62242 Federal Register / Vol. 88, No. 173 / Friday, September 8, 2023 / Proposed Rules 

DEPARTMENT OF JUSTICE 

Executive Office for Immigration 

Review 

8 CFR Parts 1001, 1003, 1239, and 1240 

[Docket No. EOIR 021–0410; AG Order No. 

5738–2023] 

RIN 1125–AB18 

Appellate Procedures and Decisional 

Finality in Immigration Proceedings; 

Administrative Closure 

AGENCY: Executive Office for 

Immigration Review, Department of 

Justice. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: In December 2020, the 

Department of Justice issued a final rule 

(the ‘‘AA96 Final Rule’’) establishing 

novel limits on the authority of 

immigration judges and the Board of 

Immigration Appeals (‘‘BIA’’ or 

‘‘Board’’) to manage their dockets and 

efficiently dispose of cases. Among 

other changes, the AA96 Final Rule 

would have required the BIA to set 

simultaneous briefing schedules for 

every appeal, limited the authority of 

immigration judges and the BIA to 

temporarily pause cases while the 

United States Citizenship and 

Immigration Services (‘‘USCIS’’) 

adjudicates a noncitizen’s pending visa 

application, and restricted the BIA’s 

discretion to remand matters to 

immigration judges in light of legal and 

factual errors. The AA96 Final Rule was 

enjoined shortly after its issuance in 

March 2021, and it has not been in 

effect since that date. After careful 

reconsideration, the Department 

proposes to restore longstanding 

procedures in place prior to the AA96 

Final Rule, including administrative 

closure, and to clarify and codify other 

established practices. Given the 

aforementioned injunction, the 

proposed regulatory language largely 

reflects the currently operative status 

quo. The Department believes that this 

rule will promote the efficient and 

expeditious adjudication of cases, afford 

immigration judges and the BIA 

flexibility to efficiently allocate their 

limited resources, and protect due 

process for parties before immigration 

judges and the BIA. 

DATES: Electronic comments must be 

submitted, and written comments must 

be postmarked or otherwise indicate a 

shipping date on or before November 7, 

2023. The electronic Federal Docket 

Management System at 

www.regulations.gov will accept 

electronic comments until 11:59 p.m. 

Eastern Time on that date. 

ADDRESSES: If you wish to provide 

comments regarding this rulemaking, 

you must submit comments, identified 

by the agency name and reference RIN 

1125–AB18 or EOIR Docket No. 021– 

0410, by one of the two methods below. 

• Federal eRulemaking Portal: 

www.regulations.gov. Follow the 

website instructions for submitting 

comments. 

• Mail: Paper comments that 

duplicate an electronic submission are 

unnecessary. If you wish to submit a 

paper comment in lieu of electronic 

submission, please direct the mail/ 

shipment to: Raechel Horowitz, Chief, 

Immigration Law Division, Office of 

Policy, Executive Office for Immigration 

Review, 5107 Leesburg Pike, Suite 1800, 

Falls Church, VA 22041. To ensure 

proper handling, please reference the 

agency name and RIN 1125–AB18 or 

EOIR Docket No. 021–0410 on your 

correspondence. Mailed items must be 

postmarked or otherwise indicate a 

shipping date on or before the 

submission deadline. 

FOR FURTHER INFORMATION CONTACT: 

Raechel Horowitz, Chief, Immigration 

Law Division, Office of Policy, 

Executive Office for Immigration 

Review, 5107 Leesburg Pike, Suite 1800, 

Falls Church, VA 22041, telephone 

(703) 305–0289. 

SUPPLEMENTARY INFORMATION: 

I. Public Participation 

Interested persons are invited to 

participate in this rulemaking by 

submitting written data, views, or 

arguments on all aspects of this 

proposed rule via one of the methods 

and by the deadline stated above. The 

Department of Justice (‘‘Department’’) 

also invites comments that relate to the 

economic, environmental, or federalism 

effects that might result from this 

proposed rule. Comments that will 

provide the most assistance to the 

Department in developing these 

procedures will reference a specific 

portion of the proposed rule; explain the 

reason for any recommended change; 

and include data, information, or 

authority that support such 

recommended change. 

Please note that all comments 

received are considered part of the 

public record and made available for 

public inspection at 

www.regulations.gov. Such information 

includes personally identifying 

information (such as your name, 

address, etc.) voluntarily submitted by 

the commenter. 

If you want to submit personally 

identifying information (such as your 

name, address, etc.) as part of your 

comment, but do not want it to be 

posted online, you must include the 

phrase ‘‘PERSONALLY IDENTIFYING 

INFORMATION’’ in the first paragraph 

of your comment and identify what 

information you want redacted. 

If you want to submit confidential 

business information as part of your 

comment, but do not want it to be 

posted online, you must include the 

phrase ‘‘CONFIDENTIAL BUSINESS 

INFORMATION’’ in the first paragraph 

of your comment. You also must 

prominently identify the confidential 

business information to be redacted 

within the comment. If a comment has 

so much confidential business 

information that it cannot be effectively 

redacted, all or part of that comment 

may not be posted on 

www.regulations.gov. 

Personally identifying information 

located as set forth above will be placed 

in the agency’s public docket file, but 

not posted online. Confidential business 

information identified and located as set 

forth above will not be placed in the 

public docket file. The Department may 

withhold from public viewing 

information provided in comments that 

it determines may impact the privacy of 

an individual or is offensive. For 

additional information, please read the 

Privacy Act notice that is available via 

the link in the footer of 

www.regulations.gov. To inspect the 

agency’s public docket file in person, 

you must make an appointment with the 

agency. Please see the FOR FURTHER

INFORMATION CONTACT paragraph above 

for agency contact information. 

II. Legal Authority 

The Department issues this proposed 

rule pursuant to section 103(g) of the 

Immigration and Nationality Act 

(‘‘INA’’), 8 U.S.C. 1103(g), as amended 

by the Homeland Security Act of 2002 

(‘‘HSA’’), Public Law 107–296, 116 Stat. 

2135 (as amended). Under the HSA, the 

Attorney General retains authority to 

‘‘establish such regulations, . . . issue 

such instructions, review such 

administrative determinations in 

immigration proceedings, delegate such 

authority, and perform such other acts 

as the Attorney General determines to 

be necessary for carrying out’’ the 

Attorney General’s authorities under the 

INA. HSA 1102, 116 Stat. at 2273–74; 

INA 103(g)(2), 8 U.S.C. 1103(g)(2). 

III. History and Background 

On August 26, 2020, the Department 

published a notice of proposed 

rulemaking (‘‘NPRM’’ or ‘‘proposed 


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1Historically, Department rules, including the 

AA96 Final Rule, used the term ‘‘Board member’’ 

to refer to members of the Board. See Appellate 

Procedures and Decisional Finality in Immigration 

Proceedings; Administrative Closure, 85 FR 81588, 

81590 (Dec. 16, 2020). The Department has begun 

using the term ‘‘Appellate Immigration Judge’’ to 

refer to members of the Board, and that is the term 

used in this NPRM. Although ‘‘Board member’’ and 

‘‘Appellate Immigration Judge’’ are synonymous, 

see 8 CFR 1003.1(a)(1)–(2), the Department believes 

that ‘‘Appellate Immigration Judge’’ is a more 

accurate description of the role of members of the 

Board. See Organization of the Executive Office for 

Immigration Review, 84 FR 44537, 44539 (issued as 

interim final rule) (Aug. 26, 2019). 

2 In addition, the Department proposed to update 

outdated references to the former Immigration and 

Naturalization Service (‘‘INS’’). 85 FR at 52507 n.36. 

3The Department posted 1,284 of the comments 

received for public review. The Department did not 

post three of the comments received because they 

were either non-substantive or duplicates of other 

comments that were posted. 

4For purposes of the discussion in this preamble, 

the Department uses the term ‘‘noncitizen’’ 

colloquially and synonymous with the term ‘‘alien’’ 

as it is used in the INA. See INA 101(a)(3), 8 U.S.C. 

1101(a)(3). This NPRM is also proposing to define 

the term ‘‘noncitizen’’ to be synonymous with the 

term ‘‘alien,’’ as explained later in this preamble. 

rule’’) that proposed to amend the 

Executive Office for Immigration 

Review (‘‘EOIR’’) regulations regarding 

the handling of appeals to the Board. 

Appellate Procedures and Decisional 

Finality in Immigration Proceedings; 

Administrative Closure, 85 FR 52491 

(Aug. 26, 2020) (‘‘AA96 NPRM’’). The 

Department proposed multiple changes 

to the processing of appeals to ‘‘ensure 

the consistency, efficiency, and quality 

of its adjudications.’’ Id. at 52491. In 

addition, the Department proposed to 

amend the regulations to expressly state 

that immigration judges and Appellate 

Immigration Judges 1 have no 

‘‘freestanding’’ authority to 

administratively close cases. Id. Finally, 

the Department proposed to delete 

inapplicable or unnecessary provisions 

regarding the forwarding of the record of 

proceeding on appeal. Id.2 The AA96 

NPRM set forth a 30-day comment 

period, stating that any public 

comments must be submitted by 

September 25, 2020. Id. The Department 

received 1,287 comments during the 

comment period.3

On December 16, 2020, the 

Department published a final rule, 

wherein it responded to comments 

received during the notice-andcomment period and adopted the 

regulatory language proposed in the 

AA96 NPRM with minor changes. 

Appellate Procedures and Decisional 

Finality in Immigration Proceedings; 

Administrative Closure, 85 FR 81588 

(Dec. 16, 2020) (‘‘AA96 Final Rule’’). 

The AA96 Final Rule’s effective date 

was January 15, 2021, id. at 81588, but 

the rule was enjoined on March 10, 

2021, in litigation described in further 

detail below. See Centro Legal de la 

Raza v. Exec. Off. for Immigr. Rev., 524 

F. Supp. 3d 919 (N.D. Cal. 2021). 

A. Briefing Schedule Changes at the 

Board of Immigration Appeals 

1. Before Promulgation of the AA96 

Final Rule 

Prior to the AA96 Final Rule, the 

regulations specified that appeals 

involving detained noncitizens 4 were 

subject to a simultaneous briefing 

schedule, wherein both parties had 21 

days to file simultaneous briefs, unless 

the Board specified a shorter period. 8 

CFR 1003.3(c)(1) (2019). The regulations 

permitted parties subject to a 

simultaneous briefing schedule to 

submit reply briefs within 21 days of the 

deadline for the initial brief, when 

permitted by the Board. Id. For cases 

involving non-detained noncitizens, the 

regulations provided for a consecutive 

briefing schedule. The appellant had 21 

days to file an initial brief, unless the 

Board specified a shorter period, and 

the appellee then had an equivalent 

amount of time, including any 

extensions granted to the appellant, to 

file a reply brief. Id. 

Appellate Immigration Judges were 

authorized, upon written motion, to 

extend the filing deadline of an initial 

brief or a reply brief for up to 90 days 

for good cause shown. Id. Appellate 

Immigration Judges generally granted 

briefing extensions in 21-day 

increments but would also grant longer 

extensions for good cause shown. The 

regulations also authorized Appellate 

Immigration Judges to request 

supplemental briefing from parties after 

the briefing deadline expired. Id. 

2. Changes Made by the AA96 Final 

Rule 

The AA96 Final Rule amended 8 CFR 

1003.3(c)(1) to require a simultaneous 

briefing schedule for all cases before the 

Board, regardless of the noncitizen’s 

detention status. 85 FR at 81588. The 

AA96 Final Rule also reduced the 

allowable time to extend a briefing 

schedule from a maximum of 90 days to 

a maximum of 14 days and limited all 

parties to one briefing extension. Id. at 

81654 (‘‘If an extension is granted, it is 

granted to both parties, and neither 

party may request a further extension.’’). 

The AA96 Final Rule specified that no 

party was entitled to a briefing 

extension as a matter of right and that 

briefing extensions should only be 

granted upon an ‘‘individualized 

consideration of good cause.’’ Id. The 

AA96 Final Rule also shortened the 

maximum amount of time for 

submitting reply briefs from 21 days to 

14 days, and only when the Board 

permitted filing of a reply brief. Id. 

B. Administrative Closure Authority 

1. Before Promulgation of the AA96 

Final Rule 

Prior to the AA96 Final Rule, 8 CFR 

1003.1(d)(1)(ii) (2019) and 1003.10(b) 

(2019) stated that EOIR adjudicators 

‘‘may take any action consistent with 

their authorities under the [INA] and the 

regulations as is appropriate and 

necessary for the disposition’’ of the 

case. Although the regulations have 

never explicitly stated that EOIR 

adjudicators have general administrative 

closure authority, numerous courts of 

appeals and the Board have interpreted 

‘‘any action’’ to include using docket 

management tools such as 

administrative closure. See Romero v. 

Barr, 937 F.3d 282, 292 (4th Cir. 2019) 

(explaining that ‘‘[8 CFR] 1003.10(b) and 

1003.1(d)(1)(ii) unambiguously confer[ ] 

upon [immigration judges] and the BIA 

the general authority to administratively 

close cases’’); Meza Morales v. Barr, 973 

F.3d 656, 667 n.6 (7th Cir. 2020) 

(Barrett, J.) (concluding that ‘‘[8 CFR] 

1003.10(b) grants immigration judges 

the power to administratively close 

cases’’); Arcos Sanchez v. Att’y Gen., 

997 F.3d 113, 122 (3d Cir. 2021) 

(explaining ‘‘that the plain language 

establishes that general administrative 

closure authority is unambiguously 

authorized by these regulations’’); 

Matter of Avetisyan, 25 I&N Dec. 688, 

692 (BIA 2012) (stating that EOIR 

adjudicators may utilize continuances 

or administrative closure ‘‘to 

temporarily remove a case from an 

Immigration Judge’s active calendar or 

from the Board’s docket’’). But see 

Hernandez-Serrano v. Barr, 981 F.3d 

459, 466 (6th Cir. 2020) (concluding that 

‘‘[8 CFR] 1003.10(b) and 1003.1(d) do 

not delegate to [immigration judges] or 

the Board the general authority to 

suspend indefinitely immigration 

proceedings by administrative closure’’ 

(internal quotation marks omitted)); 

Garcia-DeLeon v. Garland, 999 F.3d 

986, 991–93 (6th Cir. 2021) 

(subsequently ruling that immigration 

judges and the Board do have authority 

to grant administrative closure to permit 

a noncitizen to apply for a provisional 

unlawful presence waiver). 

Since 1958, regulations have 

authorized EOIR adjudicators to 

exercise their discretion as may be 

‘‘appropriate and necessary’’ for the 

disposition of a case. Miscellaneous 

Amendments to Chapter, 23 FR 2670, 


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5 Initially, the adjudicators who reviewed and 

decided deportation cases were known as special 

inquiry officers. INA 101(b)(4), 8 U.S.C. 1101(b)(4) 

(1952). These adjudicators later became known as 

immigration judges. See INA 101(b)(4), 8 U.S.C. 

1101(b)(4) (defining ‘‘immigration judge’’); 

Immigration Judge, 38 FR 8590 (Apr. 4, 1973) (‘‘The 

term ‘immigration judge’ means special inquiry 

officer.’’). 

6Although the same NPRM proposed this 

regulatory authority for both the Board and 

immigration judges, the regulatory language was 

codified for the Board and immigration judges in 

separate final rules. See Board of Immigration 

Appeals: Procedural Reforms to Improve Case 

Management, 67 FR 54877, 54902–904 (Aug. 26, 

2002); Authorities Delegated to the Director of the 

Executive Office for Immigration Review, and the 

Chief Immigration Judge, 72 FR 53673, 53677–78 

(Sept. 20, 2007). 

7 Indeed, EOIR records indicate that 

administrative closure was used as early as 1974. 

8These decisions did not suggest that 

adjudicators did not have the authority to 

administratively close cases. Rather, they, as well 

as numerous subsequent administrative decisions, 

addressed when using administrative closure might 

be ‘‘appropriate’’ under the regulations. See 8 CFR 

236.1 (1958) (permitting adjudicators to exercise 

authorities only as ‘‘appropriate and necessary’’); 

see also 8 CFR 1003.1(d)(1)(ii) (2019); 8 CFR 

1003.10(b) (2019). 

2671 (Apr. 23, 1958) (‘‘Subject to any 

specific limitation prescribed by the act 

and this chapter, special inquiry officers 

shall also exercise the discretion and 

authority conferred upon the Attorney 

General by the act as is appropriate and 

necessary for the disposition of such 

cases.’’); 5 see also Hernandez-Serrano, 

981 F.3d at 464 (‘‘As early as 1958, 

regulations granted the predecessors to 

[immigration judges] (called ‘special 

inquiry officers’) and the Board 

authority to take actions ‘appropriate 

and necessary for the disposition of’ 

their cases.’’). In 2000, the Department 

published an NPRM that proposed more 

expansive authority: that EOIR 

adjudicators could take ‘‘any action’’ 

appropriate and necessary for the 

disposition of a case. See Authorities 

Delegated to the Director of the 

Executive Office for Immigration 

Review, the Chairman of the Board of 

Immigration Appeals, and the Chief 

Immigration Judge, 65 FR 81434, 81436– 

37 (Dec. 26, 2000). The Department 

adopted this regulatory language for 

Board members in 2002, and for 

immigration judges in 2007.6

Since at least the 1980s,7 immigration 

judges and the Board have exercised 

their authority to use administrative 

closure as a docketing tool, where 

appropriate, to remove cases from their 

active dockets and to regulate the course 

of proceedings. See Arcos Sanchez, 997 

F.3d at 116–17 (recognizing that 

adjudicators have used administrative 

closure dating back to the 1980s). 

In 1984, the EOIR Office of the Chief 

Immigration Judge issued an Operating 

Policies and Procedures Memorandum 

(‘‘OPPM’’) setting forth options available 

to immigration judges in cases where 

noncitizens failed to appear for their 

hearings, including the option to 

administratively close cases. EOIR, 

OPPM 84–2: Cases in Which 

Respondents/Applicants Fail to Appear 

for Hearing, 1984 WL 582760 (Mar. 7, 

1984). The OPPM included language 

specifying that administratively closed 

cases were to be considered ‘‘no longer 

pending before the Immigration Judge,’’ 

and that no further action would be 

taken until ‘‘the case is presented for recalendaring and further proceedings.’’ 

Id. at *2. The OPPM provided a nonexhaustive list of factors for immigration 

judges to consider such as adequacy of 

notice; likelihood that a deportation 

order, if entered in absentia, would be 

enforced; the nature of charges; and the 

need for parties to be present. Id. at *1. 

The next significant development in 

the exercise of administrative closure 

came in 1986, shortly after President 

Reagan signed into law the Immigration 

Reform and Control Act of 1986, Public 

Law 99–603, 100 Stat. 3359. The 

Immigration Reform and Control Act 

created a pathway to lawful status for 

certain undocumented noncitizens who 

had entered the United States prior to 

January 1, 1982. Immigration judges 

used administrative closure to pause 

removal proceedings while noncitizens 

pursued this newly available pathway to 

lawful status. See, e.g., Veliz v. 

Caplinger, No. 96–1508, 1997 WL 

61456, at *1 (E.D. La. Feb. 12, 1997) 

(noting that the removal proceedings 

before the agency were administratively 

closed to allow noncitizens to apply for 

legalization under the Immigration 

Reform and Control Act). 

As administrative closure became 

more common, the Board began to 

address questions related to its use. For 

example, in 1988, the Board published 

a decision in which it determined that 

an immigration judge improperly 

exercised administrative closure 

authority. Matter of Amico, 19 I&N Dec. 

652, 654 (BIA 1988) (determining that 

the immigration judge’s decision to 

administratively close a case rather than 

hold proceedings in absentia was 

‘‘inappropriate’’ because administrative 

closure would have permitted the 

noncitizen to avoid an order of 

deportation by failing to appear). In its 

decision, the Board clarified that 

administratively closing a case ‘‘does 

not result in a final order’’ and ‘‘is 

merely an administrative convenience 

which allows the removal of cases from 

the calendar in appropriate situations.’’ 

Id. at 654 n.1. In 1990, the Board 

published Matter of Lopez-Barrios and 

Matter of Munoz-Santos, both of which 

held that an immigration judge could 

not administratively close a case if 

either party to the proceedings opposed 

closure. Matter of Lopez-Barrios, 20 I&N 

Dec. 203 (BIA 1990), overruled by 

Matter of Avetisyan, 25 I&N Dec. at 697; 

Matter of Munoz-Santos, 20 I&N Dec. 

205 (BIA 1990), overruled by Matter of 

Avetisyan, 25 I&N Dec. at 697.8

Over the next decade, the Department 

entered into binding settlement 

agreements and issued numerous 

regulations that required immigration 

judges and the Board to administratively 

close cases or provided that parties 

could request administrative closure in 

a variety of specified situations. See, 

e.g., Barahona-Gomez v. Ashcroft, 243 

F. Supp. 2d 1029, 1035 (N.D. Cal. 2002) 

(‘‘[I]f the [Respondent] fails to appear for 

the scheduled hearing . . . the case 

shall be administratively closed, 

following which, should the 

Respondent come forward, the hearing 

shall be recalendared[.]’’); American 

Baptist Churches v. Thornburgh, 760 F. 

Supp. 796, 805 (N.D. Cal. 1991) (‘‘ABC’’) 

(ordering that proceedings before EOIR 

be administratively closed, generally, 

for class members); Adjustment of 

Status for Certain Nationals of 

Nicaragua and Cuba, 63 FR 27823, 

27830 (May 21, 1998) (implementing 

administrative closure procedures for 

noncitizens who appeared eligible to 

adjust status under the Nicaraguan 

Adjustment and Central American 

Relief Act of 1997 (‘‘NACARA’’)) (8 CFR 

245.13(d)(3) (1999)); Adjustment of 

Status for Certain Nationals of Haiti, 64 

FR 25756, 25769 (May 12, 1999) 

(requiring EOIR adjudicators to exercise 

administrative closure in cases where 

noncitizens appeared to be eligible to 

file an application for adjustment of 

status under the Haitian Refugee 

Immigration Fairness Act of 1998 

(‘‘HRIFA’’) and met various other 

requirements) (8 CFR 245.15(p)(4) 

(2000)); Executive Office for 

Immigration Review; Adjustment of 

Status for Certain Nationals of 

Nicaragua, Cuba, and Haiti, 66 FR 

29449, 29452 (May 31, 2001) (providing 

that a noncitizen for whose case an 

immigration judge or the Board has 

granted a motion to reopen under 

particular statutes may move to have 

proceedings administratively closed to 

seek adjustment of status) (8 CFR 

245.13(m)(1)(ii) (2002)); V 

Nonimmigrant Classification; Spouses 

and Children of Lawful Permanent 

Residents, 66 FR 46697, 46700 (Sept. 7, 

2001) (‘‘If the [noncitizen] appears 

eligible for V nonimmigrant status, the 


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9Notably, before Matter of Avetisyan overruled 

the Board’s prior precedent on this issue, the Board 

had encouraged DHS to consider moving for 

administrative closure rather than multiple 

continuances in ‘‘appropriate circumstances, such 

as where there is a pending prima facie approvable 

visa petition.’’ Matter of Hashmi, 24 I&N Dec. 785, 

791 n.4 (BIA 2009); see also Matter of Rajah, 25 I&N 

Dec. 127, 135 n.10 (BIA 2009). The Board described 

administrative closure as ‘‘an attractive option in 

these situations, as it will assist in ensuring that 

only those cases that are likely to be resolved are 

before the Immigration Judge.’’ Matter of Hashmi, 

24 I&N Dec. at 791 n.4. The Board also noted that 

administrative closure could ‘‘avoid the repeated 

rescheduling of a case that is clearly not ready to 

be concluded.’’ Id. 

10Pursuant to INA 212(a)(9)(B), 8 U.S.C. 

1182(a)(9)(B), noncitizens who are inadmissible 

because they accrued more than 180 days of 

unlawful presence while in the United States and 

subsequently depart the United States may seek 

waiver of this ground of inadmissibility. Prior to the 

DHS rulemaking, such noncitizens, if not eligible to 

adjust status within the United States, had to 

request a waiver at their consular interview after 

leaving the United States and triggering the ground 

of inadmissibility. 78 FR at 536. In 2013, DHS 

established the provisional unlawful presence 

waiver process. Id. It began allowing noncitizens 

who are immediate relatives (spouses, children, and 

parents) of U.S. citizens to apply for a waiver while 

remaining in the United States, and, upon 

provisional approval, travel abroad to attend their 

consular interview for an immigrant visa, thus 

mitigating the likelihood that such individuals 

would be required to wait outside of the United 

States, apart from their immediate relatives, while 

the waiver was adjudicated. Id. In 2016, to further 

improve administrative efficiency, DHS expanded 

the provisional unlawful presence waiver process to 

all noncitizens statutorily eligible for an immigrant 

visa and a waiver of inadmissibility based on 

unlawful presence in the United States. Expansion 

of Provisional Unlawful Presence Waivers of 

Inadmissibility, 81 FR 50244 (July 29, 2016). 

immigration judge or the Board, 

whichever has jurisdiction, shall 

administratively close the proceeding or 

continue the motion indefinitely.’’) (8 

CFR 214.15(l) (2002)); New 

Classification for Victims of Severe 

Forms of Trafficking in Persons; 

Eligibility for ‘‘T’’ Nonimmigrant Status, 

67 FR 4783, 4797 (Jan. 31, 2002) (stating 

that T-visa applicants may request 

administrative closure) (codifying 

language later moved to 8 CFR 

1214.2(a)); Adjustment of Status for 

Certain Aliens from Vietnam, Cambodia, 

and Laos in the United States, 67 FR 

78667, 78673 (Dec. 26, 2002) 

(authorizing certain nationals of 

Vietnam, Cambodia, and Laos to move 

for administrative closure pending their 

applications for adjustment of status, 

but preventing the immigration judge or 

the Board from ‘‘defer[ring] or 

dismiss[ing] the proceeding’’ without 

the former Immigration and 

Naturalization Service’s consent) 

(codifying language later moved to 8 

CFR 1245.21(c)). 

Since 2011, the U.S. Department of 

Homeland Security (‘‘DHS’’) has issued 

a number of enforcement priority 

memoranda, some of which have 

subsequently been rescinded, that 

included discussions of when U.S. 

Immigration and Customs Enforcement 

(‘‘ICE’’) attorneys should exercise 

prosecutorial discretion in pursuing 

removal, which noncitizens were 

considered priorities for removal, and 

methods for implementing those 

priorities as to noncitizens who were 

already in removal proceedings, 

including by filing joint motions to 

administratively close proceedings. See, 

e.g., Memorandum for All Field Office 

Directors et al., from John Morton, 

Director, ICE, Exercising Prosecutorial 

Discretion Consistent with the Civil 

Immigration Enforcement Priorities of 

the Agency for the Apprehension, 

Detention, and Removal of Aliens at 2 

(Jun. 17, 2011) (describing prosecutorial 

discretion as a decision ‘‘not to assert 

the full scope of the enforcement 

authority available to the agency’’), 

https://www.ice.gov/doclib/securecommunities/pdf/prosecutorialdiscretion-memo.pdf; Memorandum for 

Tae D. Johnson, Acting Director, ICE, 

from Alejandro N. Mayorkas, Secretary, 

DHS, Guidelines for the Enforcement of 

Civil Immigration Law (Sept. 30, 2021), 

https://www.ice.gov/doclib/news/ 

guidelines-civilimmigrationlaw.pdf. 

Many pending removal-related cases 

before EOIR and the federal courts at the 

time potentially fell under the 

memoranda’s criteria for low priorities 

for removal. Cf. In re Immigr. Petitions 

for Rev. Pending in U.S. Ct. of Appeals 

for Second Cir., 702 F.3d 160, 160 (2d 

Cir. 2012) (‘‘[The petitioner] is one of 

more than a thousand cases in our Court 

that are actually or potentially subject to 

a future decision by the Government as 

to whether it will or can remove 

petitioners if their petitions are 

denied.’’). The use of administrative 

closure served to facilitate the exercise 

of prosecutorial discretion by allowing 

DHS counsel to request that certain lowpriority cases be removed from 

immigration judges’ active calendars 

and the Board’s docket, thereby 

allowing adjudicators to focus on higher 

priority cases. 

In 2012, the Board published Matter 

of Avetisyan, which overruled the 

Board’s prior precedent in Matter of 

Lopez-Barrios and Matter of MunozSantos. In Matter of Avetisyan, the 

Board established that EOIR 

adjudicators could administratively 

close proceedings over a party’s 

objection and set forth a list of factors 

that adjudicators should consider when 

determining whether administrative 

closure was appropriate.9 25 I&N Dec. at 

688. In so holding, the Board stated that 

EOIR adjudicators’ authority to 

administratively close proceedings 

stemmed from their general regulatory 

authority, under 8 CFR 1003.10(b) and 

1003.1(d)(1)(ii), to take any appropriate 

and necessary action. Id. at 691. The 

Board found that an EOIR adjudicator’s 

determination to administratively close 

a case over DHS’s objection would not 

undermine DHS’s prosecutorial 

discretion, as prosecutorial discretion 

related to DHS’s decision to commence 

removal proceedings. Id. at 694. In 

contrast, the Board determined that 

once jurisdiction over removal 

proceedings vests with EOIR, the EOIR 

adjudicator has the authority to regulate 

the course of proceedings, including to 

administratively close cases where 

appropriate. Id. 

The Board also explained that EOIR 

adjudicators should independently 

weigh all relevant factors in determining 

whether to administratively close a case, 

including but not limited to: 

(1) the reason administrative closure is 

sought; (2) the basis for any opposition to 

administrative closure; (3) the likelihood the 

respondent will succeed on any petition, 

application, or other action [the respondent] 

is pursuing outside of removal proceedings; 

(4) the anticipated duration of the closure; (5) 

the responsibility of either party, if any, in 

contributing to any current or anticipated 

delay; and (6) the ultimate outcome of 

removal proceedings (for example, 

termination of the proceedings or entry of a 

removal order) when the case is recalendared 

before the Immigration Judge or the appeal is 

reinstated before the Board. 

Id. at 696. The Board later held that 

‘‘the primary consideration for an 

Immigration Judge in determining 

whether to administratively close or 

recalendar proceedings is whether the 

party opposing administrative closure 

has provided a persuasive reason for the 

case to proceed and be resolved on the 

merits.’’ Matter of W–Y–U–, 27 I&N Dec. 

17, 20 (BIA 2017). 

In 2013, DHS published a final rule 

that allowed certain noncitizens in 

removal proceedings to apply for 

provisional unlawful presence waivers 

of inadmissibility while still in the 

United States, but only if their removal 

proceedings had been administratively 

closed and not recalendared at the time 

they filed for the waiver. Provisional 

Unlawful Presence Waivers of 

Inadmissibility for Certain Immediate 

Relatives, 78 FR 535, 577 (Jan. 3, 2013) 

(codifying language that was later 

moved to 8 CFR 212.7(e)(4)(iii)).10 DHS 

further articulated that administrative 

closure is an appropriate and common 

procedural tool for dispensing with nonpriority cases. Id. at 544 (‘‘Under its 

prosecutorial discretion (PD) policies, 

ICE has been reviewing cases pending 


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11The Department has considered the various 

proposals made in the report. For example, in 2021, 

EOIR finalized a rule implementing electronic filing 

at all immigration courts and the BIA. See Booz 

Allen Hamilton, Legal Case Study: Summary Report 

at 23; Executive Office for Immigration Review 

Electronic Case Access and Filing, 86 FR 70708 

(Dec. 13, 2021) (‘‘ECAS Rule’’). 

12Moreover, the AA96 Final Rule cited the 

Attorney General’s explanation that general 

administrative closure authority conflicts with 

regulatory requirements to resolve matters in a 

‘‘timely’’ fashion. 85 FR 81588 (Dec. 16, 2020) at 

81599. 

before EOIR and all incoming cases to 

ensure that they are aligned with the 

agency’s civil enforcement priorities 

and that ICE is effectively using its finite 

resources. For cases that ICE determines 

are not enforcement priorities, it 

exercises its discretion where 

appropriate, typically by moving for 

administrative closure.’’). That same 

year, the Office of the Chief Immigration 

Judge encouraged immigration judges to 

use administrative closure where the 

parties reached an ‘‘alternate case 

resolution’’ through prosecutorial 

discretion. See EOIR, OPPM 13–01: 

Continuances and Administrative 

Closure at 4 (Mar. 7, 2013) (rescinded), 

https://www.justice.gov/sites/default/ 

files/eoir/legacy/2013/03/08/13-01.pdf. 

In 2017, the effectiveness of 

administrative closure for streamlining 

EOIR’s cases was briefly referenced in a 

study conducted by an outside 

consultant. See EOIR, Booz Allen 

Hamilton, Legal Case Study: Summary 

Report at 26 (Apr. 6, 2017) 

(recommending that the Department 

engage in discussions with DHS to 

explore the development of policies 

regarding administrative closure as one 

way to improve processing efficiency).11

In 2018, the longstanding practice of 

administrative closure stopped when 

the Attorney General issued Matter of 

Castro-Tum, overruling Matter of 

Avetisyan and all Board precedents 

inconsistent with the Attorney General’s 

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

Dec. 271, 271 (A.G. 2018), overruled by 

Matter of Cruz-Valdez, 28 I&N Dec. 326 

(A.G. 2021). In Castro-Tum, the 

Attorney General held that EOIR 

adjudicators lack the general authority 

under the regulations to 

administratively close cases and, as a 

result, lack the authority to 

administratively close cases unless a 

regulation or a settlement agreement 

expressly provided such authority. Id. at 

272. 

Matter of Castro-Tum has been 

rejected by the majority of those courts 

of appeals that have considered it. The 

Third, Fourth, and Seventh Circuits 

rejected Matter of Castro-Tum, holding 

that the pre-AA96 regulations 

unambiguously provide EOIR 

adjudicators with general authority to 

administratively close cases. See 

Romero, 937 F.3d at 297 (concluding 

that 8 CFR 1003.10(b) and 

1003.1(d)(1)(ii) ‘‘unambiguously confer 

upon [immigration judges] and the BIA 

the general authority to administratively 

close cases’’); Arcos Sanchez, 997 F.3d 

at 122 (‘‘[W]e hold that the plain 

language establishes that general 

administrative closure authority is 

unambiguously authorized by these 

regulations.’’); Meza Morales, 973 F.3d 

at 667 n.6 (concluding that 8 CFR 

1003.10(b) ‘‘grants immigration judges 

the power to administratively close 

cases’’). The Sixth Circuit reached a 

different conclusion, finding that the 

pre-AA96 regulations do not confer 

such general authority. HernandezSerrano, 981 F.3d at 466 (citing Matter 

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

However, the Sixth Circuit subsequently 

clarified that ‘‘administrative closure for 

the limited purpose of permitting 

noncitizens to apply for provisional 

unlawful presence waivers’’ was an 

‘‘appropriate and necessary’’ act under 8 

CFR 1003.1(d)(1)(ii) and 1003.10(b), as 

codified prior to the AA96 Final Rule. 

Garcia-DeLeon, 999 F.3d 986 at 992–93. 

Recently, the Second Circuit held that 

neither the immigration judge nor the 

BIA abused its discretion in relying on 

Matter of Castro-Tum—which was in 

effect at the time of the agency’s 

adjudications—to deny a noncitizen’s 

motion for administrative closure. 

Garcia v. Garland, 64 F.4th 62, 76 (2d 

Cir. 2023). The Second Circuit 

concluded that the pre-AA96 

regulations were ambiguous as to 

whether they authorized general 

administrative closure and deferred to 

the Attorney General’s interpretation in 

Matter of Castro-Tum. See id. at 72–75. 

However, the Second Circuit noted 

that—after the BIA issued its decision in 

the case—the Attorney General issued 

Matter of Cruz-Valdez, 28 I&N Dec. at 

326, which overruled Matter of CastroTum. Garcia v. Garland, 64 F.4th at 69. 

In Cruz-Valdez, the Attorney General 

explained that ‘‘three courts of appeals 

have rejected Castro-Tum,’’ that CastroTum ‘‘departed from long-standing 

practice,’’ and that the matter was the 

subject of an ongoing rulemaking. See 

Matter of Cruz-Valdez, 28 I&N Dec. at 

328–29 (directing EOIR adjudicators to 

continue applying the standard for 

administrative closure set forth in 

Matter of Avetisyan and Matter of W–Y– 

U-, except in jurisdictions where a court 

of appeals has held otherwise, while the 

Department reconsiders the AA96 Final 

Rule). Against this backdrop, the 

Second Circuit left open the possibility 

that other interpretations of the 

regulations could also be permissible. 

See Garcia v. Garland, 64 F.4th at 69 

(noting that ‘‘the Attorney General has 

supplanted Matter of Castro-Tum with a 

new interpretation of the applicable 

regulations’’). 

2. Changes Made by the AA96 Final 

Rule 

The AA96 Final Rule amended 8 CFR 

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

related provisions to expressly state that 

EOIR adjudicators do not have 

‘‘freestanding authority’’ to 

administratively close cases before 

EOIR. 85 FR at 81651, 81655. Rather, the 

AA96 Final Rule expressly limited 

administrative closure authority to 

express grants of such authority by 

regulation or judicially approved 

settlement. See, e.g., 8 CFR 1214.2(a), 

1214.3, 1240.62(b), 1240.70(f)–(h), 

1245.13(d)(3)(i), 1245.15(p)(4)(i), 

1245.21(c); Barahona-Gomez, 243 F. 

Supp. 2d at 1035–36 (discussing 

settlement agreement requiring 

immigration judges and the Board to 

administratively close class members’ 

cases). 

The AA96 Final Rule was consistent 

with the Attorney General’s holding in 

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

284, that 8 CFR 1003.1(d)(1)(ii) and 

1003.10(b) do not provide for general 

administrative closure authority.12 The 

AA96 Final Rule asserted that general 

administrative closure authority 

improperly allows immigration judges 

to determine which immigration cases 

should be adjudicated and which ones 

should not. 85 FR at 81599. The AA96 

Final Rule stated that general authority 

to administratively close cases was 

improper because ‘‘in practice, unlike 

continuances, administrative closure 

has at times been used to effectively 

terminate cases through indefinite 

delay.’’ Id. 

C. Termination and Dismissal 

As discussed above, the regulations in 

place prior to the AA96 Final Rule 

conferred on EOIR adjudicators the 

general authority to ‘‘take any action 

consistent with their authorities under 

the Act and regulations’’ as ‘‘appropriate 

and necessary for the disposition’’ of 

such cases. 8 CFR 1003.1(d)(1)(ii), 

1003.10(b). The regulations further state 

that immigration judge orders ‘‘shall 

direct the respondent’s removal from 

the United States, or the termination of 

the proceedings, or other such 

disposition of the case as may be 

appropriate.’’ 8 CFR 1240.12(c). Further, 

immigration judges are ‘‘authorized to 


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13Although codified separately in the regulations, 

termination and dismissal authority have been 

referenced interchangeably by EOIR. See, e.g., 

Matter of Coronado Acevedo, 28 I&N Dec. 648, 648 

n.1 (A.G. 2022) (‘‘This labeling distinction is not 

material when a movant asks an immigration judge 

or the Board to end a case pursuant to a provision 

that does not use one of those labels. Except where 

a distinction between the two terms exists in 

regulations, this opinion refers to ‘termination’ and 

‘dismissal’ interchangeably.’’); Matter of VizcarraDelgadillo, 13 I&N Dec. 51, 55 (BIA 1968) (holding 

that the immigration judge had authority to 

terminate proceedings as ‘‘improvidently begun’’ in 

a case where INS moved for dismissal and both 

parties agreed to the motion to dismiss); Matter of 

G–N–C, 22 I&N Dec. 281, 284 (BIA 1998) (using the 

term ‘‘dismissal’’ and ‘‘termination’’ 

interchangeably in a case involving an INS motion 

for dismissal of proceedings under former 8 CFR 

239.2(c)); Matter of W–C–B-, 24 I& N Dec. 118, 122 

(BIA 2007) (stating that once jurisdiction vests with 

an immigration judge, a Notice to Appear cannot be 

cancelled but instead DHS must ‘‘move for 

dismissal of the matter, i.e., request termination of 

the removal proceeding’’ under 8 CFR 239.2(c)); 

Matter of Andrade Jaso & Carbajal Ayala, 27 I&N 

Dec. 557, 559 (BIA 2019) (holding that the 

‘‘immigration judge properly granted the DHS’s 

motion to dismiss the proceedings without 

prejudice’’ under 8 CFR 1239.2(c)); see also 78 FR 

535 (Jan. 3, 2013) at 544 (preamble to a DHS final 

rule stating that ‘‘[i]f the Form I–601A is approved 

for [a noncitizen] whose proceedings have been 

administratively closed, the [noncitizen] should 

seek termination or dismissal of the proceedings, 

without prejudice, by EOIR . . . or risk becoming 

ineligible for the immigrant visa based on another 

ground of inadmissibility’’). While used 

interchangeably, the regulations limit dismissal to 

only those cases where DHS has moved for 

dismissal. Nevertheless, both termination and 

dismissal result in concluding removal proceedings 

without entering an order of removal. 

14 In particular, the Fourth Circuit has indicated 

that it ‘‘fail[ed] to see how the general power to 

terminate proceedings’’ would be inconsistent with 

the ‘‘authorities bestowed by the INA.’’ Gonzalez v. 

Garland, 16 F.4th 131, 141–42 (4th Cir. 2021) (‘‘We 

have found no provisions stating that the 

[immigration judge] or BIA cannot terminate 

removal proceedings, and the Government does not 

cite to any.’’). Further, in that case, the Fourth 

Circuit rejected the Government’s position that 

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

1229a(c)(1)(A), which states that ‘‘[a]t the 

conclusion of the proceeding, the immigration 

judge shall decide whether [a noncitizen] is 

removable from the United States,’’ precludes 

termination. Gonzalez, 16 F.4th at 141. Specifically, 

the court concluded that a statutory requirement 

that an immigration judge decide whether a 

noncitizen is removable does not limit the 

immigration judge’s actions after making that 

determination, and that there are circumstances 

where delay or termination after such 

determination may be appropriate. Id. 

15The 1958 rule amended, inter alia, part 3.2 of 

Title 8 of the CFR. Following the creation of DHS 

in 2003 after the passage of the HSA, EOIR’s 

regulations were moved from Chapter I of Title 8 

to Chapter V. Aliens and Nationality; Homeland 

Security; Reorganization of Regulations, 68 FR 9824 

(Feb. 28, 2003). Part 3.2 was subsequently 

duplicated for EOIR at part 1003.2. Id. at 9830. 

issue orders in the alternative or in 

combination as [they] may deem 

necessary.’’ Id. 

The regulations, as published prior to 

and unchanged by the AA96 Final Rule, 

provide immigration judges with 

explicit authority to terminate or 

dismiss removal proceedings after the 

commencement of proceedings in 

certain circumstances. With respect to 

dismissal, 8 CFR 1239.2(c) provides that 

after commencement of proceedings, 

government counsel or certain 

enumerated officers under 8 CFR 

239.1(a) may move to dismiss 

proceedings on grounds set forth in 8 

CFR 239.2(a), which include where: (1) 

the respondent is a national of the 

United States; (2) the respondent is not 

deportable or inadmissible under 

immigration laws; (3) the respondent is 

deceased; (4) the respondent is not in 

the United States; (5) the Notice to 

Appear was issued for the respondent’s 

failure to file a timely petition as 

required by section 216(c) of the Act, 

but the respondent’s failure to file a 

timely petition was excused in 

accordance with section 216(d)(2)(B) of 

the Act; (6) the Notice to Appear was 

improvidently issued; or (7) 

circumstances of the case have changed 

after the Notice to Appear was issued to 

such an extent that continuation is no 

longer in the best interest of the 

government. 8 CFR 1239.2(c). Dismissal 

of proceedings is without prejudice to 

DHS or the noncitizen. Id. 

With respect to termination, 8 CFR 

1239.2(f) provides that ‘‘[a]n 

immigration judge may terminate 

removal proceedings to permit the 

[noncitizen] to proceed to a final 

hearing on a pending application or 

petition for naturalization when the 

[noncitizen] has established prima facie 

eligibility for naturalization and the 

matter involves exceptionally appealing 

or humanitarian factors[.]’’ 8 CFR 

1239.2(f). The regulation also provides 

that ‘‘in every other case, the removal 

hearing shall be completed as promptly 

as possible notwithstanding the 

pendency of an application for 

naturalization during any state of the 

proceedings.’’ Id. 

The regulations also confer authority 

on immigration judges to dismiss or 

terminate proceedings in other discrete 

circumstances. See, e.g., 8 CFR 

1216.4(a)(6) (authorizing termination 

upon joint motion of the parties for 

failure to properly file a Petition to 

Remove the Conditions on Residence, 

Form I–751); 8 CFR 1235.3(b)(5)(iv) 

(authorizing termination where U.S. 

citizenship, permanent residence, or 

asylee or refugee status is found in 

claimed status review proceedings); id. 

at 1235.3(b)(5)(iv) (authorizing 

termination where U.S. citizenship, 

permanent residence, or asylee or 

refugee status is found in claimed status 

review proceedings); id. at 1238.1(e) 

(authorizing termination upon DHS 

motion in order for DHS to commence 

administrative removal under section 

238 of the Act); see also id. at 1245.13(l) 

(deeming proceedings terminated upon 

the granting of adjustment of status for 

certain Nicaraguan and Cuban 

nationals).13

Additionally, the Board has held that 

the immigration judge may terminate 

proceedings when there is a proper 

reason to do so, such as where DHS 

cannot meet its burden to sustain 

charges of removability ‘‘or in other 

specific circumstances consistent with 

the law and applicable regulations.’’ 

Matter of Sanchez-Herbert, 26 I&N Dec. 

43, 45 (BIA 2012); see also Matter of 

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

In 2018, the Attorney General held 

that, under the regulations, EOIR 

adjudicators lacked the ‘‘inherent 

authority’’ to terminate proceedings 

except as expressly authorized. Matter 

of S–O–G– & F–D–B–, 27 I&N Dec. 462, 

463 (A.G. 2018). In reaching that 

conclusion, the Attorney General relied 

heavily on the decision in Matter of 

Castro-Tum. See id. at 463, 466. 

However, the Attorney General 

subsequently overruled Matter of S–O– 

G– & F–D–B–, explaining that ‘‘[t]he 

precedential basis for that opinion ha[d] 

been significantly eroded by the 

overruling of Castro-Tum,’’ 14 and that it 

‘‘imposed ‘rigid procedural 

requirements that would undermine 

. . . fair and efficient adjudication’ in 

certain immigration cases.’’ Matter of 

Coronado Acevedo, 28 I&N Dec. 648, 

651 (A.G. 2022) (quoting Matter of A–C– 

A–A–, 28 I&N Dec. 351, 351 (A.G. 

2021)). Accordingly, Matter of Coronado 

Acevedo held that ‘‘immigration judges 

and the Board should be permitted to 

consider and, where appropriate, grant 

termination’’ in certain limited 

circumstances pending the outcome of a 

rulemaking to reconsider the regulations 

at issue in both Matter of Castro-Tum 

and Matter of S–O–G– & F–D–B–. Id. at 

652. 

D. Sua Sponte Reopening or 

Reconsideration and Self-Certification 

1. Before Promulgation of the AA96 

Final Rule 

EOIR adjudicators have long had the 

authority to sua sponte reopen or 

reconsider cases, under rules 

promulgated in 1958 that remained in 

effect until the issuance of the AA96 

Final Rule. See Miscellaneous 

Amendments to Chapter, 23 FR 9115, 

9117 (Nov. 26, 1958); 8 CFR 1003.2(a)(1) 

and 1003.23(b)(1) (2019).15 However, 

even prior to 1958, courts recognized 

such authority. See Dada v. Mukasey, 

554 U.S. 1, 12–13 (2008) (discussing 


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16Although the regulations have never explicitly 

stated that the Board has the authority to grant 

voluntary departure, the Eleventh Circuit has stated 

that the Board has the authority to grant or deny 

voluntary departure in the first instance pursuant 

to its general (pre-AA96) regulatory authority under 

8 CFR 1003.1(d)(3)(ii) to ‘‘review questions of law, 

discretion, and judgment and all other issues in 

appeals from decisions of immigration judges de 

novo.’’ Blanc v. U.S. Att’y Gen., 996 F.3d 1274, 

1278 (11th Cir. 2021) (‘‘At the agency level, the 

Board of Immigration Appeals itself can grant—or 

deny—voluntary departure.’’). 

reopening as ‘‘a judicial creation later 

codified by federal statute’’ and citing 

decisions using reopening as early as 

1916). 

As originally implemented by the 

Department, the sua sponte authority of 

immigration judges and Appellate 

Immigration Judges was not limited by 

time or number requirements. In 1996, 

however, the Department issued a rule 

establishing time and number 

limitations on motions to reopen to 

implement statutory changes made by 

the Immigration Act of 1990, Public Law 

101–649, 104 Stat. 4978. Immigration 

Act of 1990, sec. 545(d), 104 Stat. at 

5066 (‘‘[T]he Attorney General shall 

issue regulations with respect to . . . 

the period of time in which motions to 

reopen and to reconsider may be offered 

in deportation proceedings, which 

regulations include a limitation on the 

number of such motions that may be 

filed and a maximum time period for 

the filing of such motions[.]’’); Executive 

Office for Immigration Review; Motions 

and Appeals in Immigration 

Proceedings, 61 FR 18900 (Apr. 29, 

1996). At the time, the Department 

declined to include a ‘‘good cause’’ 

exception to the time and number 

limitations for motions to reopen filed 

by a party in proceedings because the 

same goal was accomplished by sua 

sponte authority. 61 FR at 18902; see 

also Avila-Santoyo v. U.S. Att’y Gen., 

713 F.3d 1357, 1363 (11th Cir. 2013) 

(same). 

Additionally, prior to the AA96 Final 

Rule, the Board had the authority to 

self-certify cases. 8 CFR 1003.1(c) 

(2019). Under this authority, the Board 

could, in its discretion, review decisions 

of an immigration judge and DHS by its 

own certification. 8 CFR 1003.1(b)–(c) 

(2019). The Board could exercise this 

authority even in cases where a party’s 

appeal was untimely or defective, after 

determining that the parties were given 

a fair opportunity to make 

representations before the Board. Id. 

2. Changes Made by the AA96 Final 

Rule 

The AA96 Final Rule revised the 

regulations to limit the longstanding 

general sua sponte authority to reopen 

or reconsider cases and established that 

sua sponte reopening or reconsideration 

could only be used to correct 

typographical errors or defects in 

service. 85 FR at 81654–55 (8 CFR 

1003.23(b)(1)). The AA96 Final Rule 

also limited exceptions to the time and 

numerical limits on filing a motion to 

reopen to cases where a change in fact 

or law post-dating the entry of a final 

order vitiated the grounds for removal 

and the movant demonstrated diligence 

in pursuing the motion. Id. (8 CFR 

1003.23(b)(4)(v)). The Department chose 

to apply these restrictions on 

immigration judges’ and the Board’s sua 

sponte reopening authority to all 

pending cases. Id. at 81646–47. The 

Department explained that this 

rescission was needed because sua 

sponte authority had been used 

improperly. Id. at 81628. Additionally, 

the Department explained that the 

Attorney General rescinded his 

delegation of sua sponte authority to 

reopen or reconsider given the lack of a 

meaningful standard to guide a decision 

whether to order reopening or 

reconsideration of cases through the use 

of sua sponte authority. Id. 

The AA96 Final Rule also amended 8 

CFR 1003.1(c) to remove the Board’s 

authority to self-certify cases in order to 

accept untimely or defective appeals in 

exceptional circumstances. The 

Department explained that the change 

was necessary due to similar concerns 

such as the lack of standards for the use 

of the self-certification authority, 

inconsistent applications resulting from 

the lack of a defined standard for 

determining when ‘‘exceptional’’ 

circumstances exist, the potential for 

lack of notice to the parties when the 

Board elected to use its self-certification 

authority, the potential for inconsistent 

application and abuse of selfcertification authority, and the strong 

interest in finality of EOIR’s 

adjudications. Id. at 81591. 

E. Board Findings of Fact— 

Administrative Notice 

1. Before Promulgation of the AA96 

Final Rule 

Prior to the AA96 Final Rule, the 

regulations generally precluded the 

Board from engaging in fact-finding in 

the course of deciding appeals. 8 CFR 

1003.1(d)(3)(iv) (2019). However, the 

regulations authorized the Board to take 

‘‘administrative notice of commonly 

known facts such as current events or 

the contents of official documents.’’ Id. 

2. Changes Made by the AA96 Final 

Rule 

The AA96 Final Rule expanded the 

regulations regarding administrative 

notice in several ways. First, in addition 

to permitting the Board to take 

administrative notice of the content of 

official documents and current events, 

the rule further permitted the Board to 

take administrative notice of ‘‘[f]acts 

that can be accurately and readily 

determined from official government 

sources and whose accuracy is not 

disputed’’ and ‘‘[u]ndisputed facts 

contained in the record.’’ 85 FR at 81651 

(8 CFR 1003.1(d)(3)(iv)(A)(3), (4)). The 

AA96 Final Rule went on to state that 

where the Board intends to rely on 

administratively noticed facts to reverse 

an immigration judge’s grant of relief or 

protection from removal, the Board is 

required to notify the parties of its 

intent and provide them at least 14 days 

within which to respond to the notice. 

Id. (8 CFR 1003.1(d)(3)(iv)(B)). However, 

the AA96 Final Rule did not require the 

Board to notify the parties if it relied on 

an administratively noticed fact to 

uphold an immigration judge’s denial. 

See id. (8 CFR 1003.1(d)(3)(v)). 

F. Board Findings of Fact—Voluntary 

Departure 

1. Before Promulgation of the AA96 

Final Rule 

Voluntary departure is a discretionary 

form of relief that ‘‘allows certain 

favored [noncitizens] . . . to leave the 

country willingly’’ either before the 

conclusion of removal proceedings or 

after being found deportable. Dada, 554 

U.S. at 8. A noncitizen must apply for 

voluntary departure in the first instance 

before an immigration judge; otherwise, 

the opportunity to seek such relief will 

be deemed waived. See, e.g., Matter of 

J–Y–C–, 24 I&N Dec. 260, 261 n.1 (BIA 

2007) (declining to consider claim 

raised for the first time on appeal). 

Likewise, the noncitizen must raise the 

issue of voluntary departure in any 

appeal to the Board; otherwise, it will be 

deemed waived. See Matter of 

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

(BIA 1999) (refusing to address an issue 

not raised on appeal). 

Prior to the AA96 Final Rule, the 

regulations described an immigration 

judge’s authority to grant voluntary 

departure but did not articulate the 

Board’s authority to do so. See generally 

8 CFR 1240.26 (2019). The regulations 

stated that in limited circumstances, the 

Board could reinstate an order of 

voluntary departure when removal 

proceedings had been reopened for a 

purpose other than solely requesting 

voluntary departure. 8 CFR 1240.26(h) 

(2019).16 The Board could remand cases 

to the immigration court to consider 

whether a noncitizen was eligible for 

voluntary departure or for the 


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immigration judge to review whether a 

noncitizen had received proper 

voluntary departure advisals. See Matter 

of Gamero, 25 I&N Dec. 164, 168 (BIA 

2010) (concluding that ‘‘a remand is the 

appropriate remedy when the 

mandatory advisals have not been 

provided by the Immigration Judge’’). 

2. Changes Made by the AA96 Final 

Rule 

The AA96 Final Rule delegated 

explicit authority to the Board to 

consider issues relating to the 

immigration judge’s decision on 

voluntary departure de novo and to 

issue final decisions on requests for 

voluntary departure based on the record 

evidence. 85 FR at 81652, 81655 (8 CFR 

1003.1(d)(7)(ii)(E); 1240.26(k)). The 

AA96 Final Rule barred the Board from 

remanding a case to the immigration 

court solely to consider a request for 

voluntary departure or for the 

immigration judge’s failure to provide 

advisals following a grant of voluntary 

departure. Id. at 81652. 

Specifically, the AA96 Final Rule 

provided that the Board could issue an 

order of voluntary departure, with an 

alternate order of removal, where: (1) 

the noncitizen requested voluntary 

departure before the immigration judge; 

(2) the notice of appeal specified that 

the noncitizen was appealing an 

immigration judge’s denial of voluntary 

departure and raised specific factual 

and legal challenges on this issue; and 

(3) the Board determined that the 

noncitizen was otherwise eligible for 

voluntary departure. Id. The AA96 Final 

Rule mandated that if the Board did not 

grant the request for voluntary 

departure, it would be required to deny 

the request. Id. 

The AA96 Final Rule further provided 

that in instances where the Board 

determined that the immigration judge 

incorrectly denied a noncitizen’s 

request for voluntary departure or failed 

to provide appropriate advisals, it 

would be required to consider the 

request for voluntary departure de novo 

and, if warranted, it must enter an order 

granting voluntary departure with an 

alternate order of removal. Id. at 81655. 

Furthermore, the AA96 Final Rule 

specified that in cases where DHS 

appealed an immigration judge’s 

decision, the Board could not grant 

voluntary departure unless: (1) the 

noncitizen requested voluntary 

departure before the immigration judge 

and provided or proffered evidence to 

support the request; (2) the immigration 

judge either granted voluntary departure 

or did not rule on the request; and (3) 

the noncitizen otherwise met the 

statutory and regulatory criteria for 

voluntary departure. Id. 

Lastly, the AA96 Final Rule specified 

that the Board could impose conditions 

that it deemed necessary to ensure the 

noncitizen’s timely departure from the 

United States and required the Board to 

provide written advisals of such 

conditions and other duties associated 

with voluntary departure. Id. at 81655– 

56. The noncitizen could accept the 

grant of voluntary departure or could 

decline by providing written notice 

within five days of receipt of the Board’s 

decision, failing to timely post any 

required bond, or otherwise failing to 

comply with the Board’s order. Id. at 

81656. 

G. Board Remand Authority— 

Additional Findings of Fact 

1. Before Promulgation of the AA96 

Final Rule 

The Board does not engage in factfinding when adjudicating appeals of 

immigration judges’ decisions. 8 CFR 

1003.1(d)(3)(i). Accordingly, under the 

pre-AA96 regulations, a party asserting 

that the Board could not properly 

resolve an appeal without further factfinding would file a motion to remand. 

8 CFR 1003.1(d)(3)(iv) (2019). 

Generally, motions to remand are 

subject to the same substantive 

requirements as motions to reopen, 

particularly where a party seeks remand 

during the pendency of a direct appeal 

to present new evidence or to apply for 

a newly available form of relief not 

considered by the immigration judge. 

See Rodriguez v. INS, 841 F.2d 865, 867 

(9th Cir. 1987) (substantive 

requirements of a motion to remand are 

the same as a motion to reopen); Matter 

of Coelho, 20 I&N Dec. 464, 471 (BIA 

1992) (explaining ‘‘where a motion to 

remand is really in the nature of a 

motion to reopen or a motion to 

reconsider, it must comply with the 

substantive requirements for such 

motions’’). Additionally, prior to the 

AA96 Final Rule, the Board had 

regulatory authority to sua sponte 

remand a case for further fact-finding 

where necessary. 8 CFR 1003.1(d)(3)(iv) 

(2019); see also Matter of S–H–, 23 I&N 

Dec. 462, 466 (BIA 2002) (exercising sua 

sponte remand authority). 

2. Changes Made by the AA96 Final 

Rule 

The AA96 Final Rule restricted the 

Board’s authority to remand for further 

fact-finding or consideration of new 

evidence. 85 FR at 81651 (8 CFR 

1003.1(d)(3)(iv)(C)–(D)). First, the AA96 

Final Rule provided that the Board may 

only grant motions to remand for further 

fact-finding when: (1) the party seeking 

remand preserved the issue before the 

immigration judge; (2) the party seeking 

remand attempted to adduce the 

additional facts before the immigration 

judge, if it bore the burden of proof; (3) 

additional fact-finding would alter the 

outcome of the case; (4) additional factfinding would not be cumulative of the 

evidence already presented or contained 

in the record; and (5) either the 

immigration judge’s factual findings 

were clearly erroneous, the immigration 

judge committed an error of law that 

required additional fact-finding on 

remand, or remand to DHS was 

warranted following a de novo review. 

Id. (8 CFR 1003.1(d)(3)(iv)(D)). Second, 

the AA96 Final Rule prohibited the 

Board from sua sponte remanding a case 

for further fact-finding except when 

necessary to determine whether the 

immigration judge had jurisdiction over 

the case. Id. (8 CFR 1003.1(d)(3)(iv)(C)). 

The AA96 Final Rule provided 

exceptions to these general restrictions 

on remand authority under 8 CFR 

1003.1(d)(6)(iii) and (d)(7)(v)(B). 85 FR 

at 81651–52. Under paragraph (d)(6)(iii), 

DHS could move the Board to remand 

the record to the immigration judge to 

consider whether, in light of new 

information gained by identity, law 

enforcement, or security investigations 

or examinations, any pending 

applications for relief or protection 

should be denied. Id. If DHS failed to 

report the results of such investigations 

or examinations, the regulations 

directed the Board to remand the case 

to the immigration judge for further 

proceedings under 8 CFR 1003.47(h). Id. 

Paragraph (d)(7)(v)(B) reiterated that the 

Board was not limited in remanding a 

case based on new evidence or 

information gained from identity, law 

enforcement, or security investigations 

or examinations; to address a question 

of jurisdiction over an application or 

proceedings; or to address a question 

regarding grounds of removability in 

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

1182, 1227. 85 FR at 81652. 

H. Board Remand Authority—Errors in 

Fact or Law 

1. Before Promulgation of the AA96 

Final Rule 

Prior to the AA96 Final Rule, the 

regulations broadly authorized the 

Board to remand cases ‘‘as . . . 

appropriate, without entering a final 

decision on the merits of the case.’’ 8 

CFR 1003.1(d)(7) (2019). However, as 

the AA96 Final Rule explained, the 

regulation granted this authority 

without any further guidance or 

instructions regarding when the Board 


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17The Board Chairman, or the Chairman, is also 

known as the ‘‘Chief Appellate Immigration Judge.’’ 

See Organization of the Executive Office for 

Immigration Review, 85 FR 69465, 69466 (Nov. 3, 

2020) (final rule). 

could order a remand instead of issuing 

a final order. 85 FR at 81589. 

2. Changes Made by the AA96 Final 

Rule 

The AA96 Final Rule restricted the 

Board’s authority to remand for errors in 

fact or law or consideration of material 

changes in fact or law. Id. at 81652 (8 

CFR 1003.1(d)(7)(ii)). Specifically, the 

AA96 Final Rule provided that the 

Board could not remand a case without 

first identifying the standard of review 

that it had applied, as well as the 

specific error or errors made by the 

immigration judge. Id. The Board also 

could not remand a case based on a 

‘‘totality of the circumstances’’ standard 

of review or based on a legal argument 

that was not presented in 8 CFR 

1003.1(d)(7)(ii)(D) through (E), with 

certain exceptions. Id. 

Additionally, the AA96 Final Rule 

barred the Board from remanding a case 

sua sponte, unless the remand solely 

involved a question of jurisdiction. Id. 

As discussed above, the Board also 

could not remand a case solely for 

consideration of voluntary departure or 

as the result of the failure to give 

required advisals for a grant of 

voluntary departure. Id. Moreover, the 

AA96 Final Rule generally barred 

remanding based on any legal 

arguments that did not pertain to an 

‘‘issue of jurisdiction over an 

application or the proceedings,’’ or to 

‘‘material change[s] in fact or law’’ 

underlying a removability ground or 

grounds that occurred after the date of 

the immigration judge’s decision and 

substantial evidence indicated that the 

material change would vitiate all 

grounds of removability. Id. 

I. Background Check 

1. Before Promulgation of the AA96 

Final Rule 

In 2005, the Department implemented 

regulations covering background and 

security investigations in proceedings 

before immigration judges and the 

Board. See Background and Security 

Investigations in Proceedings Before 

Immigration Judges and the Board of 

Immigration Appeals, 70 FR 4743 (Jan. 

31, 2005) (‘‘Background Check Rule’’) 

(issued as interim final rule). The 

Background Check Rule amended 

Department regulations to ensure that 

the necessary identity, law enforcement, 

and security investigations (hereinafter 

‘‘background checks’’) are promptly 

initiated and have been completed by 

DHS prior to the granting of certain 

forms of relief or protection from 

removal. 8 CFR 1003.1(d)(6) (2019). 

Under the framework implemented by 

the Background Check Rule, applicants 

for relief or protection from removal in 

proceedings before EOIR have an 

obligation to comply with applicable 

requirements to provide biometrics and 

other biographical information, and 

failure to comply with such 

requirements within the time allowed 

constitutes abandonment of the 

application, with certain exceptions. Id.; 

8 CFR 1003.47(c), (d). 

Prior to the AA96 Final Rule, the 

Board could address incomplete or 

outdated background checks by either 

remanding the case to the immigration 

judge or placing adjudication of the case 

on hold until background checks were 

completed or updated. 8 CFR 

1003.1(d)(6)(ii)(A), (B) (2019). However, 

the Board was not required to remand 

or hold a case if dismissing the appeal 

or when denying the relief sought. 8 

CFR 1003.1(d)(6)(iv) (2019). 

2. Changes Made by the AA96 Final 

Rule 

The AA96 Final Rule limited the 

Board’s authority to remand a decision 

with incomplete or outdated 

background checks. 85 FR at 81651 (8 

CFR 1003.1(d)(6)(ii)–(iii)). Under the 

new framework, the Board was only 

permitted to place such cases on hold 

and to notify the parties about the hold, 

including certain advisals about the 

consequences for failure to comply with 

background check requirements. Id. 

Further, the AA96 Final Rule required 

the Board to deem an application for 

relief from removal abandoned if a 

noncitizen failed to comply with 

background check procedures within 90 

days of DHS’s instruction notice under 

8 CFR 1003.1(d)(6)(ii), unless the 

noncitizen demonstrated good cause 

prior to the end of the 90-day period, or 

if the noncitizen was detained. Id. at 

81651–52 (8 CFR 1003.1(d)(6)(iii)). If the 

noncitizen demonstrated good cause 

within the 90-day period, the Board 

could give the noncitizen one extension 

of up to 30 additional days to comply. 

Id. at 81652. The AA96 Final Rule 

further required that the Board 

adjudicate the remainder of the appeal 

within 30 days after an application was 

deemed abandoned and enter an order 

of removal or a grant of voluntary 

departure, as appropriate. Id. 

Regarding motions to remand, the 

AA96 Final Rule permitted DHS to file 

a motion to remand if it obtained 

relevant information when completing 

or updating background checks so that 

the immigration judge could consider 

whether, in light of the new 

information, any pending applications 

for relief or protection should be denied. 

Id. Additionally, the AA96 Final Rule 

instructed the Board to remand the case 

to the immigration judge if DHS failed 

to report the results of background 

checks within 180 days of the Board’s 

notice. Id. 

J. Adjudication Timelines 

1. Before Promulgation of the AA96 

Final Rule 

Prior to the AA96 Final Rule, the 

regulations provided for a case 

management system that set forth, in 

relevant part, procedures for initial 

screening for cases appealed to the 

Board and general guidance regarding a 

decision’s timeliness. 8 CFR 

1003.1(e)(1), (8) (2019). Regarding initial 

screening, the regulations established 

that cases would be referred to a 

screening panel for review and that 

appeals subject to summary dismissal 

must be ‘‘promptly dismissed.’’ 8 CFR 

1003.1(e)(1) (2019). However, the Board 

did not have a concrete timeline for 

such review or dismissal. Id. As for 

timeliness, the regulations provided that 

in all cases, other than those subject to 

summary dismissal, the Appellate 

Immigration Judge or panel should issue 

a decision on the merits ‘‘as soon as 

practicable,’’ prioritizing cases 

involving detained noncitizens. 8 CFR 

1003.1(e)(8) (2019). The regulations 

further set forth a 90-day decision 

deadline for cases adjudicated by a 

single Appellate Immigration Judge, 

beginning upon completion of the 

record on appeal, and a 180-day 

deadline for cases adjudicated by a 

three-member panel, beginning once an 

appeal was assigned to the threemember panel. 8 CFR 1003.1(e)(8)(i) 

(2019). However, the Board Chairman 17

could extend those deadlines in exigent 

circumstances. 8 CFR 1003.1(e)(8)(ii) 

(2019). The Chairman could also 

suspend the regulatory deadlines and 

indefinitely hold a case or group of 

cases in anticipation of an impending 

decision by the United States Supreme 

Court, a United States Court of Appeals, 

the Board sitting en banc, or impending 

Department regulations. 8 CFR 

1003.1(e)(8)(iii) (2019). Moreover, the 

Chairman was required to notify the 

EOIR Director and the Attorney General 

if an Appellate Immigration Judge 

consistently failed to meet the assigned 

deadlines or adhere to the case 

management system, as well as to 

prepare an annual report assessing the 

timeliness of the disposition of cases by 


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each Appellate Immigration Judge. 8 

CFR 1003.1(e)(8)(v) (2019). 

2. Changes Made by the AA96 Final 

Rule 

The AA96 Final Rule imposed 

numerous internal deadlines for 

adjudicating Board appeals. 85 FR at 

81652–53 (8 CFR 1003.1(e)). For 

example, the rule required the Board 

screening panel to review cases within 

14 days of the filing of a Notice of 

Appeal, the filing of a motion, or the 

receipt of a remand from a federal court. 

Id. (8 CFR 1003.1(e)(1)). Following an 

initial review, the Board had to 

adjudicate requests for summary 

dismissal no later than 30 days after the 

filing of the Notice of Appeal, subject to 

limited exceptions, and interlocutory 

appeals within 30 days of the filing of 

the appeal, unless referred to a threemember panel. Id. After the screening 

panel completed its review, the Board 

would then have seven days to order a 

transcript and would be required to set 

a briefing schedule within seven days 

after the transcript was provided, 

subject to limited exceptions. Id. at 

81653 (8 CFR 1003.1(e)(8)). 

The AA96 Final Rule also required 

that the Board assign each case to a 

single Appellate Immigration Judge 

within seven days of the completion of 

the record on appeal. Id. The single 

Appellate Immigration Judge would 

then determine whether to adjudicate 

the appeal independently or to 

designate the case for decision by a 

three-member panel. Id. 

The AA96 Final Rule did not alter the 

completion deadlines of 90 days for a 

single-member decision and 180 days 

for a three-member decision. 85 FR at 

81653 (8 CFR 1003.1(e)(8)(i)). However, 

the AA96 Final Rule changed the 180- 

day time period for completion of a 

three-member decision to begin earlier, 

upon completion of the record, rather 

than beginning the clock after the case 

was assigned to a three-member panel, 

and added that the Chairman’s 

determination as to whether exigent 

circumstances warranted extension of 

those deadlines would be subject to 

concurrence by the EOIR Director. Id. 

The AA96 Final Rule also limited the 

‘‘rare circumstances’’ under which the 

Chairman could place cases on hold to 

only those groups of cases that would be 

substantially impacted by an impending 

decision by the United States Supreme 

Court or the Board sitting en banc and 

removed the ability to hold cases to 

await an impending decision by a 

United States Court of Appeals or 

impending Department regulations. 8 

CFR 1003.1(e)(8)(iii). The AA96 Final 

Rule also required the concurrence of 

the EOIR Director to hold cases under 

this provision. Id. at 81653 (8 CFR 

1003.1(e)(8)(iii)). The AA96 Final Rule 

limited such holds to a maximum of 120 

days. Id. The AA96 Final Rule also 

imposed additional reporting 

requirements on the Chairman for 

transcription processes and cases 

involving extensions, holds, or other 

delays. Id. at 81653 (8 CFR 1003.1(e)(8), 

(8)(v)). 

Furthermore, the AA96 Final Rule 

required that all cases that remained 

pending for more than 335 days after 

receipt of a filed appeal or motion, or 

remand from a federal court, would be 

referred to the EOIR Director for a 

decision unless subject to an extension, 

hold, deferral, or remand. Id. at 81653 

(8 CFR 1003.1(e)(8)(v)). The Director 

would then exercise delegated authority 

from the Attorney General identical to 

that of the Board, including the 

authority to issue precedential decisions 

or refer cases to the Attorney General. 

Id. However, the AA96 Final Rule 

limited further delegation of such 

authority from the EOIR Director to 

other individuals. Id. 

K. Director’s Authority To Issue 

Decisions 

1. Before Promulgation of the AA96 

Final Rule 

Until 2019, the EOIR Director had no 

authority to adjudicate cases arising 

under the Act, including appeals before 

the Board. See 8 CFR 1003.0(c) (2018). 

Instead, the regulations simply provided 

that for cases not completed within the 

relevant time limits and not subject to 

any exceptions, the Chairman should 

self-refer them or refer them to the Vice 

Chairman for completion within 14 

days. Alternatively, the Chairman could 

refer them to the Attorney General. 8 

CFR 1003.1(e)(8)(ii) (2018). 

In 2019, the Department established a 

narrow discretionary authority for the 

EOIR Director to decide appeals in 

certain circumstances. See Organization 

of the Executive Office for Immigration 

Review, 84 FR 44537, 44539–40 (Aug. 

26, 2019) (issued as an interim final 

rule), 85 FR 69465, 69466 (Nov. 3, 2020) 

(final rule); see also 8 CFR 

1003.1(e)(8)(ii) (authorizing the EOIR 

Director to decide an appeal that 

exceeded the 90- and 180-day regulatory 

time limits unless the Chairman selfreferred the case or referred the case to 

the Vice Chairman); 8 CFR 1003.0(c) 

(providing that the EOIR Director may 

not adjudicate cases arising under the 

Act ‘‘[e]xcept as provided by statute, 

regulation, or delegation of authority 

from the Attorney General, or when 

acting as a designee of the Attorney 

General’’). The Department 

subsequently codified, at the final rule 

stage, language stating that the EOIR 

Director’s authority to decide appeals in 

certain circumstances under 8 CFR 

1003.1(e)(8)(ii) could not be further 

delegated. 85 FR at 69480–81; 8 CFR 

1003.0(b)(2)(ii) (‘‘The Director may not 

delegate the authority assigned to the 

Director in [8 CFR] 1003.1(e)(8)(ii) 

. . .’’). 

2. Changes Made by the AA96 Final 

Rule 

The AA96 Final Rule authorized the 

EOIR Director to decide cases in two 

distinct circumstances. First, the rule 

directed the Chairman to refer any case 

still pending 335 days after an appeal or 

motion was filed or a remand was 

received to the EOIR Director for 

adjudication. 85 FR at 81653 (8 CFR 

1003.1(e)(8)(v)). Under the AA96 Final 

Rule, the following categories of cases 

were not subject to the EOIR Director’s 

adjudication authority: (1) cases subject 

to a hold under 8 CFR 1003.1(d)(6)(ii); 

(2) cases subject to an extension under 

8 CFR 1003.1(e)(8)(ii); (3) cases subject 

to a hold under 8 CFR 1003.1(e)(8)(iii); 

(4) cases whose adjudication had been 

deferred by the EOIR Director pursuant 

to 8 CFR 1003.0(b)(1)(ii); (5) cases that 

were remanded by the EOIR Director 

under 8 CFR 1003.1(k) in which 335 

days had elapsed following remand; and 

(6) cases that were administratively 

closed prior to 335 days after the appeal 

was filed pursuant to a regulation 

promulgated by the Department or a 

previous judicially approved settlement 

that authorized such an action but for 

which the administrative closure caused 

the pendency of the appeal to exceed 

335 days. Id. (8 CFR 1003.1(e)(8)(v)(A)– 

(F)). 

Second, the rule established a 

procedure for an immigration judge to 

certify a Board decision to the EOIR 

Director when the immigration judge 

believed the Board made one or more 

enumerated errors. Id. (8 CFR 

1003.1(k)). This authority is discussed 

in further detail in the section on the 

‘‘Quality Assurance Certification’’ 

provision. 

For cases referred to the EOIR 

Director, the EOIR Director would 

exercise delegated authority from the 

Attorney General identical to that of the 

Board, including the authority to issue 

precedential decisions and the authority 

to refer cases to the Attorney General for 

review. Id. (8 CFR 1003.1(e)(8)(v)). The 

AA96 Final Rule prohibited the EOIR 

Director from further delegating this 

authority. Id. Of note, the AA96 Final 

Rule did not amend the existing 

regulatory provision reiterating that 8 


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18The AA96 Final Rule limited the Board’s sua 

sponte authority to reopen or reconsider a decision 

as discussed in Section III.D of this preamble. 

19 In addition to this preliminary injunction, the 

United States District Court of the District of 

Columbia granted a stay of the implementation of 

the AA96 Final Rule on April 3, 2021, determining 

that the 30-day comment period associated with the 

rulemaking was procedurally insufficient. See 

Catholic Legal Immigration Network, Inc. v. Exec. 

Off. for Immigr. Rev., No. 21–00094, 2021 WL 

3609986 (D.D.C. Apr. 4, 2021). 

20Procedurally, the court stated that plaintiffs 

were likely to succeed on their claim that the 

Department’s 30-day notice-and-comment period 

was insufficient under the Administrative 

Procedure Act (‘‘APA’’) due to the rule’s 

complexity, the COVID–19 pandemic, and other 

concerns. Centro Legal de la Raza, 524 F. Supp. 3d 

at 954–58. The court also raised ‘‘serious concerns’’ 

with the Department’s ‘‘staggered rulemaking’’ 

approach, explaining that because ‘‘numerous 

intertwined proposed rules were promulgated at 

different times, including after the close of the 

comment period in this case, the true impact of the 

[AA96 Final Rule] was obscured and the public was 

deprived of a meaningful opportunity to comment.’’ 

Id. at 958, 962. 

CFR 1003.1(e)(8) did not confer 

substantive or procedural rights 

enforceable before any immigration 

judge, the Board, or any court of law or 

equity, 8 CFR 1003.1(e)(8)(vi), which, 

under the AA96 Final Rule, included 

case referrals to the EOIR Director. 

L. Quality Assurance Certification 

1. Before Promulgation of the AA96 

Final Rule 

Prior to the AA96 Final Rule, various 

options were available to ensure quality 

case adjudications. If a party were 

dissatisfied with a Board decision, the 

party could file a motion to reconsider. 

8 CFR 1003.2(a). Alternatively, the 

noncitizen could file a petition for 

review of a final order of removal with 

a federal court of appeals. INA 242(a)(1), 

8 U.S.C. 1252(a)(1). In addition, DHS 

could seek to certify a Board decision to 

the Attorney General for review, 8 CFR 

1003.1(h)(1)(iii), or the Attorney General 

could self-certify a Board decision for 

review, 8 CFR 1003.1(h)(1)(i). The Board 

could also reconsider or reopen a 

decision by exercising its sua sponte 

authority. 8 CFR 1003.2(a) (2019) 

(providing that ‘‘[t]he Board may at any 

time reopen or reconsider on its own 

motion’’ any Board decision). The 

process by which an immigration judge 

could certify a decision to the EOIR 

Director did not exist prior to the AA96 

Final Rule. See generally 8 CFR 

1003.23(b) (2019). 

2. Changes Made by the AA96 Final 

Rule 

The AA96 Final Rule did not change 

some of the existing options to ensure 

quality case adjudications discussed 

above, including a party’s ability to file 

a motion to reconsider with the Board, 

the ability to file a petition for review 

of a final order of removal with a federal 

court of appeals, and the case referral 

options outlined in 8 CFR 1003.1(h).18

In addition to these options, the AA96 

Final Rule implemented a quality 

assurance certification, wherein the 

immigration judge could forward a case 

by certification to the EOIR Director for 

further review if the Board decision: (1) 

contained a typographical or clerical 

error that affected the outcome of the 

case; (2) was clearly contrary to an 

immigration law or statute, applicable 

regulation, or published binding 

precedent; (3) was ‘‘vague, ambiguous, 

internally inconsistent, or otherwise did 

not resolve the basis for the appeal’’; or 

(4) did not consider a material factor 

pertinent to the issues before the 

immigration judge. 85 FR at 81653–54 (8 

CFR 1003.1(k)(1)). To certify a decision, 

the immigration judge was required to 

issue an order of certification within 30 

days of the Board decision, or within 15 

days if the noncitizen was detained, 

specifying the regulatory basis for the 

certification, summarizing the 

underlying factual basis, and providing 

notice of the certification to both 

parties. Id. at 81653 (8 CFR 

1003.1(k)(2)). 

For such cases, the EOIR Director 

would exercise delegated authority from 

the Attorney General identical to that of 

the Board. Id. (8 CFR 1003.1(k)(3)). The 

Director could dismiss the certification 

and return the case to the immigration 

judge or remand the case back to the 

Board. Id. The Director could not, 

however, issue an order of removal, 

grant a request for voluntary departure, 

or grant or deny an application for relief 

or protection from removal. Id. The 

AA96 Final Rule further barred the 

quality assurance certification process 

from being used solely to express 

general disapproval or disagreement 

with the outcome of a Board decision. 

Id. at 81654 (8 CFR 1003.1(k)(4)). 

M. Forwarding of Record on Appeal 

1. Before Promulgation of the AA96 

Final Rule 

The pre-AA96 regulation provided 

that, when a transcript of an oral 

decision was required, an immigration 

judge would review the transcript and 

approve the decision within 14 days of 

receipt (or within seven days following 

an immigration judge’s return from 

leave or a detail). 8 CFR 1003.5(a) 

(2019). Further, the regulation required 

the transcript to be forwarded to the 

Board upon its request or order. Id. The 

regulation instructed the Chairman and 

Chief Immigration Judge to determine 

the most effective and expeditious way 

to transcribe proceedings before 

immigration judges, including reducing 

the time necessary to produce 

transcripts and improving the quality of 

such transcripts. Id. 

2. Changes Made by the AA96 Final 

Rule 

The AA96 Final Rule amended 8 CFR 

1003.5(a) so that immigration judges 

would not need to forward the record to 

the Board if the Board already had 

electronic access to the record. 85 FR at 

81654 (8 CFR 1003.5(a)). The AA96 

Final Rule also removed the 

requirement that immigration judges 

review transcripts of oral decisions, 

which included review of, potential 

revisions to, and approval of the 

transcript. Compare 8 CFR 1003.5(a) 

(2019) (‘‘Where transcription of an oral 

decision is required, the immigration 

judge shall review the transcript and 

approve the decision . . .’’), with 85 FR 

at 81654 (8 CFR 1003.5(a)) (omitting that 

requirement). 

The AA96 Final Rule did not alter the 

requirement that the EOIR Director, in 

consultation with the Chairman and 

Chief Immigration Judge, determine the 

most effective and expeditious way to 

transcribe proceedings. 85 FR at 81654 

(8 CFR 1003.5(a)). However, it directed 

the Chairman and Chief Immigration 

Judge to ‘‘ensure,’’ id. (8 CFR 1003.5(a)), 

rather than simply ‘‘improve,’’ 8 CFR 

1003.5(a) (2019), the quality of such 

transcripts. 

The AA96 Final Rule also amended 8 

CFR 1003.5(b) by removing language 

describing procedures regarding appeals 

from DHS decisions that are within the 

BIA’s appellate jurisdiction and stated 

that those procedures were not 

applicable to EOIR adjudicators. 85 FR 

at 81654 (8 CFR 1003.5(b)). 

N. Centro Legal de la Raza Litigation 

On March 10, 2021, the United States 

District Court for the Northern District 

of California granted a nationwide 

preliminary injunction barring the 

Department from implementing or 

enforcing the AA96 Final Rule or any 

portion thereof and staying the 

effectiveness of the rule under 5 U.S.C. 

705. Centro Legal de la Raza v. Exec. 

Off. for Immigr. Rev., 524 F. Supp. 3d 

919 (N.D. Cal. 2021). The preliminary 

injunction and stay of the rule’s 

effectiveness remain in effect.19 In 

granting the preliminary injunction and 

stay under 5 U.S.C. 705, the court 

determined that plaintiffs were likely to 

ultimately succeed on several 

substantive and procedural challenges 

raised with respect to the AA96 Final 

Rule. Id. at 954–76.20


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21EOIR data reports an 86% representation rate 

for ‘‘all completed appeals,’’ a 90% representation 

rate for ‘‘all pending appeals,’’ and a 45% 

representation rate for ‘‘overall pending’’ 

adjudications. See EOIR, Adjudication Statistics: 

Current Representation Rates, https://

www.justice.gov/eoir/page/file/1062991/download 

(data generated Apr. 21, 2023). 22The court noted that the ‘‘U.S. Postal service is 

experiencing historic backlogs’’ due to the COVID– 

19 pandemic. Centro Legal de la Raza, 524 F. Supp. 

3d at 966. 

1. ‘‘Arbitrary and Capricious’’ 

Challenges 

Substantively, the court determined 

that the plaintiffs demonstrated a 

likelihood of success on the merits of 

their arguments that the AA96 Final 

Rule’s changes to the briefing schedule 

for BIA appeals, administrative closure, 

and sua sponte reopening and 

reconsideration authority were arbitrary 

and capricious. Id. at 963–71. The court 

also made a generally applicable finding 

that EOIR’s failure to adequately 

consider the Booz Allen Hamilton 

report that EOIR ‘‘specifically 

commissioned to analyze the very 

concerns that purportedly animate’’ the 

AA96 Final Rule raised significant APA 

concerns. Id. at 963. 

i. Changes to BIA Briefing Schedule 

The court found that there was a 

substantial likelihood that the AA96 

Final Rule’s changes to the briefing 

schedule for BIA appeals are arbitrary 

and capricious because the Department 

failed to adequately consider the impact 

on pro se individuals and how the 

changes would operate, in conjunction 

with existing BIA practices and 

procedures, to create difficulties for 

noncitizens and their attorneys in 

meeting briefing deadlines. Id. at 964– 

66. The court was not persuaded by the 

Department’s position that noncitizens 

need not wait until the BIA briefing 

schedule had been issued to seek 

representation for an appeal because, 

the court stated, ‘‘the vast majority of 

individuals appearing before 

immigration courts are pro se,’’ 21 and 

many face language barriers. Id. at 965. 

Additionally, the court noted that, ‘‘of 

critical importance[,]’’ immigration 

judges often issue oral decisions; 

accordingly, noncitizens may not have 

the documents necessary to seek 

representation until after the Board 

issues and mails the briefing schedule, 

transcript, and a copy of the 

immigration judge’s order. Id. The court 

stated that the Department failed to 

address how challenges to the 

compressed briefing schedule might be 

exacerbated by the Board’s mail-based 

system, failure to follow the ‘‘mailbox 

rule,’’ and unpredictable briefing 

schedules.22 Id. The court also found 

the Department’s reliance on future 

implementation of an electronic filing 

system unpersuasive. Id. The court 

further stated that the Department failed 

to consider the challenges that the 

COVID–19 pandemic may present to 

compliance with the compressed 

briefing schedule. Id. at 966. 

ii. Administrative Closure 

The court also determined that 

plaintiffs were likely to succeed on their 

argument that the AA96 Final Rule’s 

restrictions on administrative closure 

are arbitrary and capricious. First, the 

court found that, although the 

Department cited efficiency reasons for 

promulgating the rule, it failed to 

meaningfully address the existence of 

‘‘extensive contrary evidence showing 

that administrative closure enhances 

efficiency.’’ Id. at 967. The court also 

noted that EOIR’s consultants had 

previously recommended that EOIR 

work with DHS to explore developing 

policies regarding administrative 

closure, and yet EOIR did not discuss or 

consider that recommendation in its 

rulemaking. Id. The court further stated 

that the Department improperly 

dismissed and minimized commenter 

concerns that eliminating administrative 

closure could lead to the removal of 

noncitizens with meritorious claims for 

relief or protection, including removal 

in violation of the United States’ nonrefoulement obligations under 

international law. Id. at 968. The court 

explained that, although the Department 

cited the availability of administrative 

closure in some circumstances, it did 

not adequately address the issue that 

administrative closure would no longer 

be available for ‘‘the vast majority of 

noncitizens in removal proceedings, 

including people for whom Congress 

has specifically crafted humanitarian 

relief.’’ Id. 

Additionally, the court determined 

that the Department did not adequately 

engage with commenter concerns that 

the AA96 Final Rule conflicted with 

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

U.S.C. 1182(a)(9)(B)(v), as DHS has 

interpreted it. Id.; see also 8 CFR 

212.7(e)(4)(iii) (rendering an individual 

in removal proceedings ineligible for an 

unlawful presence hardship waiver 

unless the proceedings are 

administratively closed); see also 

Garcia-DeLeon, 999 F.3d at 993 (‘‘We 

conclude that immigration judges and 

the BIA retain the authority to grant 

administrative closure so that 

noncitizens may apply for a provisional 

unlawful presence waiver.’’). 

The court noted that, although DHS 

had previously determined that 

individuals who have been granted 

voluntary departure would not be 

eligible for such provisional waivers, 

see Expansion of Provisional Unlawful 

Presence Waivers of Inadmissibility, 81 

FR 50244, 50256 (July 29, 2016), EOIR 

nevertheless asserted in the AA96 Final 

Rule that eliminating general authority 

to administratively close cases would 

have no bearing on a noncitizen’s 

‘‘ability to obtain an order of voluntary 

departure and then a provisional waiver 

before departing to receive the final 

waiver abroad.’’ 85 FR at 81601. The 

court determined that the Department 

did not provide a ‘‘reasoned basis’’ for 

this position. Centro Legal de la Raza, 

524 F. Supp. 3d at 969. 

iii. Sua Sponte Reopening and 

Reconsideration Authority 

The court also determined that the 

Department’s decision to eliminate 

adjudicators’ sua sponte reopening and 

reconsideration authority was likely 

arbitrary and capricious. The court 

expressed that it was ‘‘extremely 

troubled’’ by the Department’s 

contention that, because there is no 

right to sua sponte reopening, the 

Department was not required to assess 

commenter concerns about any reliance 

interests or weigh such interests against 

competing policy concerns. Id. at 970; 

see also Dep’t of Homeland Sec. v. 

Regents of the Univ. of Cal., 140 S. Ct. 

1891, 1913 (2020) (‘‘When an agency 

changes course . . . it must be 

cognizant that longstanding policies 

may have engendered serious reliance 

interests that must be taken into 

account.’’ (internal quotation marks 

omitted)). 

The court similarly expressed 

concerns with the Department’s 

justifications for eliminating sua sponte 

reopening and reconsideration in light 

of ‘‘the reality that its elimination will 

foreclose the only avenue of relief for 

some noncitizens who would otherwise 

be eligible for relief from removal.’’ 

Centro Legal de la Raza, 524 F. Supp. 

3d at 971. For example, the Department 

asserted that the rule would promote 

fairness by withdrawing an authority 

that may be subject to inconsistent and 

potentially abusive usage and could 

undermine finality in proceedings. Id. 

However, the court found that the 

Department failed to provide examples 

of inconsistent application or abuse and 

did not adequately explain why ‘‘it 

could not articulate or clarify a 

meaningful standard to govern’’ when 

‘‘ ‘exceptional situations’ would permit 

sua sponte reopening or 

reconsideration.’’ Id.; see also Motor 

Vehicle Mfrs. Ass’n of U.S. v. State Farm 

Mut. Auto. Ins. Co., 463 U.S. 29, 48–49 

(1983) (‘‘[A]n agency must cogently 


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23 In the ECAS Rule, the finalized regulatory 

language reverted 8 CFR 1003.3(c)(2) (Appeal from 

decision of a DHS officer) to pre-AA96 standards. 

See ECAS Rule, 86 FR at 70721. Specifically, the 

ECAS Rule removed the maximum 14-day period 

for the filing of a single permitted reply brief, the 

14-day limitation on extensions, and procedures for 

filing supplemental briefs implemented by the 

AA96 Final Rule. Id. The ECAS Rule retained the 

AA96 Final Rule’s technical edits to replace 

‘‘Service’’ with ‘‘DHS’’ where appropriate, id., and 

this NPRM proposes additional minor, technical 

changes, as discussed at Section IV.O of this 

preamble. 

24Examples of DHS officer decisions subject to 

appellate review before the Board include denials 

of waivers under INA 212(d)(3), 8 U.S.C. 1182(d)(3), 

and denials of visa petitions made on a Form I–130. 

explain why it has exercised its 

discretion in a given manner.’’). 

2. Regulatory Flexibility Act Challenge 

The court determined that the 

plaintiffs raised serious questions that 

the AA96 Final Rule violated the 

Regulatory Flexibility Act (‘‘RFA’’), 

which requires federal agencies to 

analyze the impact of proposed rules on 

small entities. Centro Legal de la Raza, 

524 F. Supp. 3d at 971–74; see also 5 

U.S.C. 601–12. Specifically, the court 

determined that the plaintiff, Centro 

Legal de la Raza, was likely a small 

entity under the RFA and that the AA96 

Final Rule would apply to it because it 

would be required to comply with the 

changes implemented by the rule. 

Centro Legal de la Raza, 524 F. Supp. 

3d at 973. Further, the court expressed 

doubt that the AA96 Final Rule’s 

‘‘cursory’’ statement that the rule would 

not have a substantial impact on small 

entities was a sufficient factual basis to 

avoid engaging in an RFA analysis, 

particularly in light of the scope of the 

AA96 Final Rule and the numerous 

comments from organizations claiming 

that the AA96 Final Rule would 

economically impact them. Id. at 974. 

3. Delegation of Rulemaking Authority 

to the EOIR Director 

Lastly, the court determined that the 

plaintiffs had raised serious questions 

regarding whether the AA96 Final 

Rule’s delegation of rulemaking 

authority to the EOIR Director, based on 

the specific facts of that case, violated 

the APA. Centro Legal de la Raza, 524 

F. Supp. 3d at 976. The court was 

troubled by the manner by which the 

delegation occurred. Id. Specifically, the 

court stated that while the Attorney 

General signed the AA96 NPRM, the 

Attorney General did not delegate 

rulemaking authority until after the 

close of the NPRM’s comment period 

and did so through a non-public order. 

Id. The court also expressed particular 

concern that the AA96 Final Rule, 

signed by the EOIR Director pursuant to 

the delegated rulemaking authority, 

significantly expanded the EOIR 

Director’s authority to adjudicate Board 

appeals. Id. The court stated that 

although the AA96 NPRM—as signed by 

the Attorney General—proposed 

expanding the EOIR Director’s authority 

in this manner, the NPRM did not 

disclose that the EOIR Director would 

issue the final rule and, thus, would 

ultimately be in charge of considering 

the public’s comments about expanding 

the EOIR Director’s own authority. Id. 

IV. Description of Proposed Regulatory 

Changes 

The Department has carefully 

reconsidered the AA96 Final Rule, the 

comments received on the AA96 

Proposed Rule, the issues identified in 

the Centro Legal de la Raza decision, 

and other experience gained since that 

decision. The Department now proposes 

to restore the longstanding procedures 

in place prior to the AA96 Final Rule, 

subject to several changes. For the 

reasons described below, the 

Department believes that these 

amendments will promote the efficient 

and expeditious adjudication of cases, 

afford immigration judges and the BIA 

flexibility to efficiently allocate their 

limited resources, and protect due 

process for parties before immigration 

judges and the Board. 

A. Briefing Schedule Changes 

The Department proposes to rescind 

changes that the AA96 Final Rule made 

to briefing schedules before the Board. 

Specifically, the Department proposes 

to restore regulatory language, in effect 

before the promulgation of the AA96 

Final Rule, that would re-establish 

longstanding consecutive briefing 

schedules for non-detained noncitizens 

and simultaneous briefing schedules for 

detained noncitizens. 8 CFR 1003.3(c)(1) 

(proposed). The proposed language 

states that those subject to a 

simultaneous briefing schedule would 

have 21 days to submit simultaneous 

briefs unless the Board specifies a 

shorter period. Id. The proposed 

language also states that in appeals 

involving simultaneous briefing, the 

Board may permit parties to file reply 

briefs within 21 days of the deadline for 

the initial briefs. Id. 

Those subject to a consecutive 

briefing schedule would again have 21 

days to file initial briefs, unless the 

Board specifies a shorter period. Id. 

Parties would have the same amount of 

time to file reply briefs as was provided 

for filing the initial brief, including any 

extensions.23 Id. The Board would also 

again be authorized to grant one or more 

extensions for filing briefs or reply 

briefs for up to 90 days for good cause 

shown. Id. The Board could also, in its 

discretion, request supplemental 

briefings from parties after the briefing 

deadline has expired. Id. The Board 

would remain authorized to consider 

untimely filed briefs. Id. 

As stated in the AA96 Final Rule, 

there is ‘‘no entitlement’’ to a briefing 

schedule under the Act. See 85 FR at 

81636. Indeed, the Act does not 

enumerate the procedures that apply to 

the Board’s adjudication of appeals. 

Nevertheless, a noncitizen, with certain 

limited exceptions, is entitled to seek 

appellate review before the Board of an 

immigration judge’s decision and, in 

some cases, a decision of a DHS 

officer.24 8 CFR 1003.3(a)(1)–(2). As part 

of that review, the noncitizen is entitled 

to certain rights under the Act, 

including the right to have legal 

representation before the Board (at no 

expense to the government). INA 292, 8 

U.S.C. 1362. The Department believes 

that truncating the briefing schedule 

that had been in place for over 20 years, 

see Board of Immigration Appeals: 

Procedural Reforms to Improve Case 

Management, 67 FR 54878, 54895 (Aug. 

26, 2002) (discussing changes to 8 CFR 

3.3(c)), could impact a noncitizen’s 

ability to adequately prepare their case 

for appeal or secure legal representation 

to do so, and create undue confusion for 

pro se noncitizens and practitioners 

appearing before EOIR. Concerns about 

adequate preparation time are 

particularly relevant given the 

possibility of unique and unaccountedfor future issues, similar to the COVID– 

19 pandemic, which may present new 

obstacles to seeking and securing 

representation, as well as preparing and 

submitting briefs. See Centro Legal de la 

Raza, 524 F. Supp. 3d at 965–66 (‘‘[T]he 

agency completely disregarded the fact 

that the challenges of briefing on a 

compressed timetable are compounded 

by the BIA’s mail-based system, failure 

to follow the ‘mailbox rule,’ and 

unpredictable briefing schedules. . . 

Moreover, the agency entirely dismissed 

the impact of imposing the briefing 

schedule changes during the COVID–19 

pandemic, a concern raised by 

numerous commenters.’’). 

The Department notes that it has now 

implemented electronic filing 

procedures for registered attorneys 

through the EOIR Courts & Appeals 

System, see ECAS Rule, 86 FR 70708, 

which may mitigate some concerns 

about mail service and its potential 

effect on briefing schedule timing 


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25The Department notes that the term ‘‘reinstate’’ 

has been used interchangeably with ‘‘recalendar’’ 

before the Board. See, e.g., Matter of Avetisyan, 25 

I&N Dec. at 692. However, consistent with 

longstanding practice and to avoid confusion, the 

Department is using ‘‘recalendar’’ for both the 

immigration courts and the Board in this regulation. 

because parties will be able to view and 

download documents for cases with 

electronic records of proceeding. 

However, the Department has not yet 

fully implemented electronic filing and 

case access for pro se noncitizens, see 

86 FR at 70709–10, and therefore 

believes that the current availability of 

electronic filing in most, but not all, 

circumstances is insufficient to address 

concerns about the AA96 Final Rule’s 

truncated briefing schedules. Indeed, 

briefing schedules that allow 

adjudicators the flexibility to establish 

deadlines as appropriate for a particular 

case, within given parameters, are a 

fixture of legal practice. For example, in 

the federal courts, Rule 31 of the Federal 

Rules of Appellate Procedure 

establishes a ‘‘good cause’’ exception to 

its specified time frame. Fed. R. App. P. 

31(a)(1) (explaining that ‘‘a reply brief 

must be filed at least 7 days before 

argument, unless the court, for good 

cause, allows a later filing’’). Similarly, 

Rule 12 of the Federal Rules of Civil 

Procedure also builds flexibility into its 

established timeframes. Fed. R. Civ. P. 

12(a)(1)(C) (‘‘A party must serve a reply 

to an answer within 21 days after being 

served with an order to reply, unless the 

order specifies a different time.’’). 

Upon reconsideration, the Department 

believes that the Board should have the 

discretion to manage briefing schedules 

and extensions. An inflexible rule that 

requires all briefs to be filed within 35 

days would be unable to accommodate 

the continually changing landscape that 

may affect parties’ ability to seek and 

retain counsel, as well as to prepare and 

submit briefs within a specified period 

of time. To the extent that shorter 

briefing schedules or, conversely, 

extensions for both initial and reply 

briefs, might be appropriate given the 

particular facts and circumstances of an 

individual case, the Board is optimally 

situated to make such determinations on 

a case-by-case basis to ensure that 

briefing schedules do not impede access 

to the appellate process and the right to 

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

665 (‘‘‘[T]imeliness’ is not a hard and 

fast deadline; some cases are more 

complex and simply take longer to 

resolve. Thus, not all mechanisms that 

lengthen the proceedings of a case 

prevent ‘timely’ resolution.’’). Under the 

proposed rule, the Board would again 

have the discretion to specify shorter 

briefing schedules as it deems 

appropriate. 

Numerous organizations and 

commenters on the AA96 Final Rule, 

including those who administer the 

Board Pro Bono Program, claimed that 

the policies set forth in the AA96 Final 

Rule would have (and in some cases 

already have had) an impact on their 

ability to provide appellate 

representation. See Complaint, CLINIC 

v. EOIR, No. 21–CV–094 (D.D.C. Jan. 11, 

2021); Plaintiffs’ Motion for a 

Preliminary Injunction, Centro Legal de 

la Raza v. EOIR, No. 21–CV–00463 

(N.D. Cal. Jan. 22, 2021). This proposed 

rule is intended to remove the 

possibility that reducing the total 

amount of time that a noncitizen has to 

file an appeal brief would impede 

access to the appellate process and the 

fair and efficient adjudication of appeals 

for at least some pro se individuals and 

those seeking representation. 

The Department also proposes to 

amend the briefing schedule, with 

respect to motions to reopen or 

reconsider before the BIA, to extend the 

deadline to submit a reply brief from 13 

days to 21 days. 8 CFR 1003.2(g)(3) 

(proposed). The Department currently 

sees no reason to distinguish between 

applicable deadlines for reply briefs for 

appeals and for motions to reopen or 

reconsider. 

B. Administrative Closure Authority— 

Immigration Judges and the Board 

The Department proposes to remove 

the AA96 Final Rule’s language that 

would, if effectuated, limit an EOIR 

adjudicator’s authority to 

administratively close cases. Instead, 

this NPRM proposes to explicitly state 

that EOIR adjudicators have the general 

authority to administratively close, and 

to recalendar,25 individual cases 

pursuant to a party’s motion. The 

proposed rule would also set forth 

factors that adjudicators should 

consider, as the circumstances of the 

case warrant, in adjudicating such 

motions. The Department believes that 

the proposed changes will improve the 

efficiency and fairness of EOIR 

proceedings. 

As described above, there is a long 

history of EOIR adjudicators utilizing 

administrative closure as a helpful tool 

for managing dockets at both the 

immigration courts and the Board. See 

Garcia-DeLeon, 999 F.3d at 989 (‘‘For at 

least three decades, immigration judges 

and the BIA regularly administratively 

closed cases.’’); Matter of Avetisyan, 25 

I&N Dec. at 690 (‘‘Administrative 

closure is a procedural tool created for 

the convenience of the Immigration 

Courts and the Board.’’). Indeed, the 

Attorney General acknowledged this 

longstanding practice in overruling 

Matter of Castro-Tum. See Matter of 

Cruz-Valdez, 28 I&N Dec. at 329 

(‘‘Because Castro-Tum departed from 

long-standing practice, it is appropriate 

to overrule that opinion in its entirety 

. . .’’). In Matter of Cruz-Valdez, the 

Attorney General restored 

administrative closure authority, 

specifically directing immigration 

judges and the Board to apply the 

standard for administrative closure set 

forth in Matter of Avetisyan and Matter 

of W–Y–U– while the Department 

reconsiders the AA96 Final Rule. Id. 

Additionally, circuit court case law 

undercuts the AA96 Final Rule’s 

assertion that administrative closure is 

unsupported by the law and that Matter 

of Avetisyan was wrongly decided. See 

Romero, 937 F.3d at 294–95 (holding 

that the regulations ‘‘unambiguously 

confer upon [immigration judges] and 

the [Board] the general authority to 

administratively close cases’’); Meza 

Morales, 973 F.3d at 667 (concluding 

that Matter of Castro-Tum was contrary 

to the unambiguous meaning of the 

regulations and that immigration judges 

and the Board are ‘‘not precluded from 

administratively closing cases when 

appropriate’’); Arcos Sanchez, 997 F.3d 

at 122 (holding that ‘‘the plain language 

establishes that general administrative 

closure authority is unambiguously 

authorized by these regulations’’); see 

also Zelaya Diaz v. Rosen, 986 F.3d 687, 

691–92 (7th Cir. 2021) (applying Meza 

Morales). 

Although two circuit courts have 

rejected challenges to Matter of CastroTum, both left open the possibility that 

the regulations could permissibly be 

interpreted to permit administrative 

closure in at least some circumstances. 

In Garcia v. Garland, 64 F.4th 62 (2d 

Cir. 2023), the Second Circuit held that 

the pre-AA96 regulations were 

ambiguous as to whether they 

authorized general administrative 

closure and deferred to the Attorney 

General’s interpretation in Matter of 

Castro-Tum. In reaching that 

conclusion, the Second Circuit did not 

interpret 8 CFR 1003.1(d)(1)(ii) and 

1003.10(b) (2018) to foreclose general 

administrative closure authority. Rather, 

the Second Circuit focused narrowly on 

the text of those regulations and held 

that it was not unreasonable for the 

Attorney General in Matter of CastroTum to interpret them as not explicitly 

authorizing general administrative 

closure. See id. at 73–74. The Second 

Circuit acknowledged EOIR 

adjudicators’ use of administrative 

closure since at least 1990, however, id. 

at 66, and recognized that before CastroTum, whether to allow administrative 


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closure was ‘‘a matter reserved to the 

discretion of the Immigration Judge or 

the Board.’’ Id. at 76 n.13. 

The Sixth Circuit agreed with Matter 

of Castro-Tum that the regulatory 

language prior to the AA96 Final Rule 

does not provide EOIR adjudicators a 

free-standing authority to 

administratively close cases. See 

Hernandez-Serrano, 981 F.3d at 466. 

However, it later clarified that 

immigration judges and the Board have 

the authority to grant administrative 

closure to permit a noncitizen to apply 

for a provisional unlawful presence 

waiver, even though this authority was 

not explicitly stated in the regulations. 

See Garcia-DeLeon, 999 F.3d at 992–93. 

As such, the AA96 Final Rule 

introduced novel restrictions on EOIR 

adjudicators’ long-standing authority to 

manage the cases before them, including 

through the use of administrative 

closure when appropriate. See Matter of 

Cruz-Valdez, 28 I&N Dec. at 328–29 

(stating that the AA96 Final Rule 

‘‘effectively codified Castro-Tum[,]’’ 

which ‘‘departed from long-standing 

practice . . .’’). 

Although several courts of appeals 

have determined that the authority to 

administratively close cases was clearly 

encompassed in the regulations prior to 

the AA96 Final Rule, that authority was 

not explicitly stated. As the decisions 

from the Second and Sixth Circuits 

make clear, this lack of explicit language 

has led to debate and confusion over the 

full scope of EOIR adjudicators’ 

authority to manage cases before them. 

See, e.g., Garcia v. Garland, 64 F.4th 62 

at 74 (concluding the pre-AA96 

regulations ‘‘do not unambiguously 

permit [general] administrative 

closure.’’); Hernandez-Serrano, 981 F.3d 

at 466 (holding that the regulations prior 

to the AA96 Final Rule did not give 

adjudicators the general authority to 

administratively close cases); see also 

Garcia-DeLeon, 999 F.3d at 992–93 

(concluding that an application for a 

provisional unlawful presence waiver 

‘‘is a limited circumstance where 

administrative closure is ‘appropriate 

and necessary’ under [8 CFR] 1003.10(b) 

and 1003.1(d)(1)(ii)’’). It is in the 

interests of the Department and the 

public to have a clear understanding of 

the scope of an adjudicator’s authority. 

Accordingly, the Department proposes 

to amend the regulations to make an 

EOIR adjudicator’s long-standing 

authority to administratively close cases 

explicit in the regulations. 

Additionally, the court in Centro 

Legal de la Raza identified a number of 

issues with the AA96 Final Rule’s 

changes made with respect to 

administrative closure. 524 F. Supp. 3d 

at 966–69. Specifically, the court noted 

that the Department failed to adequately 

consider or meaningfully address: (1) 

the impact that the AA96 Final Rule 

would have on the vast majority of 

applicants for administrative closure or 

how it would affect noncitizens with 

meritorious claims for relief; (2) 

commenter concerns that the AA96 

Final Rule’s restriction on 

administrative closure conflicted with 

the inadmissibility waiver provision at 

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

U.S.C. 1182(a)(9)(B)(v), as it has been 

interpreted by DHS; and (3) the 

existence of ‘‘extensive contrary 

evidence showing that administrative 

closure enhances efficiency.’’ Id. In this 

NPRM, the Department proposes further 

rulemaking on this topic to address 

these concerns. 

The Department believes that 

codifying general administrative closure 

authority will serve the interests of the 

Department and the public in fairness 

and administrative efficiency. 

Immigration judges and the Board have 

used administrative closure as a 

safeguard to ensure fairness and to 

postpone cases in appropriate 

circumstances, such as cases involving 

certain juvenile noncitizens or those 

with mental competency issues. See 

Matter of Avetisyan, 25 I&N Dec. at 691 

(stating that EOIR adjudicators may 

determine that it is ‘‘necessary or, in the 

interests of justice and fairness to the 

parties, prudent to defer further action 

for some period of time’’). Retaining the 

AA96 Final Rule’s restrictions on 

administrative closure could limit the 

ability of noncitizens to pursue certain 

statutory immigration benefits and 

forms of discretionary relief, including: 

(1) Special Immigrant Juvenile status, 

INA 101(a)(27)(J), 8 U.S.C. 

1101(a)(27)(J); (2) visas for victims of 

certain crimes who are cooperating with 

law enforcement (U visas), INA 

101(a)(15)(U), 8 U.S.C. 1101(a)(15)(U); 

(3) visas for certain family-sponsored 

immigrants (e.g., ‘‘Petition for Alien 

Relative’’ (Form I–130)), INA 203(a), 8 

U.S.C. 1153(a); (4) adjustment of status 

as a VAWA self-petitioner, INA 204, 8 

U.S.C. 1154; (5) Temporary Protected 

Status (‘‘TPS’’), INA 244, 8 U.S.C. 

1254a; and (6) provisional unlawful 

presence waivers, 8 CFR 212.7(e)(4)(iii). 

USCIS approval of any of these benefits 

would generally eliminate the need for 

continued removal proceedings. 

Moreover, a removal order entered by an 

immigration judge and affirmed by the 

Board could cut off the noncitizen’s 

ability to obtain such benefit or relief. 

Additionally, if EOIR moves forward 

with removal proceedings while a prima 

facie eligible application for relief is 

pending before DHS, the outcome of the 

case may ultimately depend upon 

which agency is the first to issue a final 

administrative decision. Administrative 

closure, therefore, allows for the full 

consideration of a noncitizen’s 

application for relief without exposing 

the noncitizen to the risk of removal. 

See Meza Morales, 973 F.3d at 665 

(acknowledging the Attorney General’s 

efficiency justification in Matter of 

Castro-Tum but stating that cases must 

also be ‘‘disposed of fairly, and granting 

a noncitizen the opportunity to pursue 

relief to which she is entitled may be 

appropriate and necessary for a fair 

disposition’’). 

Without administrative closure, by 

contrast, individuals are often unable to 

sufficiently postpone their proceedings 

before EOIR and, as a result, often are 

issued a removal order from EOIR that 

impedes the ability of USCIS to grant 

relief unless the individual files a 

motion to reopen with EOIR to have that 

order lifted. Requiring individuals to 

file motions to reopen and 

accompanying stay of removal requests, 

if necessary, creates additional 

procedural hurdles that increase the risk 

of removal while a potentially valid 

request for relief is pending with USCIS. 

Moreover, such procedural hurdles are 

significantly more challenging to 

overcome if the individual is physically 

removed from the United States and 

must pursue a motion to reopen from 

abroad. 

In addition, upon reconsideration, the 

Department is now of the belief that the 

procedures set forth in the AA96 Final 

Rule would not improve efficient 

adjudication and may, in some cases, 

undermine the efficiency of certain 

adjudications. See Centro Legal de la 

Raza, 524 F. Supp. 3d at 968 (‘‘Indeed, 

the Fourth Circuit found that the 

Attorney General’s efficiency 

justification in Matter of Castro Tum— 

the same efficiency rationale cited in the 

NPRM and Final Rule—was ‘internally 

inconsistent.’ ’’). 

In particular, speed in adjudicating an 

individual case is not the only factor 

that bears on administrative efficiency. 

But see AA96 Final Rule at 81598 

(characterizing administrative closure as 

creating delays that conflict with EOIR’s 

mission to expeditiously adjudicate 

cases before it). Efficiency also 

encompasses consideration of 

prioritization and allocation of 

resources among different cases. Cf. 

Meza Morales, 973 F.3d at 665 (‘‘[T]he 

. . . requirement that cases be resolved 

in ‘timely’ fashion does not foreclose 

administrative closure. For one thing, 

‘timeliness’ is not a hard and fast 


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26See EOIR, Adjudication Statistics, Pending 

Cases, New Cases, and Total Completions, https:// 

www.justice.gov/eoir/page/file/1242166/download 

(data generated Apr. 21, 2023). 

27 Id. 

deadline; some cases are more complex 

and simply take longer to resolve. Thus, 

not all mechanisms that lengthen the 

proceedings of a case prevent ‘timely’ 

resolution.’’); Arcos Sanchez, 997 F.3d 

at 123 (‘‘The authority to 

administratively close cases, within the 

appropriate and necessary context of 

each case, can and does permit 

[immigration judges] and the Board to 

answer the questions before them in a 

timely and impartial manner consistent 

with the Act and the regulations. Or in 

other words, delay in the case through 

administrative closure does not, by 

definition, prevent the timely 

disposition of the case and resolution of 

questions.’’). Moreover, as pointed out 

in Meza Morales, the Department is 

tasked with the dual imperatives to 

adjudicate cases with both speed and 

fairness—the combination of which 

offers a better measure of administrative 

efficiency than speed alone. 973 F.3d at 

665. 

In addition, as observed by the 

Second Circuit, ‘‘it is wasteful to 

commit judicial resources to 

immigration cases when circumstances 

suggest that, if the Government prevails, 

it is unlikely to promptly effect the 

petitioner’s removal.’’ In re Immigr. 

Petitions, 702 F.3d at 160. Relatedly, it 

would be wasteful to commit judicial 

resources to cases where there are 

pending alternative resolutions to the 

case that would obviate the need for, or 

significantly narrow the issues in, 

removal proceedings. See Meza Morales, 

973 F.3d at 665 (‘‘Unsurprisingly . . . 

an immigration judge might sometimes 

conclude, in exercising the discretion 

granted by [8 CFR 1003.10], that it is 

appropriate and necessary to dispose of 

a case through administrative closure.’’); 

Matter of Hashmi, 24 I&N Dec. 785, 791 

n.4 (BIA 2009) (noting that 

administrative closure could ‘‘avoid the 

repeated rescheduling of a case that is 

clearly not ready to be concluded’’). 

Given EOIR’s overburdened dockets, as 

well as the growing backlog of pending 

cases, it is imperative that EOIR 

effectively allocate its limited 

resources—including docket time—to 

first adjudicate those cases where there 

are no pending alternative resolutions to 

removal. To do otherwise would expend 

precious judicial resources on a 

practically ‘‘empty exercise tantamount 

to issuing an advisory opinion’’ where 

such resources could instead be used to 

adjudicate those cases where no 

alternative resolutions may be possible. 

See In re Immigr. Petitions, 702 F.3d at 

161 (internal quotations omitted). 

Procedurally, administrative closure 

is often more efficient than repeatedly 

postponing proceedings through 

multiple continuances, which requires 

repeatedly reserving hearing time on the 

immigration court’s docket. Notably, 

before Matter of Avetisyan, the Board 

had encouraged DHS to consider 

moving for administrative closure rather 

than multiple continuances in 

‘‘appropriate circumstances, such as 

where there is a pending prima facie 

approvable visa petition.’’ Matter of 

Hashmi, 24 I&N Dec. at 791 n.4; see also 

Matter of Rajah, 25 I&N Dec. 127, 135 

n.10 (BIA 2009). The Board described 

administrative closure as ‘‘an attractive 

option in these situations, as it will 

assist in ensuring that only those cases 

that are likely to be resolved are before 

the Immigration Judge.’’ Matter of 

Hashmi, 24 I&N Dec. at 791 n.4. The 

Board also noted that administrative 

closure could ‘‘avoid the repeated 

rescheduling of a case that is clearly not 

ready to be concluded.’’ Id. 

With respect to those cases that could 

result in motions to reopen being filed 

with EOIR because of insufficient time 

to postpone the conclusion of 

proceedings for noncitizens to pursue 

pending relief outside of EOIR, the 

AA96 Final Rule framework would also 

create significant inefficiencies, as the 

immigration courts and the Board must 

adjudicate both the initial removal 

proceedings and the subsequent motion 

to reopen, as well as any stay of removal 

requests. Administrative closure could 

put such cases on hold until any related 

matters pending outside of EOIR are 

adjudicated, which, in turn, would 

allow the immigration judge or the 

Board to put that adjudication time 

towards another case before EOIR. 

Similarly, some statutes necessarily 

delay EOIR proceedings while 

noncitizens pursue collateral 

applications before USCIS. For example, 

the William Wilberforce Trafficking 

Victims Protection Reauthorization Act 

of 2008 (‘‘TVPRA’’), Public Law 110– 

457, 122 Stat. 5044, mandates that 

USCIS has initial jurisdiction over any 

asylum applications filed by 

unaccompanied children in removal 

proceedings before EOIR. See INA 

208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C) 

(codifying the TVPRA’s requirement). 

Under such circumstances, 

administrative closure of proceedings 

while USCIS considers any applications 

for asylum would likely be more 

efficient than repeatedly setting aside 

docket time for future hearings that are 

then continued. Matter of Hashmi, 24 

I&N Dec. at 791 n.4 (noting that 

administrative closure could ‘‘assist in 

ensuring that only those cases that are 

likely to be resolved are before the 

[i]mmigration [j]udge’’ and prevent ‘‘the 

repeated rescheduling of a case’’ that is 

unready to be concluded). 

The AA96 Final Rule asserted that 

administrative closure, and in particular 

administrative closure over a party’s 

objection, ‘‘failed as a policy’’ because 

of an increased backlog of immigration 

cases after Matter of Avetisyan was 

decided. 85 FR at 81599 (quoting AA96 

NPRM, 85 FR at 52504). However, to the 

extent that eliminating administrative 

closure was designed to control the 

backlog of cases, EOIR’s pending case 

data does not support a conclusion that 

eliminating administrative closure led 

to such a result. Between May 17, 2018, 

when Matter of Castro-Tum was issued, 

and July 15, 2021, when Matter of CruzValdez was issued, the backlog of 

pending cases at EOIR increased from 

796,791 on September 30, 2018, to 

1,408,669 on September 30, 2021.26

Even accounting for the pandemic and 

looking only to the end of FY 2019, the 

number of pending cases at EOIR 

increased from 796,791 to 1,088,499.27

While no single factor alone was 

responsible for the increase in the 

backlog, numerous factors may have 

contributed, including: a general 

increase in the number of proceedings 

initiated by DHS; increasing complexity 

in immigration cases; fluctuating 

numbers of defensive asylum 

applications filed in and adjudicated by 

EOIR; external factors requiring court 

closures that generally result in 

cancellation of non-detained hearings, 

such as the COVID–19 pandemic-related 

closures and an appropriations lapse 

between December 2018 and January 

2019; and the limited number of 

appropriated immigration judge 

positions. See Congressional Research 

Service, R47077, U.S. Immigration 

Courts and the Pending Cases Backlog, 

at 19–30 (Apr. 25, 2022); EOIR, 

Congressional Budget Submission for 

FY 2023 (Mar. 2022) (‘‘Over the years, 

several factors have contributed to 

record growth in both the number of 

pending immigration cases and the time 

required to adjudicate them. . . 

Recently, this caseload increase has 

been exacerbated by the closures and 

reductions in service associated with 

the COVID–19 pandemic, as well as the 

consistent rise in the number of new 

NTAs that DHS has filed before the 

immigration court over the last five 

years, even with the reduction in filings 

over FY 2020 and FY 2021 (from a high 

of almost 550,000 in FY 2019).’’). 


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28The AA96 NPRM asserted that the Board, in 

Matter of Avetisyan departed, without explanation, 

from its prior precedent in Matter of Chamizo, 13 

I&N Dec. 435 (BIA 1969), Matter of Quintero, 18 I&N 

Dec. 348 (BIA 1982), and Matter of Roussis, 18 I&N 

Dec. 256 (BIA 1982). 85 FR at 52503. However, 

upon further examination, the Department is now 

of the opinion that the AA96 NPRM’s reliance on 

those cases for the proposition that administrative 

closure infringes upon DHS’s prosecutorial 

discretion was inapposite. Notably, none of those 

cases involved administrative closure. Further, 

Matter of Chamizo cannot reasonably be read to 

implicate DHS’s prosecutorial discretion authority, 

as that case was about the impropriety of an 

immigration judge granting voluntary departure 

without entering an alternative order of removal, as 

was required by the Act and pertinent regulations 

at the time. 13 I&N Dec. at 437. As to Matter of 

Quintero and Matter of Roussis, those cases are 

most logically read to stand for the proposition that 

an immigration judge is not permitted to take an 

action that is within the exclusive jurisdiction of or 

otherwise committed to the discretion of the former 

INS District Director. Matter of Quintero, 18 I&N 

Dec. at 350; Matter of Roussis, 18 I&N Dec. at 258. 

Accordingly, Matter of Avetisyan is not inconsistent 

with those cases because the administrative closure 

of a case does not usurp authority from DHS or 

require that DHS take or refrain from taking any 

specific action otherwise committed to its 

discretion. 

29As discussed above, the Department finds 

persuasive the reasoning of several circuit courts 

that have determined that this authority was 

previously inherent but not explicitly stated in the 

regulations as they existed prior to the AA96 Final 

Rule. See Romero, 937 F.3d at 294–95 (holding that 

the regulations ‘‘unambiguously confer upon 

[immigration judges] and the BIA the general 

authority to administratively close cases’’ but 

stating that even if ambiguous, ‘‘the Attorney 

General’s reading of the regulations does not 

warrant deference because it amounts to an ‘unfair 

surprise’ ’’); Meza Morales, 973 F.3d at 667 

(concluding that Matter of Castro-Tum was contrary 

to the unambiguous meaning of the regulations and 

that immigration judges and the Board are ‘‘not 

precluded from administratively closing cases when 

appropriate’’); Arcos Sanchez, 997 F.3d at 122 

(holding that ‘‘the plain language establishes that 

general administrative closure authority is 

unambiguously authorized by these regulations’’); 

see also Zelaya Diaz v. Rosen, 986 F.3d at 691–92 

(applying Meza Morales). 

Additionally, as discussed above, the 

growing backlog of cases is one 

significant reason it is important for 

EOIR adjudicators to be able to 

efficiently manage their dockets to first 

adjudicate those cases that are ripe for 

review, where removal is a priority, or 

where there are no pending alternative 

resolutions to removal. Administrative 

closure is a critical tool that helps EOIR 

adjudicators manage their dockets. See 

Cruz-Valdez, 28 I&N Dec. at 326 (noting 

that administrative closure has become 

‘‘a routine ‘tool used to regulate 

proceedings’ and ‘manage an 

Immigration Judge’s calendar (or the 

Board’s docket)’ ’’ (quoting Avetisyan, 

25 I&N Dec. at 694)); Arcos Sanchez, 

997 F.3d at 123 (‘‘[D]elay in the case 

through administrative closure does not, 

by definition, prevent the timely 

disposition of the case and resolution of 

questions . . . Without the general 

authority to administratively close 

appropriate cases when necessary, the 

[immigration judges] and the Board . . . 

may be less effective in managing 

cases.’’); Romero, 937 F.3d at 292–93 

(‘‘[D]ocket management actions such as 

administrative closure [ ] often facilitate 

. . . case resolution . . . As illustrated 

by Matter of Avetisyan and other BIA 

cases, administrative closure is 

‘appropriate and necessary’ in a variety 

of circumstances.’’). 

Indeed, an outside consultant 

previously recommended that EOIR 

explore administrative closure as a 

potential tool that could enhance the 

efficiency for EOIR proceedings without 

compromising fairness. EOIR, Booz 

Allen Hamilton, Legal Case Study: 

Summary Report at 26 (Apr. 6, 2017). 

Specifically, the consultant, after 

engaging in a year-long study of EOIR 

operations, identified numerous 

external factors that contribute to delays 

in adjudications. See generally id. 

Among other things, the consultant 

recommended that the Department 

engage in discussions with DHS to 

explore the development of policies 

regarding administrative closure as one 

way to improve processing efficiency. 

Id. at 26. 

Separately, while the AA96 Final 

Rule asserted that administrative 

closure would place the EOIR 

adjudicator in the position of the 

prosecutor, 85 FR at 81599, upon 

reconsideration, the Department now 

concurs with the reasoning in Matter of 

Avetisyan, which ‘‘considered the 

respective roles and responsibilities of 

the DHS, the Immigration Judges, and 

the Board in removal proceedings’’ and 

concluded that ‘‘[a]lthough 

administrative closure impacts the 

course removal proceedings may take, it 

does not preclude the DHS from 

instituting or pursuing those 

proceedings and so does not infringe on 

the DHS’s prosecutorial discretion.’’ 25 

I&N Dec. at 694.28 Indeed, 

administrative closure is similar to the 

widespread practice of stays of 

proceedings in federal court, which are 

often utilized to avoid unnecessary 

litigation. See, e.g., Ayanian v. Garland, 

64 F.4th 1074, 1078–79 (9th Cir. 2023) 

(explaining that the court previously 

granted a motion to stay appellate 

proceedings ‘‘to allow time to examine 

grounds for a possible alternative to 

litigation’’). 

The AA96 NPRM stated that 

administrative closure precludes DHS 

from pursuing removal proceedings 

while the administrative closure order is 

in effect. 85 FR at 52503. However, 

either party can file a motion to 

recalendar a case at any time. Thus, if, 

for example, an individual’s case has 

been administratively closed while the 

individual’s prima facie eligible 

application for adjustment of status is 

pending before DHS and DHS has a 

strong interest in concluding 

proceedings, DHS need only complete 

adjudication of the application before it 

and file a motion to recalendar the case, 

actions well within its control. If the 

EOIR adjudicator grants the motion to 

recalendar, the case will proceed. 

Therefore, for the reasons discussed 

above, the Department proposes 

regulatory language explicitly providing 

that immigration judges’ and the Board’s 

authority to take ‘‘any action’’ includes 

administratively closing cases. See 8 

CFR 1003.1(d)(1)(ii) (proposed), 

1003.10(b) (proposed).29 The 

Department’s proposed language 

emphasizes that the phrase ‘‘any action’’ 

is intended to be interpreted broadly to 

include the general authority to take 

actions regardless of whether they are 

explicitly described by regulation by 

stating that ‘‘[s]uch actions include,’’ 

but are not limited to, administrative 

closure, so long as such actions, are 

‘‘necessary or appropriate’’ and are 

otherwise consistent with governing 

statutes and regulations. Id. 

The Department does not believe that 

existing regulations that expressly 

authorize administrative closure in 

certain circumstances are sufficient to 

capture the numerous scenarios where it 

may be necessary or appropriate for 

EOIR adjudicators to administratively 

close proceedings based upon the 

particular facts of any given case. See, 

e.g., 8 CFR 1214.2(a) (referencing 

administrative closure for T visa 

applicants); 1214.3 (referencing 

administrative closure for V visa 

applicants); 1240.62(b) (referencing 

administrative closure for certain 

American Baptist Church (ABC) class 

members); 1240.70(f)–(h) (referencing 

administrative closure for ABC class 

members, among others); 

1245.13(d)(3)(i) (referencing 

administrative closure for certain 

nationals of Nicaragua and Cuba); 

1245.15(p)(4)(i) (referencing 

administrative closure for Haitian 

Refugee Immigration Fairness Act of 

1998 (‘‘HRIFA’’) applicants); 1245.21(c) 

(referencing administrative closure for 

certain nationals of Vietnam, Cambodia, 

and Laos). Limiting administrative 

closure to these discrete scenarios 

would not permit EOIR adjudicators to 

consider other important factors that 

may render a case ripe for 

administrative closure. Thus, using 

administrative closure only in these 

enumerated circumstances would limit 


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30The Department would like to make this 

distinction clear in light of Hernandez-Serrano, 

which stated that the Romero ‘‘court’s conclusion— 

that any action for the disposition of the case is read 

most naturally to encompass actions of whatever 

kind appropriate for the resolution of a case—reads 

out of the regulations the requirement of necessity.’’ 

981 F.3d at 464 (cleaned up). 

31The Department would like to make this 

distinction clear in light of Hernandez-Serrano, 

which stated that ‘‘the regulations expressly limit 

their delegation to actions ‘necessary for the 

disposition’ of the case . . . [a]nd that more 

restricted delegation cannot support a decision not 

to decide the case for reasons of administrative 

‘convenience’ or the ‘efficient management of the 

resources of the immigration courts and the BIA.’ ’’ 

981 F.3d at 464. But see Meza Morales, 973 F.3d 

at 665 (‘‘Unsurprisingly, then, an immigration judge 

might sometimes conclude, in exercising the 

discretion granted by 8 CFR 1003.10, that it is 

appropriate and necessary to dispose of a case 

through administrative closure.’’). 

32The regulations also specify that immigration 

judges may manage their dockets through the use 

of continuances. 8 CFR 1003.29. Continuances keep 

the case on the immigration judge’s active docket 

and are used ‘‘to await additional action required 

of the parties’’ to ready the case for final 

adjudication ‘‘that will be, or is expected to be, 

completed within a reasonably certain and brief 

amount of time.’’ Matter of Avetisyan, 25 I&N Dec. 

at 691. By comparison, administrative closure is a 

tool that removes a case from an immigration 

judge’s active docket, normally to await some 

collateral event whose outcome is not yet known 

and may not be known within a definitive time 

period, that may impact the course of removal 

proceedings, and requires a party to move to 

recalendar in order to re-initiate adjudication. Id. at 

692. 

33 In practice, immigration judges are encouraged 

to resolve administrative closure issues as early as 

possible in a case by affirmatively asking parties 

whether they wish for cases to be administratively 

closed. See EOIR, Director’s Memorandum 22–03, 

Administrative Closure (Nov. 22, 2021) at 3–4. The 

Department notes that a motion to administratively 

Continued 

administrative closure’s efficacy as a 

docket-management tool. Nor do the 

regulations explicitly authorize 

administrative closure in common 

scenarios where administrative closure 

may be necessary or appropriate, such 

as where noncitizens may have pending 

applications for relief before DHS. 

The Department proposes revising the 

phrase ‘‘appropriate and necessary’’ to 

read ‘‘necessary or appropriate’’ to 

emphasize that adjudicators may choose 

to administratively close cases, or take 

other actions, even if such action is not 

required.30 For example, administrative 

closure may be appropriate even where 

other docket management tools, such as 

continuances, may be available. See 

Meza Morales, 973 F.3d at 665 

(‘‘Administrative closure is plainly an 

‘action.’ . . . in cases in which two 

coordinate offices in the executive 

branch are simultaneously adjudicating 

collateral applications, closing one 

proceeding might help advance a case 

toward resolution.’’); Matter of 

Avetisyan, 25 I&N Dec. at 691 (stating 

that adjudicators may determine that it 

is ‘‘necessary or, in the interests of 

justice and fairness to the parties, 

prudent to defer further action for some 

period of time’’); Matter of Hashmi, 24 

I&N Dec. at 791 n.4 (noting that 

administrative closure could ‘‘avoid the 

repeated rescheduling of a case that is 

clearly not ready to be concluded’’). As 

another example, the Sixth Circuit 

recently determined that, although a 

noncitizen could theoretically apply for 

an unlawful presence waiver from 

outside of the United States if EOIR did 

not administratively close their case (a 

prerequisite for applying for a 

provisional unlawful presence waiver in 

the United States pursuant to 8 CFR 

212.7(e)(4)(iii)), administrative closure 

was still appropriate because it 

‘‘increases the likelihood that 

noncitizens will obtain legal status and 

resolve their immigration proceedings.’’ 

Garcia-DeLeon, 999 F.3d at 992; see id. 

(‘‘True, a noncitizen in removal 

proceedings whose case[ ] is not 

administratively closed may still submit 

an I–601 Waiver of Inadmissibility after 

they complete their consular interview 

and are determined inadmissible. This 

old path, however, deterred noncitizens 

in removal proceedings from obtaining 

legal status as permanent residents.’’). 

The Department also proposes to 

amend the term ‘‘disposition’’ to read 

‘‘disposition or alternative resolution’’ 

of a case. 8 CFR 1003.1(d)(1)(ii) 

(proposed), 1003.10(b) (proposed). The 

Department proposes this amendment to 

establish that actions other than those 

that lead to a final disposition in a case 

may still be necessary or appropriate for 

resolution of the case.31 See Arcos 

Sanchez, 997 F.3d at 117 

(‘‘Administrative closure allows an 

[immigration judge] or the Board to 

‘temporarily pause removal 

proceedings’ and place the case on hold 

because of a pending alternative 

resolution or because events outside the 

control of either party may affect the 

case.’’). 

Moreover, the Department proposes to 

amend 8 CFR 1003.1(d)(1)(ii) (proposed) 

and 1003.10(b) (proposed) to explain 

that the adjudicator should determine 

whether the use of administrative 

closure meets the relevant standard in 

accordance with 8 CFR 1003.1(l) 

(proposed) or 1003.18(c) (proposed), as 

applicable. The Department notes that 

some of the factors proposed for 

administrative closure may be similar to 

factors proposed for other authorities 

such as termination. Compare 8 CFR 

1003.1(l) (proposed Board 

administrative closure provision), and 

1003.18(c) (proposed immigration judge 

administrative closure provision), with 8 

CFR 1003.1(m) (proposed Board 

termination provision), and 1003.18(d) 

(proposed immigration judge 

termination provision). Thus, an 

adjudicator should decide which of 

these tools, if any, to use based upon the 

specific facts of each particular case in 

an exercise of the adjudicator’s 

independent judgment and discretion. 8 

CFR 1003.1(d)(1)(ii), 1003.10(b). 

Furthermore, the Department also 

proposes to clarify that the 

administrative closure authority would 

not be limited by the existence of any 

other regulations authorizing or 

requiring administrative closure. See, 

e.g., 8 CFR 1214.2(a), 1214.3, 1240.62(b), 

1240.70(f)–(h), 1245.13, 1245.15(p)(4)(i), 

and 1245.21(c). 

As discussed above, the Department 

proposes to add regulatory language that 

would define administrative closure and 

set forth guidance to assist adjudicators 

with determining whether 

administrative closure is necessary or 

appropriate for the disposition or 

alternative resolution of a case. 8 CFR 

1003.1(l)(1), (3) (proposed), 

1003.18(c)(1), (3) (proposed). Such 

guidance is consistent with established 

precedent prior to Matter of CastroTum. See Matter of Avetisyan, 25 I&N 

Dec. at 688. Additionally, the proposed 

language would also define 

recalendaring and set forth guidance for 

adjudicators to consider when 

determining whether it is appropriate to 

recalendar a case. 8 CFR 1003.1(l), (l)(2) 

(proposed), 1003.18(c), (c)(2) 

(proposed). 

Specifically, the proposed rule would 

define administrative closure as ‘‘the 

temporary suspension of a case.’’ 8 CFR 

1003.1(l) (proposed), 1003.18(c) 

(proposed); see Matter of Avetisyan, 25 

I&N Dec. at 695 (stating that it is an 

‘‘undisputed fact that administrative 

closure does not result in a final order’’). 

Accordingly, the regulations would 

describe administrative closure as an act 

that would remove a case from the 

Board’s or immigration court’s active 

docket or calendar until the case is 

recalendared. 8 CFR 1003.1(l) 

(proposed), 1003.18(c) (proposed).32

The proposed rule would specify that an 

EOIR adjudicator ‘‘shall grant a motion 

to administratively close or recalendar 

filed jointly by both parties, or filed by 

one party where the other party has 

affirmatively indicated its nonopposition, unless [the adjudicator] 

articulates unusual, clearly identified, 

and supported reasons for denying the 

motion.’’ 33 8 CFR 1003.1(l)(3) 


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close a case before the immigration court may be 

made in writing or, alternatively, orally in court. 

34See Matter of W–Y–U–, 27 I&N Dec. 17, 18 n.4 

(BIA 2017) (stating that the same factors should be 

considered for recalendaring as for administrative 

closure). 

(proposed), 1003.18(c)(3) (proposed). 

This language adopts the standard 

articulated in BIA precedent in the 

context of joint and affirmatively 

unopposed motions to continue. See 

Matter of Hashmi, 24 I&N Dec. at 791 

(‘‘The [motion to continue should be 

granted] by the Immigration Judge in the 

absence of unusual, clearly identified, 

and supported reasons for not doing 

so.’’). The Department believes that it is 

appropriate to extend this standard to 

motions for administrative closure or 

recalendaring, as well as motions to 

terminate, as discussed in Section IV.C 

of this preamble, to help promote 

greater administrative efficiency and 

eliminate needless confusion for 

adjudicators and parties. 

Moreover, the Department believes 

that where a motion to administratively 

close or recalendar a case either is filed 

jointly or is affirmatively unopposed, a 

denial of such a motion serves no 

adversarial interest and that, absent 

other very compelling reasons, the 

interests in administrative efficiency 

dictate granting the motion. See Matter 

of Yewondwosen, 21 I&N Dec. 1025, 

1026 (BIA 1997) (stating that the parties’ 

‘‘agreement on an issue or proper course 

of action should, in most instances, be 

determinative’’); see alsoBadwan v. 

Gonzales, 494 F.3d 566, 568 (6th Cir. 

2007) (noting that when the government 

expressed ‘‘‘no objection to opposing 

counsel’s request’ . . . the government’s 

position demonstrate[d] at a minimum 

that, as between the parties to the case, 

no adversarial interest was served by the 

denial’’ of the noncitizen’s motion); 

Meza Morales, 973 F.3d at 665 

(discussing the interests served by the 

administrative closure of cases). By 

requiring the adjudicator to articulate on 

the record unusual, clearly identified, 

and supported reasons for denying a 

joint or affirmatively unopposed 

motion, the Department acknowledges 

that rare circumstances might arise 

when, in the adjudicator’s judgment, 

administrative closure or recalendaring 

might be inappropriate. Thus, the 

standard provides adjudicators the 

flexibility to address the complexities of 

an individual case, while requiring the 

adjudicator to issue a reasoned 

explanation that provides the parties 

with due notice of the basis for a denial. 

8 CFR 1003.1(l)(3) (proposed), 

1003.18(c)(3) (proposed). 

In the case of motions to 

administratively close or recalendar 

proceedings that are neither presented 

jointly nor affirmatively unopposed, the 

proposed rule would permit EOIR 

adjudicators, having considered the 

totality of the circumstances, to grant 

such a motion over any party’s 

objection. 8 CFR 1003.1(l)(3) (proposed), 

1003.18(c)(3) (proposed); see Matter of 

Avetisyan, 25 I&N Dec. at 694 (holding 

that EOIR adjudicators may 

administratively close proceedings over 

a party’s objection). The proposed rule 

would specify that, though 

administrative closure may be 

appropriate where a petition, 

application, or other action is pending 

outside of EOIR proceedings, there is no 

requirement of a pending petition, 

application, or other action for a case to 

be administratively closed. 8 CFR 

1003.1(l)(3) (proposed), 1003.18(c)(3) 

(proposed). The proposed rule would 

specify that any other regulations that 

separately authorize or require 

adjudicators to administratively close 

cases in specific circumstances do not 

impact the adjudicator’s general 

authority to administratively close 

cases. 8 CFR 1003.1(l)(1) (proposed), 

1003.18(c)(1) (proposed); see Meza 

Morales, 973 F.3d at 667 (construing the 

term ‘‘any action’’ broadly). 

In all cases where only one party 

moves for administrative closure or 

recalendaring, and the motion is not 

affirmatively unopposed, the proposed 

rule would require adjudicators to 

weigh the totality of the circumstances, 

taking into consideration all relevant 

factors, including any relevant factors 

from a nonexhaustive list, before 

determining whether, in their 

discretion, administrative closure or 

recalendaring 34 is appropriate. The 

nonexhaustive list of factors relevant to 

administrative closure includes: (1) the 

reason administrative closure is sought; 

(2) the basis for any opposition to 

administrative closure; (3) any 

requirement that a case be 

administratively closed for a petition, 

application, or other action to be filed 

with, or granted by, DHS; (4) the 

likelihood the noncitizen will succeed 

on any petition, application, or other 

action that the noncitizen is pursuing, 

or that the noncitizen states in writing 

or on the record at a hearing that they 

plan to pursue, outside of proceedings 

before the adjudicator; (5) the 

anticipated duration of the 

administrative closure; (6) the 

responsibility of either party, if any, in 

contributing to any current or 

anticipated delay; and (7) the ultimate 

anticipated outcome of the case. 8 CFR 

1003.1(l)(3)(i) (proposed), 

1003.18(c)(3)(i) (proposed); see Matter of 

Avetisyan, 25 I&N Dec. at 696 (listing 

factors for consideration relevant to 

administrative closure). 

When considering whether it would 

be appropriate to administratively close 

a case, the EOIR adjudicator must weigh 

the totality of the listed factors to the 

extent they are applicable. See Matter of 

Avetisyan, 25 I&N Dec. at 696 (‘‘[I]t is 

appropriate for an Immigration Judge or 

the Board to weigh all relevant factors 

presented . . .’’) (emphasis added). 

Accordingly, the existence or absence of 

any one factor is not dispositive of the 

immigration judge’s determination. Cf. 

Hernandez-Castillo v. Sessions, 875 

F.3d 199, 209 (5th Cir. 2017) (explaining 

that Matter of Avetisyan only required 

the BIA to evaluate the ‘‘relevant factors 

presented in the case’’ and did not 

require the BIA to ‘‘evaluate every factor 

in detail’’). For example, there is no 

requirement that the noncitizen must be 

pursuing, or must plan to pursue, a 

petition, application, or other action 

outside of proceedings as a prerequisite 

for an immigration judge to 

administratively close a case. Instead, 

the immigration judge in such a case 

would consider the other factors that are 

applicable to the particular facts and 

circumstances of the case in order to 

determine whether to grant or deny 

administrative closure. Ultimately, the 

immigration judge’s or the Board’s 

determination whether to grant 

administrative closure is a discretionary 

decision. The Department notes that the 

proposed administrative closure factors 

differ from those set forth in Matter of 

Avetisyan by adding a factor for 

consideration: whether the need for 

administrative closure is a prerequisite 

to a petition, application, or other action 

being filed with, or granted by, DHS. 

The Department is proposing this factor 

in light of the fairness and efficiency 

interests that would be served by 

allowing a noncitizen to pursue relief 

that may be available, and that may 

resolve a case, without expending 

unnecessary EOIR and party resources 

on litigation. 

With respect to the second factor for 

consideration, the Department proposes 

to make it clear that adjudicators should 

consider whether there is any 

opposition to administrative closure, in 

addition to the basis for any such 

opposition. An EOIR adjudicator may 

administratively close a case based on a 

joint motion, a motion that is 

unopposed, or over any party’s 

opposition. The principle that an 

adjudicator, having considered the 

totality of the circumstances, may 

administratively close a case over a 

party’s objection is consistent with 


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Matter of Avetisyan. See 25 I&N Dec. at 

694 (stating that ‘‘neither an 

Immigration Judge nor the Board may 

abdicate the responsibility to exercise 

independent judgment and discretion in 

a case by permitting a party’s opposition 

to act as an absolute bar to 

administrative closure of that case when 

circumstances otherwise warrant such 

action’’). 

The Department notes that one reason 

administrative closure is sought could 

be a representation by DHS that it 

wishes for a particular case to be 

administratively closed based on an 

exercise of prosecutorial discretion. As 

described above, administrative closure 

has long been used to facilitate DHS’s 

exercise of prosecutorial discretion, see 

Section III.B.1 of this preamble, and it 

generally would be inefficient for EOIR 

to otherwise press forward with 

proceedings in such cases. See, e.g., 

United States v. Texas, 143 S. Ct. 1964, 

1972 (2023) (‘‘In light of inevitable 

resource constraints and regularly 

changing public-safety and publicwelfare needs, the Executive Branch 

must balance many factors when 

devising arrest and prosecution 

strategies.’’). The Department believes 

that an EOIR adjudicator’s role as a 

neutral arbiter is better served by 

devoting resources to those cases where 

DHS has expressed a continued interest 

in effectuating an order of removal. In 

other words, an EOIR adjudicator may 

grant administrative closure solely for 

equitable considerations in order to 

suspend the proceedings before EOIR, 

such as DHS’s determination that it will 

not use its limited resources to proceed 

with removal proceedings against a 

particular noncitizen at that time. 

On the other hand, the Department 

notes that a noncitizen may, at times, 

oppose a motion for administrative 

closure due to the noncitizen’s desire to 

seek immigration relief available in 

proceedings before EOIR. See Matter of 

W–Y–U–, 27 I&N Dec. at 20 (‘‘The 

respondent is opposed to the 

continuation of administrative closure 

and has requested recalendaring of the 

proceedings. He has explained that he 

wants to pursue his application for 

asylum to its resolution.’’). As set out in 

the proposed rule, the noncitizen’s 

objection to administrative closure in 

such a situation would be considered as 

a factor in the analysis but would not by 

itself be dispositive. The Department 

notes that DHS may also have valid 

reasons for objecting to administrative 

closure where, for example, it is clearly 

unlikely that an individual will obtain 

relief in other proceedings. See, e.g., 

Jesus Garcia-Garcia, A092–286–960 (BIA 

May 28, 2009) (non-precedential) (‘‘DHS 

has continued to oppose administrative 

closure by reason of the respondent’s 

failure to meet the eligibility 

requirements [for a 212(c) waiver].’’). 

The Department seeks comments 

regarding whether the proposed rule 

should include any further protections 

for noncitizens who wish to have their 

cases adjudicated despite DHS’s desire 

to seek administrative closure, 

including whether the rule, if finalized, 

should provide that, where one party 

opposes administrative closure, the 

primary consideration for the 

adjudicator is whether the party 

opposing closure has provided a 

persuasive reason for the case to 

proceed. See Matter of W–Y–U–, 27 I&N 

Dec. at 20, n.5 (holding that ‘‘the 

primary consideration for an 

Immigration Judge in determining 

whether to administratively close . . . 

proceedings is whether the party 

opposing administrative closure has 

provided a persuasive reason for the 

case to proceed and be resolved on the 

merits,’’ but ‘‘continu[ing] to hold that 

neither party has absolute veto power 

over administrative closure requests’’ 

(quotation omitted)). As noted above, 

there may be situations where DHS 

opposes administrative closure. 

With respect to the fifth and sixth 

factors for consideration—the 

anticipated duration of the closure and 

the responsibility of either party, if any, 

in contributing to any current, 

anticipated, or continuing need for 

delay—the Department notes that 

adjudicators should consider both the 

noncitizen’s and DHS’s responsibility 

for any delay. DHS’s responsibility for 

any delay may include DHS’s failure to 

resolve the noncitizen’s pending 

applications or requests for relief that, if 

granted, may obviate the need for 

removal proceedings or significantly 

narrow the issues before EOIR. 

Moreover, the potential duration of the 

administrative closure while awaiting 

DHS adjudication, for example, of a 

pending application before USCIS, 

should not weigh against the decision to 

administratively close proceedings. 

Although the Department generally 

agrees with Matter of W–Y–U–’s 

determination that the factors for 

administrative closure and 

recalendaring should be similar, 

recalendaring requires slightly different 

considerations than the initial decision 

to administratively close a case because, 

at the time an EOIR adjudicator may be 

considering recalendaring, there may be 

more available information regarding 

developments in the case that have 

happened during the administrative 

closure. Such information could aid 

adjudicators in their decisions. For 

example, while considering 

administrative closure, EOIR 

adjudicators can only anticipate the 

duration of the requested administrative 

closure; however, for recalendaring, 

adjudicators will have more definitive 

knowledge about the length of time that 

the case has actually been 

administratively closed. As another 

example, when considering 

recalendaring, EOIR adjudicators would 

have the benefit of knowing whether 

parties have taken important steps 

towards achieving the purpose of the 

administrative closure—such as filing 

for relief with another agency—or 

knowing whether another agency has 

completed adjudication of alternative 

forms of relief. In addition, EOIR 

adjudicators would have additional 

information about any new positive or 

negative factors, such as subsequent 

criminal history, that would weigh for 

or against recalendaring a case. 

Therefore, the proposed rule sets out a 

separate list of relevant factors that 

adjudicators should consider, as the 

circumstances of the case warrant, when 

evaluating a motion to recalendar. 

The nonexhaustive list of factors for 

recalendaring includes: (1) the reason 

recalendaring is sought; (2) the basis for 

any opposition to recalendaring; (3) the 

length of time elapsed since the case 

was administratively closed; (4) if the 

case was administratively closed to 

allow the noncitizen to file a petition, 

application, or other action outside of 

proceedings before the adjudicator, 

whether the noncitizen filed the 

petition, application, or other action 

and, if so, the length of time that 

elapsed between when the case was 

administratively closed and when the 

noncitizen filed the petition, 

application, or other action; (5) if a 

petition, application, or other action 

that was pending outside of proceedings 

has been adjudicated, the result of that 

adjudication; (6) if a petition, 

application, or other action remains 

pending outside of proceedings, the 

likelihood the noncitizen will succeed 

on that petition, application, or other 

action; and (7) the ultimate anticipated 

outcome if the case is recalendared. 8 

CFR 1003.1(l)(3)(ii) (proposed), 

1003.18(c)(3)(ii) (proposed). 

Additionally, the proposed rule would 

permit EOIR adjudicators, having 

considered the totality of the 

circumstances, to recalendar a case over 

any party’s objection. 8 CFR 1003.1(l)(3) 

(proposed), 1003.18(c)(3) (proposed). 

The Department emphasizes that the 

proposed list of factors for recalendaring 

is non-exhaustive, with no single factor 

necessarily dispositive. For example, 

with respect to the fourth factor— 


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35The Department notes that termination is a case 

‘‘disposition’’ under 8 CFR 1003.1(d)(1)(ii) and 

1003.10(b), not an ‘‘alternative resolution,’’ and is 

only referred to as such throughout this NPRM. 

Gonzalez, 16 F.4th at 141 (‘‘Termination of 

proceedings certainly falls within this court’s 

reading of ‘any action’; indeed, termination actually 

ends a proceeding rather than merely facilitating its 

end.’’) (cleaned up). 

36The Department identifies these types of 

proceedings as examples only. The proposed rule’s 

framework for termination of other proceedings in 

8 CFR 1003.1(m)(2) (proposed) and 8 CFR 

1003.18(d)(2) (proposed) applies to all proceedings 

other than removal, deportation, and exclusion 

proceedings, though the Department anticipates 

measuring the duration between the 

administrative closure of the case and 

the time when the noncitizen filed a 

petition, application, or other action 

with DHS—the Department notes that 

the length of time is not, on its face, 

determinative. The Department is aware 

that some petitions, applications, or 

other actions are more complex or 

require more time, and that the passage 

of time is not necessarily a reflection of 

a lack of diligence or an intent to 

unnecessarily delay proceedings. 

Rather, the adjudicator may consider 

this as one of many factors, including 

whether the noncitizen has not 

exercised diligence in applying for 

collateral relief with DHS or is seeking 

to unnecessarily delay proceedings. 

Given the complexity of these issues, 

the Department specifically requests 

public comment on whether the 

specified factors for adjudicators to 

consider in adjudicating motions to 

administratively close and motions to 

recalendar cases are appropriate and 

whether the proposed factors should be 

revised in any way. Specifically, the 

Department seeks public input on 

whether the proposed rule should 

specify that a request for administrative 

closure to allow for the adjudication of 

a petition, application, or other action 

should generally be granted as long as 

the noncitizen demonstrates a 

reasonable likelihood of success on the 

merits, and that the noncitizen has been 

reasonably diligent in pursuing such 

relief. The Department also seeks 

comment on whether the proposed rule 

should set out specific scenarios in 

which administrative closure may be 

appropriate where there is no petition, 

application, or other action pending 

outside EOIR proceedings. Moreover, 

the Department seeks comment on 

whether administrative closure should 

be upon the motion of a party or 

whether it might be necessary or 

appropriate in certain situations for an 

immigration judge or a Board member to 

administratively close a case without 

having received a written motion and, if 

on appeal, in situations in which parties 

do not generally have the opportunity to 

make an oral motion before the Board. 

C. Termination and Dismissal 

The Department proposes to amend 

its regulations at 8 CFR 1003.1(d)(1)(ii) 

(pertaining to Appellate Immigration 

Judges) and 8 CFR 1003.10(b) 

(pertaining to immigration judges) to 

make clear that EOIR adjudicators’ 

authority to ‘‘take any action consistent 

with their authorities under the Act and 

the regulations that is necessary or 

appropriate for the disposition or 

alternative resolution of such cases’’ 

includes the authority to terminate or 

dismiss proceedings.35 The Department 

believes that the termination or 

dismissal of proceedings in appropriate 

situations is consistent with 

immigration judges’ and Appellate 

Immigration Judges’ statutory authority 

and duties. See Matter of Coronado 

Acevedo, 28 I&N Dec at 651–52; 

Gonzalez, 16 F.4th at 141 (‘‘[W]e fail to 

see how the general power to terminate 

proceedings is inconsistent with the 

authorities bestowed by the INA.’’) 

(cleaned up); see also 8 CFR 1240.12(c) 

(indicating that an immigration judge’s 

order ‘‘shall direct the respondent’s 

removal from the United States, or the 

termination of proceedings, or other 

such disposition of the case as may be 

appropriate’’). 

As an initial matter, while the terms 

‘‘dismissal’’ and ‘‘termination’’ have 

been used interchangeably in case law 

in some instances, see, e.g., Matter of 

Coronado Acevedo, 28 I&N Dec. at 648 

n.1; Matter of G–N–C–, 22 I&N Dec. 281, 

284 (BIA 1998), the Department 

proposes to more clearly delineate the 

circumstances in which the immigration 

judge’s order disposing of a case should 

be an order of dismissal as compared 

with circumstances in which the 

immigration judge’s order disposing of a 

case should be an order of termination. 

See 8 CFR 1239.2(b) (proposed). 

The proposed rule would specify that 

EOIR adjudicators may only enter an 

order to dismiss proceedings upon a 

motion by DHS seeking dismissal 

pursuant to 8 CFR 1239.2(c) for the 

reasons specified in 8 CFR 239.2(a). See 

8 CFR 1239.2(b) (proposed). The 

Department proposes that a motion to 

dismiss proceedings for a reason other 

than those authorized by paragraph (c) 

should be deemed a motion to terminate 

and adjudicated pursuant to 8 CFR 

1003.1(m) (proposed) or 1003.18(d) 

(proposed). Id. 

The Department further proposes to 

amend 8 CFR 1003.1(d)(1)(ii) and 

1003.10(b) to explain that an adjudicator 

should determine whether the use of 

termination or dismissal meets the 

appropriate standard in accordance with 

the provisions in 8 CFR 1003.1(m) 

(proposed), 1003.18(d) (proposed), or 

1239.2(c) (dismissal provision). The 

Department reiterates that some of the 

factors proposed for termination may be 

similar to factors proposed for 

administrative closure; however, as 

previously stated, the adjudicator will 

exercise their independent judgment 

and discretion to decide which of these 

tools to use, if any, based upon the 

specific facts of each particular case. 8 

CFR 1003.1(d)(ii), 1003.10(b). 

Substantively, the Department does 

not propose to modify the dismissal 

grounds referenced by 8 CFR 1239.2(c). 

However, the Department believes that 

it is important for immigration judges 

and Appellate Immigration Judges to 

have the authority to terminate 

proceedings in circumstances outside of 

those explicitly identified in existing 

regulations, which do not expressly 

capture all situations where EOIR 

adjudicators’ exercise of that authority 

may be necessary or appropriate for the 

disposition of a case. See Matter of 

Coronado Acevedo, 28 I&N Dec. at 651– 

52 (noting situations not explicitly 

enumerated in the regulations in which 

EOIR adjudicators have commonly 

deemed termination of proceedings to 

be an appropriate disposition of the 

case). In such circumstances, these 

proposed termination grounds can 

promote efficiency and fairness and 

help immigration judges and Appellate 

Immigration Judges better manage their 

calendars and dockets. See id. at 651 

(indicating that precluding termination 

of proceedings in certain common 

situations not accounted for in the 

regulations ‘‘would undermine the fair 

and efficient adjudication’’ of cases in 

some instances) (citing Matter of A–C– 

A–A–, 28 I&N Dec. 351, 351 (A.G. 

2021)). 

Accordingly, the Department 

proposes to codify EOIR adjudicators’ 

termination authority as detailed below. 

The proposed rule distinguishes 

between EOIR adjudicators’ authority to 

terminate removal, deportation, and 

exclusion proceedings and their 

authority to terminate all other types of 

proceedings. See 8 CFR 1003.1(m) 

(proposed), 1003.18(d) (proposed). 

Although the issue of termination is 

likely to occur most frequently in the 

context of removal, deportation, and 

exclusion proceedings, the Department 

is cognizant that issues related to 

termination may also arise in other 

types of proceedings, including asylumonly proceedings (8 CFR 1208.2(c)(1)) 

and withholding-only proceedings (8 

CFR 1241.8(e)).36 However, because the 


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that grounds for termination in other types of 

proceedings will be less common. 

37As an illustrative example, withholding-only 

proceedings involve noncitizens subject to 

reinstatement of prior removal orders under 

INA241(a)(5), 8 U.S.C. 1231(a)(5), and noncitizens 

subject to expedited removal under INA238(b), 8 

U.S.C. 1228(b). See 8 CFR1208.2(c)(2). The scope of 

review in withholding-only proceedings is limited 

to adjudication of whether the noncitizen is eligible 

for withholding of removal or protection under the 

Convention Against Torture pursuant to INA 

241(b)(3), 8 U.S.C. 1231(b)(3). See 8 CFR 

1208.2(c)(3)(i). Indeed, during withholding-only 

proceedings, ‘‘all parties are prohibited from raising 

or considering any other issues, including but not 

limited to issues of admissibility, deportability, 

eligibility for waivers, and eligibility for any other 

form of relief.’’ Id. Because of this explicit 

limitation in the scope of the proceedings, many of 

the grounds for termination of removal, deportation, 

and exclusion proceedings do not apply to 

withholding-only proceedings. See also id. 

(discussing limited scope of review in asylum-only 

proceedings); cf. Matter of D–M–C–P–, 26 I&N Dec. 

644, 647 (BIA 2015) (stating that EOIR adjudicators 

lack the ‘‘jurisdiction to consider whether [asylumonly] proceedings were improvidently instituted 

pursuant to a referral under the [Visa Waiver 

Program]’’). 

38This proposed provision is not intended to 

amend an EOIR adjudicator’s discretion to reopen 

cases. Where such lawful immigration status is 

obtained after the conclusion of removal 

proceedings, reopening and termination may well 

be appropriate; however, this proposed authority 

relates solely to termination, and the Department is 

not suggesting that reopening would be required. 

scope of these proceedings is more 

limited than the scope of removal, 

deportation, and exclusion proceedings, 

many of the grounds for termination of 

removal, deportation, and exclusion 

proceedings will be inapplicable to or 

inappropriate for other types of 

proceedings.37 The Department thus 

believes it is appropriate to provide 

separate and distinct termination 

authority for other types of proceedings. 

The proposed rule categorizes EOIR 

adjudicators’ termination authority as 

follows: (1) mandatory termination in 

removal, deportation, or exclusion 

proceedings, 8 CFR 1003.1(m)(1)(i) 

(proposed), 1003.18(d)(1)(i) (proposed); 

(2) discretionary termination in 

removal, deportation, or exclusion 

proceedings, 8 CFR 1003.1(m)(1)(ii) 

(proposed), 1003.18(d)(1)(ii) (proposed); 

and (3) mandatory and discretionary 

termination in other proceedings, 8 CFR 

1003.1(m)(2) (proposed), 1003.18(d)(2) 

(proposed). 

The proposed rule identifies specific 

circumstances where termination would 

be required, and others where 

termination would be discretionary. The 

proposed rule would require 

termination in removal, deportation, or 

exclusion proceedings where: (1) no 

charge of deportability, inadmissibility, 

or excludability can be sustained; (2) 

fundamentally fair proceedings are not 

possible because the noncitizen is not 

mentally competent and adequate 

safeguards are unavailable; (3) the 

noncitizen has, since the initiation of 

proceedings, obtained United States 

citizenship; (4) the noncitizen has, since 

the initiation of proceedings, obtained 

lawful permanent resident status, 

refugee status, asylee status, or 

nonimmigrant status under INA 

101(a)(15)(S), (T), or (U), 8 U.S.C. 

1101(a)(15)(S), (T), or (U), that has not 

been revoked or terminated, and the 

noncitizen would not have been 

deportable, inadmissible, or excludable 

as charged if the noncitizen had 

obtained such status before the 

initiation of proceedings; 38 (5) 

termination is required as provided in 8 

CFR 1245.13(l); (6) termination is 

otherwise required by law; or (7) the 

parties jointly filed a motion to 

terminate, or one party filed a motion to 

terminate and the other party 

affirmatively indicated its nonopposition, unless the adjudicator 

articulates unusual, clearly identified, 

and supported reasons for denying the 

motion. 8 CFR 1003.1(m)(1)(i) 

(proposed), 1003.18(d)(1)(i) (proposed). 

Regarding the mandatory grounds for 

termination of removal, deportation, or 

exclusion proceedings, the Board has 

held that termination of removal, 

deportation, or exclusion proceedings is 

appropriate where DHS cannot sustain 

the charges of removability. Matter of 

Sanchez-Herbert, 26 I&N Dec. at 44; see 

Matter of Ortega-Quezada, 28 I&N Dec. 

598, 604 (BIA 2022) (‘‘Because the 

respondent is not removable as charged, 

we will sustain the appeal and 

terminate the proceedings.’’). 

Furthermore, if the noncitizen has 

obtained one of the statuses enumerated 

above, and the noncitizen would not 

have been deportable, inadmissible, or 

excludable as charged if the status had 

been obtained prior to the initiation of 

proceedings, there would be no need to 

continue with the proceedings based 

upon charges that would not have been 

sustainable. Moreover, the Department 

proposes to make clear that termination 

is required where fundamentally fair 

removal, deportation, or exclusion 

proceedings are not possible because the 

noncitizen lacks mental competency 

and adequate safeguards are 

unavailable. 8 CFR 1003.1(m)(1)(i)(B) 

(proposed), 1003.18(d)(1)(i)(B) 

(proposed); cf. Matter of M–A–M–, 25 

I&N Dec. 474, 483 (BIA 2011) (‘‘In some 

cases, even where the court and the 

parties undertake their best efforts to 

ensure appropriate safeguards, concerns 

may remain. In these cases, the 

Immigration Judge may pursue 

alternatives with the parties.’’). In 

addition, the Department further 

proposes to make clear that it is not 

limiting termination authority, as 

specified in the existing regulations or 

as otherwise required by constitutional, 

statutory, or binding case law. 8 CFR 

1003.1(m)(1)(i)(E)–(F) (proposed), 

1003.18(d)(1)(i)(E)–(F) (proposed). 

Finally, the proposed rule would 

mandate that EOIR adjudicators grant 

joint motions to terminate removal, 

deportation, or exclusion proceedings, 

or motions to terminate such 

proceedings by one party to which the 

other party has affirmatively indicated 

its non-opposition, unless the 

adjudicator articulates unusual, clearly 

identified, and supported reasons for 

denying the motion. 8 CFR 

1003.1(m)(1)(i)(G) (proposed), 

1003.18(d)(1)(i)(G) (proposed); cf. Matter 

of Hashmi, 24 I&N Dec. at 791 (stating 

that in considering a noncitizen’s 

motion to continue, ‘‘[i]f the DHS 

affirmatively expresses a lack of 

opposition, the [motion should be 

granted] by the Immigration Judge in the 

absence of unusual, clearly identified, 

and supported reasons for not doing 

so’’); see also Matter of Yewondwosen, 

21 I&N Dec. at 1026 (stating that the 

parties’ ‘‘agreement on an issue or 

proper course of action should, in most 

instances, be determinative’’); Badwan, 

494 F.3d at 568 (noting that when the 

government expressed ‘‘ ‘no objection to 

opposing counsel’s request’ . . . the 

government’s position demonstrate[d] at 

a minimum that, as between the parties 

to the case, no adversarial interest was 

served by the denial’’ of the noncitizen’s 

motion). However, the Department notes 

that either party retains the ability to 

timely rescind its participation in a joint 

termination motion or its affirmative 

non-opposition to termination should 

circumstances change, such as the 

discovery of new relevant evidence. 

The proposed ‘‘unusual, clearly 

identified, and supported’’ language is 

based on the Hashmi standard for joint 

and affirmatively unopposed motions to 

continue, and also matches the 

proposed language in this rule for joint 

or affirmatively unopposed motions for 

administrative closure. See Section IV.B 

of this preamble. The Department 

believes that it is appropriate to extend 

this standard to motions for termination, 

which will help promote greater 

administrative efficiency and eliminate 

needless confusion for adjudicators and 

parties. 

In requiring that the adjudicator 

articulate on the record unusual, clearly 

identified, and supported reasons for 

denying a joint or affirmatively 

unopposed motion to terminate, the 

Department acknowledges that rare 


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39The President may authorize Deferred Enforced 

Departure pursuant to the President’s constitutional 

authority to conduct the foreign relations of the 

United States. See Deferred Enforced Departure, 

USCIS, https://www.uscis.gov/humanitarian/ 

deferred-enforced-departure. The Department notes 

that Deferred Enforced Departure ‘‘is not a specific 

immigration status,’’ but noncitizens who are 

covered by Deferred Enforced Departure ‘‘are not 

subject to removal from the United States for a 

designated period of time.’’ See id. 

circumstances might arise where, in the 

adjudicator’s judgment, termination 

might be inappropriate, even when the 

motion is presented jointly or is 

affirmatively unopposed. Thus, the 

standard provides adjudicators needed 

flexibility to address the complexities of 

an individual case, while also requiring 

due notice to the parties of the reasons 

for the denial. 8 CFR 1003.1(m)(1)(i)(G) 

(proposed), 1003.18(d)(1)(i)(G) 

(proposed). 

Additionally, the proposed rule 

would allow for discretionary 

termination of removal, deportation, or 

exclusion proceedings in the following 

specific circumstances: (1) where an 

unaccompanied child, as defined in 

proposed 8 CFR 1001.1(hh), states an 

intent, either in writing or on the record 

at a hearing, to seek asylum with USCIS, 

and USCIS has initial jurisdiction over 

the application pursuant to section 

208(b)(3)(C) of the Act, 8 U.S.C. 

1158(b)(3)(C); (2) where the noncitizen 

demonstrates prima facie eligibility for 

relief from removal or lawful status 

based on a petition, application, or other 

action that USCIS has jurisdiction to 

adjudicate, including naturalization or 

adjustment of status; (3) where the 

noncitizen is a beneficiary of Temporary 

Protected Status, deferred action, or 

Deferred Enforced Departure; 39 (4) 

where USCIS has granted a provisional 

unlawful presence waiver pursuant to 8 

CFR 212.7(e); (5) where termination is 

otherwise authorized by 8 CFR 

1216.4(a)(6) or 1238.1(e); (6) where the 

parties have filed a motion to terminate 

as described in 8 CFR 214.14(c)(1)(i) or 

214.11(d)(1)(i); or (7) under other 

comparable circumstances, as discussed 

in further detail below. Termination is 

up to the adjudicator’s discretion in 

these circumstances, and the 

adjudicator may consider any basis for 

opposition to termination in making 

their determination. 

The Department proposes these 

discretionary grounds for termination of 

removal, deportation, or exclusion 

proceedings for the following reasons. A 

number of these grounds focus on 

circumstances where alternative relief 

may be available to the noncitizen that 

would end the need for continued 

proceedings, thereby saving EOIR 

adjudicatory resources for other cases. 

These include: (1) a noncitizen 

demonstrating prima facie eligibility for 

relief from removal or for a lawful status 

based on a petition, application, or other 

action that USCIS has jurisdiction to 

adjudicate; (2) an unaccompanied child, 

as defined in proposed 8 CFR 

1001.1(hh), intending to apply for 

asylum with USCIS; and (3) a 

beneficiary of Temporary Protected 

Status, deferred action, or Deferred 

Enforced Departure. See Matter of 

Coronado Acevedo, 28 I&N Dec. at 651– 

52 (explaining that EOIR adjudicators 

commonly exercised termination 

authority when termination was 

necessary for noncitizens ‘‘to be eligible 

to seek immigration relief before 

USCIS’’). With respect to termination 

where a noncitizen has demonstrated 

prima facie eligibility for relief from 

removal or for a lawful status based on 

a petition, application, or other action 

that USCIS has jurisdiction to 

adjudicate, the Department notes that 

EOIR adjudicators must make such 

determinations based on the particular 

facts of a given case and the Department 

does not intend this proposed ground 

for discretionary termination to 

authorize a general practice of 

terminating proceedings involving 

prima facie eligibility for asylum. 

Rather, consistent with 8 CFR 1208.2(b), 

the default rule that EOIR adjudicators 

continue to exercise authority over 

asylum applications filed by noncitizens 

in removal proceedings would continue 

to apply. 

In addition, where an immigrant visa 

is immediately available to a noncitizen 

and USCIS has granted a provisional 

unlawful presence waiver after the 

noncitizen filed a Form I–601A, 

Application for Provisional Unlawful 

Presence Waiver, it may be appropriate 

to terminate proceedings so the 

noncitizen can depart the United States 

to obtain a visa through consular 

processing without becoming 

inadmissible on another basis. See 78 

FR at 544 (stating that ‘‘[i]f the Form I– 

601A is approved for [a noncitizen] 

whose proceedings have been 

administratively closed, the [noncitizen] 

should seek termination or dismissal of 

the proceedings, without prejudice, by 

EOIR . . . or risk becoming ineligible 

for the immigrant visa based on another 

ground of inadmissibility’’); see also 

Matter of Coronado Acevedo, 28 I&N 

Dec. at 651 (suggesting that termination 

of proceedings may be appropriate 

where ‘‘the pendency of removal 

proceedings [could] cause[ ] adverse 

immigration consequences for a 

respondent who must travel abroad to 

obtain a visa’’). 

The proposed rule would also 

authorize immigration judges and 

Appellate Immigration Judges to 

terminate removal, deportation, or 

exclusion proceedings in the exercise of 

discretion in other comparable 

circumstances when similarly necessary 

or appropriate for the disposition or 

alternative resolution of the case. 8 CFR 

1003.1(m)(1)(ii)(G) (proposed), 

1003.18(d)(1)(ii)(G) (proposed). The 

Department recognizes that there may 

be other circumstances not explicitly 

stated in the proposed rule in which 

termination may also be appropriate 

that are similar in nature to the explicit 

grounds in the proposed rule 

authorizing termination. Moreover, 

similar to the mandatory grounds for 

termination of removal, deportation, or 

exclusion proceedings, the Department 

proposes to clarify that this proposed 

rule is not intended to limit any preexisting regulations authorizing 

termination under certain 

circumstances. See 8 CFR 

1003.1(m)(1)(ii)(E)–(F) (proposed), 

1003.18(d)(1)(ii)(E)–(F) (proposed). This 

proposed standard would provide 

sufficient flexibility such that EOIR 

adjudicators may terminate a case if it 

presents similar circumstances to the 

enumerated grounds for termination and 

is otherwise necessary or appropriate. 

At the same time, this provision 

would implement important guardrails 

to limit adjudicators’ termination 

authority. See 8 CFR 1003.1(m)(1)(ii)(G) 

(proposed) (precluding termination by 

the Board for purely humanitarian 

reasons unless DHS expressly consents 

to termination, joins in a motion to 

terminate, or affirmatively indicates its 

non-opposition to a noncitizen’s 

motion), 1003.18(d)(1)(ii)(G) (proposed) 

(same for immigration judges); see also 

8 CFR 1003.1(m)(2)(iii) (proposed) 

(providing that in proceedings other 

than removal, deportation, or exclusion 

proceedings, nothing in the proposed 

regulatory provisions authorizes the 

Board to terminate proceedings where 

prohibited by another regulatory 

provision), 1003.18(d)(2)(iii) (proposed) 

(same for immigration judges). The 

Department acknowledges that 

termination of removal, deportation, or 

exclusion proceedings is inappropriate 

in certain circumstances. The proposed 

rule would not change the longstanding 

principle that immigration judges and 

Appellate Immigration Judges have no 

authority to review or second-guess 

DHS’s exercise of prosecutorial 

discretion, including its decision 

whether to commence removal 

proceedings. See, e.g., Matter of E–R–M– 

& L–R–M–, 25 I&N Dec. 520 (BIA 2011) 


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40The Department recognizes that an action is 

not, by its literal definition, ‘‘sua sponte’’ when the 

action is undertaken pursuant to a request made by 

a party to the proceedings. See Sua sponte, Black’s 

Law Dictionary (11th ed. 2019) (‘‘Without 

prompting or suggestion; on its own motion.’’). 

Nonetheless, immigration judges and the Board 

have long entertained motions for sua sponte 

reopening, Djie v. Garland, 39 F.4th 280, 282 n.1 

(5th Cir. 2022), and the Department will continue 

to use this term for motions that may be granted in 

‘‘exceptional situations,’’ Matter of G–D–, 22 I&N 

Dec. 1132, 1133 (BIA 1999); Matter of J–J–, 21 I&N 

Dec. 976, 985 (BIA 1997). 

(holding that an immigration judge 

could not second-guess DHS exercise of 

prosecutorial discretion to place an 

arriving noncitizen directly in removal 

proceedings rather than the expedited 

removal process); Matter of J–A–B– & I– 

J–V–A–, 27 I&N Dec. 168, 170 (BIA 2017) 

(explaining that immigration judges and 

the Board do not have the authority to 

review a DHS decision to initiate 

removal proceedings in a particular 

case); Matter of G–N–C–, 22 I&N Dec. at 

284 (stating that the decision to institute 

deportation proceedings is not a 

decision that the immigration judge or 

Board may review because it is an 

exercise of prosecutorial discretion); see 

also Cortez-Felipe v. INS, 245 F.3d 

1054, 1057 (9th Cir. 2001) (observing 

that neither immigration judges nor the 

Board possess the authority to review 

DHS’s ‘‘discretion regarding when and 

whether to initiate [removal] 

proceedings’’ (citing authorities)). 

Similarly, an adjudicator may not 

terminate removal, deportation, or 

exclusion proceedings for purely 

humanitarian reasons unless DHS 

expressly consents to such termination, 

joins in a motion for termination, or 

affirmatively states its non-opposition to 

a motion for termination on such a 

basis. See Lopez-Telles v. INS, 564 F.2d 

1302, 1303 (9th Cir. 1977) (holding that 

immigration judges have no statutory or 

inherent power to terminate deportation 

proceedings over the objection of INS to 

provide humanitarian relief not 

authorized by the statute to a deportable 

noncitizen). 

Moreover, in light of these proposed 

standards governing termination of 

proceedings, the Department proposes 

to remove and reserve 8 CFR 1239.2(f) 

as newly proposed language would 

cover the circumstances currently 

addressed in that subsection. Compare 8 

CFR 1003.1(m)(1)(ii)(B) (proposed) 

(authorizing termination by the Board 

where a noncitizen demonstrates prima 

facie eligibility for relief from removal 

or for a lawful status based on a 

petition, application, or other action 

that USCIS has jurisdiction to 

adjudicate, including naturalization or 

adjustment of status), and 

1003.18(d)(1)(ii)(B) (proposed) (same 

authorization for immigration judges), 

with 8 CFR 1239.2(f) (authorizing an 

immigration judge to terminate a 

noncitizen’s removal proceedings in 

order to pursue a pending application or 

petition for naturalization). 

Finally, although such scenarios may 

be rare, the proposed rule also explicitly 

provides for termination in proceedings 

other than removal, deportation, or 

exclusion. See 8 CFR 1003.1(m)(2) 

(proposed), 1003.18(d)(2) (proposed). 

Such proceeding types include, among 

others, withholding-only, asylum-only, 

credible fear, reasonable fear, rescission, 

and claimed status. The Department 

believes that providing immigration 

judges and the Board with termination 

authority in these limited proceedings 

will ensure that adjudicators are not 

limited from reaching a proper 

resolution, as determined by the specific 

facts of each case. 

Substantively, as with removal, 

deportation, and exclusion proceedings, 

the proposed rule requires immigration 

judges and the Board to terminate these 

other proceedings where the parties 

have jointly filed a motion to terminate, 

or one party has filed a motion to 

terminate and the other party has 

affirmatively indicated its nonopposition, unless the adjudicator 

articulates unusual, clearly identified, 

and supported reasons for denying the 

motion. See 8 CFR 1003.1(m)(2)(i) 

(proposed), 1003.18(d)(2)(i) (proposed). 

The proposed rule further requires 

immigration judges and the Board to 

terminate these other proceedings when 

required by law, including by statute, 

regulation, or binding Board or court 

decision. Id. In all other circumstances, 

the proposed rule provides adjudicators 

with the general discretionary authority 

to terminate these proceedings where 

necessary or appropriate for the 

disposition or alternate resolution of the 

case, subject to the same limitations as 

in removal proceedings. 8 CFR 

1003.1(m)(2)(ii) (proposed), 

1003.18(d)(2)(ii) (proposed). Finally, the 

proposed rule specifies that nothing in 

the new provision allows adjudicators 

to terminate proceedings where 

prohibited by another regulatory 

provision; in other words, this new 

provision is not intended to trump other 

regulatory provisions governing these 

proceedings. 8 CFR 1003.1(m)(2)(iii) 

(proposed), 1003.18(d)(2)(iii) 

(proposed). 

The Department notes that, in some 

scenarios in these other proceedings, 

alternative options to termination are 

available. For example, it may be that an 

applicant in withholding-only 

proceedings is mentally incompetent 

and adequate safeguards are 

unavailable, but the adjudicator believes 

it would be inappropriate to terminate 

the proceedings because doing so would 

leave the applicant without any 

protection from removal, such as when, 

for example, a noncitizen is subject to 

reinstatement of a prior removal order 

under section 241(a)(5) of the INA, 8 

U.S.C. 1231(a)(5), and eligible only for 

withholding of removal. In such a 

situation, administrative closure would 

be available and would allow for the 

case to be recalendared in the future if 

appropriate. 

The Department seeks public 

comment on whether the proposed 

termination standards are warranted 

and whether these standards should be 

broadened, narrowed, or altered. 

Additionally, the Department seeks 

comment on the evidence that would 

best support certain proposed grounds 

for termination, for example, whether 

evidence of filings with USCIS should 

be required in some cases. The 

Department also seeks comment on the 

proposed framework in 8 CFR 1239.2(b) 

that would distinguish between the 

exercise of dismissal authority, which 

applies to a decision on a DHS motion 

to dismiss for the reasons specified in 8 

CFR 239.2(a), and termination authority, 

which applies when an EOIR 

adjudicator terminates proceedings for 

the reasons specified in proposed 8 CFR 

1003.1(m) and 1003.18(d). 

Further, the Department seeks public 

comment on whether the regulations 

should impose additional constraints on 

the termination authority. Finally, the 

Department seeks comment on whether 

the regulations should specify that 

termination should generally be without 

prejudice to DHS’s ability to 

recommence removal proceedings if 

circumstances change except where the 

termination was based on DHS’s failure 

to sustain the removal charges. 

Similarly, the Department seeks 

comment on whether immigration 

judges or Appellate Immigration Judges 

may terminate a case only on a party’s 

motion or whether there are situations 

where EOIR adjudicators may exercise 

termination authority sua sponte. 

D. Sua Sponte Reopening or 

Reconsideration and Self-Certification 

The Department proposes to amend 

its regulations at 8 CFR 1003.2(a) and 

1003.23(b), respectively, governing the 

ability of immigration judges and the 

Board to sua sponte reopen or 

reconsider a case by restoring the 

regulatory standard in effect before the 

promulgation of the AA96 Final Rule.40

The restored standard provides that an 

immigration judge and the Board may 


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reopen or reconsider a case upon their 

own motion at any time after they have 

rendered a decision if they have 

jurisdiction. 

Prior to the AA96 Final Rule, the 

original regulation conferring authority 

to sua sponte reopen or reconsider cases 

had been in effect since 1958, see Dada, 

554 U.S. at 12–13, and had served as a 

vital tool to prevent injustices in the 

immigration system. See, e.g., Matter of 

X–G–W–, 22 I&N Dec. 71 (BIA 1998) 

(holding that, in a specific 

circumstance, a fundamental change in 

asylum law that made the noncitizen 

eligible for relief warranted sua sponte 

reopening); see also P–O–J–, No.: 

AXXX–XXI–700, 2016 WL 1084517, at 

*1 (BIA Feb. 24, 2016) (nonprecedential) (sua sponte reopening and 

terminating because noncitizen obtained 

asylee status). For example, without the 

availability of such a tool, noncitizens 

who would otherwise be eligible for an 

initial grant of, or return to, lawful 

status may be removed from the United 

States. See Centro Legal de la Raza, 524 

F. Supp. 3d at 971 (stating that 

‘‘elimination [of sua sponte authority] 

will foreclose the only avenue of relief 

for some noncitizens who would 

otherwise be eligible for relief from 

removal’’). 

The strong need for sua sponte 

authority in certain limited 

circumstances is underscored by the fact 

that, in promulgating prior regulations 

implementing statutory motions to 

reopen and reconsider, the Department 

specifically declined to add a good 

cause exception to the statutory time 

and number limits on such motions due 

to the availability of sua sponte 

reopening and reconsideration. See 61 

FR at 18902. Removing sua sponte 

authority without creating a similar 

safety valve would prevent EOIR 

adjudicators from remedying the types 

of exceptional circumstances described 

above. 

Moreover, the longstanding 

availability of sua sponte reopening and 

reconsideration operated under a 

workable scheme. For example, the 

Board has published decisions applying 

the ‘‘exceptional circumstances’’ 

standard in specific situations and has 

the ability to publish further decisions 

clarifying the standard as necessary. 

See, e.g., Matter of Yauri, 25 I&N Dec. 

103, 110–11 (BIA 2009) (applying 

standard to case involving a pending 

application before DHS); Matter of 

G–D–, 22 I&N Dec. 1132 (BIA 1999) 

(applying standard to request based on 

a change in law). Maintaining the 

exceptional circumstances standard 

allows adjudicators sufficient discretion 

to reopen in meritorious circumstances. 

Similarly, the Department is aware of 

no evidence that immigration judges or 

the Board routinely used sua sponte 

authority to reopen cases in which a 

motion to reopen would have been timeor number-barred without considering 

whether the ‘‘exceptional 

circumstances’’ standard was met. See, 

e.g., AA96 Final Rule, 85 FR at 81631 

(raising concerns that sua sponte 

reopening could be used to cure filing 

defects or circumvent regulations). 

Additionally, at the immigration court 

level, an immigration judge’s exercise of 

sua sponte authority is subject to 

appellate review by the Board, and the 

Board can remand where such authority 

has been used improperly. See 8 CFR 

1003.2(a); see also Matter of G–D–, 22 

I&N Dec. at 1132. 

The Department finds that the need 

for sua sponte authority in certain cases 

outweighs any finality concerns in this 

context. See, e.g., AA96 Final Rule, 85 

FR at 81632 (raising finality concerns 

regarding sua sponte motions). Sua 

sponte reopening and reconsideration 

are reserved for truly exceptional cases 

and, with limited exceptions, are fully 

committed to agency discretion. See 

Menendez-Gonzalez v. Barr, 929 F.3d 

1113, 1116 (9th Cir. 2019) (explaining 

that sua sponte reopening authority is 

committed to agency discretion and that 

the court may only review for legal or 

constitutional error). As noncitizens are 

not entitled to sua sponte reopening or 

reconsideration, immigration judges and 

the Board can ensure that such authority 

only disturbs the finality of proceedings 

in the limited number of meritorious 

cases involving exceptional 

circumstances. 

For similar reasons as those described 

above, the Department proposes to 

reinstate the authority of the Board to 

accept untimely or defective appeals 

through self-certification. 8 CFR 

1003.1(c) (proposed). 

E. Board Findings of Fact— 

Administrative Notice 

The Department proposes to rescind 

all of the changes that the AA96 Final 

Rule made to 8 CFR 1003.1(d)(3)(iv) 

regarding administrative notice at the 

Board. The Board, like federal courts, 

has long had the power to take 

administrative notice of facts not 

reasonably subject to dispute. See Board 

of Immigration Appeals: Procedural 

Reforms to Improve Case Management, 

67 FR 54877 (Aug. 26, 2002) 

(implementing regulations that codified 

administrative notice authority). The 

AA96 Final Rule expanded the Board’s 

administrative notice authority to allow 

it to resolve certain factual disputes in 

the first instance and to rely on those 

determinations to overturn a grant of 

relief or protection. See 8 CFR 

1003.1(d)(3)(i) (‘‘The Board will not 

engage in de novo review of findings of 

fact determined by an immigration 

judge.’’). The Department recognizes 

that it would be unnecessary and 

inefficient for the Board to remand a 

case to the immigration judge for facts 

that are not truly in dispute and would 

not be disputed once they are called to 

the parties’ attention. However, upon 

review, the Department believes that the 

AA96 Final Rule’s provisions could 

invite impermissible factfinding in 

practice, in contravention of the 

Department’s longstanding regulatory 

approach. Accordingly, the Department 

proposes changes regarding 

administrative notice procedures. See 8 

CFR 1003.1(d)(3)(iv) (proposed). 

In addition, the Department proposes 

to rescind the AA96 Final Rule’s 

restrictions on the Board’s authority to 

remand to the immigration court for 

further findings of fact, as discussed in 

further detail below. Accordingly, the 

Department finds it unnecessary to 

retain broad and possibly confusing 

standards for administrative notice that 

may prejudice noncitizens, particularly 

pro se noncitizens, as the Board will 

have the discretion to either take 

administrative notice or remand for 

further fact-finding, as appropriate. See 

8 CFR 1003.1(d)(3)(iv) (proposed) (‘‘If 

further factfinding is needed in a 

particular case, the Board may remand 

the proceeding to the immigration judge 

or, as appropriate, to DHS.’’). 

Additionally, the AA96 Final Rule, if 

made operative, would permit the Board 

to rely on any ‘‘undisputed fact[] in the 

record’’ to overturn a grant of relief even 

if the parties did not have a meaningful 

opportunity to address that fact in the 

proceedings at the immigration-judge 

level because, for example, neither the 

parties nor the immigration judge found 

it necessary to dispute or probe further 

about the fact because it appeared 

irrelevant or tangential. See 85 FR at 

81651 (8 CFR 1003.1(d)(3)(iv)(A)(4)). 

Relatedly, the AA96 Final Rule added a 

new provision that would allow the 

Board to affirm the underlying decision 

‘‘on any basis supported by the record’’ 

including by relying on ‘‘facts that are 

not reasonably subject to dispute.’’ See 

id. (8 CFR 1003.1(d)(3)(v)). 

Although the AA96 Final Rule, if 

enforced, would afford the parties an 

opportunity to respond to 

administratively noticed facts if those 

facts were used to overturn a grant of 

relief or protection, 85 FR at 81603 (8 

CFR 1003.1(d)(3)(iv)(B)), in practice this 

could be confusing to noncitizens, 

particularly those who are pro se. 


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41As discussed above in Section IV.E of this 

preamble, the proposed rule would retain some of 

the administrative notice language at 8 CFR 

1003.1(d)(3)(iv)(A) but would move it to 8 CFR 

1003.1(d)(3)(iv) and remove paragraph (A). 

Accordingly, the Department does not 

believe the AA96 Final Rule’s 

opportunity-to-respond provision 

provides adequate procedural 

protections to noncitizens, such as 

allowing sufficient opportunity to be 

heard, to present testimony, and to 

develop the record on disputed facts. Cf. 

Quintero v. Garland, 998 F.3d 612, 626 

(4th Cir. 2021) (‘‘Today, we join the 

broad consensus among our sister 

circuits by holding that immigration 

judges have a legal duty to fully develop 

the record in the cases that come before 

them. Like the [Board] and the other 

circuits to have considered this issue, 

we are persuaded that such a duty 

necessarily arises from the dictates of 

[INA 240(b)(1),] 8 U.S.C. 1229a(b)(1) 

. . .’’). 

The Department is also concerned 

that the AA96 Final Rule, if effectuated, 

would permit the Board to affirm a 

denial of relief or protection on the basis 

of facts that may not have been 

developed by the parties or even 

considered by the immigration judge 

during removal proceedings, and which 

did not factor into the immigration 

judge’s denial. Indeed, the AA96 Final 

Rule does not provide any requirement 

of notice or opportunity to respond if 

the Board relies on administratively 

noticed facts to affirm an immigration 

judge’s decision to deny relief, even if 

those facts were not relied on by the 

immigration judge or developed at the 

hearing. 

F. Board Findings of Fact—Voluntary 

Departure 

Generally, the proposed rule would 

retain the voluntary departure-related 

changes adopted by the AA96 Final 

Rule, which prohibited the Board from 

remanding to the immigration judge for 

consideration of voluntary departure, as 

described at Section III.F.2 of this 

preamble. The Department believes that 

the changes adopted by the AA96 Final 

Rule with respect to voluntary departure 

created a workable framework that 

improved adjudicatory efficiency. See 

Section III.F.2 of this preamble (‘‘Prior 

to the AA96 Final Rule, the regulations 

described an immigration judge’s 

authority to grant voluntary departure 

but did not articulate the Board’s 

authority to do so.’’ (citation omitted)). 

However, the Department proposes to 

amend 8 CFR 1003.1(d)(7) and 

1240.26(k)(1) to allow the Board to 

remand cases to the immigration court 

for the consideration of voluntary 

departure in the limited circumstances 

where further fact-finding is needed. 

Specifically, the Department proposes 

to remove the AA96 Final Rule’s 

mandate that ‘‘[i]f the Board does not 

grant the request for voluntary 

departure, it must deny the request.’’ 85 

FR at 81652 (8 CFR 1003.1(d)(7)(iv)). In 

cases where the Board has a complete 

record and the immigration judge has 

made sufficient findings of fact, it is 

generally inefficient and unnecessary 

for the Board to remand to the 

immigration judge solely for 

consideration of the issue of voluntary 

departure. However, where the 

voluntary departure record is 

incomplete or otherwise requires further 

fact-finding to adjudicate the request, 

the Board should be permitted to 

remand the case to the immigration 

judge to consider the voluntary 

departure request. 

One such example is when a 

noncitizen makes multiple applications 

for relief or protection, including 

voluntary departure. In that case, the 

immigration judge may choose to grant 

at least one application but not address 

other applications, including voluntary 

departure. If DHS appeals the 

immigration judge’s decision and the 

Board determines that the noncitizen is 

not eligible for the relief granted, the 

voluntary departure record is likely to 

be incomplete or additional fact-finding 

may be required to adjudicate the 

voluntary departure request. See 85 FR 

at 81639–40 (describing commenter 

concerns with respect to this example). 

The AA96 Final Rule, if effectuated, 

would not allow the Board the option to 

remand. 8 CFR 1003.1(d)(7)(iv) (‘‘If the 

Board [did] not grant the request for 

voluntary departure, it must deny the 

request.’’). However, under the 

circumstances described above, the 

Board should be permitted to remand 

the case to the immigration court to 

consider the voluntary departure 

request rather than mandate denial of a 

potentially eligible request or invite the 

possibility of improper fact-finding, in 

violation of 8 CFR 1003.1(d)(3)(iv) 

(proposed). Accordingly, to make this 

remand authority clear, the Department 

also proposes to add a sentence to the 

end of 8 CFR 1003.1(d)(7)(ii) (proposed), 

stating that ‘‘[if] the record does not 

contain sufficient factual findings 

regarding eligibility for voluntary 

departure, the Board may remand the 

decision to the immigration judge for 

further factfinding.’’ 

Additionally, the Department 

proposes to remove the AA96 Final 

Rule’s prohibition on remands to the 

immigration judge to consider voluntary 

departure and to amend the regulations 

to state that the Board ‘‘may,’’ rather 

than ‘‘shall,’’ consider a request for 

voluntary departure de novo. 8 CFR 

1240.26(k)(1) (proposed). As described 

above, in cases where the Board has a 

complete record and the immigration 

judge has made sufficient findings of 

fact, it is generally inefficient and 

unnecessary for the Board to remand to 

the immigration judge solely to consider 

the issue of eligibility for voluntary 

departure. However, where the 

voluntary departure record is 

incomplete or otherwise requires further 

fact-finding to adjudicate the request, 

the Board should be permitted to 

remand the case to the immigration 

judge to consider the voluntary 

departure request. 

Except as described above, this 

proposed rule would not make further 

amendments to the voluntary departure 

provisions enacted by the AA96 Final 

Rule. 

When the Board grants voluntary 

departure in the first instance, written 

voluntary departure advisals served 

electronically or by mail in conjunction 

with the Board’s order will provide 

adequate notice to noncitizens for 

purposes of voluntary departure. See 8 

CFR 1003.3(g)(6)(i)–(ii) (providing for 

electronic service in eligible cases). In 

making this decision, the Department 

considered that the Act authorizes 

service of the Notice to Appear by mail, 

including advisals of the consequences 

for failure to comply with certain 

requirements described in the Notice to 

Appear and the consequences for failure 

to appear. See INA 239(a)(1)(F)(iii), 8 

U.S.C. 1229(a)(1)(F)(iii) (consequences 

for failure to provide updated address 

and telephone information), INA 

239(a)(1)(G)(ii), 8 U.S.C. 1229(a)(1)(G)(ii) 

(consequences for failure to appear). 

The Department believes that given 

Congress’s authorization of service by 

mail of such advisals, notwithstanding 

the significant consequences associated 

with failure to comply with such 

requirements, electronic or mail service 

is also sufficient for voluntary departure 

advisals. 

G. Board Remand Authority— 

Additional Findings of Fact 

The Department proposes to rescind 

all changes that the AA96 Final Rule 

made to 8 CFR 1003.1(d)(3)(iv) and 

proposes to remove the AA96 Final 

Rule’s addition of 8 CFR 

1003.1(d)(3)(v) 41—the provisions of the 

AA96 Final Rule that eliminated the 

Board’s authority to grant a motion to 

remand based on new evidence that 

arises while a noncitizen’s case is on 

appeal before the Board. Rescinding 

these changes would reinstate the 


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42See Press Release, EOIR, Department of Justice 

and the Department of Homeland Security 

Announce Safeguards for Unrepresented 

Immigration Detainees with Serious Mental 

Disorders or Conditions (Apr. 22, 2013), https://

www.justice.gov/eoir/pr/department-justice-anddepartment-homeland-security-announcesafeguards-unrepresented. 

43For example, if enforced, the Board would only 

be permitted to remand a case based on a change 

in the law if the change were to render the initial 

decision legally erroneous or where the 

immigration judge’s factual findings were ‘‘clearly 

erroneous.’’ Thus, the AA96 Final Rule would not 

have permitted remands for a change in 

circumstances, or in a case where the immigration 

judge failed to make any finding of fact that the 

Board might consider important to the case. There 

are undoubtedly other examples of scenarios where 

it might be appropriate to remand for further factfinding but that would not have been captured by 

the AA96 Final Rule. That concern supports leaving 

the Board the flexibility to make case-by-case 

determinations. 

Board’s previous authority to remand 

based on new evidence (in addition to 

intervening changes in law) that could 

impact the basis for the immigration 

judge’s removability determination or 

that could provide the noncitizen with 

a form of relief or protection, or other 

immigration benefit, that would obviate 

the need for continued removal 

proceedings or the Board’s adjudication 

of the appeal. 8 CFR 1003.1(d)(3) 

(proposed). Similar to the provisions of 

the AA96 Final Rule that eliminated the 

authority of immigration judges and the 

Board to grant sua sponte reopening or 

administrative closure, the AA96 Final 

Rule’s provisions that eliminated the 

Board’s authority to remand sua sponte 

based on new evidence could impede 

certain noncitizens from obtaining an 

immigration benefit or relief from 

removal for which they have become 

prima facie eligible. 

Upon review, the Department believes 

that the AA96 Final Rule’s limitations 

on the Board’s remand authority raise 

fairness concerns and would create 

inefficiencies that contravene the rule’s 

stated justification. For example, 

although the AA96 Final Rule would 

permit remands based on new evidence 

pertaining to grounds of removability, 

such as to allow DHS to present new 

facts regarding a noncitizen’s 

removability, see 8 CFR 

1003.1(d)(3)(iv)(D) (barring remands 

except as provided in 8 CFR(d)(7)(v)(B)), 

1003.1(d)(7)(v)(B) (not precluding 

remands for further fact-finding related 

to ‘‘a question regarding a ground or 

grounds of removability specified in 

section 212 or 237 of the Act’’), it would 

preclude the Board from remanding a 

case at the noncitizen’s request for 

further fact-finding where the 

noncitizen became prima facie eligible 

for relief or protection, or other 

immigration benefit. 

This limitation is overly restrictive 

and raises fairness concerns due to the 

imbalance between the parties. First, it 

would not be fair to permit DHS to seek 

remand based on new evidence 

discovered during background or 

security checks that could render an 

individual ineligible for relief, 8 CFR 

1003.1(d)(7)(v)(B), but not on the basis 

of new evidence that could render an 

individual eligible for relief. Second, the 

AA96 Final Rule ignored that new 

evidence can relate not just to a ground 

of removability, but also to grounds for 

relief. If new evidence indicates that 

noncitizens have become eligible for 

new forms of relief from removal, 

protection, or other immigration benefit, 

the Board should be able to remand for 

consideration of that evidence. Such 

forms of relief from removal, protection, 

or other immigration benefit may 

include: special immigrant juvenile 

status, adjustment of status, cancellation 

of removal for certain lawful permanent 

residents (for example if the noncitizen 

is successful in obtaining vacatur of a 

criminal conviction that otherwise 

precluded applying for that relief before 

the immigration judge), or asylum or 

similar protection based on new 

evidence that only came to light during 

the appeal process. 

Additionally, the AA96 Final Rule 

suggested that an individual who 

wishes to obtain relief based on new 

evidence must file a motion to reopen 

in accordance with the standard 

procedures for such motions. See 85 FR 

at 81589. While this is technically an 

available option, substantive and 

procedural limitations on motions to 

reopen might make this option more 

difficult or unavailable for many 

noncitizens, which raises fairness 

concerns for noncitizens in proceedings, 

as well as questions of efficiency, given 

that additional motions practice invites 

further litigation that could draw out the 

resolution of a proceeding. See, e.g., 8 

CFR 1003.2(c)(2) (time and number bar 

on motions to reopen), 1103.7(b)(2) 

(filing fee for motions to reopen, but not 

motions to remand); cf. Garcia-DeLeon, 

999 F.3d at 992 (‘‘True, a noncitizen in 

removal proceedings whose case is not 

administratively closed may still submit 

an I–601 Waiver of Inadmissibility after 

they complete their consular interview 

and are determined inadmissible. This 

old path, however, deterred noncitizens 

in removal proceedings from obtaining 

legal status as permanent residents . . . 

Thus, administrative closure for the 

limited purpose of permitting 

noncitizens to apply for provisional 

unlawful presence waivers increases the 

likelihood that noncitizens will obtain 

legal status and resolve their 

immigration proceedings.’’). 

In addition to fairness and efficiency 

concerns, the AA96 Final Rule’s 

limitations on remands for new 

evidence also conflict with a permanent 

injunction to which the agency is 

subject in some circumstances. The 

permanent injunction requires the 

Board to accept new evidence related to 

mental health and to order a limited 

remand to assess an unrepresented, 

detained noncitizen’s competency to 

represent themselves in proceedings 

before EOIR. See Franco-Gonzalez v. 

Holder, No. 10–02211, 2013 WL 

8115423 (C.D. Cal. Apr. 23, 2013); 

Franco-Gonzalez v. Holder, No. 10– 

02211, 2014 WL 5475097 (C.D. Cal. Oct. 

29, 2014). In addition, since the 

issuance of that injunction, EOIR has 

adopted similar procedures pursuant to 

its nationwide policy to provide 

enhanced procedural protections to 

unrepresented immigration detainees 

with serious mental disorders or 

conditions 42 (‘‘Nationwide Policy’’) for 

similarly situated individuals detained 

outside of the three states covered by 

the Franco-Gonzalez injunction. Thus, 

adherence to the AA96 Final Rule 

would be irreconcilable with adherence 

to court-ordered permanent injunctions 

in effect in three States and 

irreconcilable with EOIR’s Nationwide 

Policy. The Department notes that the 

AA96 Final Rule would still preclude 

the Board from remanding proceedings 

to the immigration judge for the 

requisite factual findings required by 

the Nationwide Policy and permanent 

injunction even if the Board would have 

been permitted to accept new evidence 

related to mental competency. 

The Department believes that 

Appellate Immigration Judges have the 

expertise, knowledge, and training to 

determine when further fact-finding 

might be needed given the variables to 

consider on a case-by-case basis when 

adjudicating an appeal and that it is in 

the interest of justice to charge 

Appellate Immigration Judges with 

doing so, rather than burdening 

litigants, many of whom are pro se, with 

strictly complying with the numerous, 

inflexible requirements that the AA96 

Final Rule set forth at 8 CFR 

1003.1(d)(3)(iv)(D)(1)–(5).43 As 

discussed below, the Department also 

proposes to reinstate the Board’s 

authority to remand cases based upon a 

‘‘totality of the circumstances’’ analysis. 

Accordingly, given the fairness and 

efficiency concerns implicated in the 

AA96 Final Rule’s limitation on the 

Board’s ability to remand cases, the 

Department proposes to rescind the 

AA96 Final Rule’s changes to section 

1003.1(d)(3)(iv). Rescinding these 


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44The Department also acknowledges that 

commenters previously raised concerns, in 

conjunction with the AA96 rulemaking, that the 

AA96 Final Rule does not provide an independent 

ground to remand based on superseding or 

intervening case law—including litigation 

surrounding regulations or precedential decisions 

that were the basis for denying relief—to the extent 

that such changes do not raise a question of 

jurisdiction, vitiate all grounds of removability, or 

relate to an error of law. See 85 FR at 81611 (listing 

commenter concerns); see also (8 CFR 1003.1(d)(7) 

(discussing remand authority). The Department also 

now believes that this omission unduly restricts 

appellate review, particularly in light of the 

increasing number of significant litigation 

developments pertaining to immigration law in 

recent years. In some circumstances, for example, 

Appellate Immigration Judges may deem it 

appropriate to remand for immigration judges to 

consider in the first instance the effect of 

intervening case law, without determining whether 

the decision under review contains an error of law 

under this intervening case law. The Department’s 

proposal to restore the Board’s broad authority to 

remand decisions would correct such limitations. 

provisions would allow the Board to 

retain its prior authority to remand in 

cases involving new evidence that could 

impact a noncitizen’s removability or 

render the individual prima facie 

eligible for relief. 

The AA96 Final Rule also precluded 

immigration judges from considering, 

on remand, any issues outside of the 

scope of the Board’s remand order, 

unless pertaining to a question of the 

immigration judge’s continuing 

jurisdiction over the case. But 

developments related to a noncitizen’s 

removability or eligibility for protection 

or relief from removal could arise after 

a remand. In the Department’s view, the 

better policy is to avoid inefficiencies 

that result from limiting the scope of a 

remand, which can lengthen 

proceedings by precluding immigration 

judges from addressing all relevant 

issues in the remanded proceedings. 

While the Department is cognizant that 

‘‘[b]oth the public and the Board have 

significant . . . interests in the finality 

of immigration proceedings,’’ 

Hernandez-Rodriguez v. Pasquarell, 118 

F.3d 1034, 1042 (5th Cir. 1997) (citing 

Abudu v. INS, 485 U.S. 94, 106–08 

(1988)), the Department does not believe 

that finality interests outweigh the 

fairness and efficiency concerns that the 

AA96 Final Rule’s inflexible approach 

creates. Hence, for similar reasons to 

those described above, the Department 

proposes to remove this restriction on 

the immigration judge’s authority when 

considering a case on remand. 

The proposed rule would also add to 

8 CFR 1003.1(d)(3)(iv) a statement that 

‘‘[i]f new evidence is submitted on 

appeal, that submission may be deemed 

a motion to remand and considered 

accordingly.’’ This addition would make 

clear that new evidence submitted on 

appeal need not be dismissed solely 

because the party did not file a pleading 

entitled a ‘‘motion to remand.’’ This is 

in keeping with pre-AA96 Final Rule 

guidance pertaining to motions to 

reopen, which the Department also 

proposes to republish as part of this 

rulemaking. See 8 CFR 1003.2(c)(4) 

(2019); 8 CFR 1003.2(c)(4) (proposed). 

These amendments would clarify that 

the Board has discretion to consider 

new facts presented on appeal as a 

motion to remand. This parallels the 

pre-AA96 Final Rule treatment of new 

facts presented as part of a motion to 

reopen prior to the conclusion of 

proceedings. 

H. Board Remand Authority—Errors in 

Fact or Law 

The Department proposes to rescind 

all of the AA96 Final Rule’s restrictions 

on the Board’s authority to remand 

decisions based upon errors of fact or 

law, specifically, all changes made to 8 

CFR 1003.1(d)(7)(i), and proposes to 

remove 8 CFR 1003.1(d)(7)(ii), (iii), and 

(v). As discussed above in Section IV.F 

of this preamble, the Department 

proposes to retain, with modifications, 8 

CFR 1003.1(d)(7)(iv) (addressing 

voluntary departure), and to renumber 

that paragraph as 8 CFR 1003.1(d)(7)(ii). 

These proposed changes would restore 

the Board’s broad authority to remand 

decisions to the immigration judge or 

DHS for ‘‘further action as may be 

appropriate.’’ 8 CFR 1003.1(d)(7)(i) 

(proposed). 

As previously noted in Section III.H.2 

of this preamble, the AA96 Final Rule 

restricted the Board from remanding a 

decision due to an error of law or fact 

in the immigration judge’s decision if it 

did not identify the standard of review 

it applied and the specific error or errors 

made by the adjudicator. 8 CFR 

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

believes that, because the Board’s 

standards of review are expressly 

delineated by regulation, it is 

unnecessary to require the Board to 

explicitly include them in every remand 

order. See 8 CFR 1003.1(d)(3) (requiring 

factual findings to be reviewed for clear 

error and legal determinations to be 

reviewed de novo). 

Additionally, as explained in Section 

III.H.2 of this preamble, the AA96 Final 

Rule prohibited the Board from 

remanding a case: (1) based upon a 

‘‘totality of the circumstances,’’ 8 CFR 

1003.1(d)(7)(ii)(B); (2) based on new 

arguments or evidence, except where 

the new argument or evidence pertained 

to a material change in fact or law and 

substantial evidence supported the 

change vitiated all grounds of removal, 

8 CFR 1003.1(d)(7)(ii)(C); or (3) sua 

sponte, subject to limited exceptions, 8 

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

The Department is now proposing to 

rescind these provisions, thus 

recodifying the longstanding, more 

flexible standard that allows the Board 

to return the case ‘‘to DHS or an 

immigration judge for such further 

action as may be appropriate.’’ 8 CFR 

1003.1(d)(7)(i) (proposed). The 

Department now believes that this 

longstanding standard is workable and 

sufficiently flexible to allow for 

remands in situations where an error of 

fact or law warrants remand, or where 

fairness or efficiency concerns may 

otherwise be implicated. Given the 

numerous variables that each case may 

present, the Department believes the 

Board requires the flexibility to conduct 

appellate review, including remanding 

proceedings when necessary, rather 

than being limited by the rigid 

restrictions that the AA96 Final Rule set 

forth at 8 CFR 1003.1(d)(7)(ii). 

Specifically, the Department believes 

that Appellate Immigration Judges have 

the expertise, knowledge, and training 

to determine when an error of fact or 

law warrants remand to the immigration 

judge without the need for significant 

restrictions on such determinations. In 

addition, providing the Board with 

maximum flexibility to remand due to 

errors of fact or law ensures that the 

immigration court, which is most 

familiar with the record as the court 

tasked with receiving evidence, is able 

to correct any errors and issue revised 

orders based on those corrections in the 

first instance. 

Moreover, the Board may determine, 

under the totality of the circumstances, 

that remand is warranted in other 

situations, including based on fairness 

or efficiency concerns. For example, 

under the AA96 Final Rule, the Board 

would arguably be unable to remand— 

as it has, for example, pursuant to 

Matter of S–H–, 23 I&N Dec. at 462–63— 

in situations where an immigration 

judge decision contains only a brief 

summary of the testimony and an 

ultimate pronouncement on the merits, 

without thorough discussion of each of 

the elements of the application for relief 

or protection. See Matter of RodriguezCarillo, 22 I&N Dec. 1031, 1033 (BIA 

1999) (discussing fairness concerns 

implicated by cursory decisions).44 The 

Department thus believes that 

rescinding the AA96 Final Rule’s 

provision prohibiting a remand based 

upon a totality of the circumstances will 

return the longstanding flexibility to the 

Board to remand cases for further action 

as appropriate based on the 

circumstances presented in each case. 

Similarly, under the AA96 Final Rule, 

the Board would be prohibited from 


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45The Department recognizes that such 

procedures necessitate service of notices and 

advisals electronically or by mail, as opposed to inperson service, and the Department believes that 

such service is sufficient for the same reasons as 

those described above with respect to advisals 

related to voluntary departure. See Section IV.F of 

this preamble. 

remanding based upon the availability 

of new evidence where the new 

evidence did not vitiate all grounds of 

removability applicable to the 

noncitizen, even where it might impact 

the noncitizen’s eligibility for relief 

from removal. Accordingly, as discussed 

in Section IV.G of this preamble, this 

prohibition on remands would result in 

inefficiencies given that such a 

prohibition would invite additional 

motions practice and further litigation 

that could unnecessarily prolong the 

ultimate resolution of a proceeding. 

Thus, for the foregoing reasons, the 

Department proposes to largely rescind 

these restrictions that the AA96 Final 

Rule placed on the Board’s remand 

authority so as to restore the Board’s 

flexibility to remand decisions to the 

immigration judge or DHS for ‘‘further 

action as may be appropriate.’’ 8 CFR 

1003.1(d)(7)(i) (proposed). 

I. Background Check 

The Department proposes to amend 8 

CFR 1003.1(d)(6) regarding the 

completion or updating of background 

checks when a case is pending before 

the Board. Generally, the proposed rule 

would retain the background checkrelated changes from the AA96 Final 

Rule, which were intended to reduce 

the availability of Board remands to the 

immigration court due to background 

check concerns. The Department 

believes that the pre-AA96 Final Rule 

practice of remanding to the 

immigration court solely for a 

background check to be completed is an 

unnecessary procedural action that 

creates inefficiencies in case 

processing.45

Similar to the AA96 Final Rule, this 

NPRM proposes that, when completing 

or updating a background check is 

necessary to adjudicate an appeal or 

motion at the Board, the Board will 

issue a notice to the parties holding the 

case until such a check is completed 

and the results are reported to the 

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

(proposed). The Board’s notice to the 

parties will explain that DHS will 

contact the noncitizen with instructions 

for completing or updating any 

necessary checks if DHS is otherwise 

unable to independently update them. 

Id. The Board’s notice will also advise 

the noncitizen of the consequences of 

failing to comply with these 

requirements. Id. 

However, this proposed rule includes 

a number of changes from the AA96 

Final Rule’s background check 

language. First, the Department is 

removing language that the AA96 Final 

Rule added to 8 CFR 1003.1(d)(6)(iii) 

that would deem a noncitizen’s failure 

to comply with these background check 

requirements at the Board as an 

automatic abandonment of their 

underlying relief application absent a 

showing of good cause. Instead, the 

Department proposes to revert to the 

pre-AA96 Final Rule language, which 

provides that the Board retains the 

discretion to, on DHS’s motion, remand 

to the immigration judge to consider 

such noncompliance in determining 

whether the underlying relief should be 

denied. See 8 CFR 1003.1(d)(6)(iii) 

(2019). 

Second, the Department proposes to 

allow the Board the option of further 

holding a case where DHS has failed to 

report the results of background checks 

within 180 days from the date of the 

Board’s notice, rather than requiring the 

Board to remand to the immigration 

judge. 8 CFR 1003.1(d)(6)(iii) 

(proposed). This would account for 

cases where 180 days may not be a 

sufficient reporting period or where the 

case was placed on hold for other 

reasons. See 8 CFR 1003.1(e)(8)(iii) 

(proposed) (specifying when cases may 

be placed on hold). This change will 

help ensure that cases are not 

unnecessarily remanded to an 

immigration judge when the Board 

determines that further holding the case 

would more efficiently contribute to the 

completion of the case. 

Lastly, the Department proposes to 

add a minor clarification to 8 CFR 

1003.1(d)(6)(v) that this background 

check section applies to applications for 

withholding of removal under the Act 

and applications for protection under 

the Convention Against Torture, by 

referencing ‘‘immigration relief or 

protection.’’ See Matter of M–D–, 24 I&N 

Dec. 138, 140 n.1 (BIA 2007) (‘‘When 

referenced in connection with the 

background check regulations, the term 

‘relief’ includes any form of relief that 

permits [a noncitizen] to reside in the 

United States, including withholding of 

removal and protection under the 

Convention Against Torture . . .’’). 

J. Adjudication Timelines 

The Department proposes to retain the 

90- and 180-day processing timelines for 

single-member and three-member Board 

decisions but amend 8 CFR 1003.1(e)(1) 

and (e)(8), regarding internal processing 

timelines at the Board. The AA96 Final 

Rule added or modified a number of 

Board internal processing timelines, 

requiring: (1) screening panel review 

within 14 days of filing or receipt; (2) 

transcript ordering within seven days 

after the screening panel completes its 

review; (3) issuance of briefing 

schedules within seven days after 

receiving the transcript or, if no 

transcript is required, within seven days 

after the screening panel completes its 

review; (4) review by a single Appellate 

Immigration Judge within 14 days of 

assignment to determine whether a 

single- or a three-member panel should 

adjudicate the appeal; (5) summary 

dismissal of qualifying cases within 30 

days of the appeal’s filing date; (6) 

adjudication of interlocutory appeals 

within 30 days of the appeal’s filing 

date; and (7) completion of threemember decisions within 180 days of 

the record being complete, rather than 

180 days from assignment to the threemember panel. See 8 CFR 1003.1(e)(1), 

(8). The AA96 Final Rule also added 

tracking and accountability 

requirements for the Chairman at 8 CFR 

1003.1(e)(8)(v). 

After further review, the Department 

has determined that these internal 

timelines are overly rigid and concern 

internal Board operations and processes 

that are not suitable for regulatory 

action. Given the wide variety of cases 

before the Board, the varying 

circumstances of different parties, and 

possible changes to EOIR’s dockets, 

codifying strict internal timelines in 

regulatory text does not afford the Board 

adequate flexibility to process cases 

efficiently and fairly. Furthermore, 

processing timelines may be 

accomplished through internal guidance 

as necessary. See 5 U.S.C. 553(b)(3)(A) 

(exempting ‘‘rules of agency 

organization, procedure, or practice’’ 

from the APA’s notice and comment 

requirements); see also 8 CFR 

1003.1(a)(2)(i)(C) (providing the 

Chairman with the authority to ‘‘set 

priorities or time frames for the 

resolution of cases’’). As a result, the 

proposed rule would remove the 

specific processing timelines from 

EOIR’s regulations, retaining only the 

more general 90- and 180-day 

processing timelines for single-member 

and three-member Board decisions. This 

will ensure that the Board continues to 

resolve cases expeditiously, while 

giving the Board appropriate flexibility 

to set internal case management 

deadlines based on the particular 

circumstances of the cases at issue and 

possible changes to EOIR’s dockets. 

To calculate the 180-day adjudication 

deadline for three-member panels, the 

Department believes that starting the 


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adjudication period at the time of panel 

assignment is most appropriate. See 8 

CFR 1003.1(e)(8)(i) (proposed). Threemember decisions require robust 

discussion among members of the panel, 

as well as detailed, thorough decisions, 

given that three-member decisions are 

intended to address significant legal 

issues. See 8 CFR 1003.1(e)(6) 

(explaining that three-member panel 

decisions are intended to address, 

among other issues, the need to 

establish precedent construing the 

meaning of laws, regulations, or 

procedures, or cases or controversies of 

national import). Thus, upon 

reconsideration, the Department is now 

of the belief that providing less time for 

the Board to consider and issue threemember panel decisions would be 

inefficient, as this truncated timeline 

could negatively affect the Board’s 

ability to: (1) settle inconsistencies at 

the immigration court; (2) establish 

precedent that would clarify significant 

legal issues; (3) review decisions that 

may not be in conformity with the law 

or applicable precedent; (4) resolve 

cases or controversies of major national 

import; (5) review clearly erroneous 

factual determinations; (6) reverse 

decisions if appropriate to do so; or (7) 

resolve complex, novel, unusual, or 

recurring issues of law or fact. See 8 

CFR 1003.1(e)(6) (2018). This, in turn, 

could have a cascading negative impact 

on all EOIR adjudications due to a 

resultant lack of clarity, consistency, or 

meaningful review and resolution of 

important issues that come before EOIR. 

Conversely, given that single-member 

Board decisions, historically, have been 

appropriate for the disposition of 

unopposed motions, 8 CFR 1003.1(e)(2), 

affirmances without opinion, 8 CFR 

1003.1(e)(4), or ‘‘brief orders,’’ 8 CFR 

1003.1(e)(5), the Department continues 

to believe that calculating the 90-day 

adjudication period from the time of 

completion of the record on appeal is 

appropriate. See 8 CFR 1003.1(e)(8)(i) 

(proposed). Returning the adjudicatory 

processing timelines to the pre-AA96 

Final Rule standards would ensure that 

there is sufficient time for the Board to 

fully consider and address important 

issues requiring three-member panel 

decisions, while still allowing for 

flexibility and expediency in issuing 

single-member decisions. 

Additionally, the Department 

proposes to include all ‘‘rare 

circumstances’’ listed in the regulatory 

text prior to the AA96 Final Rule under 

which the Chairman was permitted to 

hold adjudication of a case or cases. 

Specifically, the Department proposes 

that the Board may hold a case or group 

of cases where an impending decision 

by the United States Supreme Court or 

the relevant United States Court of 

Appeals, impending Department 

regulatory amendments, or an 

impending en banc Board decision 

might substantially determine the 

outcome of the case or group of cases. 

8 CFR 1003.1(e)(8)(iii) (proposed). The 

Department also proposes to amend the 

pre-AA96 Final Rule language to 

account for the potential of ‘‘rare 

circumstances’’ other than those 

explicitly described by the regulation in 

which a hold may be appropriate. Id. 

Accordingly, the Department proposes 

to add the term ‘‘such as’’ before 

describing the rare circumstances to 

make clear that these circumstances are 

non-exhaustive. Id. 

K. Director’s Authority To Issue 

Decisions 

The Department proposes to amend 8 

CFR 1003.1(e)(8) to remove the EOIR 

Director’s authority to adjudicate cases 

that are pending beyond the Board’s 

regulatory adjudication timelines. As a 

result, the Department also proposes to 

remove the cross-reference prohibiting 

delegation of the Director’s authority— 

as was set forth in 8 CFR 1003.1(e)(8)— 

from the regulations at 8 CFR 

1003.0(b)(2)(ii). The Department is 

proposing this change for clarity, as that 

cross-reference to the Director’s 

authority in 8 CFR 1003.0(b)(2)(ii) 

would be rendered nonsensical if the 

changes to proposed 8 CFR 1003.1(e)(8) 

are finalized. 

As a general rule, the EOIR Director 

does not have the authority to 

adjudicate, or direct the adjudication of, 

cases before EOIR. See 8 CFR 1003.0(c) 

(‘‘Except as provided by statute, 

regulation, or delegation of authority 

from the Attorney General, or when 

acting as a designee of the Attorney 

General, the Director shall have no 

authority to adjudicate cases arising 

under the Act or regulations or to direct 

the result of an adjudication assigned to 

the Board, an immigration judge, the 

Chief Administrative Hearing Officer, or 

an Administrative Law Judge.’’). Two 

recent Department rulemakings, 

however, provided exceptions by 

allowing the EOIR Director to adjudicate 

Board cases that are not completed 

within their regulatory adjudication 

timelines. 

In general, the regulations require 

single-member appeals to be completed 

within 90 days of completion of the 

record, and three-member appeals to be 

completed within 180 days. See 8 CFR 

1003.1(e)(8)(i). An August 26, 2019, 

interim final rule amended this section 

to require that if a case is not completed 

within the time limit and any extension, 

the Chairman must either assign the 

case to themselves or a Board Vice 

Chairman or refer the case to EOIR’s 

Director for adjudication. See 84 FR at 

44539–40; 8 CFR 1003.1(e)(8)(ii); 

Organization of the Executive Office for 

Immigration Review, 85 FR 69465, 

69481 (Nov. 3, 2020) (adopting as final). 

Subsequently, the separate AA96 Final 

Rule further amended this section to 

require the Chairman to refer any case 

to the EOIR Director that is pending 

adjudication for more than 335 days 

after the appeal, motion, or remand was 

filed or received by the Board, subject 

to certain exceptions. See 85 FR at 

81591. Taken together, these 

rulemakings significantly expanded the 

EOIR Director’s authority to adjudicate 

cases before EOIR. 

After further review, the Department 

has determined that providing the EOIR 

Director with such expansive 

adjudicatory authority is unnecessary. 

The Department proposes to remove the 

amendments made to 8 CFR 1003.1(e)(8) 

by both the August 2019 interim final 

rule and the related final rule, as well 

as the AA96 Final Rule, and revert the 

language back to instructing the Board 

to refer cases that are not adjudicated in 

the time required to the Attorney 

General for decision. 8 CFR 

1003.1(e)(8)(ii) (proposed). Further, 

consistent with the Department’s 

longstanding understanding of the EOIR 

Director’s authorities and limitations, 

this proposed rule ‘‘highlight[s] the 

Director’s role as EOIR’s manager,’’ as 

opposed to an adjudicator, which is 

more properly the function of the 

immigration courts and the Board. See 

65 FR at 81434 (detailing the EOIR 

Director’s broad authority to direct and 

supervise EOIR’s components). 

In the event that a Board case passes 

its regulatory deadline without 

adjudication, the Department believes 

that such cases are better addressed 

internally at the Board, including 

through the Chairman and Vice 

Chairman referrals included in this 

proposed rule, as well as any modified 

internal procedures, training, and 

hiring, as necessary. Therefore, the 

Department proposes to amend 8 CFR 

1003.1(e)(8) to remove the EOIR 

Director’s authority to adjudicate Board 

cases that remain pending past 

regulatory deadlines. 

L. Quality Assurance Certification 

The Department proposes to remove 

and reserve 8 CFR 1003.1(k), which was 

added by the AA96 Final Rule to create 

a procedure for immigration judges to 

certify cases remanded to them by the 

Board and allegedly involving Board 


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46The proposed rule retains, however, changes 

made by the AA96 Final Rule to delete references 

to DHS procedures in paragraph (b) that are not 

relevant to EOIR and to change the phrase ‘‘improve 

[transcript] quality’’ to ‘‘ensure [transcript] quality.’’ 

8 CFR 1003.5(a), (b) (proposed). Due to the high 

quality of EOIR’s digital audio recording system, the 

role of the Chairman and Chief Immigration Judge 

in the transcription process is more accurately 

defined as ensuring the continued quality of 

transcription, rather than improving it. 

47The term ‘‘respondent’’ as defined in 8 CFR 

1001.1(r) does not cover all persons appearing for 

proceedings before EOIR but instead describes 

error to the EOIR Director. In addition, 

the Department proposes to remove 

language added by the AA96 Final Rule 

that references the EOIR Director’s 

authority to remand cases as part of the 

quality assurance certification process. 

See 8 CFR 1003.1(e) (proposed). 

After further review, the Department 

believes that the pre-AA96 Final Rule 

procedures are sufficient to address 

potential Board errors. As explained 

above, a party dissatisfied with a Board 

decision may file a motion to 

reconsider, 8 CFR 1003.2(a), the 

noncitizen may pursue a petition for 

review of a final order of removal in the 

federal courts of appeals, INA 242(a)(1), 

8 U.S.C. 1252(a)(1), and DHS may also 

seek to refer a Board decision to the 

Attorney General for further review, 8 

CFR 1003.1(h). Within the Department, 

the Attorney General may certify a 

decision on the Attorney General’s own 

initiative; an immigration judge may 

certify to the Board any case that is 

appealable to the Board; and the Board 

may reconsider a decision involving an 

error using the Board’s sua sponte 

authority as described elsewhere in this 

proposed rule. See 8 CFR 1003.1(c), (h), 

1003.2(a). All of these options that are 

already available to immigration judges, 

the Board, the Attorney General, and the 

parties to the case permit addressing 

alleged Board errors without the need 

for a lengthy ancillary process outside of 

the normal adjudicatory case flow. 

The AA96 Final Rule unnecessarily 

inserted the EOIR Director into the 

adjudication process. As previously 

explained, the EOIR Director has 

historically not possessed the authority 

to adjudicate, or direct the adjudication 

of, cases before EOIR, with limited 

exceptions. See 8 CFR 1003.0(c). The 

AA96 Final Rule created a substantial 

exception to that general limitation on 

the Director’s authority by allowing the 

EOIR Director to ‘‘exercise delegated 

authority from the Attorney General 

identical to that of the Board . . . 

[including] the authority to issue a 

precedent decision, and the authority to 

refer the case to the Attorney General for 

review’’ after certification from an 

immigration judge. 85 FR at 81653; 8 

CFR 1003.1(k)(3). In effect, the AA96 

Final Rule granted the EOIR Director 

broad authority to issue precedential 

decisions if an immigration judge 

certified a case to the EOIR Director 

alleging, for example, that the Board 

decision on remand was contrary to law 

or was vague, ambiguous, or internally 

inconsistent, among other reasons. 8 

CFR 1003.1(k)(1)(iii). However, given 

the myriad other responsibilities of the 

EOIR Director, see 8 CFR 1003.0(b)(1), 

and because other existing agency 

procedures are sufficient to address 

potential errors, the Department 

believes this broadening of the EOIR 

Director’s adjudicative authority is 

unnecessary and unwarranted at this 

time. 

M. Forwarding of Record on Appeal 

The Department proposes to amend 

the regulations at 8 CFR 1003.5 

regarding the forwarding of the record 

on appeal by largely returning to the 

regulatory text in effect prior to the 

AA96 Final Rule. First, the proposed 

rule would reinstate the requirements 

for immigration judges to review their 

oral decision transcripts and approve 

them within specified timeframes. 8 

CFR 1003.5(a) (proposed). Second, the 

proposed rule would remove a reference 

to the EOIR Director when discussing 

the authority to manage the 

transcription process. Id.46

The Department originally instituted 

timelines for immigration judges to 

review oral decision transcripts in order 

to ‘‘expedite the handling of cases by 

the Board.’’ Board of Immigration 

Appeals: Procedural Reforms to Improve 

Case Management, 67 FR 7309, 7311 

(Feb. 19, 2002) (proposed rule); 67 FR 

54878, 54895 (Aug. 26, 2002) (final 

rule). Subsequently, the AA96 Final 

Rule completely removed the 

immigration judge transcript review 

process to further expedite the appeal 

process, stating that such review was no 

longer needed. 85 FR at 81639. 

However, after further consideration, 

the Department proposes to reinstate the 

prior review procedures as necessary to 

ensure that accurate transcripts are 

produced. As the source of the oral 

decision, the immigration judge is in the 

best position to review the transcript to 

ensure it is an accurate written version 

of their oral decision. Moreover, the 

Department believes that the 14-day 

review period does not lengthen the 

appeal process sufficiently to justify 

completely removing the immigration 

judge review process. In retaining the 

immigration judge transcript review 

process, the Department notes that the 

process is not intended to allow 

immigration judges to change their 

decision after the fact but rather to 

ensure that the written transcript 

accurately captures the immigration 

judge’s oral decision, particularly 

because minor transcription errors have 

the potential to cause outsized issues. 

The AA96 Final Rule also inserted a 

reference to the EOIR Director into 8 

CFR 1003.5(a), regarding the 

management of the transcription 

process, but did not provide an 

explanation for the addition. On further 

review, the Department proposes to 

remove the reference to the EOIR 

Director in the management of the 

transcription process as unnecessary. 

The Chairman and the Chief 

Immigration Judge will continue to 

manage the transcription process. 

The Department also proposes to 

retain pre-AA96 Final Rule language at 

8 CFR 1003.5(b) regarding procedures 

for appeals from DHS officer decisions 

to provide clarity to parties about how 

to manage the record of proceeding in 

cases where DHS, upon reconsideration, 

decides to grant a benefit that has been 

requested in the appeal to the Board. 

N. Definitional Changes 

The Department proposes adding two 

definitions to 8 CFR 1001.1. 

Specifically, the Department proposes to 

define the terms ‘‘noncitizen’’ and 

‘‘unaccompanied child.’’ See 8 CFR 

1001.1(gg)–(hh) (proposed). 

First, the proposed rule would define 

‘‘noncitizen’’ to be synonymous with 

the term ‘‘alien,’’ which is defined by 

statute to mean ‘‘any person not a 

citizen or national of the United States.’’ 

INA 101(a)(3), 8 U.S.C. 1101(a)(3). This 

change would be consistent with recent 

terminology usage changes at EOIR. See 

EOIR PM 21–27, Terminology (July 26, 

2021), https://www.justice.gov/eoir/ 

book/file/1415216/download; see also 

Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 

(2020) (noting that the opinion ‘‘uses the 

term ‘noncitizen’ as equivalent to the 

statutory term ‘alien’ ’’). The Department 

notes that a person may claim United 

States citizenship or nationality during 

immigration court proceedings or may 

obtain United States citizenship or 

nationality after immigration court 

proceedings have commenced. The 

Department proposes to use the term 

‘‘noncitizen’’ as equivalent to the term 

‘‘alien’’ as used in the regulations to 

denote a person who is in immigration 

proceedings before EOIR, including 

those that claim or later obtain United 

States citizenship or nationality. The 

Department requests comments on 

whether there is an alternative term or 

terms that would better capture this 

concept.47


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noncitizens in removal or deportation proceedings. 

See 8 CFR 1001.1(r) (defining respondent ‘‘as a 

person named in a notice to appear or an order to 

show cause’’); INA 239(a)(1), 8 U.S.C. 1229(a)(1) 

(defining a notice to appear as the charging 

document that initiates removal proceedings). EOIR 

conducts other proceedings including 

‘‘withholding-only’’ proceedings and ‘‘asylumonly’’ proceedings. See, e.g., 8 CFR 

1208.30(g)(2)(iv)(C) (asylum-only proceedings), 

1208.2(c)(2) (withholding-only proceedings). 

Second, the proposed rule would 

define ‘‘unaccompanied child’’ to be 

synonymous with ‘‘unaccompanied 

alien child’’ and its statutory definition 

at 6 U.S.C. 279(g)(2). Similar to the 

proposed ‘‘noncitizen’’ definitional 

change, this change is more consistent 

with current terminology usage. 

O. Technical Changes 

The Department proposes technical 

changes in paragraphs amended as 

noted in this section. Specifically, the 

Department proposes to replace 

gendered language with gender-neutral 

language at 8 CFR 1003.1(e)(8)(ii), 

1003.2(c)(1), 1003.23(b)(1), 

1003.23(b)(1)(iii), and 1240.26. The 

Department also proposes to 

decapitalize the term ‘‘Immigration 

Judge’’ where appropriate. Lastly, the 

Department proposes to replace 

references to ‘‘the Service’’ with ‘‘DHS’’ 

and references to ‘‘alien’’ with 

‘‘noncitizen’’ where appropriate. 

P. Request for Comment 

In Matter of Pickering, 23 I&N Dec. 

621 (BIA 2003), the Board of 

Immigration Appeals held that court 

orders that vacate a noncitizen’s 

conviction will be given effect for 

immigration purposes only when they 

are based on a substantive or procedural 

defect in the underlying criminal 

proceeding. In Matter of Thomas & 

Thompson, 27 I&N Dec. 674 (A.G. 2019), 

Attorney General Barr overruled three 

prior Board decisions—Matter of CotaVargas, 37 I&N Dec. 849 (BIA 2005), 

Matter of Song, 23 I&N Dec. 173 (BIA 

2001), and Matter of Estrada, 26 I&N 

Dec. 749 (BIA 2016)—and held that 

state-court orders that modify, clarify, or 

otherwise alter a noncitizen’s criminal 

sentence will similarly be given effect 

for immigration purposes only when 

they are based on a substantive or 

procedural defect in the underlying 

criminal proceeding, and not when 

based on reasons unrelated to the 

merits, such as rehabilitation or 

avoiding immigration consequences. 

Recently, a circuit split has emerged 

on whether Matter of Thomas & 

Thompson may be applied retroactively 

in immigration proceedings to orders or 

criminal proceedings that predated the 

Attorney General’s decision. Compare 

Zaragoza v. Garland, 52 F.4th 1006, 

1010 (7th Cir. 2022) (holding that 

applying Matter of Thomas & 

Thompson to a preexisting sentencemodification order ‘‘is an impermissibly 

retroactive application of a new rule’’), 

with Edwards v. U.S. Attorney General, 

56 F.4th 951, 962 (11th Cir. 2022) 

(finding ‘‘no retroactivity problem’’ in 

similar circumstances). Questions have 

also arisen over how Matter of Thomas 

& Thompson and Pickering apply to 

particular types of orders. See, e.g., 

Matter of Sotelo, 2019 WL 8197756, at 

*2 (BIA Dec. 23, 2019) (giving effect to 

a vacatur order issued under Cal. Penal 

Code § 1473.7); Khatkarh v. Becerra, 442 

F. Supp. 3d 1277, 1285–86 (E.D. Cal. 

2020) (discussing Board decision 

denying effect to a vacatur order issued 

under Cal. Penal Code § 1473.7); 

Talamantes-Enriquez v. U.S. Attorney 

General, 12 F.4th 1340, 1354–55 (11th 

Cir. 2021) (denying effect to a 

clarification order where the original 

sentence was not ambiguous, but 

distinguishing a ‘‘sentence order [that] 

was ambiguous and needed 

clarification’’). 

The Department invites comment on 

whether—and if so, to what extent— 

Matter of Thomas & Thompson should 

be given retroactive effect. In particular, 

the Department seeks comment and 

information on the appropriate 

reference point for the retroactivity 

inquiry; the extent to which individuals 

reasonably relied on the Board decisions 

overturned by Matter of Thomas & 

Thompson (e.g., in entering guilty pleas, 

in going to trial, in pursuing state-court 

modifications, clarifications, or 

alterations, or otherwise); the burden 

that retroactive application would 

impose (e.g., the consequence of 

removal and obstacles individuals may 

now face to obtaining relief that would 

satisfy Thomas & Thompson or in 

demonstrating case-specific reliance); 

and the interests, if any, in applying 

Matter of Thomas & Thompson 

retroactively. See, e.g., Zaragoza, 52 

F.4th at 1023; Retail, Wholesale & Dep’t 

Store Union, AFL–CIO v. NLRB, 466 

F.2d 380, 390 (D.C. Cir. 1972); see also 

INS v. St. Cyr, 533 U.S. 289, 314–21 

(2001). The Department also seeks 

comment on how Matter of Thomas & 

Thompson and Pickering apply to 

particular types of orders, such as those 

referenced in Matter of Sotelo, Katkarh, 

and Talamantes-Enriquez. 

Reconsideration of the approach of 

Matter of Thomas & Thompson or 

Pickering is beyond the scope of this 

rulemaking, which focuses on the 

application of those decisions without 

reaffirming or reconsidering their 

approach. 

Q. Reliance Interests 

The Department perceives no reliance 

interest on the part of any party or entity 

in any existing policies implicated or 

effected by the proposed rule, apart 

from those discussed in the request for 

comment in Section IV.P of this 

preamble. Nonetheless, the Department 

invites commenters to identify any 

serious reliance interests that may be 

implicated by the provisions of this 

proposed rule. See FCC v. Fox 

Television Stations, Inc., 556 U.S. 502, 

515 (2009) (requiring agencies to 

consider cognizable ‘‘serious reliance 

interests’’ when changing policies). 

V. Regulatory Requirements 

A. Administrative Procedure Act 

The Department is providing a 60-day 

comment period for this proposed rule 

to provide the public with ‘‘an 

opportunity to participate in the rule 

making’’ as required by the 

Administrative Procedure Act and in 

accordance with the guidance provided 

by Executive Order 12866 and Executive 

Order 13563. See APA, 5 U.S.C. 553(c); 

E.O. 12866, Regulatory Planning and 

Review, 58 FR 51735 (Sept. 30, 1993) 

(stating that rulemakings ‘‘in most cases 

should include a comment period of not 

less than 60 days’’); E.O. 13563, 

Improving Regulation and Regulatory 

Review, 76 FR 3821, 3821–22 (Jan. 18, 

2011) (‘‘To the extent feasible and 

permitted by law, each agency shall 

afford the public . . . a comment period 

that should generally be at least 60 

days.’’). 

The Department reiterates that it 

proposes discrete changes to the 

appellate process, decisional finality, 

and administrative closure. Should 

rulemakings arise prior to finalization of 

this proposed rule that impact the 

changes proposed herein, the 

Department intends to identify and 

explain the projected impact that this 

proposed rule, if finalized, would have 

on EOIR’s operations in conjunction 

with those future rules in order to give 

the public notice of the projected 

intersection between related rulemaking 

efforts and the opportunity to comment, 

where appropriate. 

The Department does not anticipate 

that the comment period for this 

proposed rule will overlap or coincide 

with other rules, Attorney General 

decisions, or Board decisions that 

would affect the effect of the regulatory 

changes proposed by this NPRM. The 

Department invites the public to submit 

comments during the 60-day comment 


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48The Department recognizes that litigation is 

pending for many of the rules noted by the court 

in Centro Legal de la Raza. 524 F. Supp. 3d at 959– 

62. As provided in the Department’s Unified 

Agenda submission, the Department anticipates 

modifying or rescinding the following rules 

identified by the court: Executive Office for 

Immigration Review; Fee Review, 85 FR 82750 

(Dec. 18, 2020); Procedures for Asylum and 

Withholding of Removal; Credible Fear and 

Reasonable Fear Review, 85 FR 80274 (Dec. 11, 

2020); and Procedures for Asylum and Withholding 

of Removal, 85 FR 81698 (Dec. 16, 2020). Further, 

rescission of the AA96 Final Rule addresses the 

court’s concerns with the interactions of two other 

proposed rules—Motions to Reopen and 

Reconsider; Effect of Departure; Stay of Removal, 85 

FR 75942 (Nov. 27, 2020), and Good Cause for a 

Continuance in Immigration Proceedings, 85 FR 

75925 (Nov. 27, 2020). Specifically, the court was 

concerned that the Department’s responses in the 

AA96 Final Rule to various comments relied on 

regulatory provisions that it later proposed to 

amend. Centro Legal de la Raza, 524 F. Supp. 3d 

at 959–62. Publishing this new NPRM, which 

proposes to rescind the AA96 Final Rule, 

containing the responses causing concern, thereby 

eliminates such concerns. 

period regarding anticipated interaction 

with related rules.48 For further 

information, the Department notes the 

most recent publication of the Unified 

Agenda outlining the Department’s 

anticipated rulemaking activity through 

spring 2024. See Office of Information 

and Regulatory Affairs, Spring 2023 

Unified Agenda of Regulatory and 

Deregulatory Actions, https://

www.reginfo.gov/public/do/ 

eAgendaMain. 

B. Regulatory Flexibility Act 

The Department has reviewed this 

NPRM in accordance with the 

Regulatory Flexibility Act (5 U.S.C. 

605(b)) and certifies that this NPRM will 

not have a significant economic impact 

on a substantial number of small 

entities. The proposed rule will not 

regulate ‘‘small entities,’’ as that term is 

defined in 5 U.S.C. 601(6). In the main, 

this proposed rule reverses the 

amendments made by the AA96 Final 

Rule and restores and expands on 

previously existing authorities exercised 

by EOIR adjudicators and processes 

governing appeals filed with the Board. 

Accordingly, this proposed rule 

regulates the conduct of immigration 

proceedings before EOIR and therefore 

may have a direct impact on noncitizens 

in such proceedings. The proposed rule 

may indirectly affect resources or 

business operations for legal providers 

representing noncitizens in proceedings 

before EOIR, but the proposed rule 

imposes no mandates or requirements 

on such entities and, therefore, the 

Department believes that the proposed 

rule will not have a significant 

economic impact on a substantial 

number of small entities. Moreover, the 

Department believes it is unlikely that 

small entities, including legal service 

providers, have changed their practices 

since the AA96 Final Rule was 

enjoined, thus further minimizing the 

proposed rule’s impact on small 

entities. The AA96 Final Rule was 

enjoined soon after becoming effective. 

Thus, the pre-AA96 Final Rule status 

quo has been in effect since the 

injunction. Given that the proposed rule 

generally adopts the pre-AA96 Final 

Rule status quo—the framework that is 

currently in place—with only a few 

alterations, the Department does not 

expect the changes proposed by this 

NPRM to have a significant impact on 

any small entities, as it is unlikely to 

require any significant change in 

operations to accommodate the changes 

proposed herein. 

C. Unfunded Mandates Reform Act of 

1995 

This proposed rule would 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. See 2 U.S.C. 1532(a). 

D. Executive Order 12866 (Regulatory 

Planning and Review), Executive Order 

13563 (Improving Regulation and 

Regulatory Review), and Executive 

Order 14094 (Modernizing Regulatory 

Review) 

The Department has determined that 

this proposed rule is a ‘‘significant 

regulatory action’’ under section 3(f) of 

Executive Order 12866, as amended. 

Accordingly, this proposed rule has 

been submitted to the Office of 

Management and Budget for review. 

The Department certifies that this 

proposed rule has been drafted in 

accordance with the principles of 

Executive Order 12866, Executive Order 

13563, and Executive Order 14094, 

Modernizing Regulatory Review, 88 FR 

21879 (Apr. 6, 2023). Executive Orders 

12866, 13563, and 14094 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. 

Overall, the Department believes that 

the changes proposed in this NPRM will 

provide significant benefits to 

adjudicators, the parties, and the 

broader public, which outweigh the 

potential costs. 

For example, the proposed rule’s 

provisions for the exercise of 

administrative closure, termination, and 

dismissal authority strike a balance 

between providing sufficient guidance 

for adjudicators and regulated parties 

while, at the same time, preserving 

flexibility that will promote fairer, more 

efficient, and more uniform case 

processing and adjudication. Likewise, 

eliminating projected inefficiencies that 

could have resulted from 

implementation of the AA96 standards, 

including rescinding restrictions on sua 

sponte authority for adjudicators to 

reopen or reconsider cases, would 

codify additional flexibility for 

adjudicators, which could provide 

significant benefits to noncitizens in 

certain cases with exceptional 

circumstances, as discussed above. 

Further, reinstating Board remand 

authority will also codify similar 

flexibility for adjudicators, and is 

expected to have efficiency benefits as 

noted in the preamble above. The 

Department believes that the costs of 

these provisions mainly relate to any 

necessary familiarization with the rule, 

but such costs should be de minimis, 

given that the AA96 Final Rule has 

never been implemented and this NPRM 

is proposing to codify the operative 

status quo. Further, the NPRM is largely 

either proposing to codify prior 

longstanding regulatory provisions (sua 

sponte authority, Board remand 

authority) or longstanding case law 

(administrative closure). On balance, 

overall, the Department believes that the 

fairness and efficiency benefits gained 

by the aforementioned proposed 

changes outweigh the potential de 

minimis costs. 

Similarly, many of the other proposed 

changes, including to briefing 

schedules, background check 

procedures, Board adjudication 

timelines, quality assurance 

certification, forwarding of the record 

on appeal, and the EOIR Director’s case 

adjudication authority are largely 

internal case-processing measures with 

no measurable costs to the public. 

Moreover, many of these provisions will 

revert in large part to longstanding preAA96 Final Rule regulatory language, 

with which adjudicators and the parties 

should already be familiar. 

Additionally, to the extent that any 

provisions of the AA96 Final Rule are 

retained, such as the background check 

procedures allowing a case to be held at 


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the Board pending a background check, 

rather than remanded to the 

immigration court, the Department 

believes that such provisions will 

provide efficiencies to the immigration 

system, which will in turn benefit 

adjudicators and the parties. 

In sum, any changes contemplated by 

the NPRM would not impact on the 

public in a way that would render the 

proposed rule in conflict with the 

principles of Executive Orders 12866, 

13563, and 14094. 

E. Executive Order 13132—Federalism 

This proposed rule would not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

proposed rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

F. Executive Order 12988—Civil Justice 

Reform 

This proposed rule meets the 

applicable standards set forth in 

sections 3(a) and 3(b)(2) of Executive 

Order 12988. 

G. Paperwork Reduction Act 

This NPRM does not propose new or 

revisions to existing ‘‘collection[s] of 

information’’ as that term is defined 

under the Paperwork Reduction Act of 

1995, Public Law 104–13, 109 Stat. 163, 

44 U.S.C. chapter 35), 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. 

List of Subjects 

8 CFR Part 1001 

Administrative practice and 

procedure, Immigration. 

8 CFR Part 1003 

Administrative practice and 

procedure, Immigration. 

8 CFR Part 1239 

Administrative practice and 

procedure, Aliens, Immigration. 

8 CFR Part 1240 

Administrative practice and 

procedure, Aliens. 

Accordingly, for the reasons set forth 

in the preamble, the Department 

proposes to amend 8 CFR parts 1001, 

1003, 1239, and 1240 as follows: 

PART 1001—DEFINITIONS 

■ 1. The authority citation for part 1001 

continues to read as follows: 

Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 

1103; Pub. L. 107–296, 116 Stat. 2135; Title 

VII of Pub. L. 110–229. 

■ 2. Amend § 1001.1 by adding 

paragraphs (gg) and (hh) to read as 

follows: 

§ 1001.1 Definitions. 

* * * * * 

(gg) The term noncitizen means any 

person not a citizen or national of the 

United States. 

(hh) The term unaccompanied child 

means, and is synonymous with, the 

term ‘‘unaccompanied alien child,’’ as 

defined in 6 U.S.C. 279(g)(2). 

PART 1003—EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW 

■ 3. 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. 

■ 4. Amend § 1003.0 by revising 

paragraph (b)(2)(ii) to read as follows: 

§ 1003.0 Executive Office for Immigration 

Review. 

* * * * * 

(b) * * * 

(2) * * * 

(ii) The Director may not delegate the 

authority assigned to the Director in 

§ 1292.18 of this chapter and may not 

delegate any other authority to 

adjudicate cases arising under the Act or 

regulations of this chapter unless 

expressly authorized to do so. 

* * * * * 

■ 5. Amend § 1003.1 by: 

■ a. Revising paragraphs (a)(2)(i)(E), (c), 

(d)(1) introductory text, (d)(1)(ii), 

(d)(3)(iii) and (iv); 

■ b. Removing paragraph (d)(3)(v); 

■ c. Revising paragraphs (d)(6)(ii) and 

(iii), (d)(6)(v), (d)(7), (e) introductory 

text, (e)(1) through (3), (e)(4)(i) 

introductory text, (e)(4)(ii), (e)(7), (e)(8) 

introductory text, (e)(8)(i) through (iii), 

and (v), and (f); 

■ d. Removing and reserving paragraph 

(k); and 

■ e. Adding paragraphs (l) and (m). 

The additions and revisions read as 

follows: 

§ 1003.1 Organization, jurisdiction, and 

powers of the Board of Immigration 

Appeals. 

(a) * * * 

(2) * * * 

(i) * * * 

(E) Adjudicate cases as a Board 

member, including the authority to 

administratively close and recalendar 

cases in accordance with paragraph (l) 

of this section; and 

* * * * * 

(c) Jurisdiction by certification. The 

Secretary, or any other duly authorized 

officer of DHS, an immigration judge, or 

the Board may in any case arising under 

paragraph (b) of this section certify such 

case to the Board for adjudication. The 

Board, in its discretion, may review any 

such case by certification without regard 

to the provisions of § 1003.7 if it 

determines that the parties have already 

been given a fair opportunity to make 

representations before the Board 

regarding the case, including the 

opportunity to request oral argument 

and to submit a brief. 

(d) * * * 

(1) Generally. 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 Board shall resolve the 

questions before it in a manner that is 

timely, impartial, and consistent with 

the Act and regulations. In addition, the 

Board, through precedent decisions, 

shall provide clear and uniform 

guidance to DHS, the immigration 

judges, and the general public on the 

proper interpretation and 

administration of the Act and its 

implementing regulations. 

* * * * * 

(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 

necessary or appropriate for the 

disposition or alternative resolution of 

the case. Such actions include 

administrative closure, termination of 

proceedings, and dismissal of 

proceedings. The standards for the 

administrative closure, dismissal, and 

termination of cases are set forth in 

paragraph (l) of this section, 8 CFR 


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1239.2(c), and paragraph (m) of this 

section, respectively. 

* * * * * 

(3) * * * 

(iii) The Board may review de novo 

all questions arising in appeals from 

decisions issued by DHS officers. 

(iv) Except for taking administrative 

notice of commonly known facts such as 

current events or the contents of official 

documents, the Board will not engage in 

factfinding in the course of deciding 

cases. A party asserting that the Board 

cannot properly resolve an appeal 

without further factfinding must file a 

motion for remand. If new evidence is 

submitted on appeal, that submission 

may be deemed a motion to remand and 

considered accordingly. If further 

factfinding is needed in a particular 

case, the Board may remand the 

proceeding to the immigration judge or, 

as appropriate, to DHS. 

* * * * * 

(6) * * * 

(ii) Except as provided in paragraph 

(d)(6)(iv) of this section, if identity, law 

enforcement, or security investigations 

or examinations are necessary in order 

to adjudicate the appeal or motion, the 

Board will provide notice to both parties 

that 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. The Board’s 

notice will notify the noncitizen that 

DHS will contact the noncitizen with 

instructions, consistent with 

§ 1003.47(d), to take any additional 

steps necessary to complete or update 

the identity, law enforcement, or 

security investigations or examinations 

only if DHS is unable to independently 

update the necessary identity, law 

enforcement, or security investigations 

or examinations. The Board’s notice will 

also advise the noncitizen 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 

noncitizen 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 DHS 

obtains relevant information as a result 

of the identity, law enforcement, or 

security investigations or examinations, 

or if the noncitizen fails to comply with 

the necessary procedures for collecting 

biometrics or other biographical 

information after receiving instructions 

from DHS under paragraph (d)(6)(ii) of 

this section, DHS may move the Board 

to remand the record to the immigration 

judge for consideration of whether, in 

view of the new information, or the 

noncitizen’s failure to comply with the 

necessary procedures for collecting 

biometrics or other biographical 

information after receiving instructions 

from DHS under paragraph (d)(6)(ii) of 

this section, immigration relief or 

protection should be denied, either on 

grounds of ineligibility as a matter of 

law or 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 from 

the date of the Board’s notice under 

paragraph (d)(6)(ii) of this section, the 

Board may continue to hold the case 

under paragraph (d)(6)(ii) of this 

section, as needed, or remand the case 

to the immigration judge for further 

proceedings under § 1003.47(h). 

* * * * * 

(v) The immigration relief or 

protection described in § 1003.47(b) and 

granted by the Board shall take effect as 

provided in § 1003.47(i). 

(7) * * * 

(i) 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. The Board 

may return a case to DHS or an 

immigration judge for such further 

action as may be appropriate without 

entering a final decision on the merits 

of the case. 

(ii) In cases involving 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 noncitizen requested 

voluntary departure before an 

immigration judge, the noncitizen’s 

notice of appeal specified that the 

noncitizen is appealing the immigration 

judge’s denial of voluntary departure 

and identified the specific factual and 

legal findings that the noncitizen is 

challenging, and the Board finds that 

the noncitizen is otherwise eligible for 

voluntary departure, as provided in 8 

CFR 1240.26(k). 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 noncitizen merits voluntary 

departure as a matter of discretion. If the 

record does not contain sufficient 

factual findings regarding eligibility for 

voluntary departure, the Board may 

remand the decision to the immigration 

judge for further factfinding. 

(e) Case management system. The 

Chairman shall establish a case 

management system to screen all cases 

and to manage the Board’s caseload. 

Unless a case meets the standards for 

assignment to a three-member panel 

under paragraph (e)(6) of this section, 

all cases shall be assigned to a single 

Board member for disposition. The 

Chairman, under the supervision of the 

Director, shall be responsible for the 

success of the case management system. 

The Chairman shall designate, from 

time to time, a screening panel 

comprising a sufficient number of Board 

members who are authorized, acting 

alone, to adjudicate appeals as provided 

in this paragraph (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 

or the Attorney General. 

(1) Initial screening. All cases shall be 

referred to the screening panel for 

review. Appeals subject to summary 

dismissal as provided in paragraph 

(d)(2) of this section should be promptly 

dismissed. 

(2) Miscellaneous dispositions. A 

single Board member may grant an 

unopposed motion or a motion to 

withdraw an appeal pending before the 

Board. In addition, a single Board 

member may adjudicate a DHS motion 

to remand any appeal from the decision 

of a DHS officer where DHS requests 

that the matter be remanded to DHS for 

further consideration of the appellant’s 

arguments or evidence raised on appeal; 

a case where remand is required 

because of a defective or missing 

transcript; and other procedural or 

ministerial issues as provided by the 

case management plan. 

(3) Merits review. In any case that has 

not been summarily dismissed, the case 

management system shall arrange for 

the prompt completion of the record of 

proceeding and transcript, and the 

issuance of a briefing schedule, as 

appropriate. A single Board member 

assigned under the case management 

system shall determine the appeal on 

the merits as provided in paragraph 

(e)(4) or (5) of this section, unless the 

Board member determines that the case 

is appropriate for review and decision 

by a three-member panel under the 

standards of paragraph (e)(6) of this 

section. The Board member may 

summarily dismiss an appeal after 

completion of the record of proceeding. 

(4) * * * 

(i) The Board member to whom a case 

is assigned shall affirm the decision of 


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the DHS officer or the immigration 

judge without opinion if the Board 

member determines that the result 

reached in the decision under review 

was correct; that any errors in the 

decision under review were harmless or 

nonmaterial; and that 

* * * * * 

(ii) If the Board member determines 

that the decision should be affirmed 

without opinion, the Board shall issue 

an order that reads as follows: ‘‘The 

Board affirms, without opinion, the 

result of the decision below. The 

decision below is, therefore, the final 

agency determination. See 8 CFR 

1003.1(e)(4).’’ An order affirming 

without opinion issued under authority 

of this provision shall not include 

further explanation or reasoning. Such 

an order approves the result reached in 

the decision below; it does not 

necessarily imply approval of all of the 

reasoning of that decision but does 

signify the Board’s conclusion that any 

errors in the decision of the immigration 

judge or DHS were harmless or 

nonmaterial. 

* * * * * 

(7) Oral argument. When an appeal 

has been taken, a request for oral 

argument if desired shall be included in 

the Notice of Appeal. A three-member 

panel or the Board en banc may hear 

oral argument, as a matter of discretion, 

at such date and time as is established 

under the Board’s case management 

plan. Oral argument shall be held at the 

offices of the Board unless the Deputy 

Attorney General or the Attorney 

General’s designee authorizes oral 

argument to be held elsewhere. DHS 

may be represented before the Board by 

an officer or counsel of DHS designated 

by DHS. No oral argument will be 

allowed in a case that is assigned for 

disposition by a single Board member. 

(8) Timeliness. As provided under the 

case management system, 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, after 

completion of the record on appeal, 

including any briefs, motions, or other 

submissions on appeal, the Board 

member or panel to which the case is 

assigned shall issue a decision on the 

merits as soon as practicable, with a 

priority for cases or custody appeals 

involving detained noncitizens. 

(i) Except in exigent circumstances as 

determined by the Chairman, or as 

provided in paragraph (d)(6) of this 

section, 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 after a case 

is assigned to a three-member panel 

(including any additional opinion by a 

member of the panel). 

(ii) In exigent circumstances, the 

Chairman may grant an extension in 

particular cases of up to 60 days as a 

matter of discretion. Except as provided 

in paragraph (e)(8)(iii) or (iv) of this 

section, in those cases where the panel 

is unable to issue a decision within the 

established time limits, as extended, the 

Chairman shall either self-assign the 

case or assign the case to a Vice 

Chairman for final decision within 14 

days or shall refer the case to the 

Attorney General for decision. If a 

dissenting or concurring panel member 

fails to complete the member’s opinion 

by the end of the extension period, the 

decision of the majority will be issued 

without the separate opinion. 

(iii) In rare circumstances, such as 

when an impending decision by the 

United States Supreme Court or a 

United States Court of Appeals, or 

impending Department regulatory 

amendments, or an impending en banc 

Board decision may substantially 

determine the outcome of a case or 

group of cases pending before the Board, 

the Chairman may hold the case or cases 

until such decision is rendered, 

temporarily suspending the time limits 

described in this paragraph (e)(8). 

* * * * * 

(v) The Chairman shall notify the 

Director of EOIR and the Attorney 

General if a Board member consistently 

fails to meet the assigned deadlines for 

the disposition of appeals, or otherwise 

fails to adhere to the standards of the 

case management system. The Chairman 

shall also prepare a report assessing the 

timeliness of the disposition of cases by 

each Board member on an annual basis. 

* * * * * 

(f) Service of Board decisions. The 

decision of the Board shall be in 

writing. The Board shall transmit a copy 

to DHS and serve a copy upon the 

noncitizen or the noncitizen’s 

representative, as provided in 8 CFR 

part 1292. 

* * * * * 

(l) Administrative closure and 

recalendaring. Administrative closure is 

the temporary suspension of a case. 

Administrative closure removes a case 

from the Board’s docket until the case 

is recalendared. Recalendaring places a 

case back on the Board’s docket. 

(1) Administrative closure before the 

Board. Board members may, in the 

exercise of discretion, administratively 

close a case upon the motion of a party, 

after applying the standard set forth at 

paragraph (l)(3) of this section. The 

administrative closure authority 

described in this section is not limited 

by the authority provided in any other 

provisions in this chapter V that 

separately authorize or require 

administrative closure in certain 

circumstances, including 8 CFR 

214.15(l) and (p)(4), 1214.2(a), 1214.3, 

1240.62(b), 1240.70(f) through(h), 

1245.13, 1245.15(p)(4)(i), and 

1245.21(c). 

(2) Recalendaring before the Board. At 

any time after a case has been 

administratively closed under paragraph 

(l)(1) of this section, the Board may, in 

the exercise of discretion, recalendar the 

case pursuant to a party’s motion to 

recalendar. In deciding whether to grant 

such a motion, the Board shall apply the 

standard set forth at paragraph (l)(3) of 

this section. 

(3) Standard for administrative 

closure and recalendaring. The Board 

shall grant a motion to administratively 

close or recalendar filed jointly by both 

parties, or filed by one party where the 

other party has affirmatively indicated 

its non-opposition, unless the Board 

articulates unusual, clearly identified, 

and supported reasons for denying the 

motion. In all other cases, in deciding 

whether to administratively close or to 

recalendar a case, the Board shall 

consider the totality of the 

circumstances, including as many of the 

factors listed under paragraphs (l)(3)(i) 

and (ii) of this section as are relevant to 

the particular case. The Board may also 

consider other factors where 

appropriate. No single factor is 

dispositive. Accordingly, the Board, 

having considered the totality of the 

circumstances, may grant a motion to 

administratively close or to recalendar a 

particular case over the objection of a 

party. Although administrative closure 

may be appropriate where a petition, 

application, or other action is pending 

outside of proceedings before the Board, 

such a pending petition, application, or 

other action is not required for a case to 

be administratively closed. 

(i) As the circumstances of the case 

warrant, the factors relevant to a 

decision to administratively close a case 

include: 

(A) The reason administrative closure 

is sought; 

(B) The basis for any opposition to 

administrative closure; 

(C) Any requirement that a case be 

administratively closed in order for a 

petition, application, or other action to 

be filed with, or granted by, DHS; 

(D) The likelihood the noncitizen will 

succeed on any petition, application, or 

other action that the noncitizen is 

pursuing, or that the noncitizen states in 

writing or on the record at a hearing that 


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they plan to pursue, outside of 

proceedings before the Board; 

(E) The anticipated duration of the 

administrative closure; 

(F) The responsibility of either party, 

if any, in contributing to any current or 

anticipated delay; and 

(G) The ultimate anticipated outcome 

of the case. 

(ii) As the circumstances of the case 

warrant, the factors relevant to a 

decision to recalendar a case include: 

(A) The reason recalendaring is 

sought; 

(B) The basis for any opposition to 

recalendaring; 

(C) The length of time elapsed since 

the case was administratively closed; 

(D) If the case was administratively 

closed to allow the noncitizen to file a 

petition, application, or other action 

outside of proceedings before the Board, 

whether the noncitizen filed the 

petition, application, or other action 

and, if so, the length of time that 

elapsed between when the case was 

administratively closed and when the 

noncitizen filed the petition, 

application, or other action; 

(E) If a petition, application, or other 

action that was pending outside of 

proceedings before the Board has been 

adjudicated, the result of that 

adjudication; 

(F) If a petition, application, or other 

action remains pending outside of 

proceedings before the Board, the 

likelihood the noncitizen will succeed 

on that petition, application, or other 

action; and 

(G) The ultimate anticipated outcome 

if the case is recalendared. 

(m) Termination. The Board shall 

have the authority to terminate cases 

before it as set forth in paragraphs (m)(1) 

and (2) of this section. A motion to 

dismiss a case in removal proceedings 

before the Board for a reason other than 

authorized by 8 CFR 1239.2(c) shall be 

deemed a motion to terminate under 

paragraph (m)(1) of this section. 

(1) Removal, deportation, and 

exclusion proceedings—(i) Mandatory 

termination. In removal, deportation, 

and exclusion proceedings, the Board 

shall terminate the case where at least 

one of the requirements in paragraphs 

(m)(1)(i)(A) through (G) of this section is 

met. 

(A) No charge of deportability, 

inadmissibility, or excludability can be 

sustained. 

(B) Fundamentally fair proceedings 

are not possible because the noncitizen 

is mentally incompetent and adequate 

safeguards are unavailable. 

(C) The noncitizen has, since the 

initiation of proceedings, obtained 

United States citizenship. 

(D) The noncitizen has, since the 

initiation of proceedings, obtained at 

least one status listed in paragraphs 

(m)(1)(i)(D)(1) through (4) of this 

section, provided that the status has not 

been revoked or terminated, and the 

noncitizen would not have been 

deportable, inadmissible, or excludable 

as charged if the noncitizen had 

obtained such status before the 

initiation of proceedings. 

(1) Lawful permanent resident status. 

(2) Refugee status. 

(3) Asylee status. 

(4) Nonimmigrant status as defined in 

section 101(a)(15)(S), (T), or (U) of the 

Act. 

(E) Termination is required under 8 

CFR 1245.13(l). 

(F) Termination is otherwise required 

by law. 

(G) The parties jointly filed a motion 

to terminate, or one party filed a motion 

to terminate and the other party 

affirmatively indicated its nonopposition, unless the Board articulates 

unusual, clearly identified, and 

supported reasons for denying the 

motion. 

(ii) Discretionary termination. In 

removal, deportation, or exclusion 

proceedings, the Board may, in the 

exercise of discretion, terminate the case 

where at least one of the requirements 

listed in paragraphs (m)(1)(ii) (A) 

through (G) of this section is met. 

(A) An unaccompanied child, as 

defined in 8 CFR 1001.1(hh), states an 

intent in writing or on the record at a 

hearing to seek asylum with USCIS, and 

USCIS has initial jurisdiction over the 

application pursuant to section 

208(b)(3)(C) of the Act. 

(B) The noncitizen demonstrates 

prima facie eligibility for relief from 

removal or for a lawful status based on 

a petition, application, or other action 

that USCIS has jurisdiction to 

adjudicate, including naturalization or 

adjustment of status. 

(C) The noncitizen is a beneficiary of 

Temporary Protected Status, deferred 

action, or Deferred Enforced Departure. 

(D) USCIS has granted the 

noncitizen’s application for a 

provisional unlawful presence waiver 

pursuant to 8 CFR 212.7(e). 

(E) Termination is authorized by 8 

CFR 1216.4(a)(6) or 1238.1(e). 

(F) The parties have filed a motion to 

terminate under 8 CFR 214.11(d)(1)(i) or 

214.14(c)(1)(i). 

(G) Due to circumstances comparable 

to those described in paragraphs 

(m)(1)(ii)(A) through (F) of this section, 

termination is similarly necessary or 

appropriate for the disposition or 

alternative resolution of the case. 

However, the Board may not terminate 

a case for purely humanitarian reasons, 

unless DHS expressly consents to such 

termination, joins in a motion to 

terminate, or affirmatively indicates its 

non-opposition to a noncitizen’s 

motion. 

(2) Other proceedings—(i) Mandatory 

termination. In proceedings other than 

removal, deportation, or exclusion 

proceedings, the Board shall terminate 

the case where the parties have jointly 

filed a motion to terminate, or one party 

has filed a motion to terminate and the 

other party has affirmatively indicated 

its non-opposition, unless the Board 

articulates unusual, clearly identified, 

and supported reasons for denying the 

motion. In addition, the Board shall 

terminate such a case where required by 

law. 

(ii) Discretionary termination. In 

proceedings other than removal, 

deportation, or exclusion proceedings, 

the Board may, in the exercise of 

discretion, terminate the case where one 

party has requested termination, and 

terminating the case is necessary or 

appropriate for the disposition or 

alternative resolution of the case. 

However, the Board may not terminate 

the case for purely humanitarian 

reasons, unless DHS expressly consents 

to such termination, joins in a motion to 

terminate, or affirmatively indicates its 

non-opposition to a noncitizen’s 

motion. 

(iii) Limitation on Termination. 

Nothing in paragraphs (m)(2)(i) and (ii) 

of this section authorizes the Board to 

terminate a case where prohibited by 

another regulatory provision. 

■ 6. Amend § 1003.2 by: 

■ a. Revising paragraphs (a) and (b)(1); 

■ b. Removing the words ‘‘Immigration 

Judge’’ and adding in their place 

‘‘immigration judge’’ in paragraph (c)(2); 

■ c. Revising paragraphs (c)(3)(iii) and 

(iv); 

■ d. Removing paragraphs (c)(3)(v) 

through (vii); 

■ e. Adding paragraph (c)(4); and 

■ f. Revising paragraphs (f), (g)(3), and 

(i). 

The revisions and addition 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 on its own 

motion any case in which it has 

rendered a decision. A request by DHS 

or by the party affected by the decision 

to reopen or reconsider a case the Board 

has decided must be in the form of a 

written motion to the Board. The 

decision to grant or deny a motion to 

reopen or reconsider is within the 

discretion of the Board, subject to the 


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restrictions of this section. The Board 

has discretion to deny a motion to 

reopen even if the moving party has 

made out a prima facie case for relief. 

(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. When a motion 

to reconsider the decision of an 

immigration judge or of a DHS officer is 

pending at the time an appeal is filed 

with the Board, or when such motion is 

filed subsequent to the filing with the 

Board of an appeal from the decision 

sought to be reconsidered, the motion 

may be deemed a motion to remand the 

decision for further proceedings before 

the immigration judge or the DHS 

officer from whose decision the appeal 

was taken. Such motion may be 

consolidated with and considered by 

the Board in connection with the appeal 

to the Board. 

* * * * * 

(c) * * * 

(3) * * * 

(iii) Agreed upon by all parties and 

jointly filed. Notwithstanding such 

agreement, the parties may contest the 

issues in a reopened proceeding; or 

(iv) Filed by DHS in exclusion or 

deportation proceedings when the basis 

of the motion is fraud in the original 

proceeding or a crime that would 

support termination of asylum in 

accordance with 8 CFR 1208.24. 

(4) A motion to reopen a decision 

rendered by an immigration judge or 

DHS officer that is pending when an 

appeal is filed, or that is filed while an 

appeal is pending before the Board, may 

be deemed a motion to remand for 

further proceedings before the 

immigration judge or the DHS officer 

from whose decision the appeal was 

taken. Such motion may be consolidated 

with, and considered by the Board in 

connection with, the appeal to the 

Board. 

* * * * * 

(f) Stay of deportation. Except where 

a motion is filed pursuant to the 

provisions of § 1003.23(b)(4)(ii) and 

(b)(4)(iii)(A), the filing of a motion to 

reopen or a motion to reconsider shall 

not stay the execution of any decision 

made in the case. Execution of such 

decision shall proceed unless a stay of 

execution is specifically granted by the 

Board, the immigration judge, or an 

authorized DHS officer. 

(g) * * * 

(3) Briefs and response. The moving 

party may file a brief if it is included 

with the motion. If the motion is filed 

directly with the Board pursuant to 

paragraph (g)(2)(i) of this section, the 

opposing party shall have 21 days from 

the date of service of the motion to file 

a brief in opposition to the motion 

directly with the Board. If the motion is 

filed with a DHS office pursuant to 

paragraph (g)(2)(ii) of this section, the 

opposing party shall have 21 days from 

the date of filing of the motion to file a 

brief in opposition to the motion 

directly with DHS. In all cases, briefs 

and any other filings made in 

conjunction with a motion shall include 

proof of service on the opposing party. 

The Board, in its discretion, may extend 

the time within which such brief is to 

be submitted and may authorize the 

filing of a brief directly with the Board. 

A motion shall be deemed unopposed 

unless a timely response is made. The 

Board may, in its discretion, consider a 

brief filed out of time. 

* * * * * 

(i) Ruling on motion. Rulings upon 

motions to reopen or motions to 

reconsider shall be by written order. 

Any motion for reconsideration or 

reopening of a decision issued by a 

single Board member will be referred to 

the screening panel for disposition by a 

single Board member, unless the 

screening panel member determines, in 

the exercise of judgment, that the 

motion for reconsideration or reopening 

should be assigned to a three-member 

panel under the standards of 

§ 1003.1(e)(6). If the order directs a 

reopening and further proceedings are 

necessary, the record shall be returned 

to the Immigration Court or the DHS 

officer having administrative control 

over the place where the reopened 

proceedings are to be conducted. If the 

motion to reconsider is granted, the 

decision upon such reconsideration 

shall affirm, modify, or reverse the 

original decision made in the case. 

■ 7. Amend § 1003.3 by revising 

paragraphs (c)(1) and (2) to read as 

follows: 

§ 1003.3 Notice of appeal. 

* * * * * 

(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 cases 

involving noncitizens in custody, 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 21 days of the deadline for 

the initial briefs. In cases involving 

noncitizens who are not in custody, the 

appellant shall be provided 21 days in 

which to file a brief, unless a shorter 

period is specified by the Board. The 

appellee shall have the same period of 

time in which to file a reply brief that 

was initially granted to the appellant to 

file their brief. The time to file a reply 

brief commences from the date upon 

which the appellant’s brief was due, as 

originally set or extended by the Board. 

The Board, upon written motion, may 

extend the period for filing a brief or a 

reply brief for up to 90 days for good 

cause shown. 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. Upon written request of 

the noncitizen, the DHS officer from 

whose decision the appeal is taken or 

the Board may extend the period for 

filing a brief for good cause shown. The 

Board may authorize the filing of briefs 

directly with the Board. 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 a noncitizen directly with a DHS 

office, shall include proof of service on 

the opposing party. 

* * * * * 

■ 8. 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. 

Where transcription of an oral decision 

is required, the immigration judge shall 

review the transcript and approve the 

decision within 14 days of receipt, or 

within 7 days after the immigration 

judge returns to their duty station if the 

immigration judge was on leave or 

detailed to another location. The 

Chairman and the Chief Immigration 


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Judge shall determine the most effective 

and expeditious way to transcribe 

proceedings before the immigration 

judges, and 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. A DHS 

officer need not forward such an appeal 

to the Board, but may reopen and 

reconsider any decision made by the 

officer if the new decision will grant the 

benefit that has been requested in the 

appeal. The new decision must be 

served on the appealing party within 45 

days of receipt of any briefs or upon 

expiration of the time allowed for the 

submission of any briefs. If the new 

decision is not served within these time 

limits or the appealing party does not 

agree that the new decision disposes of 

the matter, the record of proceeding 

shall be immediately forwarded to the 

Board. 

§ 1003.7 [Amended]. 

■ 9. Amend § 1003.7 by: 

■ a. Removing the words ‘‘Immigration 

Judge’’ and adding in their place the 

words ‘‘immigration judge’’ wherever 

they appear; and 

■ b. Removing the word ‘‘Service’’ and 

the words ‘‘the Service’’ and adding in 

their place the word ‘‘DHS’’ wherever 

they appear. 

■ 10. Amend § 1003.9 by revising 

paragraph (b)(5) to read as follows: 

§ 1003.9 Office of the Chief Immigration 

Judge. 

* * * * * 

(b) * * * 

(5) Adjudicate cases as an 

immigration judge, including the 

authority to administratively close and 

recalendar cases in accordance with 

§ 1003.18(c); and 

* * * * * 

■ 11. Amend § 1003.10 in paragraph (b) 

by: 

■ a. Revising the second sentence; 

■ b. Adding two sentences following the 

second sentence; 

■ c. Revising the newly redesignated 

fifth sentence; and 

■ d. Removing the newly redesignated 

eight and ninth sentences. 

The revisions and additions read as 

follows: 

§ 1003.10 Immigration judges. 

* * * * * 

(b) * * * In deciding the individual 

cases before them, and subject to the 

applicable governing standards set forth 

in paragraph (d) of this section, 

immigration judges shall exercise their 

independent judgment and discretion 

and may take any action consistent with 

their authorities under the Act and 

regulations that is necessary or 

appropriate for the disposition or 

alternative resolution of such cases. 

Such actions include administrative 

closure, termination of proceedings, and 

dismissal of proceedings. The standards 

for the administrative closure, 

dismissal, and termination of cases are 

set forth in § 1003.18(c), 8 CFR 

1239.2(c), and § 1003.18(d), 

respectively. Immigration judges shall 

administer oaths, receive evidence, and 

interrogate, examine, and cross-examine 

noncitizens and any witnesses. * * * 

* * * * * 

■ 12. Amend § 1003.18 by revising the 

section heading, adding paragraph 

headings to paragraphs (a) and (b), and 

adding paragraphs (c) and (d) to read as 

follows: 

§ 1003.18 Docket management. 

(a) Scheduling. * * * 

(b) Notice. * * * 

(c) Administrative closure and 

recalendaring. Administrative closure is 

the temporary suspension of a case. 

Administrative closure removes a case 

from the immigration court’s active 

calendar until the case is recalendared. 

Recalendaring places a case back on the 

immigration court’s active calendar. 

(1) Administrative closure before 

immigration judges. An immigration 

judge may, in the exercise of discretion, 

administratively close a case upon the 

motion of a party, after applying the 

standard set forth at paragraph (c)(3) of 

this section. The administrative closure 

authority described in this section is not 

limited by the authority provided in any 

other provisions in this chapter that 

separately authorize or require 

administrative closure in certain 

circumstances, including 8 CFR 

214.15(l), and (p)(4), 1214.2(a), 1214.3, 

1240.62(b), 1240.70(f) through (h), 

1245.13, 1245.15(p)(4)(i), and 

1245.21(c). 

(2) Recalendaring before immigration 

judges. At any time after a case has been 

administratively closed under paragraph 

(c)(1) of this section, an immigration 

judge may, in the exercise of discretion, 

recalendar the case pursuant to a party’s 

motion to recalendar. In deciding 

whether to grant such a motion, the 

immigration judge shall apply the 

standard set forth at paragraph (c)(3) of 

this section. 

(3) Standard for administrative 

closure and recalendaring. An 

immigration judge shall grant a motion 

to administratively close or recalendar 

filed jointly by both parties, or filed by 

one party where the other party has 

affirmatively indicated its nonopposition, unless the immigration 

judge articulates unusual, clearly 

identified, and supported reasons for 

denying the motion. In all other cases, 

in deciding whether to administratively 

close or to recalendar a case, an 

immigration judge shall consider the 

totality of the circumstances, including 

as many of the factors listed under 

paragraphs (c)(3)(i) and (ii) of this 

section as are relevant to the particular 

case. The immigration judge may also 

consider other factors where 

appropriate. No single factor is 

dispositive. Accordingly, the 

immigration judge, having considered 

the totality of the circumstances, may 

grant a motion to administratively close 

or to recalendar a particular case over 

the objection of a party. Although 

administrative closure may be 

appropriate where a petition, 

application, or other action is pending 

outside of proceedings before the 

immigration judge, such a pending 

petition, application, or other action is 

not required for a case to be 

administratively closed. 

(i) As the circumstances of the case 

warrant, the factors relevant to a 

decision to administratively close a case 

include: 

(A) The reason administrative closure 

is sought; 

(B) The basis for any opposition to 

administrative closure; 

(C) Any requirement that a case be 

administratively closed in order for a 

petition, application, or other action to 

be filed with, or granted by, DHS; 

(D) The likelihood the noncitizen will 

succeed on any petition, application, or 

other action that the noncitizen is 

pursuing, or that the noncitizen states in 

writing or on the record at a hearing that 

they plan to pursue, outside of 

proceedings before the immigration 

judge; 

(E) The anticipated duration of the 

administrative closure; 

(F) The responsibility of either party, 

if any, in contributing to any current or 

anticipated delay; and 

(G) The ultimate anticipated outcome 

of the case. 

(ii) As the circumstances of the case 

warrant, the factors relevant to a 

decision to recalendar a case include: 

(A) The reason recalendaring is 

sought; 

(B) The basis for any opposition to 

recalendaring; 


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(C) The length of time elapsed since 

the case was administratively closed; 

(D) If the case was administratively 

closed to allow the noncitizen to file a 

petition, application, or other action 

outside of proceedings before the 

immigration judge, whether the 

noncitizen filed the petition, 

application, or other action and, if so, 

the length of time that elapsed between 

when the case was administratively 

closed and when the noncitizen filed 

the petition, application, or other action; 

(E) If a petition, application, or other 

action that was pending outside of 

proceedings before the immigration 

judge has been adjudicated, the result of 

that adjudication; 

(F) If a petition, application, or other 

action remains pending outside of 

proceedings before the immigration 

judge, the likelihood the noncitizen will 

succeed on that petition, application, or 

other action; and 

(G) The ultimate anticipated outcome 

if the case is recalendared. 

(d) Termination. Immigration judges 

shall have the authority to terminate 

cases before them as set forth in 

paragraphs (d)(1) and (2) of this section. 

A motion to dismiss a case in removal 

proceedings before an immigration 

judge for a reason other than authorized 

by 8 CFR 1239.2(c) shall be deemed a 

motion to terminate under paragraph 

(d)(1) of this section. 

(1) Removal, deportation, and 

exclusion proceedings—(i) Mandatory 

termination. In removal, deportation, 

and exclusion proceedings, immigration 

judges shall terminate the case where at 

least one of the requirements in 

paragraphs (d)(1)(i)(A) through (G) of 

this section is met. 

(A) No charge of deportability, 

inadmissibility, or excludability can be 

sustained. 

(B) Fundamentally fair proceedings 

are not possible because the noncitizen 

is mentally incompetent and adequate 

safeguards are unavailable. 

(C) The noncitizen has, since the 

initiation of proceedings, obtained 

United States citizenship. 

(D) The noncitizen has, since the 

initiation of proceedings, obtained at 

least one status listed in paragraphs 

(d)(1)(i)(D)(1) through (4) of this section, 

provided that the status has not been 

revoked or terminated, and the 

noncitizen would not have been 

deportable, inadmissible, or excludable 

as charged if the noncitizen had 

obtained such status before the 

initiation of proceedings. 

(1) Lawful permanent resident status. 

(2) Refugee status. 

(3) Asylee status. 

(4) Nonimmigrant status as defined in 

section 101(a)(15)(S), (T), or (U) of the 

Act. 

(E) Termination is required under 8 

CFR 1245.13(l). 

(F) Termination is otherwise required 

by law. 

(G) The parties jointly filed a motion 

to terminate, or one party filed a motion 

to terminate and the other party 

affirmatively indicated its nonopposition, unless the immigration 

judge articulates unusual, clearly 

identified, and supported reasons for 

denying the motion. 

(ii) Discretionary termination. In 

removal, deportation, or exclusion 

proceedings, immigration judges may, 

in the exercise of discretion, terminate 

the case where at least one of the 

requirements listed in paragraphs 

(d)(1)(ii)(A) through (G) of this section is 

met. 

(A) An unaccompanied child, as 

defined in 8 CFR 1001.1(hh), states an 

intent in writing or on the record at a 

hearing to seek asylum with USCIS, and 

USCIS has initial jurisdiction over the 

application pursuant to section 

208(b)(3)(C) of the Act. 

(B) The noncitizen demonstrates 

prima facie eligibility for relief from 

removal or for a lawful status based on 

a petition, application, or other action 

that USCIS has jurisdiction to 

adjudicate, including naturalization or 

adjustment of status. 

(C) The noncitizen is a beneficiary of 

Temporary Protected Status, deferred 

action, or Deferred Enforced Departure. 

(D) USCIS has granted the 

noncitizen’s application for a 

provisional unlawful presence waiver 

pursuant to 8 CFR 212.7(e). 

(E) Termination is authorized by 8 

CFR 1216.4(a)(6) or 1238.1(e). 

(F) The parties have filed a motion to 

terminate under 8 CFR 214.11(d)(1)(i) or 

214.14(c)(1)(i). 

(G) Due to circumstances comparable 

to those described in paragraphs 

(d)(1)(ii)(A) through (F) of this section, 

termination is similarly necessary or 

appropriate for the disposition or 

alternative resolution of the case. 

However, immigration judges may not 

terminate a case for purely 

humanitarian reasons, unless DHS 

expressly consents to such termination, 

joins in a motion to terminate, or 

affirmatively indicates its nonopposition to a noncitizen’s motion. 

(2) Other proceedings—(i) Mandatory 

termination. In proceedings other than 

removal, deportation, or exclusion 

proceedings, immigration judges shall 

terminate the case where the parties 

have jointly filed a motion to terminate, 

or one party has filed a motion to 

terminate and the other party has 

affirmatively indicated its nonopposition, unless the immigration 

judge articulates unusual, clearly 

identified, and supported reasons for 

denying the motion. In addition, 

immigration judges shall terminate such 

a case where required by law. 

(ii) Discretionary termination. In 

proceedings other than removal, 

deportation, or exclusion proceedings, 

immigration judges may, in the exercise 

of discretion, terminate the case where 

one party has requested termination, 

and terminating the case is necessary or 

appropriate for the disposition or 

alternative resolution of the case. 

However, immigration judges may not 

terminate a case for purely 

humanitarian reasons, unless DHS 

expressly consents to such termination, 

joins in a motion to terminate, or 

affirmatively indicates its nonopposition to a noncitizen’s motion. 

(iii) Limitation on termination. 

Nothing in paragraphs (d)(2)(i) and (ii) 

of this section authorizes immigration 

judges to terminate a case where 

prohibited by another regulatory 

provision. 

■ 13. Amend § 1003.23 by: 

■ a. Revising paragraph (a); 

■ b. Revising the first sentence and 

removing the second sentence of 

paragraph (b)(1) introductory text; 

■ c. In paragraph (b)(1), removing the 

words ‘‘the Service’’ and adding in their 

place the word ‘‘DHS’’, wherever they 

appear; 

■ d. Revising paragraphs (b)(1)(iii) 

through (v), (b)(2) and (3), and (b)(4)(i) 

and (ii); 

■ e. In paragraph (b)(4)(iii)(B), removing 

the words ‘‘Immigration Judge’’ and 

adding in their place the words 

‘‘immigration judge’’; and 

■ f. Removing paragraphs (b)(4)(v) and 

(vi). 

The revisions read as follows: 

§ 1003.23 Reopening or reconsideration 

before the Immigration Court. 

(a) Pre-decision motions. Unless 

otherwise permitted by the immigration 

judge, motions submitted prior to the 

final order of an immigration judge shall 

be in writing and shall state, with 

particularity the grounds therefor, the 

relief sought, and the jurisdiction. The 

immigration judge may set and extend 

time limits for the making of motions 

and replies thereto. A motion shall be 

deemed unopposed unless timely 

response is made. 

(b) * * * 

(1) In general. An immigration judge 

may upon the immigration judge’s own 

motion at any time, or upon motion of 

DHS or the noncitizen, reopen or 


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reconsider any case in which the judge 

has rendered a decision, unless 

jurisdiction is vested with the Board of 

Immigration Appeals. * * * 

* * * * * 

(iii) Assignment to an immigration 

judge. If the immigration judge is 

unavailable or unable to adjudicate the 

motion to reopen or reconsider, the 

Chief Immigration Judge or a delegate of 

the Chief Immigration Judge shall 

reassign such motion to another 

immigration judge. 

(iv) Replies to motions; decision. The 

immigration judge may set and extend 

time limits for replies to motions to 

reopen or reconsider. A motion shall be 

deemed unopposed unless timely 

response is made. The decision to grant 

or deny a motion to reopen or a motion 

to reconsider is within the discretion of 

the immigration judge. 

(v) Stays. Except in cases involving in 

absentia orders, the filing of a motion to 

reopen or a motion to reconsider shall 

not stay the execution of any decision 

made in the case. Execution of such 

decision shall proceed unless a stay of 

execution is specifically granted by the 

immigration judge, the Board, or an 

authorized DHS officer. 

(2) Motion to reconsider. A motion to 

reconsider shall state the reasons for the 

motion by specifying the errors of fact 

or law in the immigration judge’s prior 

decision and shall be supported by 

pertinent authority. Such motion may 

not seek reconsideration of a decision 

denying a previous motion to 

reconsider. 

(3) Motion to reopen. A motion to 

reopen proceedings shall state the new 

facts that will be proven at a hearing to 

be held if the motion is granted and 

shall be supported by affidavits and 

other evidentiary material. Any motion 

to reopen for the purpose of acting on 

an application for relief must be 

accompanied by the appropriate 

application for relief and all supporting 

documents. A motion to reopen will not 

be granted unless the immigration judge 

is satisfied that evidence sought to be 

offered is material and was not available 

and could not have been discovered or 

presented at the former hearing. A 

motion to reopen for the purpose of 

providing the noncitizen an opportunity 

to apply for any form of discretionary 

relief will not be granted if it appears 

that the noncitizen’s right to apply for 

such relief was fully explained to them 

by the immigration judge and an 

opportunity to apply therefor was 

afforded at the hearing, unless the relief 

is sought on the basis of circumstances 

that have arisen subsequent to the 

hearing. Pursuant to section 240A(d)(1) 

of the Act, a motion to reopen 

proceedings for consideration or further 

consideration of an application for relief 

under section 240A(a) of the Act 

(cancellation of removal for certain 

permanent residents) or 240A(b) of the 

Act (cancellation of removal and 

adjustment of status for certain 

nonpermanent residents) may be 

granted only upon demonstration that 

the noncitizen was statutorily eligible 

for such relief prior to the service of a 

Notice to Appear, or prior to the 

commission of an offense referred to in 

section 212(a)(2) of the Act that renders 

the noncitizen inadmissible or 

removable under sections 237(a)(2) or 

(a)(4) of the Act, whichever is earliest. 

The immigration judge has discretion to 

deny a motion to reopen even if the 

moving party has established a prima 

facie case for relief. 

(4) * * * 

(i) Asylum and withholding of 

removal. The time and numerical 

limitations set forth in paragraph (b)(1) 

of this section shall not apply if the 

basis of the motion is to apply for 

asylum under section 208 of the Act or 

withholding of removal under section 

241(b)(3) of the Act or withholding of 

removal under the Convention Against 

Torture, and is based on changed 

country conditions arising in the 

country of nationality or the country to 

which removal has been ordered, if such 

evidence is material and was not 

available and could not have been 

discovered or presented at the previous 

proceeding. The filing of a motion to 

reopen under this section shall not 

automatically stay the removal of the 

noncitizen. However, the noncitizen 

may request a stay and, if granted by the 

immigration judge, the noncitizen shall 

not be removed pending disposition of 

the motion by the immigration judge. If 

the original asylum application was 

denied based upon a finding that it was 

frivolous, then the noncitizen is 

ineligible to file either a motion to 

reopen or reconsider, or for a stay of 

removal. 

(ii) Order entered in absentia or in 

removal proceedings. An order of 

removal entered in absentia or in 

removal proceedings pursuant to section 

240(b)(5) of the Act may be rescinded 

only upon a motion to reopen filed 

within 180 days after the date of the 

order of removal, if the noncitizen 

demonstrates that the failure to appear 

was because of exceptional 

circumstances as defined in section 

240(e)(1) of the Act. An order entered in 

absentia pursuant to section 240(b)(5) 

may be rescinded upon a motion to 

reopen filed at any time upon the 

noncitizen’s demonstration of lack of 

notice in accordance with section 

239(a)(1) or (2) of the Act, or upon the 

noncitizen’s demonstration of the 

noncitizen’s Federal or State custody 

and the failure to appear was through no 

fault of the noncitizen. However, in 

accordance with section 240(b)(5)(B) of 

the Act, no written notice of a change 

in time or place of proceeding shall be 

required if the noncitizen has failed to 

provide the address required under 

section 239(a)(1)(F) of the Act. The 

filing of a motion under this paragraph 

shall stay the removal of the noncitizen 

pending disposition of the motion by 

the immigration judge. A noncitizen 

may file only one motion pursuant to 

this paragraph (b)(4)(ii). 

* * * * * 

PART 1239—INITIATION OF REMOVAL 

PROCEEDINGS 

■ 14. The authority citation for part 

1239 continues to read as follows: 

Authority: 8 U.S.C. 1103, 1221, 1229. 

■ 15. Amend § 1239.2 by: 

■ a. Revising paragraph (b); and 

■ b. Removing and reserving paragraph 

(f). 

The revisions read as follows: 

§ 1239.2 Cancellation of notice to appear. 

* * * * * 

(b) Ordering termination or dismissal. 

After commencement of proceedings, an 

immigration judge or Board member 

shall have authority to resolve or 

dispose of a case through an order of 

dismissal or an order of termination. An 

immigration judge or Board member 

may enter an order of dismissal in cases 

where DHS moves for dismissal 

pursuant to paragraph (c) of this section. 

A motion to dismiss removal 

proceedings for a reason other than 

those authorized by paragraph (c) of this 

section shall be deemed a motion to 

terminate and adjudicated pursuant to 8 

CFR 1003.1(m), pertaining to cases 

before the Board, or 8 CFR 1003.18(d), 

pertaining to cases before the 

immigration court, as applicable. 

* * * * * 

PART 1240—PROCEEDINGS TO 

DETERMINE REMOVABILITY OF 

NONCITIZENS IN THE UNITED STATES 

■ 16. 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). 

■ 17. The heading for part 1240 is 

revised to read as set forth above. 


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■ 18. Amend § 1240.26 by: 

■ a. As shown in the following table, 

removing the words in the left column 

and adding in their place the words in 

the right column wherever they appear: 

An alien ..................... A noncitizen. 

an alien ..................... a noncitizen. 

the alien .................... the noncitizen. 

alien’s ........................ noncitizen’s. 

■ b. By removing the words ‘‘his or her’’ 

and adding in their place the words ‘‘the 

noncitizen’s’’ in paragraphs (b)(3)(i) 

introductory text, (b)(3)(i)(A), (b)(4)(ii), 

and (i); 

■ c. By removing the words ‘‘his or her’’ 

and adding in their place the words ‘‘the 

ICE Field Office Director’s’’ in 

paragraph (c)(4); and 

■ d. revising paragraphs (k)(1), (k)(2) 

introductory text, (k)(3) introductory 

text, (k)(4), and (l). 

The revisions read as follows: 

§ 1240.26 Voluntary departure—authority 

of the Executive Office for Immigration 

Review. 

* * * * * 

(k) * * * 

(1) If the Board finds that an 

immigration judge incorrectly denied a 

noncitizen’s request for voluntary 

departure or failed to provide 

appropriate advisals, the Board may 

consider the noncitizen’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 in which a noncitizen has 

appealed an immigration judge’s 

decision or in which DHS and the 

noncitizen have both appealed an 

immigration judge’s decision, the Board 

shall not grant voluntary departure 

under section 240B(a) of the Act unless: 

* * * * * 

(3) In cases in which DHS has 

appealed an immigration judge’s 

decision, the Board shall not grant 

voluntary departure under section 

240B(b) of the Act unless: 

* * * * * 

(4) The Board may impose such 

conditions as it deems necessary to 

ensure the noncitizen’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 

noncitizen 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 noncitizen 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 documentation sufficient to 

assure lawful entry into the country to 

which the noncitizen is departing is not 

contained in the record, but the 

noncitizen continues to assert a request 

for voluntary departure under section 

240B of the Act and the Board finds that 

the noncitizen 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 noncitizen 

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 

noncitizen in writing of such 

conditions. The noncitizen may accept 

or decline the grant of voluntary 

departure and may manifest a 

declination either by written notice to 

the Board, 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 noncitizen 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 noncitizen may 

decline voluntary departure when 

unwilling to accept the amount of the 

bond or other conditions. 

(l) Penalty for failure to depart. There 

shall be a rebuttable presumption that 

the civil penalty for failure to depart, 

pursuant to section 240B(d)(1)(A) of the 

Act, shall be set at $3,000 unless the 

immigration judge or the Board 

specifically orders a higher or lower 

amount at the time of granting voluntary 

departure within the permissible range 

allowed by law. The immigration judge 

or the Board shall advise the noncitizen 

of the amount of this civil penalty at the 

time of granting voluntary departure. 

Dated: August 18, 2023. 

Merrick B. Garland, 

Attorney General. 

[FR Doc. 2023–18199 Filed 9–7–23; 8:45 am] 

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