the snapshot 

number of immigration judges at the 

beginning or end of the fiscal year—as 

TRAC does—does not account for those 

changes, particularly for newly hired or 

supervisory immigration judges who are 

not hearing full or regular dockets. In 

other words, due to retirements, 

promotions, and new hires, the actual 

number of immigration judges who 

adjudicated cases during a fiscal year— 

and whose cases are included in the 

end-of-the-year completion totals—is 

necessarily different than the end-ofthe-year total. TRAC’s data does not 

appear to have controlled for 

immigration judges who were not or no 

longer hearing full dockets, including 

those not hearing full dockets but 

counted in EOIR’s overall total and, 

thus, the Department finds its assertions 

unsupported.89

Additionally, even if TRAC’s analysis 

were accurate, the implications of it for 

the rule are not apparent.90 To the 

extent that TRAC asserts that 

immigration judge productivity has 

declined over time—at least until FY 

2019—the Department generally agrees 

with that assertion, but its relevance to 

the rule is unclear. Although the 

Department acknowledges TRAC’s tacit 

suggestion that the limitation of 

administrative closure by Matter of 

Castro-Tum in FY 2018 contributed to 

an increase in immigration judge 

productivity in FY 2019, the 

Department has not investigated that 

link explicitly. Moreover, the rule was 

proposed to address multiple legal and 

policy concerns with the use of 

administrative closure, to provide 

clearer delineation regarding the 

appropriateness of its usage, and to 

address inefficiency issues that it has 

wrought, particularly to the extent that 

it has contributed to docket churning 

and unnecessary delays in adjudicating 

cases. 85 FR at 52503–04. Thus, 

although decreased immigration judge 

productivity, which may result from 

multiple causes including the 

inappropriate use of administrative 

closure, may undermine the 

Department’s ability to efficiently 

adjudicate cases, the rule was not 

promulgated solely to increase 

productivity. 

In short, to the extent that 

commenters relied on the TRAC Report 

as a basis for opposing the rule, the 

Department finds that Report 

unpersuasive for the many reasons 

noted. Consequently, the Department 

also declines to accept the comments 

based on it. 

III. Regulatory Requirements 

A. Administrative Procedure Act 

Portions of this final rule state a rule 

of agency organization, procedure, or 

practice and reflect matters of agency 

management or personnel, e.g., the 

provisions of 8 CFR 1003.1(e)(8) and (k), 

because they reflect internal 


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management directives or delegations of 

authority by the Attorney General. Thus, 

those portions of the rule are exempt 

from the requirements for notice-andcomment rulemaking and a 30-day 

delay in effective date. 5 U.S.C. 

553(a)(2), (b)(A). Nevertheless, rather 

than attempting to parse out different 

sections of the rule with different 

effective dates, the Department has 

elected to publish the entire final rule 

with a 30-day effective date under the 

APA. 5 U.S.C. 553(d). 

B. Regulatory Flexibility Act 

The Department has reviewed this 

rule in accordance with the RFA (5 

U.S.C. 605(b)) and has determined that 

this rule will not have a significant 

economic impact on a substantial 

number of small entities. The 

Department’s discussion of the RFA in 

section II.C.5, supra, in response to 

RFA-related comments received on the 

rule is incorporated in full herein by 

reference. 

C. Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year (adjusted annually for 

inflation), and it will not significantly or 

uniquely affect small governments. 

Therefore, no actions were deemed 

necessary under the provisions of the 

Unfunded Mandates Reform Act of 

1995. 

D. Executive Orders 12866, 13563, and 

13771 

Portions of this rule involve agency 

organization, management, or personnel 

matters and would, therefore, not be 

subject to review by the Office of 

Management and Budget (OMB) 

pursuant to section 3(d)(3) of Executive 

Order 12866. For similar reasons, those 

portions would not be subject to the 

requirements of Executive Orders 13563 

or 13771. Nevertheless, rather than 

parse out individual provisions to 

determine whether OMB review is 

warranted for discrete provisions of the 

rule, the Department has determined 

that this rule, as a whole, is a 

‘‘significant regulatory action’’ under 

section 3(f) of Executive Order 12866, 

Regulatory Planning and Review. 

Accordingly, this rule has been 

submitted to OMB for review. 

The Department certifies that this 

regulation has been drafted in 

accordance with the principles of 

Executive Orders 12866, 13563, and 

13771. Executive Orders 12866 and 

13563 direct agencies to assess the costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health, and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. 

As noted in the NPRM, 85 FR at 

52509, the Department believes that the 

rule will help more efficiently 

adjudicate cases before the BIA allowing 

for a reduction in the number of cases 

pending before EOIR overall and an 

increase in the BIA adjudicating more 

appeals annually. The Department 

believes the costs to the public will be 

negligible, if any, because the basic 

briefing procedures will remain the 

same (and any notable changes fall 

principally on DHS rather than the 

public), because current BIA policy 

already disfavors multiple or lengthy 

briefing extension requests, because the 

use of administrative closure has 

already been restricted subsequent to 

the decision in Matter of Castro-Tum, 27 

I&N Dec. 271, because no party has a 

right to sua sponte reopening authority 

and a motion to exercise such authority 

is already not cognizable under existing 

law, and because the BIA is generally 

already prohibited from considering 

new evidence on appeal. Further, the 

Department notes that the most 

significant regulatory change to the 

BIA’s case management process—and a 

more comprehensive one than the one 

in the final rule—was promulgated 

without the type of numeric analysis 

commenters suggested is warranted 

with no noted concerns or challenges on 

that basis. 67 FR at 54900. 

In short, the rule does not impose any 

new costs, and most, if not all, of the 

proposed rule is directed at internal 

case processing. Any changes 

contemplated by the rule would have 

little, if any, apparent impact on the 

public but would substantially improve 

both the quality and efficiency of BIA 

appellate adjudications. The 

Department has complied with the 

relevant Executive Orders. 

The Department did find the rule to 

be a significant regulatory action and, as 

such, performed an analysis under 

Executive Order 13771. In applying 

Executive Order 13771, the Department 

determined that this final rule will 

substantially improve BIA appellate 

procedure with the result of negligible 

new costs to the public. As such, no 

budget implications will result from this 

final rule, and no balance is needed 

from the repeal of other regulations. 

E. Executive Order 13132—Federalism 

This rule will not have substantial 

direct effects on the states, on the 

relationship between the Federal 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section six of Executive 

Order 13132, it is determined that this 

rule would not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

F. Executive Order 12988—Civil Justice 

Reform 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

G. Paperwork Reduction Act 

This rule does not propose new 

‘‘collection[s] of information’’ as that 

term is defined under the Paperwork 

Reduction Act of 1995, Public Law 104– 

13, 109 Stat. 163 (codified at 44 U.S.C. 

3501–3521) (‘‘PRA’’), and its 

implementing regulations, 5 CFR part 

1320. 

H. Congressional Review Act 

This proposed rule is not a major rule 

as defined by section 804 of the 

Congressional Review Act. 5 U.S.C. 804. 

This rule will not result in an annual 

effect on the economy of $100 million 

or more; a major increase in costs or 

prices; or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

List of Subjects 

8 CFR Part 1003 

Administrative practice and 

procedure, Aliens, Immigration, Legal 

services, Organization and functions 

(Government agencies). 

8 CFR Part 1240 

Administrative practice and 

procedure, Aliens. 

Accordingly, for the reasons set forth 

in the preamble, and by the authority 

vested in the Director, Executive Office 

for Immigration Review, by the Attorney 

General Order Number 4910–2020, the 

Department amends 8 CFR parts 1003 

and 1240 as follows: 


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PART 1003—EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW 

■ 1. The authority citation for part 1003 

continues to read as follows: 

Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 

U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 

1226, 1229, 1229a, 1229b, 1229c, 1231, 

1254a, 1255, 1324d, 1330, 1361, 1362; 28 

U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 

2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002; 

section 203 of Pub. L. 105–100, 111 Stat. 

2196–200; sections 1506 and 1510 of Pub. L. 

106–386, 114 Stat. 1527–29, 1531–32; section 

1505 of Pub. L. 106–554, 114 Stat. 2763A– 

326 to –328. 

■ 2. Amend § 1003.1 by: 

■ a. Revising paragraph (c), (d)(1)(ii), 

and (d)(3)(iv); 

■ b. Adding paragraph (d)(3)(v); 

■ c. Revising paragraph (d)(6)(ii), (iii), 

and (iv) and (d)(7); 

■ d. In pargraph (e) introductory text: 

■ i. Removing ‘‘this paragraph’’ and 

adding ‘‘this paragraph (e)’’ in its place; 

and 

■ ii. Adding a sentence at the end of the 

paragraph; 

■ e. Revising paragraphs (e)(1), (e)(8) 

introductory text, and (e)(8)(i) and (iii); 

■ f. Removing and reserving paragraph 

(e)(8)(iv); 

■ g. Adding five sentences at the end of 

paragraph (e)(8)(v) and adding 

paragraphs (e)(8)(v)(A) through (F); and 

■ h. Adding paragraph (k). 

The additions and revisions read as 

follows: 

§ 1003.1 Organization, jurisdiction, and 

powers of the Board of Immigration 

Appeals. 

* * * * * 

(c) Jurisdiction by certification. The 

Secretary, or any other duly authorized 

officer of DHS, or an immigration judge 

may in any case arising under paragraph 

(b) of this section certify such case to 

the Board for adjudication. 

(d) * * * 

(1) * * * 

(ii) Subject to the governing standards 

set forth in paragraph (d)(1)(i) of this 

section, Board members shall exercise 

their independent judgment and 

discretion in considering and 

determining the cases coming before the 

Board, and a panel or Board member to 

whom a case is assigned may take any 

action consistent with their authorities 

under the Act and the regulations as is 

appropriate and necessary for the 

disposition of the case. Nothing in this 

paragraph (d)(1)(ii) shall be construed as 

authorizing the Board to 

administratively close or otherwise 

defer adjudication of a case unless a 

regulation promulgated by the 

Department of Justice or a previous 

judicially approved settlement expressly 

authorizes such an action. Only the 

Director or Chief Appellate Immigration 

Judge may direct the deferral of 

adjudication of any case or cases by the 

Board. 

* * * * * 

(3) * * * 

(iv)(A) The Board will not engage in 

factfinding in the course of deciding 

cases, except that the Board may take 

administrative notice of facts that are 

not reasonably subject to dispute, such 

as: 

(1) Current events; 

(2) The contents of official documents 

outside the record; 

(3) Facts that can be accurately and 

readily determined from official 

government sources and whose 

accuracy is not disputed; or 

(4) Undisputed facts contained in the 

record. 

(B) If the Board intends to rely on an 

administratively noticed fact outside of 

the record, such as those indicated in 

paragraphs (d)(3)(iv)(A)(1) through (3) of 

this section, as the basis for reversing an 

immigration judge’s grant of relief or 

protection from removal, it must 

provide notice to the parties of its intent 

and afford them an opportunity of not 

less than 14 days to respond to the 

notice. 

(C) The Board shall not sua sponte 

remand a case for further factfinding 

unless the factfinding is necessary to 

determine whether the immigration 

judge had jurisdiction over the case. 

(D) Except as provided in paragraph 

(d)(6)(iii) or (d)(7)(v)(B) of this section, 

the Board shall not remand a direct 

appeal from an immigration judge’s 

decision for additional factfinding 

unless: 

(1) The party seeking remand 

preserved the issue by presenting it 

before the immigration judge; 

(2) The party seeking remand, if it 

bore the burden of proof before the 

immigration judge, attempted to adduce 

the additional facts before the 

immigration judge; 

(3) The additional factfinding would 

alter the outcome or disposition of the 

case; 

(4) The additional factfinding would 

not be cumulative of the evidence 

already presented or contained in the 

record; and 

(5) One of the following 

circumstances is present in the case: 

(i) The immigration judge’s factual 

findings were clearly erroneous; 

(ii) The immigration judge’s factual 

findings were not clearly erroneous, but 

the immigration judge committed an 

error of law that requires additional 

factfinding on remand; or 

(iii) Remand to DHS is warranted 

following de novo review. 

(v) The Board may affirm the decision 

of the immigration judge or the 

Department of Homeland Security on 

any basis supported by the record, 

including a basis supported by facts that 

are not reasonably subject to dispute, 

such as undisputed facts in the record. 

* * * * * 

(6) * * * 

(ii) Except as provided in paragraph 

(d)(6)(iv) of this section, if identity, law 

enforcement, or security investigations 

or examinations have not been 

completed or DHS reports that the 

results of prior investigations or 

examinations are no longer current 

under the standards established by DHS, 

and the completion of the investigations 

or examinations is necessary for the 

Board to complete its adjudication of 

the appeal, the Board will provide 

notice to both parties that, in order to 

complete adjudication of the appeal, the 

case is being placed on hold until such 

time as all identity, law enforcement, or 

security investigations or examinations 

are completed or updated and the 

results have been reported to the Board. 

Unless DHS advises the Board that such 

information is no longer necessary in 

the particular case, the Board’s notice 

will notify the alien that DHS will 

contact the alien to take additional steps 

to complete or update the identity, law 

enforcement, or security investigations 

or examinations only if DHS is unable 

to independently update the necessary 

investigations or examinations. If DHS 

is unable to independently update the 

necessary investigations or 

examinations, DHS shall send the alien 

instructions that comply with the 

requirements of § 1003.47(d) regarding 

the necessary procedures and 

contemporaneously serve a copy of the 

instructions with the Board. The Board’s 

notice will also advise the alien of the 

consequences for failing to comply with 

the requirements of this section. DHS is 

responsible for obtaining biometrics and 

other biographical information to 

complete or update the identity, law 

enforcement, or security investigations 

or examinations with respect to any 

alien in detention. 

(iii) In any case placed on hold under 

paragraph (d)(6)(ii) of this section, DHS 

shall report to the Board promptly when 

the identity, law enforcement, or 

security investigations or examinations 

have been completed or updated. If a 

non-detained alien fails to comply with 

necessary procedures for collecting 

biometrics or other biographical 

information within 90 days of the DHS’s 

instruction notice under paragraph 


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(d)(6)(ii) of this section, if applicable, 

the Board shall deem the application 

abandoned unless the alien shows good 

cause before the 90-day period has 

elapsed, in which case the alien should 

be given no more than an additional 30 

days to comply with the procedures. If 

the Board deems an application 

abandoned under this section, it shall 

adjudicate the remainder of the appeal 

within 30 days and shall enter an order 

of removal or a grant of voluntary 

departure, as appropriate. If DHS 

obtains relevant information as a result 

of the identity, law enforcement, or 

security investigations or examinations, 

including civil or criminal 

investigations of immigration fraud, 

DHS may move the Board to remand the 

record to the immigration judge for 

consideration of whether, in view of the 

new information, any pending 

applications for immigration relief or 

protection should be denied, either on 

grounds of eligibility or, where 

applicable, as a matter of discretion. If 

DHS fails to report the results of timely 

completed or updated identity, law 

enforcement, or security investigations 

or examinations within 180 days of the 

Board’s notice under paragraph (d)(6)(ii) 

of this section, the Board shall remand 

the case to the immigration judge for 

further proceedings under § 1003.47(h). 

(iv) The Board is not required to hold 

a case pursuant to paragraph (d)(6)(ii) of 

this section if the Board decides to 

dismiss the respondent’s appeal or deny 

the relief or protection sought. 

* * * * * 

(7) Finality of decision—(i) In general. 

The decision of the Board shall be final 

except in those cases reviewed by the 

Attorney General in accordance with 

paragraph (h) of this section. In 

adjudicating an appeal, the Board 

possesses authority to issue an order of 

removal, an order granting relief from 

removal, an order granting protection 

from removal combined with an order of 

removal as appropriate, an order 

granting voluntary departure with an 

alternate order of removal, and an order 

terminating or dismissing proceedings, 

provided that the issuance of any order 

is consistent with applicable law. The 

Board may affirm the decision of the 

immigration judge or DHS on any basis 

supported by the record. In no case shall 

the Board order a remand for an 

immigration judge to issue an order that 

the Board itself could issue. 

(ii) Remands. In addition to the 

possibility of remands regarding 

information obtained as a result of the 

identity, law enforcement, or security 

investigations or examinations under 

paragraph (d)(6)(iii) of this section, after 

applying the appropriate standard of 

review on appeal, the Board may issue 

an order remanding a case to an 

immigration judge or DHS for further 

consideration based on an error of law 

or fact, subject to any applicable 

statutory or regulatory limitations, 

including paragraph (d)(3)(iv)(D) of this 

section and the following: 

(A) The Board shall not remand a case 

for further action without identifying 

the standard of review it applied and 

the specific error or errors made by the 

adjudicator in paragraphs (d)(7)(ii)(B) 

through (E) of this section. 

(B) The Board shall not remand a case 

based on the application of a ‘‘totality of 

the circumstances’’ standard of review. 

(C) The Board shall not remand a case 

based on a legal argument not presented 

in paragraphs (d)(7)(ii)(D) through (E) of 

this section unless that argument 

pertains to an issue of jurisdiction over 

an application or the proceedings, or to 

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 date of 

the immigration judge’s decision, and 

substantial evidence indicates that 

change has vitiated all grounds of 

removability applicable to the alien. 

(D) The Board shall not sua sponte 

remand a case unless the basis for such 

a remand is solely a question of 

jurisdiction over an application or the 

proceedings. 

(E) The Board shall not remand a case 

to an immigration judge solely to 

consider or reconsider a request for 

voluntary departure nor solely due to 

the failure of the immigration judge to 

provide advisals following a grant of 

voluntary departure. In such situations, 

the Board shall follow the procedures in 

§ 1240.26(k) of this chapter. 

(iii) Scope of the remand. Where the 

Board remands a case to an immigration 

judge, it divests itself of jurisdiction of 

that case, unless the Board remands a 

case due to the court’s failure to forward 

the administrative record in response to 

the Board’s request. The Board may 

qualify or limit the scope or purpose of 

a remand order without retaining 

jurisdiction over the case following the 

remand. In any case in which the Board 

has qualified or limited the scope or 

purpose of the remand, the immigration 

judge shall not consider any issues 

outside the scope or purpose of that 

order, unless such an issue calls into 

question the immigration judge’s 

continuing jurisdiction over the case. 

(iv) Voluntary departure. The Board 

may issue an order of voluntary 

departure under section 240B of the Act, 

with an alternate order of removal, if the 

alien requested voluntary departure 

before an immigration judge, the alien’s 

notice of appeal specified that the alien 

is appealing the immigration judge’s 

denial of voluntary departure and 

identified the specific factual and legal 

findings that the alien is challenging, 

and the Board finds that the alien is 

otherwise eligible for voluntary 

departure, as provided in § 1240.26(k) of 

this chapter. In order to grant voluntary 

departure, the Board must find that all 

applicable statutory and regulatory 

criteria have been met, based on the 

record and within the scope of its 

review authority on appeal, and that the 

alien merits voluntary departure as a 

matter of discretion. If the Board does 

not grant the request for voluntary 

departure, it must deny the request. 

(v) New evidence on appeal. (A) 

Subject to paragraph (d)(7)(v)(B), the 

Board shall not receive or review new 

evidence submitted on appeal, shall not 

remand a case for consideration of new 

evidence received on appeal, and shall 

not consider a motion to remand based 

on new evidence. A party seeking to 

submit new evidence shall file a motion 

to reopen in accordance with applicable 

law. 

(B) Nothing in paragraph (d)(7)(v)(A) 

of this section shall preclude the Board 

from remanding a case based on new 

evidence or information obtained after 

the date of the immigration judge’s 

decision as a result of identity, law 

enforcement, or security investigations 

or examinations, including civil or 

criminal investigations of immigration 

fraud, regardless of whether the 

investigations or examinations were 

conducted pursuant to § 1003.47(h) or 

paragraph (d)(6) of this section, nor from 

remanding a case to address a question 

of jurisdiction over an application or the 

proceedings or a question regarding a 

ground or grounds of removability 

specified in section 212 or 237 of the 

Act. 

* * * * * 

(e) * * * The provisions of this 

paragraph (e) shall apply to all cases 

before the Board, regardless of whether 

they were initiated by filing a Notice of 

Appeal, filing a motion, or receipt of a 

remand from Federal court, the Attorney 

General, or the Director. 

(1) Initial screening. All cases shall be 

referred to the screening panel for 

review upon the filing of a Notice of 

Appeal or a motion or upon receipt of 

a remand from a Federal court, the 

Attorney General, or the Director. 

Screening panel review shall be 

completed within 14 days of the filing 

or receipt. Appeals subject to summary 

dismissal as provided in paragraph 

(d)(2) of this section, except for those 


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subject to summary dismissal as 

provided in paragraph (d)(2)(i)(E) of this 

section, shall be promptly dismissed no 

later than 30 days after the Notice of 

Appeal was filed. Unless referred for a 

three-member panel decision pursuant 

to paragraph (e)(6) of this section, an 

interlocutory appeal shall be 

adjudicated within 30 days of the filing 

of the appeal. 

* * * * * 

(8) Timeliness. The Board shall 

promptly enter orders of summary 

dismissal, or other miscellaneous 

dispositions, in appropriate cases 

consistent with paragraph (e)(1) of this 

section. In all other cases, the Board 

shall promptly order a transcript, if 

appropriate, within seven days after the 

screening panel completes its review 

and shall issue a briefing schedule 

within seven days after the transcript is 

provided. If no transcript may be 

ordered due to a lack of available 

funding or a lack of vendor capacity, the 

Chairman shall so certify that fact in 

writing to the Director. The Chairman 

shall also maintain a record of all such 

cases in which transcription cannot be 

ordered and provide that record to the 

Director. If no transcript is required, the 

Board shall issue a briefing schedule 

within seven days after the screening 

panel completes its review. The case 

shall be assigned to a single Board 

member for merits review under 

paragraph (e)(3) of this section within 

seven days of the completion of the 

record on appeal, including any briefs 

or motions. The single Board member 

shall then determine whether to 

adjudicate the appeal or to designate the 

case for decision by a three-member 

panel under paragraphs (e)(5) and (6) of 

this section within 14 days of being 

assigned the case. The single Board 

member or three-member panel to 

which the case is assigned shall issue a 

decision on the merits consistent with 

this section and with a priority for cases 

or custody appeals involving detained 

aliens. 

(i) Except in exigent circumstances as 

determined by the Chairman, subject to 

concurrence by the Director, or as 

provided in paragraph (d)(6) of this 

section or as provided in §§ 1003.6(c) 

and 1003.19(i), the Board shall dispose 

of all cases assigned to a single Board 

member within 90 days of completion of 

the record, or within 180 days of 

completion of the record for all cases 

assigned to a three-member panel 

(including any additional opinion by a 

member of the panel). 

* * * * * 

(iii) In rare circumstances, when an 

impending decision by the United 

States Supreme Court or an impending 

en banc Board decision may 

substantially determine the outcome of 

a group of cases pending before the 

Board, the Chairman, subject to 

concurrence by the Director, may hold 

the cases until such decision is 

rendered, temporarily suspending the 

time limits described in this paragraph 

(e)(8). The length of such a hold shall 

not exceed 120 days. 

* * * * * 

(v) * * * The Chairman shall notify 

the Director of all cases in which an 

extension under paragraph (e)(8)(ii) of 

this section, a hold under paragraph 

(e)(8)(iii) of this section, or any other 

delay in meeting the requirements of 

paragraph (e)(8) of this section occurs. 

For any case still pending adjudication 

by the Board more than 335 days after 

the appeal was filed, the motion was 

filed, or the remand was received and 

not described in paragraphs (e)(8)(v)(A) 

through (E) of this section, the Chairman 

shall refer that case to the Director for 

decision. For a case referred to the 

Director under this paragraph (e)(8)(v), 

the Director shall exercise delegated 

authority from the Attorney General 

identical to that of the Board as 

described in this section, including the 

authority to issue a precedential 

decision and the authority to refer the 

case to the Attorney General for review, 

either on his own or at the direction of 

the Attorney General. The Director may 

not further delegate this authority. For 

purposes of this paragraph (e)(8)(v), the 

following categories of cases pending 

adjudication by the Board more than 

335 days after the appeal was filed, the 

motion was filed, or the remand was 

received will not be referred by the 

Chairman to the Director: 

(A) Cases subject to a hold under 

paragraph (d)(6)(ii) of this section; 

(B) Cases subject to an extension 

under paragraph (e)(8)(ii) of this section; 

(C) Cases subject to a hold under 

paragraph (e)(8)(iii) of this section; 

(D) Cases whose adjudication has 

been deferred by the Director pursuant 

to § 1003.0(b)(1)(ii); 

(E) Cases remanded by the Director 

under paragraph (k) of this section in 

which 335 days have elapsed following 

the remand; and, 

(F) Cases that have been 

administratively closed prior to the 

elapse of 335 days after the appeal was 

filed pursuant to a regulation 

promulgated by the Department of 

Justice or a previous judicially approved 

settlement that expressly authorizes 

such an action and the administrative 

closure causes the pendency of the 

appeal to exceed 335 days. 

* * * * * 

(k) Quality assurance certification. (1) 

In any case in which the Board remands 

a case to an immigration judge or 

reopens and remands a case to an 

immigration judge, the immigration 

judge may forward that case by 

certification to the Director for further 

review only in the following 

circumstances: 

(i) The Board decision contains a 

typographical or clerical error affecting 

the outcome of the case; 

(ii) The Board decision is clearly 

contrary to a provision of the Act, any 

other immigration law or statute, any 

applicable regulation, or a published, 

binding precedent; 

(iii) The Board decision is vague, 

ambiguous, internally inconsistent, or 

otherwise did not resolve the basis for 

the appeal; or 

(iv) A material factor pertinent to the 

issue(s) before the immigration judge 

was clearly not considered in the 

decision. 

(2) In order to certify a decision under 

paragraph (k)(1) of this section, an 

immigration judge must: 

(i) Issue an order of certification 

within 30 days of the Board decision if 

the alien is not detained and within 15 

days of the Board decision if the alien 

is detained; 

(ii) In the order of certification, 

specify the regulatory basis for the 

certification and summarize the 

underlying procedural, factual, or legal 

basis; and 

(iii) Provide notice of the certification 

to both parties. 

(3) For a case certified to the Director 

under this paragraph (k), the Director 

shall exercise delegated authority from 

the Attorney General identical to that of 

the Board as described in this section, 

except as otherwise provided in this 

paragraph (k), including the authority to 

request briefing or additional filings 

from the parties at the sole discretion of 

the Director, the authority to issue a 

precedent decision, and the authority to 

refer the case to the Attorney General for 

review, either on the Director’s own or 

at the direction of the Attorney General. 

For a case certified to the Director under 

this paragraph (k), the Director may 

dismiss the certification and return the 

case to the immigration judge or the 

Director may remand the case back to 

the Board for further proceedings. In a 

case certified to the Director under this 

paragraph (k), the Director may not 

issue an order of removal, grant a 

request for voluntary departure, or grant 

or deny an application for relief or 

protection from removal. 


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81654 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 

(4) The quality assurance certification 

process shall not be used as a basis 

solely to express disapproval of or 

disagreement with the outcome of a 

Board decision unless that decision is 

alleged to reflect an error described in 

paragraph (k)(1) of this section. 

■ 3. Amend § 1003.2 by: 

■ a. In paragraph (a), revising the first 

sentence and adding a sentence 

following the first sentence; 

■ b. Revising paragraph (b)(1); 

■ c. Removing the word ‘‘or’’ in 

paragraph (c)(3)(iii); 

■ d. Removing the period at the end of 

paragraph (c)(3)(iv) and adding a 

semicolon in its place; 

■ e. Adding paragraph (c)(3)(v), (vi), and 

(vii); and 

■ f. Removing paragraph (c)(4). 

The revision and additions read as 

follows: 

§ 1003.2 Reopening or reconsideration 

before the Board of Immigration Appeals. 

(a) General. The Board may at any 

time reopen or reconsider a case in 

which it has rendered a decision on its 

own motion solely in order to correct a 

ministerial mistake or typographical 

error in that decision or to reissue the 

decision to correct a defect in service. In 

all other cases, the Board may only 

reopen or reconsider any case in which 

it has rendered a decision solely 

pursuant to a motion filed by one or 

both parties. * * * 

(b) * * * 

(1) A motion to reconsider shall state 

the reasons for the motion by specifying 

the errors of fact or law in the prior 

Board decision and shall be supported 

by pertinent authority. 

* * * * * 

(c) * * * 

(3) * * * 

(v) For which a three-member panel of 

the Board agrees that reopening is 

warranted when the following 

circumstances are present, provided that 

a respondent may file only one motion 

to reopen pursuant to this paragraph 

(c)(3): 

(A) 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 

applicable to the alien; and 

(B) The movant exercised diligence in 

pursuing the motion to reopen; 

(vi) Filed based on specific 

allegations, supported by evidence, that 

the respondent is a United States citizen 

or national; or 

(vii) Filed by DHS in removal 

proceedings pursuant to section 240 of 

the Act or in proceedings initiated 

pursuant to § 1208.2(c) of this chapter. 

* * * * * 

■ 4. Amend § 1003.3 by revising 

paragraphs (a)(2) and (c)(1) and (2) to 

read as follows: 

§ 1003.3 Notice of appeal. 

(a) * * * 

(2) Appeal from decision of a DHS 

officer. A party affected by a decision of 

a DHS officer that may be appealed to 

the Board under this chapter shall be 

given notice of the opportunity to file an 

appeal. An appeal from a decision of a 

DHS officer shall be taken by filing a 

Notice of Appeal to the Board of 

Immigration Appeals from a Decision of 

a DHS Officer (Form EOIR–29) directly 

with DHS in accordance with the 

instructions in the decision of the DHS 

officer within 30 days of the service of 

the decision being appealed. An appeal 

is not properly filed until it is received 

at the appropriate DHS office, together 

with all required documents, and the fee 

provisions of § 1003.8 are satisfied. 

* * * * * 

(c) * * * 

(1) Appeal from decision of an 

immigration judge. Briefs in support of 

or in opposition to an appeal from a 

decision of an immigration judge shall 

be filed directly with the Board. In those 

cases that are transcribed, the briefing 

schedule shall be set by the Board after 

the transcript is available. In all cases, 

the parties shall be provided 21 days in 

which to file simultaneous briefs unless 

a shorter period is specified by the 

Board. Reply briefs shall be permitted 

only by leave of the Board and only if 

filed within 14 days of the deadline for 

the initial briefs. The Board, upon 

written motion and a maximum of one 

time per case, may extend the period for 

filing a brief or, if permitted, a reply 

brief for up to 14 days for good cause 

shown. If an extension is granted, it is 

granted to both parties, and neither 

party may request a further extension. 

Nothing in this paragraph (c)(1) shall be 

construed as creating a right to a 

briefing extension for any party in any 

case, and the Board shall not adopt a 

policy of granting all extension requests 

without individualized consideration of 

good cause. In its discretion, the Board 

may consider a brief that has been filed 

out of time. In its discretion, the Board 

may request supplemental briefing from 

the parties after the expiration of the 

briefing deadline. All briefs, filings, and 

motions filed in conjunction with an 

appeal shall include proof of service on 

the opposing party. 

(2) Appeal from decision of a DHS 

officer. Briefs in support of or in 

opposition to an appeal from a decision 

of a DHS officer shall be filed directly 

with DHS in accordance with the 

instructions in the decision of the DHS 

officer. The applicant or petitioner and 

DHS shall be provided 21 days in which 

to file a brief, unless a shorter period is 

specified by the DHS officer from whose 

decision the appeal is taken, and reply 

briefs shall be permitted only by leave 

of the Board and only if filed within 14 

days of the deadline for the initial 

briefs. Upon written request of the alien 

and a maximum of one time per case, 

the DHS officer from whose decision the 

appeal is taken or the Board may extend 

the period for filing a brief for up to 14 

days for good cause shown. After the 

forwarding of the record on appeal by 

the DHS officer the Board may, solely in 

its discretion, authorize the filing of 

supplemental briefs directly with the 

Board and may provide the parties up 

to a maximum of 14 days to 

simultaneously file such briefs. In its 

discretion, the Board may consider a 

brief that has been filed out of time. All 

briefs and other documents filed in 

conjunction with an appeal, unless filed 

by an alien directly with a DHS office, 

shall include proof of service on the 

opposing party. 

* * * * * 

■ 5. Revise § 1003.5 to read as follows: 

§ 1003.5 Forwarding of record on appeal. 

(a) Appeal from decision of an 

immigration judge. If an appeal is taken 

from a decision of an immigration judge, 

the record of proceeding shall be 

promptly forwarded to the Board upon 

the request or the order of the Board, 

unless the Board already has access to 

the record of proceeding in electronic 

format. The Director, in consultation 

with the Chairman and the Chief 

Immigration Judge, shall determine the 

most effective and expeditious way to 

transcribe proceedings before the 

immigration judges. The Chairman and 

the Chief Immigration Judge shall take 

such steps as necessary to reduce the 

time required to produce transcripts of 

those proceedings and to ensure their 

quality. 

(b) Appeal from decision of a DHS 

officer. If an appeal is taken from a 

decision of a DHS officer, the record of 

proceeding shall be forwarded to the 

Board by the DHS officer promptly upon 

receipt of the briefs of the parties, or 

upon expiration of the time allowed for 

the submission of such briefs, unless the 

DHS officer reopens and approves the 

petition. 


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Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 81655 

§ 1003.7 [Amended] 

■ 6. Amend § 1003.7 by removing 

‘‘Service’’ and ‘‘the Service’’ each place 

they appear and adding in their place 

the acronym ‘‘DHS’’. 

■ 7. Amend § 1003.10(b) by: 

■ a. Removing ‘‘governing standards’’ 

and adding ‘‘governing standards set 

forth in paragraph (d) of this section’’ in 

its place; and 

■ b. Adding two sentences at the end of 

the paragraph. 

The additions reads as follows: 

§ 1003.10 Immigration judges. 

* * * * * 

(b) * * * Nothing in this paragraph 

(b) nor in any regulation contained in 

part 1240 of this chapter shall be 

construed as authorizing an immigration 

judge to administratively close or 

otherwise defer adjudication of a case 

unless a regulation promulgated by the 

Department of Justice or a previous 

judicially approved settlement expressly 

authorizes such an action. Only the 

Director or Chief Immigration Judge may 

direct the deferral of adjudication of any 

case or cases by an immigration judge. 

* * * * * 

■ 8. Amend § 1003.23 by: 

■ a. In paragraph (b)(1) introductory 

text: 

■ i. Revising the first sentence and 

adding a sentence following the first 

sentence; and 

■ ii. Removing ‘‘this paragraph’’ and 

adding ‘‘this paragraph (b)(1)’’ in its 

place; 

■ b. Adding paragraphs (b)(4)(v) and 

(vi). 

The revision and additions read as 

follows: 

§ 1003.23 Reopening or reconsideration 

before the Immigration Court. 

* * * * * 

(b) * * * 

(1) In general. Unless jurisdiction is 

vested with the Board of Immigration 

Appeals, an immigration judge may at 

any time reopen a case in which he or 

she has rendered a decision on his or 

her own motion solely in order to 

correct a ministerial mistake or 

typographical error in that decision or to 

reissue the decision to correct a defect 

in service. Unless jurisdiction is vested 

with the Board of Immigration Appeals, 

in all other cases, an immigration judge 

may only reopen or reconsider any case 

in which he or she has rendered a 

decision solely pursuant to a motion 

filed by one or both parties. * * * 

* * * * * 

(4) * * * 

(v) Exceptions to time and numerical 

limitations. The time and numerical 

limitations set forth in paragraph (b)(1) 

of this section shall not apply to a 

motion to reopen proceedings filed 

when each of the following 

circumstances is present, provided that 

a respondent may file only one motion 

to reopen pursuant to this paragraph 

(b)(4): 

(A) A material change in fact or law 

underlying a removability ground or 

grounds specified in section 212 or 237 

of the Act occurred after the entry of an 

administratively final order that vitiates 

all grounds of removability applicable to 

the alien; and 

(B) The movant exercised diligence in 

pursuing the motion to reopen. 

(vi) Asserted United States citizenship 

or nationality. The time limitations set 

forth in paragraph (b)(1) of this section 

shall not apply to a motion to reopen 

proceedings filed based on specific 

allegations, supported by evidence, that 

the respondent is a United States citizen 

or national. 

PART 1240—PROCEEDINGS TO 

DETERMINE REMOVABILITY OF 

ALIENS IN THE UNITED STATES 

■ 9. The authority citation for part 1240 

continues to read as follows: 

Authority: 8 U.S.C. 1103, 1158, 1182, 

1186a, 1186b, 1225, 1226, 1227, 1228, 1229a, 

1229b, 1229c, 1252 note, 1361, 1362; secs. 

202 and 203, Pub. L. 105–100 (111 Stat. 2160, 

2193); sec. 902, Pub. L. 105–277 (112 Stat. 

2681). 

■ 10. Amend § 1240.26 by: 

■ a. Redesignating paragraph (j) as 

paragraph (l); 

■ b. Adding a new reserved paragraph 

(j); and 

■ c. Adding paragraph (k). 

The addition reads as follows: 

§ 1240.26 Voluntary departure—authority 

of the Executive Office for Immigration 

Review. 

* * * * * 

(k) Authority of the Board to grant 

voluntary departure in the first instance. 

The following procedures apply to any 

request for voluntary departure 

reviewed by the Board: 

(1) The Board shall not remand a case 

to an immigration judge to reconsider a 

request for voluntary departure. If the 

Board first finds that an immigration 

judge incorrectly denied an alien’s 

request for voluntary departure or failed 

to provide appropriate advisals, the 

Board shall consider the alien’s request 

for voluntary departure de novo and, if 

warranted, may enter its own order of 

voluntary departure with an alternate 

order of removal. 

(2) In cases which an alien has 

appealed an immigration judge’s 

decision or in which DHS and the alien 

have both appealed an immigration 

judge’s decision, the Board shall not 

grant voluntary departure under section 

240B of the Act unless: 

(i) The alien requested voluntary 

departure under that section before the 

immigration judge, the immigration 

judge denied the request, and the alien 

timely appealed; 

(ii) The alien’s notice of appeal 

specified that the alien is appealing the 

immigration judge’s denial of voluntary 

departure and identified the specific 

factual and legal findings that the alien 

is challenging; 

(iii) The Board finds that the 

immigration judge’s decision was in 

error; and 

(iv) The Board finds that the alien 

meets all applicable statutory and 

regulatory criteria for voluntary 

departure under that section. 

(3) In cases in which DHS has 

appealed an immigration judge’s 

decision, the Board shall not grant 

voluntary departure under section 240B 

of the Act unless: 

(i) The alien requested voluntary 

departure under that section before the 

immigration judge and provided 

evidence or a proffer of evidence in 

support of the alien’s request; 

(ii) The immigration judge either 

granted the request or did not rule on it; 

and, 

(iii) The Board finds that the alien 

meets all applicable statutory and 

regulatory criteria for voluntary 

departure under that section. 

(4) The Board may impose such 

conditions as it deems necessary to 

ensure the alien’s timely departure from 

the United States, if supported by the 

record on appeal and within the scope 

of the Board’s authority on appeal. 

Unless otherwise indicated in this 

section, the Board shall advise the alien 

in writing of the conditions set by the 

Board, consistent with the conditions 

set forth in paragraphs (b), (c), (d), (e), 

(h), and (i) of this section (other than 

paragraph (c)(3)(ii) of this section), 

except that the Board shall advise the 

alien of the duty to post the bond with 

the ICE Field Office Director within 10 

business days of the Board’s order 

granting voluntary departure if that 

order was served by mail and shall 

advise the alien of the duty to post the 

bond with the ICE Field Office Director 

within five business days of the Board’s 

order granting voluntary departure if 

that order was served electronically. If 

documentation sufficient to assure 

lawful entry into the country to which 

the alien is departing is not contained 

in the record, but the alien continues to 

assert a request for voluntary departure 


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81656 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 

under section 240B of the Act and the 

Board finds that the alien is otherwise 

eligible for voluntary departure under 

the Act, the Board may grant voluntary 

departure for a period not to exceed 120 

days, subject to the condition that the 

alien within 60 days must secure such 

documentation and present it to DHS 

and the Board. If the Board imposes 

conditions beyond those specifically 

enumerated, the Board shall advise the 

alien in writing of such conditions. The 

alien may accept or decline the grant of 

voluntary departure and may manifest 

his or her declination either by written 

notice to the Board within five days of 

receipt of its decision, by failing to 

timely post any required bond, or by 

otherwise failing to comply with the 

Board’s order. The grant of voluntary 

departure shall automatically terminate 

upon a filing by the alien of a motion 

to reopen or reconsider the Board’s 

decision, or by filing a timely petition 

for review of the Board’s decision. The 

alien may decline voluntary departure if 

he or she is unwilling to accept the 

amount of the bond or other conditions. 

* * * * * 

James R. McHenry III, 

Director, Executive Office for Immigration 

Review, Department of Justice. 

[FR Doc. 2020–27008 Filed 12–11–20; 8:45 am] 

BILLING CODE 4410–30–P 


khammond on DSKJM1Z7X2PROD with RULES3