# Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-27008

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** December 16, 2020
- **Citation:** 85 FR 81588

## Text

DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003 and 1240
[Docket No. EOIR 19-0022; Dir. Order No. 05-2021]
RIN 1125-AA96
Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure

AGENCY:

Executive Office for Immigration Review, Department of Justice.

ACTION:

Final rule.

SUMMARY:

On August 26, 2020, the Department of Justice (“Department”) published a notice of proposed rulemaking (“NPRM” or “proposed rule”) that would amend the regulations of the Executive Office for Immigration Review (“EOIR”) regarding the handling of appeals to the Board of Immigration Appeals (“BIA” or “Board”).

The Department proposed multiple changes to the processing of appeals to ensure the consistency, efficiency, and quality of its adjudications.

The Department also proposed to amend the regulations to make clear that there is no freestanding authority of line immigration judges or BIA members to administratively close cases. Finally, the Department proposed to delete inapplicable or unnecessary provisions regarding the forwarding of the record of proceedings on appeal. This final rule responds to comments received in response to the NPRM and adopts the NPRM with minor changes as described below.

DATES:

This rule is effective on January 15, 2021.

FOR FURTHER INFORMATION CONTACT:

Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-0289.

SUPPLEMENTARY INFORMATION:

I. Background

A. Proposed Rule

On August 26, 2020, the Department published an NPRM that would amend EOIR's regulations regarding the BIA's handling of appeals. Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 FR 52491 (Aug. 26, 2020). Through the NPRM, the Department proposed a number of changes to EOIR's regulations in 8 CFR parts 1003 and 1240 to ensure that cases heard at the BIA are adjudicated in a consistent and timely manner.

B. Authority

The Department issued this final rule pursuant to section 1103(g) of the Immigration and Nationality Act (“INA” or “the Act,”), 8 U.S.C. 1103(g).

C. Final Rule

Following careful consideration of the public comments received, which are discussed in detail below in section II, the Department has determined to publish the provisions of the proposed rule as final with the following changes as noted below in sections I.C.3, I.C.4, I.C.5, I.C.8, I.C.9, and I.C.11 below.

The Department is also clarifying the generally prospective temporal application of the rule.
1

The provisions of the rule applicable to appellate procedures and internal case processing at the BIA apply only to appeals filed, motions to reopen or reconsider filed, or cases remanded to the Board by a Federal court on or after the effective date of the final rule. The provisions of the rule related to the restrictions on
sua sponte
reopening authority are effective for all cases, regardless of posture, on the effective date. The provisions of the rule related to restrictions on the BIA's certification authority are effective for all cases in which an immigration judge issues a decision on or after the effective date. The provisions of the rule regarding administrative closure are applicable to all cases initiated by a charging document, reopened, or recalendared after the effective date.

1
The Department notes that the NPRM confusingly indicated that some changes would apply “on or after the effective date of publication,” 85 FR at 52498 even though the effective date is 30 days after the date of publication. To correct any confusion from that statement and to provide additional clarity, the Department offers a more delineated explanation of the temporal application of this rule herein.

The rationale provided in the background of the proposed rule remains valid. Accordingly, the major provisions of the final rule are as follows:

1. Briefing Extensions

The final rule will reduce the maximum allowable time for an extension of the briefing schedule for good cause shown from 90 days to 14 days. 8 CFR 1003.3(c). Consistent with current BIA policy “not to grant second briefing extension requests,” the rule expressly limits the parties to one possible extension. EOIR,
Board of Immigration Appeals Practice Manual,
Ch. 4.7(c) (hereinafter
BIA Practice Manual
) (last updated Oct. 5, 2020).

2. Simultaneous Briefing

The rule adopts simultaneous briefing schedules instead of consecutive briefing schedules for all cases. 8 CFR 1003.3(c). Previously, the BIA used consecutive briefing for cases involving aliens who are not in custody. The rule does not affect the BIA's ability to permit reply briefs in certain cases, but it does establish a 14-day deadline for their submission.

3. BIA Remands for Identity, Law Enforcement, or Security Investigations or Examinations

The rule revises 8 CFR 1003.1(d)(6)(ii) to provide that, when a case before the BIA requires completing or updating identity, law enforcement, or security investigations or examinations in order to complete adjudication of the appeal, the exclusive course of action would be for the BIA to place the case on hold while identity, law enforcement, or security investigations or examinations are being completed or updated, unless DHS reports that identity, law enforcement, or security investigations or examinations are no longer necessary or until DHS does not timely report the results of completed or updated identity, law enforcement, or security investigations or examinations.

Additionally, the rule authorizes the BIA to deem an application abandoned when the applicant fails, after being notified by DHS, to comply with the requisite procedures for DHS to complete the identity, law enforcement, or security investigations or examinations within 90 days of the BIA's notice that the case is being placed on hold for the completion of the identity, law enforcement, or security investigations or examinations. The rule also retains from the NPRM the exception to abandonment when the immigration judge determines that the alien demonstrates good cause for exceeding the 90-day allowance. Upon such a good cause finding, the immigration judge may grant the alien no more than 30 days to comply with the requisite procedures.

Following the review of public comments received,
2

the final rule makes two changes from the proposed rule on this point. First, this rule contains an additional requirement that, if DHS is unable to independently update any required identity, law enforcement, or security investigations, DHS shall provide a notice to the alien with appropriate instructions, as DHS does before the immigration courts under 8 CFR 1003.47(d), and

simultaneously serve a copy of the notice with the BIA. Second, while the NPRM would have begun the alien's 90-day timeline for compliance with the biometrics update procedures began at the time the Board provided notice to the alien, the final rule aligns the 90-day time period to begin running at the time DHS submits the instructions notice to the alien, if such notice is applicable. The Department agrees with the commenters' concerns that without these changes, the provisions of the proposed rule could have resulted in situations where the alien may be unable to effectively comply with the biometrics requirements due to possible delays by DHS or lack of sufficient notice.

2

See
section II.C.3.e for a summary and response to the comments received on this topic.

4. Finality of BIA Decisions and Voluntary Departure Authority

In addition, the rule amends 8 CFR 1003.1(d)(7) to provide further guidance regarding the finality of BIA decisions. To begin with, the rule adds a new paragraph (d)(7)(i) to clarify that the BIA has authority to issue final orders when adjudicating an appeal, including final orders of removal when a finding of removability has been made by an immigration judge and an application for protection or relief from removal has been denied; grants of relief or protection from removal; and, orders to terminate or dismiss proceedings.

The rule further adds new § 1003.1(d)(7)(ii) to provide instructions for the BIA regarding when the BIA may order a remand, rather than issuing a final order, after applying the appropriate standard of review to an immigration judge's decision. For example, the rule requires the BIA to first identify the standard of review that was applied and the specific error made by the immigration judge before remanding the proceeding. 8 CFR 1003.1(d)(7)(ii)(A). The final rule has one update from the same paragraph in the proposed rule to include a cross-reference to 8 CFR 1003.1(d)(6)(iii), which allows for BIA remands regarding information obtained as a result of the identity, law enforcement, or security investigations or examinations. The Department has included this cross-reference to prevent any unintended confusion that the remand procedures and options under 8 CFR 1003.1(d)(7)(ii) are the sole ones for the BIA.

Next, the rule adds new paragraph (d)(7)(iii) to 8 CFR 1003.1 to delegate clear authority to the BIA to consider issues relating to the immigration judge's decision on voluntary departure de novo and, within the scope of the BIA's review authority on appeal, to issue final decisions on requests for voluntary departure based on the record of proceedings. Additionally, the rule directly states that the BIA may not remand a case to the immigration court solely to consider a request for voluntary departure under section 240B of the Act, 8 U.S.C. 1229c.

The final rule makes three additional changes from the NPRM in response to public comments. First, in recognition of the fact that Board orders are generally served by mail—unlike orders of immigration judges which are frequently served in person—the final rule states that aliens will have 10 business days to post a voluntary departure bond if the Board's order of voluntary departure was served by mail. Further, as the Board is currently transitioning to an electronic filing system and expects to fully deploy that system within the next year, the final rule retains a period of five business days to post a voluntary departure bond if the Board's order is served electronically.

Second, in response to commenters' concerns about cases in which DHS appeals a separate grant of relief or protection, the Department is making edits from the NPRM to clarify the Board's procedure in that situation. Although cases in which an alien made multiple applications for relief or protection (including voluntary departure), an immigration judge granted at least one application but did not address the request for voluntary departure, DHS appealed the immigration judge's decision, the BIA determined that the immigration judge's decision was in error and that the alien's application(s) should be denied, and the BIA found a basis to deny all other applications submitted by the respondent without needing to remand the case, leaving only the request for voluntary departure unadjudicated, should be uncommon, the Department nevertheless makes clarifying edits to 8 CFR 1240.26(k)(2) and (3)
3

to indicate that the BIA may grant voluntary departure in cases in which DHS appeals provided that the alien requested voluntary departure from the immigration judge and is otherwise eligible.

3
The Department also notes that 8 CFR 1240.26(k)(2) and (3) were duplicative in the NPRM and has further edited the provisions to remove the duplication since they apply to both types of voluntary departure under section 240B of the Act, 8 U.S.C 1229c.

Third, in response to at least one commenter's concern regarding the expiration of an alien's travel documents, the Department is making changes to the final rule to make clear that if the record does not contain evidence of travel documentation sufficient to assure lawful entry into the country to which the alien is departing—and the alien otherwise has both asserted a request for voluntary departure and established eligibility under the other requirements—the Board may nevertheless grant voluntary for a period not to exceed 120 days, subject to the condition that the alien within 60 days must secure such documentation. This additional provision is consistent with similar authority already contained in 8 CFR 1240.26(b)(3)(ii).
4

4
This provision was, arguably, already incorporated by reference in the NPRM through 8 CFR 1240.26(k)(4) which adopts the provisions of 8 CFR 1240.26(c), (d), (e), (h), and (i) (with one exception) regarding voluntary departure requests before an immigration judge and makes them applicable to requests before the Board. Nevertheless, the Department is specifically incorporating it into the text of the final rule to be applicable to a grant of voluntary departure under either section 240B(a) or 240B(b) of the Act, 8 U.S.C. 1229c(a) or 1229c(b).

5. Prohibition on Consideration of New Evidence, Limitations on Motions To Remand, Factfinding by the BIA, and the Standard of Review

The rules make several changes to clarify the BIA's ability to take certain actions in adjudicating an appeal to ensure that appeals are adjudicated in a timely fashion without undue remands and consistent with the applicable law.

First, the rule limits the scope of motions to remand that the BIA may consider. Under new paragraph (d)(7)(v) to 8 CFR 1003.1, the BIA is prohibited from receiving new evidence on appeal, remanding a case for the immigration judge to consider new evidence in the course of adjudicating an appeal, or considering a motion to remand based on new evidence. Parties who wish to have new evidence considered in other circumstances may file a motion to reopen in accordance with the standard procedures for such motions,
i.e.,
compliance with the substantive requirements for such a motion at 8 CFR 1003.2(c). These prohibitions have three exceptions for new evidence: (1) The result of identity, law enforcement, or security investigations or examinations, including civil or criminal investigations of immigration fraud; (2) pertaining to a respondent's removability under the provisions of sections 212 and 237 of the Act, 8 U.S.C. 1182 and 1227; and (3) that calls into question an aspect of the jurisdiction of the immigration courts, such as evidence pertaining to alienage
5

or

EOIR's authority vis-à-vis DHS regarding an application for immigration benefits.
6

5
For example, EOIR has no jurisdiction over United States citizens with respect to removal proceedings; thus, evidence submitted on appeal

regarding whether a respondent is a United States citizen may be a basis for a remand in appropriate cases.
See Matter of Fuentes-Martinez,
21 I&N Dec. 893, 898 (BIA 1997).

6
As the NPRM noted, there are multiple situations in which a question of EOIR or DHS jurisdiction over an application may arise.
See
85 FR at 52500.

Second, the rule clearly delineates the circumstances in which the BIA may engage in factfinding on appeal. 8 CFR 1003.1(d)(3)(iv)(A) and (B). Although the rule maintains the general prohibition on factfinding by the BIA, the rule allows the BIA to take administrative notice of facts that are not reasonably subject to dispute, such as current events, the contents of official documents outside the record, or facts that can be accurately and readily determined from official government sources and whose accuracy is not disputed. If the BIA intends to administratively notice any such fact outside the record that would be the basis for overturning a grant of relief or protection issued by an immigration judge, the BIA must give notice to the parties and an opportunity for them to respond.

Third, the rule more clearly delineates the situations in which it is appropriate for the BIA to remand a case for further factfinding. 8 CFR 1003.1(d)(3)(iv)(C) and (D). Specifically, the BIA may not
sua sponte
remand a case for further factfinding unless doing is necessary to determine whether the immigration judge had jurisdiction.
Id.
§ 1003.1(d)(3)(iv)(C). Further, the BIA may not grant a motion to remand for further factfinding unless the party seeking the remand preserved the issue and previously attempted to provide such information to the immigration judge, the factfinding would alter the case's outcome and would not be cumulative of other evidence already in the record, and either the immigration judge's factual findings were clearly erroneous or remand to DHS is warranted.
Id.
§ 1003.1(d)(3)(iv)(D). Nothing in the rule, however, prohibits the BIA from remanding a case based on new evidence or information obtained after the date of the immigration judge's decision as a result of identity, law enforcement, or security investigations or examinations, including investigations occurring separate from those required by 8 CFR 1003.47.

Following review of public comments and in recognition of possible confusion regarding a situation in which additional factfinding would be a necessary adjunct of a remand due to an error of law, the final rule clarifies that, subject to other requirements, the Board may remand a case for additional factfinding in cases in which the immigration judge committed an error of law and that error requires additional factfinding on remand. For example, the Board may order additional factfinding on remand if it determines an immigration judge erred as a matter of law by not sufficiently developing the factual record for an alien proceeding without representation.

The rule also directly allows the BIA to affirm the decision of the immigration judge or DHS on any basis supported by the record, including a basis supported by facts that are not disputed.
Id.
§ 1003.1(d)(3)(v).

Finally, the rule makes clear that the BIA cannot remand a case based solely on the “totality of the circumstances” as such a standard of review has never been contemplated by either the Act or the regulations.
Id.
§ 1003.1(d)(7)(ii)(B). Nonetheless, in light of the confusion evidenced by commenters regarding that point, the Department in the final rule is making clear that the Board cannot remand a case following a totality of the circumstances standard of review, though an immigration judge's consideration of the totality of the circumstances may be a relevant subject for review under an appropriate standard.

6. Scope of a BIA Remand

The rule provides that the BIA may limit the scope of a remand while simultaneously divesting itself of jurisdiction on remand.
Id.
§ 1003.1(d)(7)(iii). Thus, a remand for a limited purpose—
e.g.,
the completion of identity, law enforcement, or security investigations or examinations—would be limited solely to that purpose consistent with the BIA's intent, and the immigration judge may not consider any issues beyond the scope of the remand.

7. Immigration Judge Quality Assurance Certification of a BIA Decision

Additionally, to ensure the quality of BIA decision-making, the rule establishes a procedure for an immigration judge to certify BIA decisions reopening or remanding proceedings for further review by the Director in situations in which the immigration judge alleges that the BIA made an error.
Id.
§ 1003.1(k).

The certification process is limited only to cases in which the immigration judge believes the BIA erred in the decision by: (1) A typographical or clerical error affecting the outcome of the case; (2) a holding that is clearly contrary to a provision of the INA, any other immigration law or statute, any applicable regulation, or a published, binding precedent; (3) failing to resolve the basis for appeal, including being vague, ambiguous, internally inconsistent; or, (4) clearly not considering a material factor pertinent to the issue(s) before the immigration judge.
Id.
§ 1003.1(k)(1)(i)-(iv). In addition, in order to certify a BIA decision for review, the immigration judge must: (1) Issue the certification order, (a) within 30 days of the BIA decision if the alien is not detained, and (b) within 15 days of the BIA decision if the alien is detained; (2) specify in the order the regulatory basis for the certification and summarize the underlying procedural, factual, or legal basis; and (3) provide notice of the certification to both parties.
Id.
§ 1003.1(k)(2)(i)-(iii).

To ensure a neutral arbiter between the immigration judge and the BIA, the Director will review any such certification orders.
Id.
§ 1003.1(k)(3). In reviewing such orders, the Director's delegated authority from the Attorney General permits him to dismiss the certification and return the case to the immigration judge or remand the case back to the BIA for further proceedings. The Director may not, however, issue an order of removal, grant a request for voluntary departure, or grant or deny an application for relief or protection from removal.
Id.
In response to a concern raised by at least one commenter, the final rule will allow the Director, in his or her discretion, to request briefs or filings from the parties when considering a case under this quality-control certification process.

This quality assurance certification process is a mechanism to ensure that BIA decisions are accurate and precise—not a mechanism solely to express disagreements with BIA decisions or to lodge objections to particular legal interpretations.
Id.
§ 1003.1(k)(4).

8. Administrative Closure Authority

The rule amends 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to make clear that those provisions—and similar provisions in 8 CFR part 1240—provide no freestanding authority for immigration judges or Board members to administratively close immigration cases absent an express regulatory or judicially approved settlement basis to do so. For example, the rule amends 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to provide explicitly, for clarity, that the existing references in those paragraphs to “governing standards” refer to the applicable governing standards as set forth in the existing provisions of

§§ 1003.1(d)(1)(i) and 1003.10(d), respectively and do not refer to some more general, free-floating administrative closure authority.

The final rule makes non-substantive change to 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) from the proposed rule by inserting the word “defer” in place of the word “suspend” in both paragraphs and by making conforming stylistic changes to ensure that the language is clear that an administrative closure of a case is a type of deferral of adjudication of that case. The Department has made this change to prevent any unintended confusion regarding whether there is a distinction between cases whose adjudication is deferred and those whose adjudication is suspended and to make clear that an administrative closure is not the only type of deferral of adjudication.
7

The Department intended no distinctions and is clarifying that point by ensuring that the description of administrative closure as a type of deferral of adjudication is consistent throughout the rule.

7
Administrative closure is not the only procedural mechanism for deferring adjudication of cases. For instance, EOIR deferred all non-detained removal hearings between March 17, 2020, and June 12, 2020, due to the outbreak of COVID-19 but did not administratively close the cases.

9.
Sua Sponte
Authority

The rule removes the Attorney General's previous general delegation of
sua sponte
authority to the BIA and immigration judges to reopen or reconsider cases and instead limit such
sua sponte
reopenings only to correct minor mistakes, such as typographical errors or defects in service. 8 CFR 1003.2(a), 1003.23(b)(1).
8

These changes do not preclude parties from filing joint motions, including in situations in which there has been a relevant change in facts or law. Moreover, nothing in the rule precludes the ability of a respondent to argue, in an appropriate case, that a time limit is inapplicable due to equitable tolling.

8
The text of 8 CFR 1003.2(a) in the NPRM inadvertently removed the phrase “or reconsider” from the first sentence of that paragraph. This final rule reinserts that phrase to ensure that parties and the BIA are clear that the Board can reconsider a decision
sua sponte
in order to correct a typographical error or defect in service.

In addition, to ensure that aliens whose removability is vitiated
in toto
prior to the execution of the removal order retain a mechanism for reopening their proceedings, the rule amends the regulations to allow the filing of a motion to reopen, notwithstanding the time and number bars, when an alien claims that an intervening change in law or fact renders the alien no longer removable at all and the alien has exercised diligence in pursuing his or her motion.
9

Id.
§§ 1003.2(c)(3)(v), 1003.23(b)(4)(v). Similarly, the rule amends the regulations to allow the filing of a motion to reopen, notwithstanding the time and number bars, when an individual claims that he or she is a United States citizen or national in recognition that the law provides jurisdiction only in removal proceedings for aliens.
See
INA 240(a)(1), 8 U.S.C. 1229a(a)(1);
see also
8 CFR 1003.2(c)(3)(vi), 1003.23(b)(4)(v).

9
This provision would apply only when the intervening change vitiated the alien's removability completely—an alien charged with multiple removability grounds would remain subject to the time and number bars unless the intervening change vitiated each removability ground. Additionally, this provision would apply only to grounds of removability. Aliens arguing that an intervening change in law or fact affected their eligibility for relief or protection from removal would remain subject to existing regulatory provisions on such motions.

Finally, to address the effects of removal of
sua sponte
reopening authority on DHS, the rule clarifies that the filing of a motion to reopen with the BIA by DHS in removal proceedings or in proceedings initiated pursuant to 8 CFR 1208.2(c) is not subject to the time and numerical limits applicable to such motions. 8 CFR 1003.2(c)(3)(vii).

10. Certification Authority

The rule also withdraws the BIA's delegated authority to review cases by self-certification,
id.
§ 1003.1(c), due to concerns over the lack of standards for such certifications, the lack of a consistent application of the “exceptional” situations criteria for purposes of utilizing self-certification, the potential for lack of notice of the BIA's use of certification authority, the overall potential for inconsistent application and abuse of this authority, and the strong interest in finality,

11. Timeliness of Adjudication of BIA Appeals

The rule makes a variety of changes to ensure the timely adjudication of appeals. For example, the rule amends 8 CFR 1003.1(e)(8)(i) to harmonize the time limits for adjudicating cases so that both the 90- and 180-day deadlines are set from the same starting point—when the record is complete.
10

In addition, the rule established specific time frames for review by the screening panel, processing of transcripts, issuance of briefing schedules, and review by a single BIA member to determine whether a single member or a three-member panel should adjudicate the appeal, none of which were previously considered via regulation or tracked effectively to prevent delays.
Id.
§ 1003.1(e)(1), (8). It also adds tracking and accountability requirements for the Board Chairman, also known as the Chief Appellate Immigration Judge, in cases where the adjudication of appeals must be delayed to ensure that no appeals are overlooked or lost in the process.
Id.
§ 1003.1(e)(8)(v). Similarly, the rule establishes specific time frames for the adjudication of summary dismissals, providing substance to the current requirement at 8 CFR 1003.1(d)(2)(ii) that such cases be identified “promptly” by the screening panel, and for the adjudication of interlocutory appeals, which are not currently addressed in the regulations, except insofar as they may be referred to a three-member panel for review.
Id.
§ 1003.1(e)(1).

10
For appeals, the record is complete upon the earlier of the filing of briefs by both parties or the expiration of the briefing schedule. For motions, the record is complete upon the filing of a response to the motion or the expiration of the response period. For remands, the record is complete upon either the date the remand is received by the BIA or, if the BIA elects to order briefing following the remand, the earlier of the filing of briefs by both parties or the expiration of the briefing schedule.

Additionally, with two exceptions for cases subject to an extension under 8 CFR 1003.1(e)(8)(ii) or a hold under 8 CFR 1003.1(e)(8)(iii), the rule instructs the Board Chairman to refer appeals pending beyond 335 days to the Director for adjudication.
Id.
§ 1003.1(e)(8)(v). Following the review of public comments received, including comments about the potential volume of cases subject to referral and the impact of other provisions of the rule, the final rule makes two changes from the NPRM.

First, it adds four further exceptions to 8 CFR 1003.1(e)(8)(v). Cases on hold pursuant to 8 CFR 1003.1(d)(6)(ii) to await the results of identity, law enforcement, or security investigations or examinations will not be subject to referral if the hold causes the appeal to remain pending beyond 335 days. Cases whose adjudication has been deferred by the Director pursuant to 8 CFR 1003.0(b)(1)(ii) will not be subject to referral if the deferral causes the appeal to remain pending beyond 335 days. Cases remanded by the Director under 8 CFR 1003.1(k) will not be subject to referral if the case remains pending beyond 335 days after the referral. Cases that have been administratively closed pursuant to a regulation promulgated by the Department of Justice or a previous judicially approved settlement that expressly authorizes such an action will not be subject to referral if the administrative closure occurred prior to the elapse of 335 days and causes the appeal to remain pending beyond 335 days. These changes, which are incorporated through a stylistic

restructuring of 8 CFR 1003.1(e)(8)(v) for clarity, recognize additional situations in which a case may appropriately remain pending beyond 335 days without adjudication or when referral back to the Director would be incongruous because the Director had remanded the case in the first instance.

Second, the final rule makes edits to eliminate confusion over the scope of 8 CFR 1003.1(e). As both the title of that paragraph (“Case management system”) and its general introductory language (“The Chairman shall establish a case management system to screen all
cases
and to manage the Board's caseload.”) make clear, the provisions of the paragraph apply to “cases.”
Id.
§ 1003.1(e) (emphasis added). In turn, “the term
case
means any proceeding arising under any immigration or naturalization law.”
Id.
§ 1001.1(g). At the Board, cases may be initiated in one of three ways: (1) The filing of a Notice of Appeal, (2) the filing of a motion directly with the Board (
e.g.,
a motion to reconsider or a motion to reopen), or (3) the receipt of a remand from a Federal court, the Attorney General, or—under this rule—the Director. In other words, the Board adjudicates multiple types of cases, not just appeals. Although the existing language of 8 CFR 1003.1(e) is clear that it applies to all types of cases at the Board, regardless of how they are initiated, the inconsistent, subsequent use of “appeals” throughout that paragraph creates confusion as to its scope since appeals are not the only type of case the Board considers.
See, e.g., id.
§ 1003.1(e)(3) (in describing the Board's merits review process, using “case” in the first sentence, “case” and “appeal” in the second sentence, and “appeal” in the third sentence, all is describing a unitary process). To avoid continued confusion and to ensure that the scope of the other changes in the final rule regarding the Board's case management process are clear, the final rule makes edits to 8 CFR 1003.1(e) to ensure that it is clearly applicable to all cases before the Board, not solely cases arising through appeals.
11

11
For similar reasons, the final rule also makes changes to 8 CFR 1003.1(d)(3)(iv) to clarify that 8 CFR 1003.1(d)(3)(iv)(A) applies to all cases at the Board, whereas 8 CFR 1003.1(d)(3)(iv)(D) applies only to direct appeals of immigration judge decisions.

12. Forwarding the Record on Appeal

The rule revises 8 CFR 1003.5(a) regarding the forwarding of the record of proceedings in an appeal to ensure that the transcription process and the forwarding of records do not cause any unwarranted delays. Specifically, the rule clarifies that the immigration judge does not need to forward the record of the proceedings to the BIA if the BIA already has access to the record electronically and removes the process for immigration judge review of the transcript.
Id.
§ 1003.5(a).

In addition, the rule removes language in 8 CFR 1003.5(b), which describes procedures regarding appeals from DHS decisions that are within the BIA's appellate jurisdiction, that is not applicable to EOIR's adjudicators and replaces outdated references to the former Immigration and Naturalization Service. These changes do not substantively affect the BIA's adjudication of any appeals from DHS officers that are within the BIA's jurisdiction.

II. Public Comments on the Proposed Rule

A. Summary of Public Comments

The comment period for the NPRM ended on September 25, 2020, with 1,284 comments received. The majority of comments were from individual and anonymous commenters, including coordinated campaigns. Other commenters included non-profit organizations, law firms, and members of Congress. While some commenters supported the NPRM, the majority of commenters expressed opposition to the rule, either in whole or part.

Many, if not most, comments opposing the NPRM either misunderstood what it actually provides, proceed from erroneous legal or factual premises—
e.g.,
that the rule applies only to aliens and not DHS or that its changes apply more heavily to aliens than to DHS—are founded in policy disagreements, or simply repeat tendentious or spurious claims about the Department's motivations in issuing the rule. Further, many commenters opposing the rule failed to engage with the specific reasons and language put forth by the Department in lieu of broad generalizations or hyperbolic, unsupported presumptions. Additionally, many comments appeared rooted in a belief that EOIR's adjudicators are incompetent or unethical and are either incapable or unwilling to adhere to applicable law. Finally, most, if not all, commenters in opposition to the rule viewed its procedural changes wholly through a results-oriented lens such that a proposal that commenters speculatively believed would cause aliens to “win” fewer cases was deemed objectionable, even without evidence that such a result would follow. In other words, any change perceived to lead to aliens “winning” fewer cases was deemed unfair, arbitrary and capricious, biased, a violation of due process, or otherwise inappropriate, regardless of the Department's justification for the change or the relevant law. Such a results-oriented view both misapprehended the procedural nature of the changes and appeared to have been based on a tacit belief that aliens were entitled to specific outcomes in specific cases, notwithstanding the relevant evidence or law applicable to a case, and that the rule inappropriately required adjudicators to maintain partiality in adjudicating cases rather than continuing to provide what commenters viewed as favorable treatment toward aliens.

To the extent that commenters simply disagree as a policy matter that Board cases should be completed in a timely manner,
see id.
1003.1(d);
cf. INS
v.
Doherty,
502 U.S. 314, 323 (1992) (“[A]s a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.”), or that the Department should take measures, consistent with due process, to ensure the timely completion of such cases, the Department finds such policy disagreements unpersuasive for the reasons given in the NPRM and throughout this final rule.

Similarly, the Department also categorically rejects any comments suggesting that adjudicators should provide favorable treatment to one party over another,
e.g.,
by granting a
sua sponte
motion to reopen contrary to well-established law. The Department expects all of its adjudicators to treat both parties fairly and to maintain impartiality when adjudicating cases. 8 CFR 1003.1(d)(1) (“The Board shall resolve the questions before it in a manner that is timely,
impartial,
and consistent with the Act and regulations.” (emphasis added)); 8 CFR 1003.10(b) (“In all cases, immigration judges shall seek to resolve the questions before them in a timely and
impartial
manner consistent with the Act and regulations.”) (emphasis added)); 5 CFR 2635.101(b)(8) (“Employees [of the Federal Government] shall act impartially and not give preferential treatment to any private organization or individual.”); EOIR,
Ethics and Professionalism Guide for Members of the Board of Immigration Appeals
sec. V (May 4, 2011) [hereinafter
BIA Ethics and Professionalism Guide
] (“A Board Member shall act impartially and shall not give preferential treatment to any organization or individual when adjudicating the merits of a particular case.”),

available at https://

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

EOIR,
Ethics and Professionalism Guide for Immigration Judges
sec. V (Jan. 26, 2011) [hereinafter
IJ Ethics and Professionalism Guide
] (“An Immigration Judge shall act impartially and shall not give preferential treatment to any organization or individual when adjudicating the merits of a particular case.”),
available at https://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/EthicsandProfessionalismGuideforIJs.pdf.
Further, the Department also rejects unsupported and almost ad hominem comments based on a belief that its adjudicators are incompetent or unethical, that they will fail to follow the law, or that they have some results-oriented view that will cause them to adjudicate cases in an inappropriate manner.
See United States
v.
Chem. Found., Inc.,
272 U.S. 1, 14-15 (1926) (“The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”).

In sum, the Department issued the NPRM for the reasons given in order to bring needed clarity to certain areas of law, improve efficiency at the BIA, ensure authority is appropriately exercised, reduce the risk of gamesmanship by parties, and promote impartial and timely adjudications consistent with the law. It did not do so for any nefarious purpose, nor did it intend for its procedural changes to have any substantive bearing on the outcomes of additional cases, which flow from the evidence and the law, not the Department's process. As discussed herein, nothing in the NPRM singles out specific populations of aliens, including unrepresented aliens,
12

nor do any of its changes fall disproportionately upon such groups in an inappropriate manner. To the extent that commenters did not engage with the NPRM itself, provided unsupported assertions of fact or law, attacked—tacitly or explicitly—the motivations of the Department's adjudicators, or otherwise put forward suggestions based on their preferred results rather than an impartial process, the Department has nevertheless considered those comments but finds them unavailing.
See Home Box Office, Inc.
v.
FCC,
567 F.2d 9, 35 n.58 (D.C. Cir. 1977) (per curiam) (“In determining what points are significant, the `arbitrary and capricious' standard of review must be kept in mind. Thus only comments which, if true, raise points relevant to the agency's decision and which, if adopted, would require a change in an agency's proposed rule cast doubt on the reasonableness of a position taken by the agency. Moreover, comments which themselves are purely speculative and do not disclose the factual or policy basis on which they rest require no response. There must be some basis for thinking a position taken in opposition to the agency is true.”). Further, to the extent that commenters provided substantive analysis and raised important issues, the Department has considered all of them; however, on balance, except for changes noted below, it has determined that the policy and operational benefits of the rule expressed above—including consistency, impartiality, and efficiency—outweigh all of the issues raised by commenters. Accordingly, although the Department has reviewed all comments received, the vast majority of them fall into the groupings outlined above, and few of them are persuasive for reasons explained in more detail in Part II.C below.

12
The Department has fully considered the possible impacts of this rule on the relatively small pro se population of aliens with cases before the Board. As discussed below, however, the rule neither singles such aliens out for particular treatment under the Board's procedures, nor does it restrict or alter any of the many procedural avenues such aliens already have available to them in advancing their cases. Further, nothing in the rule inhibits the availability of pro bono counsel to assist such aliens as appropriate.

B. Comments Expressing Support for the Proposed Rule

Comment:
Commenters expressed general support for the rule and immigration reform. These commenters supported all aspects of the rule, which they stated would “streamline” BIA processes to help reduce the backlog and the number of frivolous appeals. One commenter stated that the rule “will have a positive impact on immigration, especially limiting the burden placed on the system by pro se immigrants.”

Response:
The Department appreciates the commenters' support for the rule.

C. Comments Expressing Opposition to the Proposed Rule

1. General Opposition

Comment:
Many Commenters expressed general opposition to the rule.
13

Several commenters asserted that the rule was motivated by politics and would “enable politicized and biased decision-making.” Various commenters raised concerns that the rule would give the EOIR Director “consolidated power over appeals.” Similarly, several commenters voiced concern that the rule would turn the BIA into a “political tool” or that the changes would turn the BIA into a rubber stamp for deportation orders. Others were concerned that the rule would put increased pressure on immigration judges to decide cases quickly.

13
Commenters' specific concerns regarding different provisions of the rule are discussed separately below in section II.C.3.

Some commenters expressed concerns that the rule was an attempt to end legal immigration. Other commenters alleged that the rule was motivated by an attempt to foreclose respondents' access to relief from removal.

Many commenters were concerned that the rule would eliminate a robust and meaningful appeal process. For example, one commenter stated that “[a]ny individual facing judicial decision making deserves to have a full and fair right to appeal.” The commenter went on to claim that the rule seeks “to erode that right by making it more difficult for individuals to actualize the right to appeal to the BIA.” Another commenter was concerned that the rule would completely strip respondents of “their right to meaningfully contest a poorly reasoned or legally invalided decision.”

Several commenters expressed concern about the rule's impact on respondents' safety and security. One commenter claimed that the rule “would greatly reduce the rights of noncitizens appearing before EOIR and would result in . . . the potential death of asylum seekers who are removed to their home countries to be killed.” Another commenter noted that taking away a respondent's ability to appeal their case “exposes them to more violence and risk of death if they are deported.” Other commenters were concerned that the rule would lead to permanent family separations.

A number of commenters also made the generalized claim that the rule would entirely reshape the immigration system. Others stated that the rule would create significant administrative burdens. Several other commenters alleged that the rule would lead to an increased case backlog and make EOIR less efficient. Multiple commenters raised concerns regarding the impact of the intersection of the rule with other rules recently promulgated by the Department and by DHS, particularly the Department's proposed rule to increase fees for motions to reopen and appeals.

Response:
Commenters are incorrect that the rule is the product of political or biased decision-making or that the rule would turn the BIA into a “political tool.” As noted in the NPRM, the BIA has seen recent significant increases in

its pending caseload. 85 FR at 52492. The number of appeals pending is currently at a record high, with 84,673 case appeals pending as of the end of FY 2020. EOIR,
Adjudication Statistics: Case Appeals Filed, Completed, and Pending,
Oct. 13, 2020,
available at

h
ttps:
/
/www.justice.gov/eoir/page/file/1248501/download.
Accordingly, the Department has reviewed EOIR's regulations regarding the procedures for BIA appeals to determine what changes can be implemented to promote increased efficiencies and taken steps to address the BIA's growing caseload. In this manner, this rule builds on prior similar procedural reviews and amendments to the BIA's regulations.
See, e.g.,
Board of Immigration Appeals: Procedural Reforms To Improve Case Management, 67 FR 54878 (Aug. 26, 2002) (final rule that revised the structure and procedures of the BIA, provided for an enhanced case management procedure, and expanded the number of cases referred to a single Board member for disposition).
14

14
In addition, the Department notes that it and EOIR have taken numerous steps, both regulatory and sub-regulatory, to increase EOIR's efficiencies and address the pending caseload.
See, e.g.,
Expanding the Size of the Board of Immigration Appeals, 85 FR 18105 (Apr. 1, 2020) (interim final rule expanding the size of the BIA from 21 to 23 members); EOIR,
Policy Memorandum 20-01: Case Processing at the Board of Immigration Appeals
[hereinafter PM 20-01] (Oct. 1, 2019),
available at https://www.justice.gov/eoir/page/file/1206316/download
(explaining various agency initiatives, including an improved BIA case management system, issuance of performance reports, and a reiteration of EOIR's responsibility to timely and efficiently decide cases in serving the national interest); EOIR,
Policy Memorandum 19
-
11: No Dark Courtrooms
(Mar. 29, 2019),
available at https://www.justice.gov/eoir/file/1149286/download
(memorializing policies to reduce and minimize the impact of unused courtrooms and docket time).

Similarly, commenters are incorrect that the rule is intended to have an effect on immigration rates or an alien's opportunity to be heard. As part of the Department of Justice, EOIR's mission remains to “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation's immigration laws.” EOIR,
About the Office,
Aug. 14, 2018,
available at

h
ttp
s
://www.justice.gov/eoir/about-office.
Instead, as part of the Department's intention to increase efficiencies, the Department believes that the rule will have the effect of reducing the time required for the adjudication of appeals by DHS in cases where the immigration judge or the BIA has found the alien merits relief or protection from removal. In short, the changes to the rule should help both meritorious claims be adjudicated more quickly, which will benefit aliens, and meritless claims adjudicated more quickly, which will benefit the public and the government.

Commenters' statements regarding possible effects on aliens who are denied relief or who may be subject to removal are purely speculative. Moreover, such speculative effects exist currently and independently of the rule, as alien appeals may be denied or dismissed under current procedures. Further, nothing in the rule prevents or inhibits case-by-case adjudication by the Board in accordance with the evidence and applicable law for each such case. Accordingly, the Department finds commenters' concerns on this point unpersuasive.

Finally, the Department acknowledges that it has published multiple proposed rules in 2020, including one that would increase the fee for an appeal to the BIA and for certain motions to reopen for the first time in over 30 years.
See
Executive Office for Immigration Review; Fee Review, 85 FR 11866 (Feb. 28, 2020). The Department also acknowledges that DHS has imposed a $50 fee for asylum applications, U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 FR 46788, 46791 (Aug. 3, 2020),
15

that would also be applicable in EOIR proceedings, 8 CFR 1103.7(b)(4)(ii), though that rule has been enjoined.
16

Immigrant Legal Resource Ctr.
v.
Wolf,
—F.Supp.3d—, 2020 WL 5798269 (N.D. Cal. 2020);
Nw. Immigrants Rights Proj.
v.
U.S. Citizenship & Immigration Servs.,
No. 19-3283 (RDM), 2020 WL 5995206 (D.D.C. Oct. 8, 2020).

15
The DHS rule did not impose a fee for an asylum application filed by a genuine UAC who is in removal proceedings conducted by EOIR. 85 FR 46788 at 46809 (“Notably, unaccompanied alien children in removal proceedings who file an application for asylum with USCIS are exempt from the Form I-589 fee.”). Thus, contrary to some commenters' concerns, a genuine UAC who files a motion to reopen based exclusively on an asylum application is not subject to a fee for that motion. 8 CFR 1003.8(a)(2)(ii), 1003.24(b)(2)(i), (ii).

16
While the injunction of DHS's rule assessing a $50 fee for asylum applications is in effect, EOIR cannot charge a fee for asylum applications in its proceedings. Relatedly, while that injunction is in effect, it cannot charge a fee for a motion to reopen based exclusively on an asylum application. 8 CFR 1003.8(a)(2)(ii), 1003.24(b)(2)(i), (ii). Because the ultimate resolution of that litigation is unknown—and, thus, there is a possibility that DHS's rule may never take effect—commenters' concerns about the potential relationship between that rule and this final rule are even more speculative. Nevertheless, as discussed, even if all of the relevant rules were in effect, the Department has concluded that the benefits of the final rule outweigh any substantiated costs identified by commenters.

The Department rejects any assertions, however, that it is proposing multiple rules for any sort of nefarious purpose. Each of the Department's rules stands on its own, includes explanations of their basis and purpose, and allows for public comment, as required by the APA.
See Little Sisters of the Poor Saints Peter & Paul Home
v.
Pennsylvania,
140 S. Ct. 2367, 2385 (2020) (explaining that the APA provides the “maximum procedural requirements” that an agency must follow in order to promulgate a rule). Further, the interplay and impact of all of these rules is speculative at the present time due to both ongoing and expected future litigation—which may allow all, some, or none of the rules to ultimately take effect—and the availability of fee waivers, 8 CFR 1103.7(c), which may offset the impact of some of the increases. Nevertheless, to the extent commenters noted some potential overlap or joint impacts, the Department regularly considers the existing and potential legal framework when a specific rule is proposed or implemented. Moreover, even if all rules were in effect, the Department has concluded that the benefits of the instant rule discussed in the NPRM,
e.g.,
85 FR at 52509 and herein—as well as the benefits discussed in the other rules,
e.g.,
85 FR at 11870
17

—ultimately outweigh any combined impact the rules may have on aliens, particularly vis-à-vis fee increases for appeals and motions to reopen.
18

17
In issuing its proposed rule regarding fees for applications administered by EOIR, the Department acknowledged the balance between the costs of increased fees and the public benefit associated with such fees, in addition to the need to comply with applicable law and policy in conducting more regular fee reviews. 85 FR at 11870 (“Although EOIR is an appropriated agency, EOIR has determined that it is necessary to update the fees charged for these EOIR forms and motions to more accurately reflect the costs for EOIR's adjudications of these matters. At the same time, however, EOIR recognizes that these applications for relief, appeals, and motions represent statutorily provided relief and important procedural tools that serve the public interest and provide value to those who are parties to the proceedings by ensuring accurate administrative proceedings. . . . As DHS is the party opposite the alien in these proceedings, EOIR's hearings provide value to both aliens seeking relief and the Federal interests that DHS represents. Given that EOIR's cost assessment did not include overhead costs or costs of non-salary benefits (
e.g.,
insurance), recovery of the processing costs reported herein is appropriate to serve the objectives of the IOAA and the public interest. The proposed fees would help the Government recoup some of its costs when possible and would also protect the public policy interests involved. EOIR's calculation of fees accordingly factors in both the public interest in ensuring that the immigration courts are accessible to aliens seeking relief and the public interest in ensuring that U.S. taxpayers do not bear a disproportionate burden in funding the immigration system.”).

18
The Department also reiterates that the availability of fee waivers for appeals and motions to reopen, 8 CFR 1003.8(a)(3) and 8 CFR 1003.24(d), addresses the principal concern raised by

commenters regarding the instant rule's asserted impact on filing motions to reopen and the Department's proposed fee increase for motions to reopen.

Comment:
At least one commenter stated that the rule is pretext for restrictions on aliens' access to asylum or related relief. In support, the commenter argued that the rule provides preferential treatment to DHS versus aliens in proceedings and that the Department selectively compares the BIA at times to either Federal courts or other administrative tribunals, whichever best supports the restriction at issue. In addition, the commenter highlighted comments disparaging of immigrants or the immigration system by President Trump and the Attorney General.

Response:
The rule is not a pretext for any nefarious motive targeting aliens for any reason, and it is appropriately supported by applicable law and examples. As discussed,
supra,
the rule generally applies to aliens and DHS equally and does not provide preferential treatment to either party. To the extent that commenters simply disagree with either the law or the examples provided, commenters did not provide a persuasive justification for why their particular policy preferences are superior to those adopted by the Department in the rule. Moreover, as explained in the NPRM and herein, this rule is just one example of the Department's actions, both recently and in the past, to increase efficiencies before the BIA and address the record pending caseload. The Department reiterates the reasoning set out in the proposed rule for the changes, and the discussion further below regarding commenters' concerns with particular provisions of the rule.

2. Violates Due Process

Comment:
Many commenters expressed broad concerns that the rule would erode aliens' due process rights in immigration court or BIA proceedings. Specifically, several commenters claimed that the rule favored efficiency over fairness. Commenters stated that the rule claimed to promote efficiency, but that its proposed changes “would sacrifice fairness and due process for this increased efficiency.” Several commenters noted that due process should be more highly valued than efficiency in removal proceedings. For example, one commenter asserted that the rule “has everything to do with efficiency and nothing to do with due process.” A commenter also stated that that rule's “goal should not be to create a more efficient production system for the rapid removal of litigants.” Another commenter claimed that, under the rule, the BIA would put efficiency above its duties as an appellate body, which would thereby violate respondents' due process rights.

Furthermore, commenters voiced concern that the rule was attempting to inappropriately speed up and streamline procedures in a way that would negatively affect due process protections. One commenter stated that the streamlining of procedures “will foster further inequities and affect due process for all people involved.” A number of commenters pointed out that cases should not be decided quickly and that due process requires that attorneys be given a sufficient amount of time to prepare their clients' cases. Several other commenters raised concerns that the rule was an attempt by the Administration to prioritize deportations over due process protections.

Numerous commenters were also concerned with the possible consequences stemming from what they view as a potential erosion of due process protections. Commenters noted that the level of due process in immigration court proceedings can mean the difference between a respondent living safely in the United States and being returned to danger in another country.

Response:
To the extent that commenters equate “due process” with an outcome favorable to the alien and an “erosion” of due process with an outcome adverse to the alien—and base their comments accordingly on that view—the Department declines to accept both that view of due process and the comments based on it. The foundation of due process is notice and an opportunity to be heard, and nothing in the rule eliminates either an alien's right to notice or an alien's opportunity to be heard on a case before the Board.
19

See LaChance
v.
Erickson,
522 U.S. 262, 266 (1998) (“The core of due process is the right to notice and a meaningful opportunity to be heard.”). The Department does not evaluate due process based on outcomes for either party, and it accordingly declines to adopt comments premised on the intimation that due process occurs only when the outcome of a case is favorable to an alien.
Cf. Pugel
v.
Bd. of Trs. of Univ. of Ill.,
378 F.3d 659, 666 (7th Cir. 2004) (“Due process did not entitle [appellant] to a favorable result . . . only to a meaningful opportunity to present [a case].”).

19
The Department notes that although the INA statutorily requires proceedings over which an immigration judge must preside to determine an alien's removability in many situations, under sections 240(a)(1) and (3) of the Act, 8 U.S.C. 1229a(a)(1) and (3), and acknolwedges that an administrative appeal may be permitted,
e.g.,
INA 101(a)(47)(B) and 208(d)(5)(A)(iv), 8 U.S.C. 1101(a)(47)(B) and 1158(d)(5)(A)(iv), there is no constitutional or statutory right to an administrative appeal to the BIA.
See Albathani
v.
INS,
318 F.3d 365, 376 (1st Cir. 2003) (“An alien has no constitutional right to any administrative appeal at all. Such administrative appeal rights as exist are created by regulations promulgated by the Attorney General.” (citations omitted));
Guentchev
v.
INS,
77 F.3d 1036, 1037-38 (7th Cir. 1996) (“The Constitution does not entitle aliens to administrative appeals. Even litigants in the federal courts are not constitutionally entitled to multiple layers of review. The Attorney General could dispense with the Board and delegate her powers to the immigration judges, or could give the Board discretion to choose which cases to review (a la the Appeals Council of the Social Security Administration, or the Supreme Court exercising its certiorari power).”);
cf.
Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 FR 536, 554-55 (Jan. 3, 2013) (“In upholding the BIA's practice of `affirmance without opinion' of immigration judge decisions, for example, several courts of appeals have recognized that Due Process does not require an agency to provide for administrative appeal of its decisions.”). Thus, the Department's administrative appellate process involving the BIA already provides more due process to aliens in removal proceedings than is required by either the INA or the Constitution, and the alteration of the BIA's procedures through regulations promulgated by the Attorney General is fully consonant with the provision of due process.
See Barradas
v.
Holder,
582 F.3d 754, 765 (7th Cir. 2009) (stating that immigration proceedings that meet the statutory and regulatory standards governing the conduct of such proceedings generally comport with due process).

As noted above, EOIR's mission is “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation's immigration laws.” These objectives are generally complementary; for example, unnecessary delays in the receipt of relief for meritorious aliens is itself a fairness concern. Moreover, there is nothing inherently unfair in ensuring that a case is adjudicated by the Board within approximately 11 months—
i.e.,
335 days—of its filing. To the contrary, excessive delay in adjudication, especially when issues of human welfare are at stake, may raise concerns themselves and increase the risk of litigation.
20

See, e.g., Telecomms. Rsch.

and Action Ctr.

v.
FCC,
750 F.2d 70, 80 (D.C. Cir. 1984) (outlining several factors for deciding unreasonable delay claims under the Administrative Procedures Act, including acknowledging “delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake”).

20
The Department recognizes and agrees with the Supreme Court's observation that “as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.”
Doherty,
502 U.S. at 323. Thus, it is aware that many aliens likely prefer substantial delays in the adjudications of their appeals by the BIA and, accordingly, oppose any efforts to increase the efficiency of such adjudications. Nevertheless, the Department finds any rationale for encouraging or supporting the dilatory adjudication of cases both inherently unpersuasive and wholly outweighed by the importance of timeliness and fairness—especially to aliens with meritorious claims—in BIA adjudications.

Commenters are incorrect that the provisions of this rule impede aliens' due process rights in the manner alleged. Although the rule refines timing and other procedural requirements, the rule does not affect any party's fundamental rights to notice or an opportunity to be heard by the BIA. Moreover, the rule does not make proceedings before the BIA “so fundamentally unfair that the alien was prevented from reasonably presenting his case.”
Gutierrez
v.
Holder,
662 F.3d 1083, 1091 (9th Cir. 2011) (citations and quotation marks omitted). None of the changes in the rule limit aliens in immigration proceedings before EOIR from filing appeals, briefs, or other evidence such that it prevents aliens from reasonably presenting their appeal. Further, many commenters assessed the rule through only a one-sided lens related to aliens and did not acknowledge that (1) most of the changes apply equally to DHS and (2) some of the changes—
e.g.,
the elimination of simultaneous briefing for non-detained cases—fall much more heavily on DHS than on aliens. In short, as the Department explained in the NPRM and reiterates in the final rule, the changes are designed for the benefit of all parties and the adjudicators and do not affect either party's entitlement to due process in immigration proceedings.

3. Specific Concerns With the NPRM

a. BIA Jurisdiction by Certification (8 CFR 1003.1(c))

Comment:
Numerous commenters expressed concern over the Department's removal of the BIA's self-certification authority at 8 CFR 1003.1(c).

At least one commenter expressed dismay as to why the Department would retract the BIA's self-certification authority rather than retaining the authority but defining “exceptional circumstances,” which the commenter believed would be less costly and more beneficial.

Commenters were concerned that the removal of the BIA's self-certification authority will negatively impact aliens in proceedings, particularly pro se respondents. For example, a commenter explained that the changes would disproportionately impact pro se aliens because they are “the parties least likely to have a sophisticated notion of when an appeal to the BIA is worth taking.” Another commenter noted that removal of the self-certification authority would prevent the BIA from addressing defects in an alien's Notice of Appeal, which may be the result of factors outside the alien's control, such as mail delays, illness, or language ability.

One commenter characterized the change as removing an important check on immigration judge misconduct.

Taking issue with the Department's supposed analogy to Federal courts, another commenter claimed that Federal courts were distinct from immigration courts because the “process of filing a notice of appeal in federal court is straightforward, [ ] the Federal Rules of Civil Procedure provide ample protection for pro se parties who make mistakes, [and] the stakes in most civil suits arising in federal district court are, unlike the stakes in most immigration court cases, not a matter of life and death.”

Response:
As an initial point, the Department notes that many commenters objected to the limitation of the Board's certification authority solely because they perceived that authority to be beneficial only to respondents. Those comments, however, support the Department's concern about the inappropriate and inconsistent usage of that authority and its decision to limit that authority because it may be applied in a manner that benefits one party over the other.

As the Department discussed in the NPRM, the BIA's use of its self-certification authority has been subject to inconsistent usage, if not abuse, by the BIA in the past. For example, despite clear language that required the BIA to have jurisdiction in order to exercise its self-certification authority, BIA members often inverted that principle and used the self-certification authority to establish jurisdiction.
See, e.g., Matter of Carlos Daniel Jarquin-Burgos,
2019 WL 5067262, at *1 n.1 (BIA Aug. 5, 2019) (“On March 29, 2019, we accepted the respondent's untimely appeal. To further settle any issues of jurisdiction, we accept this matter on appeal pursuant to 8 CFR 1003.1(c).”),
Matter of Daniel Tipantasig-Matzaquiza,
2016 WL 4976725, at *1 (BIA Jul. 22, 2016) (“To settle any issues regarding jurisdiction, we will exercise our discretionary authority to accept this appeal on certification.
See
8 CFR 1003.1(c).”), and
Matter of Rafael Antonio Hanze Fuentes,
2011 WL 7071021, at *1 n.1 (BIA Dec. 29, 2011) (“In order to avoid any question regarding our jurisdiction over this appeal, we take jurisdiction over this matter by certification pursuant to 8 CFR 1003.1(c).”).

Commenters' own suggestions that removing this authority would harm alien appellants because the BIA often uses its self-certification authority inappropriately and contrary to existing case law to avoid finding appeals untimely or correct filing defects provide further support for the Department's decision.
See Matter of Jean,
23 I&N Dec. 373, 380 n.9 (A.G. 2002) (the Board's certification authority, like its
sua sponte
authority, “is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship” (internal citation and quotation marks omitted)). Further, commenters did not explain how the Board could exercise jurisdiction through certification without determining its jurisdiction in the first instance.
See
85 FR at 52506. Finally, most commenters did not acknowledge that the withdrawal of certification authority would also impact cases in which it may have been used contrary to precedent to accept appeals in favor of DHS. In other words, as the Department has noted, the impact of this provision is equally applicable to both parties and is not directed at one over the other.

The Department finds that the same risks would continue should the Department provide further definition of “exceptional circumstances” rather than remove the certification authority, as suggested by commenters. Indeed, the existence of a standard for “exceptional circumstances” applicable to BIA self-certification since at least 2002,
see Matter of Jean,
23 I&N Dec. at 380 n.9, has not precluded the Board members from disregarding that standard as both the NPRM, 85 FR at 52506, and commenters recognize. Accordingly, the Department finds that further attempts to refine that standard would likely be unhelpful, if not futile, especially because there is no effective check on its usage to ensure consistency. Moreover, creating an additional definitional standard for “exceptional circumstances” would also create additional adjudicatory delays and arguments surrounding whether a case genuinely met that standard.

Regarding the possible impact of the rule on pro se aliens, the Department first notes that most aliens—
i.e.,
86 percent, EOIR,
Current Representation Rates,
Oct. 13, 2020 [hereinafter
Representation Rates
],
available at

h
ttps:
/

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

1062991/download

—whose cases are considered by the Board have representation. For those who do not, there are multiple avenues they may pursue to obtain representation.
21

For example, the Department maintains a BIA Pro Bono Project in which “EOIR assists in identifying potentially meritorious cases based upon criteria determined by the partnering volunteer groups.” EOIR,
BIA Pro Bono Project,
Oct. 16, 2020,
available at https://www.justice.gov/eoir/bia-pro-bono-project.
22

Additionally, certain procedural doctrines, such as equitable tolling, may excuse noncompliance with filing deadlines for pro se aliens.
23

Moreover, immigration judges have a duty to develop the record in cases involving pro se aliens which will assist such aliens in pursuing appeals if needed.
See Mendoza-Garcia
v.
Barr,
918 F.3d 498, 504 (6th Cir. 2019) (collecting cases). The Department has fully considered the possible impacts of this rule on the relatively small pro se population of aliens with cases before the Board. However, the rule neither singles such aliens out for particular treatment under the Board's procedures, nor does it restrict or alter any of the avenues noted above that may assist pro se aliens.

21
In an appeal to the Board in removal proceedings, “the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.” INA 292, 8 U.S.C. 1362. Despite this statutory right to counsel at no expense to the Government in appeals to the BIA in removal proceedings, the Department recognizes that some aliens do not obtain representation before the BIA. The Department understands that some aliens do not secure representation because they do not wish to pay the fee charged by a potential representative. The Department also understands that many representatives, due to ethical or professional responsibility obligations, will not take cases of aliens who are ineligible for any relief or protection from removal (
e.g.,
an alien with an aggravated felony drug trafficking conviction who has no fear of persecution or torture in his or her home country) because they do not wish to charge money for representation when representation will not affect the outcome of the proceeding. These situations illustrate only that some aliens may not ultimately secure counsel for reasons common to issues of representation in all civil cases—
i.e.,
the cost of the representation and the strength of the case—not that aliens are limited or prohibited from obtaining representation.
See United States
v.
Torres-Sanchez,
68 F.3d 227, 231 (8th Cir. 1995) (“Although Torres-Sanchez expressed some frustration over his attempt to obtain counsel, that frustration, in our view of the record, stemmed from his realization that he faced the inevitable consequence of deportation, not from a lack of opportunity to retain counsel. In any event, the mere inability to obtain counsel does not constitute a violation of due process.”). As the Department is not involved in discussions between respondents and potential representatives, it cannot definitively state every reason that an alien who seeks representation may not obtain it. Nevertheless, it can state that this rule does not limit or restrict any alien's ability to obtain representation in accordance with section 292 of the Act, 8 U.S.C. 1362.

22
In addition, as discussed elsewhere in this rule, the Department emphasizes that EOIR provides numerous resources to assist pro se individuals with self-representation and participation in their proceedings. For example, EOIR's Office of Policy seeks to increase access to information and raise the level of representation for individuals in hearings before immigration courts and the BIA.
See
EOIR,
Office of Legal Access Programs
(Feb. 19, 2020),
available at https://www.justice.gov/eoir/office-of-legal-access-programs.
In addition, EOIR has developed a thorough electronic resource for individuals in proceedings. EOIR,
Immigration Court Online Resource, available at

https://icor.eoir.justice.gov/en/.

23
Although the Board has not formally adopted such a rule, by practice, it also construes pro se filings liberally. At least one court of appeals has held that the Board is legally required to liberally construe pro se filings.
See Higgs
v.
Att'y Gen. of the U.S.,
655 F.3d 333, 339-40 (3d Cir. 2011).

Ultimately, however, unless a doctrine such as equitable tolling is applicable, BIA procedures are not excused for pro se respondents, just as they are not excused generally for pro se civil litigants.
See, e.g., McNeil
v.
United States,
508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”);
Edwards
v.
INS,
59 F.3d 5, 8-9 (2d Cir. 1995) (rejecting a pro se alien litigant's arguments for being excused from Federal court procedural requirements due to his pro se status). Although the Department appreciates the challenges faced by pro se litigants and recommends that all aliens obtain representation,
but see
note 21,
supra
(explaining why aliens may not obtain representation), it declines to establish two separate procedural tracks for appeals depending on whether an alien has representation. Further, weighing the possibility of abuses of the certification process described above and in the NPRM, 85 FR at 52506-07, the size of the pro se population with cases before the BIA, and the well-established avenues of assistance for pro se aliens, the Department disagrees that it is necessary or appropriate to keep the certification process simply due to the possibility of its use as a means of relieving a party of his or her compliance with particular procedural requirements.

The Department is unsure why a commenter claimed the Department's underlying logic on this issue relied on an analogy to Federal court, as the entire section describing the changes is silent as to Federal appellate courts.
Id.
at 52506-07. Accordingly, the Department cannot provide an informed response to that comment.

As to removing a necessary procedural check on immigration judges, the Department notes that the regular appeals process to the BIA is unchanged, and parties that believe an immigration judge erred in his or her decision should seek an appeal at the BIA consistent with those procedures. Commenters did not provide an explanation as to why the certification process would provide a check that the regular appeal process would not, nor did they explain why EOIR's well-established complaint process for immigration judge misconduct would also not be a sufficient check on immigration judge behavior.
See
EOIR,
Summary of EOIR Procedures for Handling Complaints Concerning EOIR Adjudicators,
Oct. 15, 2018,
available at https://www.justice.gov/eoir/page/file/1100946/download
(last visited Nov. 24, 2020). In short, commenters did not persuasively explain why the BIA self-certification process, which is subject to inconsistent application and potential abuse, is superior to the normal appellate process and EOIR's immigration judge misconduct complaint process for monitoring immigration judge behavior; accordingly, the Department declines to accept the commenters' suggestions on that issue.

b. Administrative Closure (8 CFR 1003.1(d)(1)(ii), 1003.10)

Comment:
Commenters raised concerns with the rule's general prohibition on administrative closure, explaining that the prohibition would prevent adjudicators from efficiently organizing and prioritizing cases on their dockets, resulting in increased backlogs. For example, commenters stated that immigration judges would not be able to prioritize terrorism suspects over persons who overstayed visas and have apparent eligibility for relief.

Commenters further explained that eliminating administrative closure would result in unfairly harsh consequences for persons who have pending applications with the United States Citizenship and Immigration Services (“USCIS”), such as U visas and applications for Special Immigrant Juvenile Status. Instead of allowing for administrative closure of their removal proceedings while those applications are being processed by USCIS, the commenters explained that persons would likely be required to appeal a removal order or file a motion to reopen once USCIS approves their application, potentially while the person is outside the United States. Moreover, commenters noted that this would

create inefficiencies due to simultaneous adjudications by EOIR and USCIS. Similarly, commenters noted that the rule would also prejudice persons with pending matters in State or Federal courts as well, such as direct appeals of criminal convictions or other post-conviction relief.

Commenters raised multiple concerns about the rule's effects on persons applying for provisional unlawful presence waivers with DHS. Commenters alleged that the rule conflicts with section 212(a)(9)(B)(v) of the Act, 8 U.S.C. 1182(a)(9)(B)(v), which provides for an unlawful presence hardship waiver. Commenters explained that the Secretary of Homeland Security implemented regulations at 8 CFR 212.7(e)(4)(iii) interpreting the waiver statute as allowing persons in removal proceedings to apply for a provisional waiver if their removal proceeding is administratively closed. In implementing this rule, the commenter alleges that the Department is implicitly amending the DHS regulation by rendering DHS's administrative closure language superfluous. As a result, commenters believe that the rule infringes on the Secretary's authority to interpret section 212(a)(9)(B)(v) of the Act, 8 U.S.C. 1182(a)(9)(B)(v).

Moreover, commenters also stated that, as a practical matter, the rule would act as a bar to persons in removal proceedings from obtaining provisional unlawful presence waivers from DHS in order to consular process because the waiver applicants would no longer be able to receive administrative closure, as required by DHS regulations. One commenter noted that, instead of administrative closure, immigration courts have been recently using status dockets to handle cases that have applications pending with USCIS. However, the commenter noted that status dockets do not allow persons to apply for provisional unlawful presence waivers because their removal cases remain pending.

Relatedly, at least one commenter stated that the administrative closure prohibition will push more aliens into filing applications for cancellation of removal, since they will be unable to administratively close their removal proceedings in order to apply for a provisional unlawful presence waiver. The commenter stated this would raise costs for EOIR since adjudicating cancellation of removal applications costs more than administratively closing proceedings in order for DHS to adjudicate the waiver applications.

As a general matter, commenters alleged that the Department's explanation for the administrative closure changes were insufficient and incapable of justifying the changes under the APA, including claiming that EOIR relied on flawed and misleading statistics and that the Department's reliance on
Matter of Castro-Tum,
27 I&N Dec. 271 (A.G. 2018) is misplaced because
Castro-Tum
was wrongly decided. Commenters alleged that the Department's statements that prohibiting administrative closure will improve efficiency is not supported in the proposed rule and that administrative closure actually contributes to shrinking the backlog by allowing respondent to pursue ancillary relief. Moreover, commenters stated that the Department should have consulted with DHS to ensure that adjudications between the two agencies are consistent.

At least one commenter also raised constitutional concerns with the rule's administrative closure changes. The commenter alleged that the rule violates due process by depriving persons in removal proceedings of the right to submit applications for provisional unlawful presence waivers and by depriving United States citizens of the opportunity to live with their non-citizen spouse while the spouse's provisional unlawful presence waiver is being adjudicated by USCIS. The commenter similarly alleged that the rule violates the Equal Protection Clause because persons in removal proceedings will be prevented from applying for a provisional unlawful presence waiver simply because they are in removal proceedings when persons who have been ordered removed are allowed to apply for a waiver.

Response:
EOIR is tasked with the efficient adjudication of immigration proceedings.
See, e.g.,
8 CFR 1003.10(b) (explaining that “immigration judges shall seek to resolve the questions before them in a timely and impartial manner”). As such, indefinitely delaying immigration court proceedings in order to allow aliens to pursue speculative relief that may take years to resolve does not comport with EOIR's mission to expeditiously adjudicate cases before it.
See, e.g., Matter of L-A-B-R-,
27 I&N Dec. 405, 416 (A.G. 2018) (denying a continuance in part because an indefinite request would undermine administrative efficiency). With EOIR's pending caseload reaching record highs, EOIR simply cannot allow indefinite delays that prolong adjudication any longer than necessary for immigration judges to decide the issues squarely before them.
See Hernandez-Serrano
v.
Barr,
—F.3d—, 2020 WL 6883420, *3 (6th Cir. Nov. 24, 2020) (“The result of administrative closure, . . . is that immigration cases leave an IJ's active calendar and, more often than not, never come back. Thus the reality is that, in hundreds of thousands of cases, administrative closure has amounted to a decision not to apply the Nation's immigration laws at all.”). Therefore, the Department does not believe that administrative closure is a proper tool
24

for efficiently adjudicating proceedings and, as a result, is using its authority to clarify its own regulations to preclude immigration judges and the BIA from granting administrative closure, with limited exceptions.
See
INA 103(g)(2), 8 U.S.C. 1103(g)(2) (granting the Attorney General the authority to issue regulations as necessary for carrying out his authority as it relates to EOIR).

24
The Department notes that there are other potential tools available to respondents with pending relief or actions outside of EOIR, including requesting a continuance or working with DHS counsel to file a motion to dismiss.
See
8 CFR 1003.29, 1239.2(c).

Additionally, the Department finds it necessary to provide this clarification to resolve competing interpretations of 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) that have resulted in the inconsistent nationwide application of administrative closure authority.
Compare Matter of Castro-Tum,
27 I&N Dec. at 271 (holding that neither immigration judges nor the BIA have a general authority to indefinitely suspend immigration proceedings through administrative closure),
and Hernandez-Serrano,
2020 WL 6883420 at *4 (“Indeed no one—neither Hernandez-Serrano, nor the two circuit courts that have rejected the Attorney General's decision in
Castro-Tum
—has explained how a general authority to close cases administratively can itself be lawful while leading to such facially unlawful results.”),
with Meza Morales
v.
Barr,
973 F.3d 656 (7th Cir. 2020) (rejecting
Castro-Tum
and holding that immigration judges are not precluded from administratively closing cases),
and Romero
v.
Barr,
937 F.3d 282 (4th Cir. 2019) (same). These conflicting decisions, and the possibility of additional such decisions, create uncertainty for immigration judges and the BIA, which this rule seeks to remedy through a consistent nationwide policy.
Cf. Meza Morales,
973 F.3d at 667 (noting that the Attorney General may amend the regulations through the proper procedures to remove any perceived administrative closure authority).

The Department disagrees with commenters that the agency did not provide sufficient reasons for the change in the NPRM, or that the given reasons were false, erroneous, or relied on incorrect or misleading statistics.

Rather, the Department explained that the general authority to administratively close cases “failed as a policy matter and is unsupported by the law.”
See
85 FR at 52504. In the NPRM, the Department noted that, following the expansion of administrative closure in
Matter of Avetisyan,
25 I&N Dec. 688 (BIA 2012), the backlog of immigration court cases has grown significantly.
See also Adjudication Statistics: Pending Cases, New Cases, and Total Completions,
Oct. 13, 2020,
available at https://www.justice.gov/eoir/page/file/1242166/download.
While the use of administrative closure is not solely responsible for this growth, the need for prompt adjudication of pending cases has only increased. Administrative closure merely delays a decision until an unknown future date, thus allowing the total number of cases at the immigration courts to grow, rather than requiring the immigration judge to adjudicate the issues before them in order to promptly move cases to completion.

The Department also explained in the NPRM that the agency believes the Attorney General's holding in
Matter of Castro-Tum
is correct that 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) do not provide for general administrative closure authority, citing the Attorney General's explanations that general administrative closure authority conflicts with the regulatory “timely” requirements, 27 I&N Dec. at 284; that the regulations do not ordinarily include the authority to suspend cases indefinitely,
id.
at 285; and that specific delegations that prior Attorneys General have made would be rendered superfluous,
id.
at 287-88, among others.
See also Hernandez-Serrano,
2020 WL 6883420 at *1, *4 (stating that “[a]s of October 2018, more than 350,000 of those [administratively closed] cases had not been reopened. An adjudicatory default on that scale strikes directly at the rule of law” and that “[t]he result of administrative closure, . . . is that immigration cases leave an IJ's active calendar and, more often than not, never come back. Thus the reality is that, in hundreds of thousands of cases, administrative closure has amounted to a decision not to apply the Nation's immigration laws at all.”).

Further, the Department also explained in the NPRM that the agency believes general administrative closure authority improperly allows immigration judges to determine which immigration cases should be adjudicated and which ones should not.
See
85 FR at 52503. Similar to continuances, administrative closure is a tool to delay cases in certain instances. However, in practice, unlike continuances, administrative closure has at times been used to effectively terminate cases through indefinite delay. Thus, the Department believes that such authority is improper as a policy matter unless expressly provided for by regulation or judicially approved settlement.

Lastly, the Department also explained in the NPRM that existing regulations make clear that authority to defer the adjudication of cases lies with EOIR leadership and not with individual members of the BIA or immigration judges.
See
8 CFR 1003.0(b)(1)(ii), 1003.1(a)(2)(i)(C), 1003.9(b)(3).

The Department also disagrees with commenters that this rule conflicts with section 212(a)(9)(B)(v) of the Act, 8 U.S.C. 1182(a)(9)(B)(v), as interpreted by DHS in 8 CFR 212.7(e)(4)(iii), which makes a person in removal proceedings ineligible for a provisional unlawful presence hardship waiver unless the proceedings are administratively closed. Regulations solely promulgated by and binding on DHS do not confer independent authority on immigration judges or the Board, and DHS does not have the power to provide immigration judges with the general authority to grant administrative closure or to prohibit EOIR from interpreting its own regulations, so any interpretation of § 212.7(e)(4)(iii) attempting to do sowould be erroneous.
See
INA 103(a)(1), 8 U.S.C. 1103(a)(1) (providing the Attorney General with the authority to make “controlling” determinations of the immigration laws);
see also Castro-Tum,
27 I&N Dec. at 287 n.9 (“Because only the Attorney General may expand the authority of immigration judges or the Board, that regulation [8 CFR 212.7(e)(4)(iii)] cannot be an independent source of authority for administrative closure.”). The Department has considered the interplay of EOIR and DHS's regulations regarding provisional unlawful presence waivers and has decided to continue with a general prohibition on administrative closure in immigration proceedings before EOIR. DHS chose to limit the eligibility for provisional unlawful presence waivers as a matter of policy.
See
78 FR at 544 (explaining that DHS chose to limit eligibility to aliens with administratively closed removal proceedings in order to be “consistent with [DHS's] established enforcement priorities”). DHS may choose to update their regulations as a result of the Department's amendments regarding administrative closure authority, but any concerns with DHS's policy decisions are outside the scope of this rule.

Commenters did not identify an explicit conflict between the language of INA 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), and the Department is unaware of any. That statutory provision refers to a waiver of inadmissibility based on an alien's unlawful presence in the United States, and this final rule does not purport to interpret, alter, or even address that provision. Rather, commenters assert that this rule's restriction on the use of administrative closure presents an undesirable policy choice to the extent that it may limit eligibility for that waiver based on DHS's current regulatory language. The Department acknowledges commenters' policy disagreement and has considered it. Nevertheless, the benefits of the final rule far outweigh its alleged costs, even crediting commenters' speculative assertions.
25

Moreover, regardless of policy preferences, the Attorney General has determined that the expansive version of administrative closure preferred by commenters is incompatible with existing law and does not warrant a delegation of such authority.
Matter of Castro-Tum,
27 I&N Dec. at 292 (“The current practice of administrative closure lacks a valid legal foundation, and I do not believe it would be appropriate to delegate such authority.”);
cf. Hernandez-Serrano,
2020 WL 6883420 at *4 (“Those concessions imply that the permanent closure of some 350,000 immigration cases was largely contrary to law. Indeed no one—neither Hernandez-Serrano, nor the two circuit courts that have rejected the Attorney General's decision in
Castro-Tum
—has explained how a general authority to close cases administratively can itself be lawful while leading to such facially unlawful results.”). In short, the Department finds no basis to contradict the Attorney General and adopt commenters' policy preferences.

25
The final rule does not prohibit administrative closure altogether, and commenters did not generally acknowledge or account for those aliens who may still benefit from administrative closure under the rule in their assertions about the rule's impact.

The Department believes that any increase in cancellation of removal applications in response to this unrelated rule is purely speculative. Further, even if commenters' predictions turn out to be accurate, the Department is well-equipped to handle an increase in such applications as its adjudicators have considered them for decade and the relevant law is well-established. Additionally, commenters' speculation on this point implies that the majority of such applications would

be meritless; otherwise, the aliens would have already filed such applications because an approved application for cancellation of removal for non-permanent residents provides lawful permanent residence which is a preferable outcome to the limbo-like nature of adnministrative closure. The Department finds that a potential increase in meritless applications for relief is not a persuasive reason for altering this final rule, and any adjudicatory costs associated with such an increase are outweighed by the benefits of the rule.

The Departments disagree that the administrative closure provisions raise any constitutional concerns. There is no cognizable due process interest in access to or eligibility for a discretionary, provisional unlawful presence waiver of inadmissibility.
See, e.g., Champion
v.
Holder,
626 F.3d 952, 957 (7th Cir. 2010) (“To articulate a due process claim, [the individual] must demonstrate that she has a protected liberty or property interest under the Fifth Amendment. Aliens have a Fifth Amendment right to due process in some immigration proceedings, but not in those that are discretionary.”) (citations omitted). Moreover, this rule's administrative closure changes do not violate the concept of equal protection—in either the Equal Protection Clause of the Fourteenth Amendment or as a component of the Fifth Amendment's Due Process Clause—as they do not impose any classifications that would invoke the doctrine. To the extent the administrative closure changes would have a disparate impact on persons in removal proceedings as compared to persons not in proceedings, the Departments note that the changes are rationally related to the Department's interest in efficiently allocating EOIR's limited adjudicatory capacity in order to decide cases in a timely manner.
Cf. DeSousa
v.
Reno,
190 F.3d 175, 184 (3d Cir. 1995) (“[D]isparate treatment of different groups of aliens triggers only rational basis review under equal protection doctrine. Under this minimal standard of review, a classification is accorded `a strong presumption of validity'. . . .” (internal citations omitted)).

Overall, as discussed in more detail,
infra,
the Department has weighed the relevant equities of the rule's administrative closure provision. The Department does not believe that the administrative closure provision will have a significant impact on the public, as most immigration courts—63 out of 67, all but those in Arlington, Baltimore, Charlotte, and Chicago
26

—currently follow either
Matter of Castro-Tum
itself or an applicable Federal court decisioning affirming it,
e.g., Hernandez-Serrano,
2020 WL 6883420 at *5 (“In summary, therefore, we agree with the Attorney General that §§ 1003.10 and 1003.1(d) do not delegate to IJs or the Board `the general authority to suspend indefinitely immigration proceedings by administrative closure.'” (quoting
Matter of Castro-Tum,
27 I&N Dec. at 272)). Therefore, the effect of this rule simply codifies the existing limitations on immigration judges' general authority to grant administrative closure.
27

Moreover, to the extent that commenters simply disagree with the decision in
Matter of Castro-Tum
as a policy matter, the Department has explained that the legal and policy issues implicated by the free-floating use of administrative closure and the efficiency that would follow from clearly delineating the circumstances of its usage outweigh the policy arguments advanced by commenters.
See also Hernandez-Serrano,
2020 WL 6883420 at *1 (“A regulation delegating to immigration judges authority to take certain actions `[i]n deciding the individual cases before them' does not delegate to them general authority not to decide those cases at all. Yet in more than 400,000 cases in which an alien was charged with being subject to deportation or (after April 1, 1997) removal, immigration judges or the Board of Immigration Appeals have invoked such a regulation to close cases administratively—meaning the case was removed from the IJ's docket without further proceedings absent some persuasive reason to reopen it. As of October 2018, more than 350,000 of those cases had not been reopened. An adjudicatory default on that scale strikes directly at the rule of law.”).

26
The Department notes that
Matter of Castro-Tum
did not incorporate all of the legal arguments presented in the NPRM regarding whether immigration judges and Board members have free-floating authority to defer adjudication of cases.
E.g.,
85 FR at 52503 (discussing tension created by interpreting 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to allow free-floating authority to administratively close cases with references in those provisions to the “disposition” of cases and with the provisions of 8 CFR 1003.1(a)(2)(i)(C) and 8 CFR 1003.9(b)(3) which assign authority to defer case adjudications to the Board Chairman and the Chief Immigration Judge rather than to all Board members and all immigration judges);
accord Hernandez-Serrano,
2020 WL 6883420 at *4 (“To the contrary, the regulations expressly limit their delegation to actions `necessary
for the disposition'
of the case. And that more restricted delegation cannot support a decision
not
to decide the case for reasons of administrative `convenience' or the `efficient management of the resources of the immigration courts and the BIA.' ” (emphases in original). Thus, circuit court decisions abrogating
Matter of Castro-Tum
did not necessarily address all arguments surrounding administrative closure. Accordingly, independent of
Matter of Castro-Tum,
immigration judges and Board members may still come to the conclusion that they generally lack free-floating authority to administratively close cases.

27
Although this rule codifies the result of
Matter of Castro-Tum,
its bases are broader than just that decision.
See supra
text accompanying note 26.

Further, for those courts that are not bound by
Matter of Castro-Tum,
the Department disagrees that the change will result in unnecessary removal orders, as immigration judges are already tasked with resolving the proceedings before them, including determining removability and issuing removal orders if required.
See, e.g.,
8 CFR 1003.10(b) (“In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.”). The Department declines to adopt commenters' speculation as to the counter-factual outcomes of cases that have been administratively closed, and commenters did not support their assertion that only cases in which an alien will be ordered removed are administratively closed.
28

To the contrary, aliens have sought recalendaring of their proceedings in order to apply for relief from removal for which they believe they are eligible, suggesting that in many cases, aliens themselves do not believe that a case that has been administratively closed would necessarily have otherwise resulted in a removal order.
See, e.g., Matter of W-Y-U-,
27 I&N Dec. 17 (BIA 2017) (“[The respondent] filed a timely application for asylum and related relief and protection, which he seeks to have the Immigration Judge review in removal proceedings. The respondent argues that the administrative closure of his case prevents him from pursuing that relief.”),
overruled by Matter of Castro-Tum,
27 I&N Dec. at 272.

28
The Department notes that simply delaying an alien's removal is not a compelling policy basis for declining to promulgate this rule.
See Nken
v.
Holder,
556 U.S. 418, 436 (2009) (“There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permits and prolongs a continuing violation of United States law.” (internal citations and quotation marks omitted)).

As the Department asserted, free-floating authority to unilaterally administratively close cases is in significant tension with existing law, including regulations and longstanding Board case law. 85 FR at 52503-05. To the extent that commenters suggested the Department should retain the status quo and its problematic tension with

existing law, the Department simply disagrees.

The question of unlawful presence waivers was already addressed by
Matter of Castro-Tum,
27 I&N Dec. at 278 n.3, 287 n.9, and this final rule does not impact such waivers accordingly. Moreover, the regulation identified by commenters, 8 CFR 212.7(e)(4)(iii) has no analogue in chapter V of title 8, and that regulation is not binding on the Department. Additionally, such a waiver is both “provisional” and “discretionary,” 8 CFR 212.7(e)(2)(i); like administrative closure itself, an alien has no right to such a waiver; and, a provisional and discretionary waiver to which an alien lacks any entitlement cannot be seen as necessary to the disposition of the alien's case in immigration proceedings.
See Gutierrez-Morales
v.
Homan,
461 F.3d 605, 610 (5th Cir. 2006) (“We have squarely held that `neither relief from removal under discretionary waiver nor
eligibility
for such discretionary relief is entitled to due process protection.' Stated differently, an alien has no due process right to a hearing to determine his eligibility for relief that is purely discretionary.” (footnotes omitted, emphasis in original)).

Further, although aliens in removal proceedings (unless administratively closed) and aliens with administratively final orders of removal are barred from obtaining the waiver, 8 CFR 212.7(e)(4)(iii) and (iv), an alien with an administratively final order of voluntary departure is not, and by definition, aliens must voluntarily depart the United States in order to receive the benefit of such a waiver. Thus, the availability of administrative closure has no bearing on an alien's ability to receive and effectuate an order of voluntary departure, which is a practical prerequisite for obtaining the benefit of the waiver, and commenters did not explain why the restriction on administrative closure would have any impact at all on an alien's ability to obtain an order of voluntary departure and then a provisional waiver before departing to receive the final waiver abroad. Although the Department has considered the link between such waivers and administrative closure—just as the Attorney General did in
Matter of Castro-Tum
—that link is too attenuated to outweigh the significant legal and policy concerns raised by the Department regarding administrative closure.

Similarly, concerns about putative reliance interests are misplaced. First, as discussed,
infra,
the rule applies, in general, only prospectively, so it does not disturb cases that have already been administratively closed. Second, and relatedly, all changes in the law may impact matters of attorney strategy in interactions with clients, but that is an insufficient basis to decline to change the law.
29

To find otherwise would effectively preclude any law from ever being changed. Third, nothing in the rule prohibits a practitioner from seeking administrative closure; rather, it more clearly delineates the situations in which administrative closure is legally authorized. Fourth, a representative may not ethically guarantee any result in a particular case; thus, to the extent commenters suggest that the final rule restricts or interferes with an attorney's ability to guarantee an alien both a grant of administrative closure and the approval of a provisional waiver, the Department finds such a suggestion unavailing.
See
Model Rules of Prof'l Conduct R. 7.1 cmt. 3 (2020) (“A communication that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case.”);
id.
cmt. 4 (“It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”) (quoting R. 8.4(c));
id.
R. 8.4(e) (“It is professional misconduct for a lawyer to . . . state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.”).

29
Furthermore, as reiterated herein, because
Matter of Castro-Tum
was issued in 2018, aliens and their representatives in jurisdictions following
Castro-Tum
should not be currently relying on the expectation of administrative closure to pursue provisional unlawful presence waivers.

In short, the Department appropriately considered potential alternatives as well as the relevant interests and alleged costs in issuing the final rule regarding administrative closure. On balance, however, commenters' suggestions would not resolve the issues identified by the Department, and the concerns raised by commenters are far outweighed by both the significant legal and policy issues raised by the Department in the NPRM regarding administrative closure and the increased efficiency that a formal clarification of its use will provide.

With regards to the alleged costs to persons in removal proceedings who allegedly may no longer be eligible to obtain a provisional unlawful presence waiver without administrative closure, the Department first reiterates that situation is already the status quo in all but four immigration courts and has been so since 2018. As
Matter of Castro-Tum
was issued in 2018, aliens and their representatives in jurisdictions following
Castro-Tum
should not be currently relying on the expectation of administrative closure to pursue provisional unlawful presence waivers. Consequently, this final rule does not change the status quo regarding the availability of a provisional unlawful presence waiver for the overwhelming majority of aliens currently in removal proceedings, and commenters generally did not distinguish the reality of the status quo in making their speculative projections. Further, the Department believes that the strong interest in the efficient adjudication of cases and the legal and policy issues identified in the NPRM outweigh the potential inability of aliens at 4 out of 67 immigration courts to obtain provisional unlawful presence waivers, something to which they are not entitled to in the first instance. The Department notes that these persons may still apply for an unlawful presence waiver from outside the United States, and that DHS may choose, as a matter of policy, to amend their regulations to remove the administrative closure requirement for persons in removal proceedings applying for a provisional waiver.

The Department also disagrees that the general prohibition on administrative closure does not harmonize with DHS regulations regarding provisional unlawful presence waivers. As a Federal circuit court recently noted, the presence of references to administrative closure in existing regulations “presuppose only the existence of a general practice of administrative closure, not its legality.”
Hernandez-Serrano,
2020 WL 6883420 at *4. Thus, assuming counter-factually—but as commenters asserted—that 8 CFR 212.7(e)(4)(iii) controlled the Department and that no aliens would be eligible to have their cases administratively closed after this final rule—and, thus, no aliens in immigration proceedings were eligible for a provisional waiver under 8 CFR 212.7(e)(4)(iii)—those factors, even if factually accurate, would not provide a strong policy basis to overrule the Attorney General's decision in
Matter of Castro-Tum
for all of the reasons given by the Department in the NPRM and this final rule.
See also Hernandez-Serrano,
2020 WL 6883420 at *4 (“neither the IJs nor the Board [nor parties] enjoy a right of adverse possession as to the Attorney General's

regulations.”). The Department considered the interplay of EOIR and DHS's regulations and, due to the strong equities in favor of limiting administrative closure, decided to continue with a general prohibition on administrative closure in immigration proceedings before EOIR. DHS chose to limit the eligibility for provisional unlawful presence waivers as a matter of policy, and DHS may choose to update their more specific regulations accordingly as a result of this rule.

c. Enhanced BIA Factfinding (8 CFR 1003.1(d)(3)(iv))

i. Administrative Notice

Comment:
As a general matter, many commenters asserted that the provisions regarding administrative notice were biased in favor of DHS, thereby demonstrating the allegedly partisan nature of the BIA and, more broadly, the Department. Similarly, one commenter explained that the administrative notice provisions were “problematic” because, as the commenter alleged, DHS could submit new evidence but the alien was not permitted to submit counter evidence under the new rules.

Commenters expressed concern about the types of items the rule would allow the BIA to administratively notice items “not reasonably subject to dispute.” 8 CFR 1003.1(d)(3)(iv)(A). Overall, commenters predicted disputes at both the BIA and the Federal courts over whether particular facts fit any of the listed exemplary categories of such evidence or otherwise constitute such items. 8 CFR 1003.1(d)(3)(iv)(A)(
1
)-(
4
). Such disputes, commenters alleged, would undermine the efficiency goals of the rule. One commenter explained that “[m]ost of this information—especially that contained within government documents—will be adverse to respondents. The rule thus creates a one-sided system in which information favorable to DHS may be considered by the BIA, but information favorable to respondents may not be.” Commenters claimed that the rule's inclusion of all of these facts was arbitrary and capricious.

Further, commenters specifically alleged that the “the contents of official documents outside the record,” 8 CFR 1003.1(d)(3)(iv)(A)(
2
), are subject to reasonable dispute because DHS records, including records from CBP and ICE, “routinely contain [ ] egregious errors and coerced statements.” Commenters also stated that current events, 8 CFR 1003.1(d)(3)(iv)(A)(
1
), could similarly be subject to reasonable dispute. Commenters stated that the contours of the category of facts from government sources was unclear, despite it being limited to “facts that can be accurately and reliably determined,” 8 CFR 1003.1(d)(3)(iv)(A)(
3
), because DHS records are unreliable. In addition, at least one commenter stated that the rule did not explain why facts that can be administratively noticed by the BIA may only be sourced from official or universally acclaimed documents.

At least one commenter alleged that the administrative notice provisions would allow the BIA to consider and act upon facts not raised by either party, thereby considering “facts that did not constitute part of the immigration judge's decision-making.” The commenter alleged that this would allow the BIA to act as prosecutor instead of a neutral arbiter. The commenter explained that because DHS rarely submits a brief on appeal, the administrative notice changes would disproportionately affect pro se individuals.

Several commenters stated that the provisions regarding notice and an opportunity to respond were insufficient because a response may require witnesses and additional clarifying evidence. Commenters explained that witnesses and additional evidence were more appropriately introduced at the immigration court level, given the immigration judge's unique position to assess facts and determine credibility and the general prohibition against factfinding by the BIA. Commenters also emphasized that the rule failed to consider that the BIA would need to give notice to the parties and an opportunity to respond if the BIA intended to administratively notice a fact that was outside the record and would serve as the basis for overturning a removal order or denial of relief. The commenter explained that the BIA does not appear to be neutral when it must only administratively notice facts that could be used to deny relief that was previously granted.

One commenter explained that the rule's changes to administrative notice would affect the standard of review for factual findings on appeal at the appellate court level. The commenter explained that the current use of the “substantial evidence” standard would not be justified, given that some factual findings would have been made only by the BIA in the first instance. Thus, the commenter suggested that the “clearly erroneous” standard replace the “substantial evidence” standard in these cases.

Response:
As an initial point, the Department notes that the Board's ability to take administrative notice of certain facts is already well-established in both existing regulations,
e.g.,
8 CFR 1003.1(d)(3)(iv) (2019) (allowing the Board to take administrative notice of current events and the contents of official documents), and case law,
e.g., Sankoh
v.
Mukasey,
539 F.3d 456, 465 (7th Cir. 2008) (“The Board has the authority to take administrative notice of uncontroverted facts, meaning facts that can be characterized as commonly acknowledged.” (internal citation and quotation marks omitted)). Thus, to the extent that commenters assert the Board should not be able to take administrative notice of facts not reasonably subject to dispute, they did not explain why the Department should reverse the Board's longstanding authority to do so.

Similarly, commenters did not persuasively explain why Federal Rule of Evidence 201(b), which is well-established in Federal jurisprudence and governs judicial notice by appellate courts,
In re Omnicare, Inc. Securities Litigation,
769 F.3d 455, 466 (6th Cir. 2014) (“[Federal Rule of Evidence 201(b)] applies to appellate courts taking judicial notice of facts supported by documents not included in the record on appeal.” (quoting
United States
v.
Ferguson,
681 F.3d 826, 834 (6th Cir. 2012)), was not an appropriate model for the Board to follow. Without such explanations as to why the Department should overturn these longstanding and well-established principles, the Department finds commenters' unsupported policy preferences on this point unpersuasive.

Additionally, commenters' suggestions about the allegedly “one-sided” nature of this change belie both a misunderstanding of the rule and an acknowledgement of its importance to ensure that only meritorious claims are granted. First, contrary to the assertions of many commenters, the rule applies equally to DHS and to respondents. Thus, the Board may take administrative notice of facts both favorable and adverse to either party, as long as those facts are not reasonably subject to dispute. Second, the broad, hyperbolic, and unsupported assertion that official government documents should not be administratively noticed because they contain only information adverse to respondents is both inaccurate factually,
e.g., Dahal
v.
Barr,
931 F.3d 15, 19 (1st Cir. 2019) (“Thus, far from undercutting Dahal's fears, the [Department of State] Country Report on the elections recognizes a remaining threat of Maoist persecution.”), and in tension with well-established Federal practice in which courts may take judicial notice of official government documents,

e.g.,

Wells Fargo Bank, N.A.

v.
Wrights Mill Holdings, LLC,
127 F. Supp. 3d 156, 166 (S.D.N.Y. 2015) (“Under Federal Rule of Evidence 201, a court may take judicial notice, at `any stage of the proceeding,' of any fact `that is not subject to reasonable dispute because' it `can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.' Fed. R. Evid. 201(b)(2), (d). . . . Pursuant to Rule 201, courts have considered newspaper articles, documents publicly filed with the SEC or FINRA, documents filed with a Secretary of State, documents filed with governmental entities and available on their official websites, and information publicly announced on certain non-governmental websites, such as a party's official website.”);
Kramer
v.
Time Warner Inc.,
937 F.2d 767, 774 (2d Cir.1991) (“[A] . . . court may take judicial notice of the contents of relevant public disclosure documents . . . as facts `capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.' ” (quoting Fed. R. Evid. 201(b)(2)).

Moreover, this suggestion misapprehends the nature of the rule and—perhaps unintentionally by the commenter—offers further support for maintaining it. The rule allows the Board to take administrative notice of “[f]acts that can be accurately and readily determined from official government sources and whose accuracy is not disputed.” 8 CFR 1003.1(d)(3)(iv)(A)(
3
). Commenters did not explain why facts whose accuracy is not disputed and that are unfavorable to an alien should not be considered by individuals adjudicating claims made by aliens—except that ignoring such facts would potentially increase the likelihood that non-meritorious claims would be granted, which is an outcome preference tacitly supported by many commenters. The Department finds it vitally important that all undisputed, accurate facts bearing on a claim should be considered in order to reduce adjudication errors and to ensure that meritorious claims are granted in a timely manner while unmeritorious ones are efficiently addressed. In short, the Department disagrees with the implicit suggestion of commenters that the Board should intentionally turn a blind eye to relevant, undisputed facts, regardless of which party those facts allegedly favor.

The rule does not authorize the BIA to rely on facts that did not constitute part of the immigration judge's decision-making, except when such “facts [ ] are not reasonably subject to dispute.” 8 CFR 1003.1(d)(3)(iv)(A) (proposed);
see also Matter of J-Y-C-,
24 I&N Dec. 260, 261 n.1 (BIA 2007) (providing that issues not raised before an immigration judge are waived). The BIA must take

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-27008. Public record. Not legal advice.