Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1001, 1003, 1239, and 1240

[Docket No. EOIR 021-0410; AG Order No. 5738-2023]

RIN 1125-AB18

Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure

AGENCY:

Executive Office for Immigration Review, Department of Justice.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

In December 2020, the Department of Justice issued a final rule (the “AA96 Final Rule”) establishing novel limits on the authority of immigration judges and the Board of Immigration Appeals (“BIA” or “Board”) to manage their dockets and efficiently dispose of cases. Among other changes, the AA96 Final Rule would have required the BIA to set simultaneous briefing schedules for every appeal, limited the authority of immigration judges and the BIA to temporarily pause cases while the United States Citizenship and Immigration Services (“USCIS”) adjudicates a noncitizen's pending visa application, and restricted the BIA's discretion to remand matters to immigration judges in light of legal and factual errors. The AA96 Final Rule was enjoined shortly after its issuance in March 2021, and it has not been in effect since that date. After careful reconsideration, the Department proposes to restore longstanding procedures in place prior to the AA96 Final Rule, including administrative closure, and to clarify and codify other established practices. Given the aforementioned injunction, the proposed regulatory language largely reflects the currently operative status quo. The Department believes that this rule will promote the efficient and expeditious adjudication of cases, afford immigration judges and the BIA flexibility to efficiently allocate their limited resources, and protect due process for parties before immigration judges and the BIA.

DATES:

Electronic comments must be submitted, and written comments must be postmarked or otherwise indicate a shipping date on or before November 7, 2023. The electronic Federal Docket Management System at

www.regulations.gov

will accept electronic comments until 11:59 p.m. Eastern Time on that date.

ADDRESSES:

If you wish to provide comments regarding this rulemaking, you must submit comments, identified by the agency name and reference RIN 1125-AB18 or EOIR Docket No. 021-0410, by one of the two methods below.

•

Federal eRulemaking Portal: www.regulations.gov.

Follow the website instructions for submitting comments.

•

Mail:

Paper comments that duplicate an electronic submission are unnecessary. If you wish to submit a paper comment in lieu of electronic submission, please direct the mail/shipment to: Raechel Horowitz, Chief, Immigration Law Division, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041. To ensure proper handling, please reference the agency name and RIN 1125-AB18 or EOIR Docket No. 021-0410 on your correspondence. Mailed items must be postmarked or otherwise indicate a shipping date on or before the submission deadline.

FOR FURTHER INFORMATION CONTACT:

Raechel Horowitz, Chief, Immigration Law Division, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041, telephone (703) 305-0289.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule via one of the methods and by the deadline stated above. The Department of Justice (“Department”) also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments that will provide the most assistance to the Department in developing these procedures will reference a specific portion of the proposed rule; explain the reason for any recommended change; and include data, information, or authority that support such recommended change.

Please note that all comments received are considered part of the public record and made available for public inspection at

www.regulations.gov.

Such information includes personally identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

If you want to submit personally identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONALLY IDENTIFYING INFORMATION” in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify the confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on

www.regulations.gov.

Personally identifying information located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. The Department may withhold from public viewing information provided in comments that it determines may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of

www.regulations.gov.

To inspect the agency's public docket file in person, you must make an appointment with the agency. Please see the

For Further Information Contact

paragraph above for agency contact information.

II. Legal Authority

The Department issues this proposed rule pursuant to section 103(g) of the Immigration and Nationality Act (“INA”), 8 U.S.C. 1103(g), as amended by the Homeland Security Act of 2002 (“HSA”), Public Law 107-296, 116 Stat. 2135 (as amended). Under the HSA, the Attorney General retains authority to “establish such regulations, . . . issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out” the Attorney General's authorities under the INA. HSA 1102, 116 Stat. at 2273-74; INA 103(g)(2), 8 U.S.C. 1103(g)(2).

III. History and Background

On August 26, 2020, the Department published a notice of proposed rulemaking (“NPRM” or “proposed

rule”) that proposed to amend the Executive Office for Immigration Review (“EOIR”) regulations regarding the handling of appeals to the Board. Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 FR 52491 (Aug. 26, 2020) (“AA96 NPRM”). The Department proposed multiple changes to the processing of appeals to “ensure the consistency, efficiency, and quality of its adjudications.”

Id.

at 52491. In addition, the Department proposed to amend the regulations to expressly state that immigration judges and Appellate Immigration Judges

1

have no “freestanding” authority to administratively close cases.

Id.

Finally, the Department proposed to delete inapplicable or unnecessary provisions regarding the forwarding of the record of proceeding on appeal.

Id.

2

The AA96 NPRM set forth a 30-day comment period, stating that any public comments must be submitted by September 25, 2020.

Id.

The Department received 1,287 comments during the comment period.

3

1

Historically, Department rules, including the AA96 Final Rule, used the term “Board member” to refer to members of the Board.

See

Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 FR 81588, 81590 (Dec. 16, 2020). The Department has begun using the term “Appellate Immigration Judge” to refer to members of the Board, and that is the term used in this NPRM. Although “Board member” and “Appellate Immigration Judge” are synonymous,

see

8 CFR 1003.1(a)(1)-(2), the Department believes that “Appellate Immigration Judge” is a more accurate description of the role of members of the Board.

See

Organization of the Executive Office for Immigration Review, 84 FR 44537, 44539 (issued as interim final rule) (Aug. 26, 2019).

2

In addition, the Department proposed to update outdated references to the former Immigration and Naturalization Service (“INS”). 85 FR at 52507 n.36.

3

The Department posted 1,284 of the comments received for public review. The Department did not post three of the comments received because they were either non-substantive or duplicates of other comments that were posted.

On December 16, 2020, the Department published a final rule, wherein it responded to comments received during the notice-and-comment period and adopted the regulatory language proposed in the AA96 NPRM with minor changes. Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 FR 81588 (Dec. 16, 2020) (“AA96 Final Rule”). The AA96 Final Rule's effective date was January 15, 2021,

id.

at 81588, but the rule was enjoined on March 10, 2021, in litigation described in further detail below.

See Centro Legal de la Raza

v.

Exec. Off. for Immigr. Rev.,

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

A. Briefing Schedule Changes at the Board of Immigration Appeals

1. Before Promulgation of the AA96 Final Rule

Prior to the AA96 Final Rule, the regulations specified that appeals involving detained noncitizens

4

were subject to a simultaneous briefing schedule, wherein both parties had 21 days to file simultaneous briefs, unless the Board specified a shorter period. 8 CFR 1003.3(c)(1) (2019). The regulations permitted parties subject to a simultaneous briefing schedule to submit reply briefs within 21 days of the deadline for the initial brief, when permitted by the Board.

Id.

For cases involving non-detained noncitizens, the regulations provided for a consecutive briefing schedule. The appellant had 21 days to file an initial brief, unless the Board specified a shorter period, and the appellee then had an equivalent amount of time, including any extensions granted to the appellant, to file a reply brief.

Id.

4

For purposes of the discussion in this preamble, the Department uses the term “noncitizen” colloquially and synonymous with the term “alien” as it is used in the INA.

See

INA 101(a)(3), 8 U.S.C. 1101(a)(3). This NPRM is also proposing to define the term “noncitizen” to be synonymous with the term “alien,” as explained later in this preamble.

Appellate Immigration Judges were authorized, upon written motion, to extend the filing deadline of an initial brief or a reply brief for up to 90 days for good cause shown.

Id.

Appellate Immigration Judges generally granted briefing extensions in 21-day increments but would also grant longer extensions for good cause shown. The regulations also authorized Appellate Immigration Judges to request supplemental briefing from parties after the briefing deadline expired.

Id.

2. Changes Made by the AA96 Final Rule

The AA96 Final Rule amended 8 CFR 1003.3(c)(1) to require a simultaneous briefing schedule for all cases before the Board, regardless of the noncitizen's detention status. 85 FR at 81588. The AA96 Final Rule also reduced the allowable time to extend a briefing schedule from a maximum of 90 days to a maximum of 14 days and limited all parties to one briefing extension.

Id.

at 81654 (“If an extension is granted, it is granted to both parties, and neither party may request a further extension.”). The AA96 Final Rule specified that no party was entitled to a briefing extension as a matter of right and that briefing extensions should only be granted upon an “individualized consideration of good cause.”

Id.

The AA96 Final Rule also shortened the maximum amount of time for submitting reply briefs from 21 days to 14 days, and only when the Board permitted filing of a reply brief.

Id.

B. Administrative Closure Authority

1. Before Promulgation of the AA96 Final Rule

Prior to the AA96 Final Rule, 8 CFR 1003.1(d)(1)(ii) (2019) and 1003.10(b) (2019) stated that EOIR adjudicators “may take any action consistent with their authorities under the [INA] and the regulations as is appropriate and necessary for the disposition” of the case. Although the regulations have never explicitly stated that EOIR adjudicators have general administrative closure authority, numerous courts of appeals and the Board have interpreted “any action” to include using docket management tools such as administrative closure.

See Romero

v.

Barr,

937 F.3d 282, 292 (4th Cir. 2019) (explaining that “[8 CFR] 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confer[ ] upon [immigration judges] and the BIA the general authority to administratively close cases”);

Meza Morales

v.

Barr,

973 F.3d 656, 667 n.6 (7th Cir. 2020) (Barrett, J.) (concluding that “[8 CFR] 1003.10(b) grants immigration judges the power to administratively close cases”);

Arcos Sanchez

v.

Att'y Gen.,

997 F.3d 113, 122 (3d Cir. 2021) (explaining “that the plain language establishes that general administrative closure authority is unambiguously authorized by these regulations”);

Matter of Avetisyan,

25 I&N Dec. 688, 692 (BIA 2012) (stating that EOIR adjudicators may utilize continuances or administrative closure “to temporarily remove a case from an Immigration Judge's active calendar or from the Board's docket”).

But see Hernandez-Serrano

v.

Barr,

981 F.3d 459, 466 (6th Cir. 2020) (concluding that “[8 CFR] 1003.10(b) and 1003.1(d) do not delegate to [immigration judges] or the Board the general authority to suspend indefinitely immigration proceedings by administrative closure” (internal quotation marks omitted));

Garcia-DeLeon

v.

Garland,

999 F.3d 986, 991-93 (6th Cir. 2021) (subsequently ruling that immigration judges and the Board do have authority to grant administrative closure to permit a noncitizen to apply for a provisional unlawful presence waiver).

Since 1958, regulations have authorized EOIR adjudicators to exercise their discretion as may be “appropriate and necessary” for the disposition of a case. Miscellaneous Amendments to Chapter, 23 FR 2670,

2671 (Apr. 23, 1958) (“Subject to any specific limitation prescribed by the act and this chapter, special inquiry officers shall also exercise the discretion and authority conferred upon the Attorney General by the act as is appropriate and necessary for the disposition of such

cases.”);

5

see also Hernandez-Serrano,

981 F.3d at 464 (“As early as 1958, regulations granted the predecessors to [immigration judges] (called `special inquiry officers') and the Board authority to take actions `appropriate and necessary for the disposition of' their cases.”). In 2000, the Department published an NPRM that proposed more expansive authority: that EOIR adjudicators could take “any action” appropriate and necessary for the disposition of a case.

See

Authorities Delegated to the Director of the Executive Office for Immigration Review, the Chairman of the Board of Immigration Appeals, and the Chief Immigration Judge, 65 FR 81434, 81436-37 (Dec. 26, 2000). The Department adopted this regulatory language for Board members in 2002, and for immigration judges in 2007.

6

5

Initially, the adjudicators who reviewed and decided deportation cases were known as special inquiry officers. INA 101(b)(4), 8 U.S.C. 1101(b)(4) (1952). These adjudicators later became known as immigration judges.

See

INA 101(b)(4), 8 U.S.C. 1101(b)(4) (defining “immigration judge”); Immigration Judge, 38 FR 8590 (Apr. 4, 1973) (“The term `immigration judge' means special inquiry officer.”).

6

Although the same NPRM proposed this regulatory authority for both the Board and immigration judges, the regulatory language was codified for the Board and immigration judges in separate final rules.

See

Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 FR 54877, 54902-904 (Aug. 26, 2002); Authorities Delegated to the Director of the Executive Office for Immigration Review, and the Chief Immigration Judge, 72 FR 53673, 53677-78 (Sept. 20, 2007).

Since at least the 1980s,

7

immigration judges and the Board have exercised their authority to use administrative closure as a docketing tool, where appropriate, to remove cases from their active dockets and to regulate the course of proceedings.

See Arcos Sanchez,

997 F.3d at 116-17 (recognizing that adjudicators have used administrative closure dating back to the 1980s).

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Indeed, EOIR records indicate that administrative closure was used as early as 1974.

In 1984, the EOIR Office of the Chief Immigration Judge issued an Operating Policies and Procedures Memorandum (“OPPM”) setting forth options available to immigration judges in cases where noncitizens failed to appear for their hearings, including the option to administratively close cases. EOIR, OPPM 84-2:

Cases in Which Respondents/Applicants Fail to Appear for Hearing,

1984 WL 582760 (Mar. 7, 1984). The OPPM included language specifying that administratively closed cases were to be considered “no longer pending before the Immigration Judge,” and that no further action would be taken until “the case is presented for re-calendaring and further proceedings.”

Id.

at *2. The OPPM provided a non-exhaustive list of factors for immigration judges to consider such as adequacy of notice; likelihood that a deportation order, if entered in absentia, would be enforced; the nature of charges; and the need for parties to be present.

Id.

at *1.

The next significant development in the exercise of administrative closure came in 1986, shortly after President Reagan signed into law the Immigration Reform and Control Act of 1986, Public Law 99-603, 100 Stat. 3359. The Immigration Reform and Control Act created a pathway to lawful status for certain undocumented noncitizens who had entered the United States prior to January 1, 1982. Immigration judges used administrative closure to pause removal proceedings while noncitizens pursued this newly available pathway to lawful status.

See, e.g., Veliz

v.

Caplinger,

No. 96-1508, 1997 WL 61456, at *1 (E.D. La. Feb. 12, 1997) (noting that the removal proceedings before the agency were administratively closed to allow noncitizens to apply for legalization under the Immigration Reform and Control Act).

As administrative closure became more common, the Board began to address questions related to its use. For example, in 1988, the Board published a decision in which it determined that an immigration judge improperly exercised administrative closure authority.

Matter of Amico,

19 I&N Dec. 652, 654 (BIA 1988) (determining that the immigration judge's decision to administratively close a case rather than hold proceedings in absentia was “inappropriate” because administrative closure would have permitted the noncitizen to avoid an order of deportation by failing to appear). In its decision, the Board clarified that administratively closing a case “does not result in a final order” and “is merely an administrative convenience which allows the removal of cases from the calendar in appropriate situations.”

Id.

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

Matter of Lopez-Barrios

and

Matter of Munoz-Santos,

both of which held that an immigration judge could not administratively close a case if either party to the proceedings opposed closure.

Matter of Lopez-Barrios,

20 I&N Dec. 203 (BIA 1990),

overruled by Matter of Avetisyan,

25 I&N Dec. at 697;

Matter of Munoz-Santos,

20 I&N Dec. 205 (BIA 1990),

overruled by Matter of Avetisyan,

25 I&N Dec. at 697.

8

8

These decisions did not suggest that adjudicators did not have the authority to administratively close cases. Rather, they, as well as numerous subsequent administrative decisions, addressed when using administrative closure might be “appropriate” under the regulations.

See

8 CFR 236.1 (1958) (permitting adjudicators to exercise authorities only as “appropriate and necessary”);

see also

8 CFR 1003.1(d)(1)(ii) (2019); 8 CFR 1003.10(b) (2019).

Over the next decade, the Department entered into binding settlement agreements and issued numerous regulations that required immigration judges and the Board to administratively close cases or provided that parties could request administrative closure in a variety of specified situations.

See, e.g., Barahona-Gomez

v.

Ashcroft,

243 F. Supp. 2d 1029, 1035 (N.D. Cal. 2002) (“[I]f the [Respondent] fails to appear for the scheduled hearing . . . the case shall be administratively closed, following which, should the Respondent come forward, the hearing shall be recalendared[.]”);

American Baptist Churches

v.

Thornburgh,

760 F. Supp. 796, 805 (N.D. Cal. 1991) (“

ABC

”) (ordering that proceedings before EOIR be administratively closed, generally, for class members); Adjustment of Status for Certain Nationals of Nicaragua and Cuba, 63 FR 27823, 27830 (May 21, 1998) (implementing administrative closure procedures for noncitizens who appeared eligible to adjust status under the Nicaraguan Adjustment and Central American Relief Act of 1997 (“NACARA”)) (8 CFR 245.13(d)(3) (1999)); Adjustment of Status for Certain Nationals of Haiti, 64 FR 25756, 25769 (May 12, 1999) (requiring EOIR adjudicators to exercise administrative closure in cases where noncitizens appeared to be eligible to file an application for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 (“HRIFA”) and met various other requirements) (8 CFR 245.15(p)(4) (2000)); Executive Office for Immigration Review; Adjustment of Status for Certain Nationals of Nicaragua, Cuba, and Haiti, 66 FR 29449, 29452 (May 31, 2001) (providing that a noncitizen for whose case an immigration judge or the Board has granted a motion to reopen under particular statutes may move to have proceedings administratively closed to seek adjustment of status) (8 CFR 245.13(m)(1)(ii) (2002)); V Nonimmigrant Classification; Spouses and Children of Lawful Permanent Residents, 66 FR 46697, 46700 (Sept. 7, 2001) (“If the [noncitizen] appears eligible for V nonimmigrant status, the

immigration judge or the Board, whichever has jurisdiction, shall administratively close the proceeding or continue the motion indefinitely.”) (8 CFR 214.15(l) (2002)); New Classification for Victims of Severe Forms of Trafficking in Persons; Eligibility for “T” Nonimmigrant Status, 67 FR 4783, 4797 (Jan. 31, 2002) (stating that T-visa applicants may request administrative closure) (codifying language later moved to 8 CFR 1214.2(a)); Adjustment of Status for Certain Aliens from Vietnam, Cambodia, and Laos in the United States, 67 FR 78667, 78673 (Dec. 26, 2002) (authorizing certain nationals of Vietnam, Cambodia, and Laos to move for administrative closure pending their applications for adjustment of status, but preventing the immigration judge or the Board from “defer[ring] or dismiss[ing] the proceeding” without the former Immigration and Naturalization Service's consent) (codifying language later moved to 8 CFR 1245.21(c)).

Since 2011, the U.S. Department of Homeland Security (“DHS”) has issued a number of enforcement priority memoranda, some of which have subsequently been rescinded, that included discussions of when U.S. Immigration and Customs Enforcement (“ICE”) attorneys should exercise prosecutorial discretion in pursuing removal, which noncitizens were considered priorities for removal, and methods for implementing those priorities as to noncitizens who were already in removal proceedings, including by filing joint motions to administratively close proceedings.

See, e.g.,

Memorandum for All Field Office Directors et al., from John Morton, Director, ICE,

Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens

at 2 (Jun. 17, 2011) (describing prosecutorial discretion as a decision “not to assert the full scope of the enforcement authority available to the agency”),

https://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf;

Memorandum for Tae D. Johnson, Acting Director, ICE, from Alejandro N. Mayorkas, Secretary, DHS,

Guidelines for the Enforcement of Civil Immigration Law

(Sept. 30, 2021),

https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.

Many pending removal-related cases before EOIR and the federal courts at the time potentially fell under the memoranda's criteria for low priorities for removal.

Cf. In re Immigr. Petitions for Rev. Pending in U.S. Ct. of Appeals for Second Cir.,

702 F.3d 160, 160 (2d Cir. 2012) (“[The petitioner] is one of more than a thousand cases in our Court that are actually or potentially subject to a future decision by the Government as to whether it will or can remove petitioners if their petitions are denied.”). The use of administrative closure served to facilitate the exercise of prosecutorial discretion by allowing DHS counsel to request that certain low-priority cases be removed from immigration judges' active calendars and the Board's docket, thereby allowing adjudicators to focus on higher priority cases.

In 2012, the Board published

Matter of Avetisyan,

which overruled the Board's prior precedent in

Matter of Lopez-Barrios

and

Matter of Munoz-Santos.

In

Matter of Avetisyan,

the Board established that EOIR adjudicators could administratively close proceedings over a party's objection and set forth a list of factors that adjudicators should consider when determining whether administrative closure was appropriate.

9

25 I&N Dec. at 688. In so holding, the Board stated that EOIR adjudicators' authority to administratively close proceedings stemmed from their general regulatory authority, under 8 CFR 1003.10(b) and 1003.1(d)(1)(ii), to take any appropriate and necessary action.

Id.

at 691. The Board found that an EOIR adjudicator's determination to administratively close a case over DHS's objection would not undermine DHS's prosecutorial discretion, as prosecutorial discretion related to DHS's decision to commence removal proceedings.

Id.

at 694. In contrast, the Board determined that once jurisdiction over removal proceedings vests with EOIR, the EOIR adjudicator has the authority to regulate the course of proceedings, including to administratively close cases where appropriate.

Id.

9

Notably, before

Matter of Avetisyan

overruled the Board's prior precedent on this issue, the Board had encouraged DHS to consider moving for administrative closure rather than multiple continuances in “appropriate circumstances, such as where there is a pending prima facie approvable visa petition.”

Matter of Hashmi,

24 I&N Dec. 785, 791 n.4 (BIA 2009);

see also Matter of Rajah,

25 I&N Dec. 127, 135 n.10 (BIA 2009). The Board described administrative closure as “an attractive option in these situations, as it will assist in ensuring that only those cases that are likely to be resolved are before the Immigration Judge.”

Matter of Hashmi,

24 I&N Dec. at 791 n.4. The Board also noted that administrative closure could “avoid the repeated rescheduling of a case that is clearly not ready to be concluded.”

Id.

The Board also explained that EOIR adjudicators should independently weigh all relevant factors in determining whether to administratively close a case, including but not limited to:

(1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action [the respondent] is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the Immigration Judge or the appeal is reinstated before the Board.

Id.

at 696. The Board later held that “the primary consideration for an Immigration Judge in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.”

Matter of W-Y-U-,

27 I&N Dec. 17, 20 (BIA 2017).

In 2013, DHS published a final rule that allowed certain noncitizens in removal proceedings to apply for provisional unlawful presence waivers of inadmissibility while still in the United States, but only if their removal proceedings had been administratively closed and not recalendared at the time they filed for the waiver. Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 FR 535, 577 (Jan. 3, 2013) (codifying language that was later moved to 8 CFR 212.7(e)(4)(iii)).

10

DHS further articulated that administrative closure is an appropriate and common procedural tool for dispensing with non-priority cases.

Id.

at 544 (“Under its prosecutorial discretion (PD) policies, ICE has been reviewing cases pending

before EOIR and all incoming cases to ensure that they are aligned with the agency's civil enforcement priorities and that ICE is effectively using its finite resources. For cases that ICE determines are not enforcement priorities, it exercises its discretion where appropriate, typically by moving for administrative closure.”). That same year, the Office of the Chief Immigration Judge encouraged immigration judges to use administrative closure where the parties reached an “alternate case resolution” through prosecutorial discretion.

See

EOIR, OPPM 13-01:

Continuances and Administrative Closure

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

https://www.justice.gov/sites/default/files/eoir/legacy/2013/03/08/13-01.pdf.

10

Pursuant to INA 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B), noncitizens who are inadmissible because they accrued more than 180 days of unlawful presence while in the United States and subsequently depart the United States may seek waiver of this ground of inadmissibility. Prior to the DHS rulemaking, such noncitizens, if not eligible to adjust status within the United States, had to request a waiver at their consular interview after leaving the United States and triggering the ground of inadmissibility. 78 FR at 536. In 2013, DHS established the provisional unlawful presence waiver process.

Id.

It began allowing noncitizens who are immediate relatives (spouses, children, and parents) of U.S. citizens to apply for a waiver while remaining in the United States, and, upon provisional approval, travel abroad to attend their consular interview for an immigrant visa, thus mitigating the likelihood that such individuals would be required to wait outside of the United States, apart from their immediate relatives, while the waiver was adjudicated.

Id.

In 2016, to further improve administrative efficiency, DHS expanded the provisional unlawful presence waiver process to all noncitizens statutorily eligible for an immigrant visa and a waiver of inadmissibility based on unlawful presence in the United States. Expansion of Provisional Unlawful Presence Waivers of Inadmissibility, 81 FR 50244 (July 29, 2016).

In 2017, the effectiveness of administrative closure for streamlining EOIR's cases was briefly referenced in a study conducted by an outside consultant.

See

EOIR, Booz Allen Hamilton,

Legal Case Study: Summary Report

at 26 (Apr. 6, 2017) (recommending that the Department engage in discussions with DHS to explore the development of policies regarding administrative closure as one way to improve processing efficiency).

11

11

The Department has considered the various proposals made in the report. For example, in 2021, EOIR finalized a rule implementing electronic filing at all immigration courts and the BIA.

See

Booz Allen Hamilton,

Legal Case Study: Summary Report

at 23; Executive Office for Immigration Review Electronic Case Access and Filing, 86 FR 70708 (Dec. 13, 2021) (“ECAS Rule”).

In 2018, the longstanding practice of administrative closure stopped when the Attorney General issued

Matter of Castro-Tum,

overruling

Matter of Avetisyan

and all Board precedents inconsistent with the Attorney General's decision.

Matter of Castro-Tum,

27 I&N Dec. 271, 271 (A.G. 2018),

overruled by Matter of Cruz-Valdez,

28 I&N Dec. 326 (A.G. 2021). In

Castro-Tum,

the Attorney General held that EOIR adjudicators lack the general authority under the regulations to administratively close cases and, as a result, lack the authority to administratively close cases unless a regulation or a settlement agreement expressly provided such authority.

Id.

at 272.

Matter of Castro-Tum

has been rejected by the majority of those courts of appeals that have considered it. The Third, Fourth, and Seventh Circuits rejected

Matter of Castro-Tum,

holding that the pre-AA96 regulations unambiguously provide EOIR adjudicators with general authority to administratively close cases.

See Romero,

937 F.3d at 297 (concluding that 8 CFR 1003.10(b) and 1003.1(d)(1)(ii) “unambiguously confer upon [immigration judges] and the BIA the general authority to administratively close cases”);

Arcos Sanchez,

997 F.3d at 122 (“[W]e hold that the plain language establishes that general administrative closure authority is unambiguously authorized by these regulations.”);

Meza Morales,

973 F.3d at 667 n.6 (concluding that 8 CFR 1003.10(b) “grants immigration judges the power to administratively close cases”). The Sixth Circuit reached a different conclusion, finding that the pre-AA96 regulations do not confer such general authority.

Hernandez-Serrano,

981 F.3d at 466 (citing

Matter of Castro-Tum,

27 I&N Dec. at 272). However, the Sixth Circuit subsequently clarified that “administrative closure for the limited purpose of permitting noncitizens to apply for provisional unlawful presence waivers” was an “appropriate and necessary” act under 8 CFR 1003.1(d)(1)(ii) and 1003.10(b), as codified prior to the AA96 Final Rule.

Garcia-DeLeon,

999 F.3d 986 at 992-93.

Recently, the Second Circuit held that neither the immigration judge nor the BIA abused its discretion in relying on

Matter of Castro-Tum

—which was in effect at the time of the agency's adjudications—to deny a noncitizen's motion for administrative closure.

Garcia

v.

Garland,

64 F.4th 62, 76 (2d Cir. 2023). The Second Circuit concluded that the pre-AA96 regulations were ambiguous as to whether they authorized general administrative closure and deferred to the Attorney General's interpretation in

Matter of Castro-Tum. See id.

at 72-75. However, the Second Circuit noted that—after the BIA issued its decision in the case—the Attorney General issued

Matter of Cruz-Valdez,

28 I&N Dec. at 326, which overruled

Matter of Castro-Tum. Garcia

v.

Garland,

64 F.4th at 69. In

Cruz-Valdez,

the Attorney General explained that “three courts of appeals have rejected

Castro-Tum,

” that

Castro-Tum

“departed from long-standing practice,” and that the matter was the subject of an ongoing rulemaking.

See Matter of Cruz-Valdez,

28 I&N Dec. at 328-29 (directing EOIR adjudicators to continue applying the standard for administrative closure set forth in

Matter of Avetisyan

and

Matter of W-Y-U-,

except in jurisdictions where a court of appeals has held otherwise, while the Department reconsiders the AA96 Final Rule). Against this backdrop, the Second Circuit left open the possibility that other interpretations of the regulations could also be permissible.

See Garcia

v.

Garland,

64 F.4th at 69 (noting that “the Attorney General has supplanted

Matter of Castro-Tum

with a new interpretation of the applicable regulations”).

2. Changes Made by the AA96 Final Rule

The AA96 Final Rule amended 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) and related provisions to expressly state that EOIR adjudicators do not have “freestanding authority” to administratively close cases before EOIR. 85 FR at 81651, 81655. Rather, the AA96 Final Rule expressly limited administrative closure authority to express grants of such authority by regulation or judicially approved settlement.

See, e.g.,

8 CFR 1214.2(a), 1214.3, 1240.62(b), 1240.70(f)-(h), 1245.13(d)(3)(i), 1245.15(p)(4)(i), 1245.21(c);

Barahona-Gomez,

243 F. Supp. 2d at 1035-36 (discussing settlement agreement requiring immigration judges and the Board to administratively close class members' cases).

The AA96 Final Rule was consistent with the Attorney General's holding in

Matter of Castro-Tum,

27 I&N Dec. at 284, that 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) do not provide for general administrative closure authority.

12

The AA96 Final Rule asserted that general administrative closure authority improperly allows immigration judges to determine which immigration cases should be adjudicated and which ones should not. 85 FR at 81599. The AA96 Final Rule stated that general authority to administratively close cases was improper because “in practice, unlike continuances, administrative closure has at times been used to effectively terminate cases through indefinite delay.”

Id.

12

Moreover, the AA96 Final Rule cited the Attorney General's explanation that general administrative closure authority conflicts with regulatory requirements to resolve matters in a “timely” fashion. 85 FR 81588 (Dec. 16, 2020) at 81599.

C. Termination and Dismissal

As discussed above, the regulations in place prior to the AA96 Final Rule conferred on EOIR adjudicators the general authority to “take any action consistent with their authorities under the Act and regulations” as “appropriate and necessary for the disposition” of such cases. 8 CFR 1003.1(d)(1)(ii), 1003.10(b). The regulations further state that immigration judge orders “shall direct the respondent's removal from the United States, or the termination of the proceedings, or other such disposition of the case as may be appropriate.” 8 CFR 1240.12(c). Further, immigration judges are “authorized to

issue orders in the alternative or in combination as [they] may deem necessary.”

Id.

The regulations, as published prior to and unchanged by the AA96 Final Rule, provide immigration judges with explicit authority to terminate or dismiss removal proceedings after the commencement of proceedings in certain circumstances. With respect to dismissal, 8 CFR 1239.2(c) provides that after commencement of proceedings, government counsel or certain enumerated officers under 8 CFR 239.1(a) may move to dismiss proceedings on grounds set forth in 8 CFR 239.2(a), which include where: (1) the respondent is a national of the United States; (2) the respondent is not deportable or inadmissible under immigration laws; (3) the respondent is deceased; (4) the respondent is not in the United States; (5) the Notice to Appear was issued for the respondent's failure to file a timely petition as required by section 216(c) of the Act, but the respondent's failure to file a timely petition was excused in accordance with section 216(d)(2)(B) of the Act; (6) the Notice to Appear was improvidently issued; or (7) circumstances of the case have changed after the Notice to Appear was issued to such an extent that continuation is no longer in the best interest of the government. 8 CFR 1239.2(c). Dismissal of proceedings is without prejudice to DHS or the noncitizen.

Id.

With respect to termination, 8 CFR 1239.2(f) provides that “[a]n immigration judge may terminate removal proceedings to permit the [noncitizen] to proceed to a final hearing on a pending application or petition for naturalization when the [noncitizen] has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors[.]” 8 CFR 1239.2(f). The regulation also provides that “in every other case, the removal hearing shall be completed as promptly as possible notwithstanding the pendency of an application for naturalization during any state of the proceedings.”

Id.

The regulations also confer authority on immigration judges to dismiss or terminate proceedings in other discrete circumstances.

See, e.g.,

8 CFR 1216.4(a)(6) (authorizing termination upon joint motion of the parties for failure to properly file a Petition to Remove the Conditions on Residence, Form I-751); 8 CFR 1235.3(b)(5)(iv) (authorizing termination where U.S. citizenship, permanent residence, or asylee or refugee status is found in claimed status review proceedings);

id.

at 1235.3(b)(5)(iv) (authorizing termination where U.S. citizenship, permanent residence, or asylee or refugee status is found in claimed status review proceedings);

id.

at 1238.1(e) (authorizing termination upon DHS motion in order for DHS to commence administrative removal under section 238 of the Act);

see also id.

at 1245.13(l) (deeming proceedings terminated upon the granting of adjustment of status for certain Nicaraguan and Cuban nationals).

13

13

Although codified separately in the regulations, termination and dismissal authority have been referenced interchangeably by EOIR.

See, e.g., Matter of Coronado Acevedo,

28 I&N Dec. 648, 648 n.1 (A.G. 2022) (“This labeling distinction is not material when a movant asks an immigration judge or the Board to end a case pursuant to a provision that does not use one of those labels. Except where a distinction between the two terms exists in regulations, this opinion refers to `termination' and `dismissal' interchangeably.”);

Matter of Vizcarra-Delgadillo,

13 I&N Dec. 51, 55 (BIA 1968) (holding that the immigration judge had authority to

terminate

proceedings as “improvidently begun” in a case where INS moved for dismissal and both parties agreed to the motion to dismiss);

Matter of G-N-C,

22 I&N Dec. 281, 284 (BIA 1998) (using the term “dismissal” and “termination” interchangeably in a case involving an INS motion for dismissal of proceedings under former 8 CFR 239.2(c));

Matter of W-C-B-,

24 I& N Dec. 118, 122 (BIA 2007) (stating that once jurisdiction vests with an immigration judge, a Notice to Appear cannot be cancelled but instead DHS must “move for dismissal of the matter,

i.e.,

request termination of the removal proceeding” under 8 CFR 239.2(c));

Matter of Andrade Jaso & Carbajal Ayala,

27 I&N Dec. 557, 559 (BIA 2019) (holding that the “immigration judge properly granted the DHS's motion to dismiss the proceedings without prejudice” under 8 CFR 1239.2(c));

see also

78 FR 535 (Jan. 3, 2013) at 544 (preamble to a DHS final rule stating that “[i]f the Form I-601A is approved for [a noncitizen] whose proceedings have been administratively closed, the [noncitizen] should seek termination or dismissal of the proceedings, without prejudice, by EOIR . . . or risk becoming ineligible for the immigrant visa based on another ground of inadmissibility”). While used interchangeably, the regulations limit dismissal to only those cases where DHS has moved for dismissal. Nevertheless, both termination and dismissal result in concluding removal proceedings without entering an order of removal.

Additionally, the Board has held that the immigration judge may terminate proceedings when there is a proper reason to do so, such as where DHS cannot meet its burden to sustain charges of removability “or in other specific circumstances consistent with the law and applicable regulations.”

Matter of Sanchez-Herbert,

26 I&N Dec. 43, 45 (BIA 2012);

see also Matter of Lopez-Barrios,

20 I&N Dec. at 204.

In 2018, the Attorney General held that, under the regulations, EOIR adjudicators lacked the “inherent authority” to terminate proceedings except as expressly authorized.

Matter of S-O-G- & F-D-B-,

27 I&N Dec. 462, 463 (A.G. 2018). In reaching that conclusion, the Attorney General relied heavily on the decision in

Matter of Castro-Tum. See id.

at 463, 466. However, the Attorney General subsequently overruled

Matter of S-O-G- & F-D-B-,

explaining that “[t]he precedential basis for that opinion ha[d] been significantly eroded by the overruling of

Castro-Tum,

”

14

and that it “imposed `rigid procedural requirements that would undermine . . . fair and efficient adjudication' in certain immigration cases.”

Matter of Coronado Acevedo,

28 I&N Dec. 648, 651 (A.G. 2022) (quoting

Matter of A-C-A-A-,

28 I&N Dec. 351, 351 (A.G. 2021)). Accordingly,

Matter of Coronado Acevedo

held that “immigration judges and the Board should be permitted to consider and, where appropriate, grant termination” in certain limited circumstances pending the outcome of a rulemaking to reconsider the regulations at issue in both

Matter of Castro-Tum

and

Matter of S-O-G- & F-D-B-. Id.

at 652.

14

In particular, the Fourth Circuit has indicated that it “fail[ed] to see how the general power to terminate proceedings” would be inconsistent with the “authorities bestowed by the INA.”

Gonzalez

v.

Garland,

16 F.4th 131, 141-42 (4th Cir. 2021) (“We have found no provisions stating that the [immigration judge] or BIA

cannot

terminate removal proceedings, and the Government does not cite to any.”). Further, in that case, the Fourth Circuit rejected the Government's position that section 240(c)(1)(A) of the Act, 8 U.S.C. 1229a(c)(1)(A), which states that “[a]t the conclusion of the proceeding, the immigration judge shall decide whether [a noncitizen] is removable from the United States,” precludes termination.

Gonzalez,

16 F.4th at 141. Specifically, the court concluded that a statutory requirement that an immigration judge decide whether a noncitizen is removable does not limit the immigration judge's actions after making that determination, and that there are circumstances where delay or termination after such determination may be appropriate.

Id.

D. Sua Sponte Reopening or Reconsideration and Self-Certification

1. Before Promulgation of the AA96 Final Rule

EOIR adjudicators have long had the authority to

sua sponte

reopen or reconsider cases, under rules promulgated in 1958 that remained in effect until the issuance of the AA96 Final Rule.

See

Miscellaneous Amendments to Chapter, 23 FR 9115, 9117 (Nov. 26, 1958); 8 CFR 1003.2(a)(1) and 1003.23(b)(1) (2019).

15

However, even prior to 1958, courts recognized such authority.

See Dada

v.

Mukasey,

554 U.S. 1, 12-13 (2008) (discussing

reopening as “a judicial creation later codified by federal statute” and citing decisions using reopening as early as 1916).

15

The 1958 rule amended, inter alia, part 3.2 of Title 8 of the CFR. Following the creation of DHS in 2003 after the passage of the HSA, EOIR's regulations were moved from Chapter I of Title 8 to Chapter V. Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 FR 9824 (Feb. 28, 2003). Part 3.2 was subsequently duplicated for EOIR at part 1003.2.

Id.

at 9830.

As originally implemented by the Department, the

sua sponte

authority of immigration judges and Appellate Immigration Judges was not limited by time or number requirements. In 1996, however, the Department issued a rule establishing time and number limitations on motions to reopen to implement statutory changes made by the Immigration Act of 1990, Public Law 101-649, 104 Stat. 4978. Immigration Act of 1990, sec. 545(d), 104 Stat. at 5066 (“[T]he Attorney General shall issue regulations with respect to . . . the period of time in which motions to reopen and to reconsider may be offered in deportation proceedings, which regulations include a limitation on the number of such motions that may be filed and a maximum time period for the filing of such motions[.]”); Executive Office for Immigration Review; Motions and Appeals in Immigration Proceedings, 61 FR 18900 (Apr. 29, 1996). At the time, the Department declined to include a “good cause” exception to the time and number limitations for motions to reopen filed by a party in proceedings because the same goal was accomplished by

sua sponte

authority. 61 FR at 18902;

see also Avila-Santoyo

v.

U.S. Att'y Gen.,

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

Additionally, prior to the AA96 Final Rule, the Board had the authority to self-certify cases. 8 CFR 1003.1(c) (2019). Under this authority, the Board could, in its discretion, review decisions of an immigration judge and DHS by its own certification. 8 CFR 1003.1(b)-(c) (2019). The Board could exercise this authority even in cases where a party's appeal was untimely or defective, after determining that the parties were given a fair opportunity to make representations before the Board.

Id.

2. Changes Made by the AA96 Final Rule

The AA96 Final Rule revised the regulations to limit the longstanding general

sua sponte

authority to reopen or reconsider cases and established that

sua sponte

reopening or reconsideration could only be used to correct typographical errors or defects in service. 85 FR at 81654-55 (8 CFR 1003.23(b)(1)). The AA96 Final Rule also limited exceptions to the time and numerical limits on filing a motion to reopen to cases where a change in fact or law post-dating the entry of a final order vitiated the grounds for removal and the movant demonstrated diligence in pursuing the motion.

Id.

(8 CFR 1003.23(b)(4)(v)). The Department chose to apply these restrictions on immigration judges' and the Board's

sua sponte

reopening authority to all pending cases.

Id.

at 81646-47. The Department explained that this rescission was needed because

sua sponte

authority had been used improperly.

Id.

at 81628. Additionally, the Department explained that the Attorney General rescinded his delegation of

sua sponte

authority to reopen or reconsider given the lack of a meaningful standard to guide a decision whether to order reopening or reconsideration of cases through the use of

sua sponte

authority.

Id.

The AA96 Final Rule also amended 8 CFR 1003.1(c) to remove the Board's authority to self-certify cases in order to accept untimely or defective appeals in exceptional circumstances. The Department explained that the change was necessary due to similar concerns such as the lack of standards for the use of the self-certification authority, inconsistent applications resulting from the lack of a defined standard for determining when “exceptional” circumstances exist, the potential for lack of notice to the parties when the Board elected to use its self-certification authority, the potential for inconsistent application and abuse of self-certification authority, and the strong interest in finality of EOIR's adjudications.

Id.

at 81591.

E. Board Findings of Fact—Administrative Notice

1. Before Promulgation of the AA96 Final Rule

Prior to the AA96 Final Rule, the regulations generally precluded the Board from engaging in fact-finding in the course of deciding appeals. 8 CFR 1003.1(d)(3)(iv) (2019). However, the regulations authorized the Board to take “administrative notice of commonly known facts such as current events or the contents of official documents.”

Id.

2. Changes Made by the AA96 Final Rule

The AA96 Final Rule expanded the regulations regarding administrative notice in several ways. First, in addition to permitting the Board to take administrative notice of the content of official documents and current events, the rule further permitted the Board to take administrative notice of “[f]acts that can be accurately and readily determined from official government sources and whose accuracy is not disputed” and “[u]ndisputed facts contained in the record.” 85 FR at 81651 (8 CFR 1003.1(d)(3)(iv)(A)(3), (4)). The AA96 Final Rule went on to state that where the Board intends to rely on administratively noticed facts to reverse an immigration judge's grant of relief or protection from removal, the Board is required to notify the parties of its intent and provide them at least 14 days within which to respond to the notice.

Id.

(8 CFR 1003.1(d)(3)(iv)(B)). However, the AA96 Final Rule did not require the Board to notify the parties if it relied on an administratively noticed fact to uphold an immigration judge's denial.

See id.

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

F. Board Findings of Fact—Voluntary Departure

1. Before Promulgation of the AA96 Final Rule

Voluntary departure is a discretionary form of relief that “allows certain favored [noncitizens] . . . to leave the country willingly” either before the conclusion of removal proceedings or after being found deportable.

Dada,

554 U.S. at 8. A noncitizen must apply for voluntary departure in the first instance before an immigration judge; otherwise, the opportunity to seek such relief will be deemed waived.

See, e.g., Matter of J-Y-C

-, 24 I&N Dec. 260, 261 n.1 (BIA 2007) (declining to consider claim raised for the first time on appeal). Likewise, the noncitizen must raise the issue of voluntary departure in any appeal to the Board; otherwise, it will be deemed waived.

See Matter of Cervantes,

22 I&N Dec. 560, 561 n.1 (BIA 1999) (refusing to address an issue not raised on appeal).

Prior to the AA96 Final Rule, the regulations described an immigration judge's authority to grant voluntary departure but did not articulate the Board's authority to do so.

See generally

8 CFR 1240.26 (2019). The regulations stated that in limited circumstances, the Board could reinstate an order of voluntary departure when removal proceedings had been reopened for a purpose other than solely requesting voluntary departure. 8 CFR 1240.26(h) (2019).

16

The Board could remand cases to the immigration court to consider whether a noncitizen was eligible for voluntary departure or for the

immigration judge to review whether a noncitizen had received proper voluntary departure advisals.

See Matter of Gamero,

25 I&N Dec. 164, 168 (BIA 2010) (concluding that “a remand is the appropriate remedy when the mandatory advisals have not been provided by the Immigration Judge”).

16

Although the regulations have never explicitly stated that the Board has the authority to grant voluntary departure, the Eleventh Circuit has stated that the Board has the authority to grant or deny voluntary departure in the first instance pursuant to its general (pre-AA96) regulatory authority under 8 CFR 1003.1(d)(3)(ii) to “review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.”

Blanc

v.

U.S. Att'y Gen.,

996 F.3d 1274, 1278 (11th Cir. 2021) (“At the agency level, the Board of Immigration Appeals itself can grant—or deny—voluntary departure.”).

2. Changes Made by the AA96 Final Rule

The AA96 Final Rule delegated explicit authority to the Board to consider issues relating to the immigration judge's decision on voluntary departure de novo and to issue final decisions on requests for voluntary departure based on the record evidence. 85 FR at 81652, 81655 (8 CFR 1003.1(d)(7)(ii)(E); 1240.26(k)). The AA96 Final Rule barred the Board from remanding a case to the immigration court solely to consider a request for voluntary departure or for the immigration judge's failure to provide advisals following a grant of voluntary departure.

Id.

at 81652.

Specifically, the AA96 Final Rule provided that the Board could issue an order of voluntary departure, with an alternate order of removal, where: (1) the noncitizen requested voluntary departure before the immigration judge; (2) the notice of appeal specified that the noncitizen was appealing an immigration judge's denial of voluntary departure and raised specific factual and legal challenges on this issue; and (3) the Board determined that the noncitizen was otherwise eligible for voluntary departure.

Id.

The AA96 Final Rule mandated that if the Board did not grant the request for voluntary departure, it would be required to deny the request.

Id.

The AA96 Final Rule further provided that in instances where the Board determined that the immigration judge incorrectly denied a noncitizen's request for voluntary departure or failed to provide appropriate advisals, it would be required to consider the request for voluntary departure de novo and, if warranted, it must enter an order granting voluntary departure with an alternate order of removal.

Id.

at 81655.

Furthermore, the AA96 Final Rule specified that in cases where DHS appealed an immigration judge's decision, the Board could not grant voluntary departure unless: (1) the noncitizen requested voluntary departure before the immigration judge and provided or proffered evidence to support the request; (2) the immigration judge either granted voluntary departure or did not rule on the request; and (3) the noncitizen otherwise met the statutory and regulatory criteria for voluntary departure.

Id.

Lastly, the AA96 Final Rule specified that the Board could impose conditions that it deemed necessary to ensure the noncitizen's timely departure from the United States and required the Board to provide written advisals of such conditions and other duties associated with voluntary departure.

Id.

at 81655-56. The noncitizen could accept the grant of voluntary departure or could decline by providing written notice within five days of receipt of the Board's decision, failing to timely post any required bond, or otherwise failing to comply with the Board's order.

Id.

at 81656.

G. Board Remand Authority—Additional Findings of Fact

1. Before Promulgation of the AA96 Final Rule

The Board does not engage in fact-finding when adjudicating appeals of immigration judges' decisions. 8 CFR 1003.1(d)(3)(i). Accordingly, under the pre-AA96 regulations, a party asserting that the Board could not properly resolve an appeal without further fact-finding would file a motion to remand. 8 CFR 1003.1(d)(3)(iv) (2019).

Generally, motions to remand are subject to the same substantive requirements as motions to reopen, particularly where a party seeks remand during the pendency of a direct appeal to present new evidence or to apply for a newly available form of relief not considered by the immigration judge.

See Rodriguez

v.

INS,

841 F.2d 865, 867 (9th Cir. 1987) (substantive requirements of a motion to remand are the same as a motion to reopen);

Matter of Coelho,

20 I&N Dec. 464, 471 (BIA 1992) (explaining “where a motion to remand is really in the nature of a motion to reopen or a motion to reconsider, it must comply with the substantive requirements for such motions”). Additionally, prior to the AA96 Final Rule, the Board had regulatory authority to

sua sponte

remand a case for further fact-finding where necessary. 8 CFR 1003.1(d)(3)(iv) (2019);

see also Matter of S-H-,

23 I&N Dec. 462, 466 (BIA 2002) (exercising

sua sponte

remand authority).

2. Changes Made by the AA96 Final Rule

The AA96 Final Rule restricted the Board's authority to remand for further fact-finding or consideration of new evidence. 85 FR at 81651 (8 CFR 1003.1(d)(3)(iv)(C)-(D)). First, the AA96 Final Rule provided that the Board may only grant motions to remand for further fact-finding when: (1) the party seeking remand preserved the issue before the immigration judge; (2) the party seeking remand attempted to adduce the additional facts before the immigration judge, if it bore the burden of proof; (3) additional fact-finding would alter the outcome of the case; (4) additional fact-finding would not be cumulative of the evidence already presented or contained in the record; and (5) either the immigration judge's factual findings were clearly erroneous, the immigration judge committed an error of law that required additional fact-finding on remand, or remand to DHS was warranted following a de novo review.

Id.

(8 CFR 1003.1(d)(3)(iv)(D)). Second, the AA96 Final Rule prohibited the Board from

sua sponte

remanding a case for further fact-finding except when necessary to determine whether the immigration judge had jurisdiction over the case.

Id.

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

The AA96 Final Rule provided exceptions to these general restrictions on remand authority under 8 CFR 1003.1(d)(6)(iii) and (d)(7)(v)(B). 85 FR at 81651

-

52. Under paragraph (d)(6)(iii), DHS could move the Board to remand the record to the immigration judge to consider whether, in light of new information gained by identity, law enforcement, or security investigations or examinations, any pending applications for relief or protection should be denied.

Id.

If DHS failed to report the results of such investigations or examinations, the regulations directed the Board to remand the case to the immigration judge for further proceedings under 8 CFR 1003.47(h).

Id.

Paragraph (d)(7)(v)(B) reiterated that the Board was not limited in remanding a case based on new evidence or information gained from identity, law enforcement, or security investigations or examinations; to address a question of jurisdiction over an application or proceedings; or to address a question regarding grounds of removability in sections 212 or 237 of the Act, 8 U.S.C. 1182, 1227. 85 FR at 81652.

H. Board Remand Authority—Errors in Fact or Law

1. Before Promulgation of the AA96 Final Rule

Prior to the AA96 Final Rule, the regulations broadly authorized the Board to remand cases “as . . . appropriate, without entering a final decision on the merits of the case.” 8 CFR 1003.1(d)(7) (2019). However, as the AA96 Final Rule explained, the regulation granted this authority without any further guidance or instructions regarding when the Board

could order a remand instead of issuing a final order. 85 FR at 81589.

2. Changes Made by the AA96 Final Rule

The AA96 Final Rule restricted the Board's authority to remand for errors in fact or law or consideration of material changes in fact or law.

Id.

at 81652 (8 CFR 1003.1(d)(7)(ii)). Specifically, the AA96 Final Rule provided that the Board could not remand a case without first identifying the standard of review that it had applied, as well as the specific error or errors made by the immigration judge.

Id.

The Board also could not remand a case based on a “totality of the circumstances” standard of review or based on a legal argument that was not presented in 8 CFR 1003.1(d)(7)(ii)(D) through (E), with certain exceptions.

Id.

Additionally, the AA96 Final Rule barred the Board from remanding a case

sua sponte,

unless the remand solely involved a question of jurisdiction.

Id.

As discussed above, the Board also could not remand a case solely for consideration of voluntary departure or as the result of the failure to give required advisals for a grant of voluntary departure.

Id.

Moreover, the AA96 Final Rule generally barred remanding based on any legal arguments that did not pertain to an “issue of jurisdiction over an application or the proceedings,” or to “material change[s] in fact or law” underlying a removability ground or grounds that occurred after the date of the immigration judge's decision and substantial evidence indicated that the material change would vitiate all grounds of removability.

Id.

I. Background Check

1. Before Promulgation of the AA96 Final Rule

In 2005, the Department implemented regulations covering background and security investigations in proceedings before immigration judges and the Board.

See

Background and Security Investigations in Proceedings Before Immigration Judges and the Board of Immigration Appeals, 70 FR 4743 (Jan. 31, 2005) (“Background Check Rule”) (issued as interim final rule). The Background Check Rule amended Department regulations to ensure that the necessary identity, law enforcement, and security investigations (hereinafter “background checks”) are promptly initiated and have been completed by DHS prior to the granting of certain forms of relief or protection from removal. 8 CFR 1003.1(d)(6) (2019).

Under the framework implemented by the Background Check Rule, applicants for relief or protection from removal in proceedings before EOIR have an obligation to comply with applicable requirements to provide biometrics and other biographical information, and failure to comply with such requirements within the time allowed constitutes abandonment of the application, with certain exceptions.

Id.;

8 CFR 1003.47(c), (d).

Prior to the AA96 Final Rule, the Board could address incomplete or outdated background checks by either remanding the case to the immigration judge or placing adjudication of the case on hold until background checks were completed or updated. 8 CFR 1003.1(d)(6)(ii)(A), (B) (2019). However, the Board was not required to remand or hold a case if dismissing the appeal or when denying the relief sought. 8 CFR 1003.1(d)(6)(iv) (2019).

2. Changes Made by the AA96 Final Rule

The AA96 Final Rule limited the Board's authority to remand a decision with incomplete or outdated background checks. 85 FR at 81651 (8 CFR 1003.1(d)(6)(ii)-(iii)). Under the new framework, the Board was only permitted to place such cases on hold and to notify the parties about the hold, including certain advisals about the consequences for failure to comply with background check requirements.

Id.

Further, the AA96 Final Rule required the Board to deem an application for relief from removal abandoned if a noncitizen failed to comply with background check procedures within 90 days of DHS's instruction notice under 8 CFR 1003.1(d)(6)(ii), unless the noncitizen demonstrated good cause prior to the end of the 90-day period, or if the noncitizen was detained.

Id.

at 81651-52 (8 CFR 1003.1(d)(6)(iii)). If the noncitizen demonstrated good cause within the 90-day period, the Board could give the noncitizen one extension of up to 30 additional days to comply.

Id.

at 81652. The AA96 Final Rule further required that the Board adjudicate the remainder of the appeal within 30 days after an application was deemed abandoned and enter an order of removal or a grant of voluntary departure, as appropriate.

Id.

Regarding motions to remand, the AA96 Final Rule permitted DHS to file a motion to remand if it obtained relevant information when completing or updating background checks so that the immigration judge could consider whether, in light of the new information, any pending applications for relief or protection should be denied.

Id.

Additionally, the AA96 Final Rule instructed the Board to remand the case to the immigration judge if DHS failed to report the results of background checks within 180 days of the Board's notice.

Id.

J. Adjudication Timelines

1. Before Promulgation of the AA96 Final Rule

Prior to the AA96 Final Rule, the regulations provided for a case management system that set forth, in relevant part, procedures for initial screening for cases appealed to the Board and general guidance regarding a decision's timeliness. 8 CFR 1003.1(e)(1), (8) (2019). Regarding initial screening, the regulations established that cases would be referred to a screening panel for review and that appeals subject to summary dismissal must be “promptly dismissed.” 8 CFR 1003.1(e)(1) (2019). However, the Board did not have a concrete timeline for such review or dismissal.

Id.

As for timeliness, the regulations provided that in all cases, other than those subject to summary dismissal, the Appellate Immigration Judge or panel should issue a decision on the merits “as soon as practicable,” prioritizing cases involving detained noncitizens. 8 CFR 1003.1(e)(8) (2019). The regulations further set forth a 90-day decision deadline for cases adjudicated by a single Appellate Immigration Judge, beginning upon completion of the record on appeal, and a 180-day deadline for cases adjudicated by a three-member panel, beginning once an appeal was assigned to the three-member panel. 8 CFR 1003.1(e)(8)(i) (2019). However, the Board Chairman

17

could extend those deadlines in exigent circumstances. 8 CFR 1003.1(e)(8)(ii) (2019). The Chairman could also suspend the regulatory deadlines and indefinitely hold a case or group of cases in anticipation of an impending decision by the United States Supreme Court, a United States Court of Appeals, the Board sitting

en banc,

or impending Department regulations. 8 CFR 1003.1(e)(8)(iii) (2019). Moreover, the Chairman was required to notify the EOIR Director and the Attorney General if an Appellate Immigration Judge consistently failed to meet the assigned deadlines or adhere to the case management system, as well as to prepare an annual report assessing the timeliness of the disposition of cases by

each Appellate Immigration Judge. 8 CFR 1003.1(e)(8)(v) (2019).

17

The Board Chairman, or the Chairman, is also known as the “Chief Appellate Immigration Judge.”

See

Organization of the Executive Office for Immigration Review, 85 FR 69465, 69466 (Nov. 3, 2020) (final rule).

2. Changes Made by the AA96 Final Rule

The AA96 Final Rule imposed numerous internal deadlines for adjudicating Board appeals. 85 FR at 81652-53 (8 CFR 1003.1(e)). For example, the rule required the Board screening panel to review cases within 14 days of the filing of a Notice of Appeal, the filing of a motion, or the receipt of a remand from a federal court.

Id.

(8 CFR 1003.1(e)(1)). Following an initial review, the Board had to adjudicate requests for summary dismissal no later than 30 days after the filing of the Notice of Appeal, subject to limited exceptions, and interlocutory appeals within 30 days of the filing of the appeal, unless referred to a three-member panel.

Id.

After the screening panel completed its review, the Board would then have seven days to order a transcript and would be required to set a briefing schedule within seven days after the transcript was provided, subject to limited exceptions.

Id.

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

The AA96 Final Rule also required that the Board assign each case to a single Appellate Immigration Judge within seven days of the completion of the record on appeal.

Id.

The single Appellate Immigration Judge would then determine whether to adjudicate the appeal independently or to designate the case for decision by a three-member panel.

Id.

The AA96 Final Rule did not alter the completion deadlines of 90 days for a single-member decision and 180 days for a three-member decision. 85 FR at 81653 (8 CFR 1003.1(e)(8)(i)). However, the AA96 Final Rule changed the 180-day time period for completion of a three-member decision to begin earlier, upon completion of the record, rather than beginning the clock after the case was assigned to a three-member panel, and added that the Chairman's determination as to whether exigent circumstances warranted extension of those deadlines would be subject to concurrence by the EOIR Director.

Id.

The AA96 Final Rule also limited the “rare circumstances” under which the Chairman could place cases on hold to only those groups of cases that would be substantially impacted by an impending decision by the United States Supreme Court or the Board sitting

en banc

and removed the ability to hold cases to await an impending decision by a United States Court of Appeals or impending Department regulations. 8 CFR 1003.1(e)(8)(iii). The AA96 Final Rule also required the concurrence of the EOIR Director to hold cases under this provision.

Id.

at 81653 (8 CFR 1003.1(e)(8)(iii)). The AA96 Final Rule limited such holds to a maximum of 120 days.

Id.

The AA96 Final Rule also imposed additional reporting requirements on the Chairman for transcription processes and cases involving extensions, holds, or other delays.

Id.

at 81653 (8 CFR 1003.1(e)(8), (8)(v)).

Furthermore, the AA96 Final Rule required that all cases that remained pending for more than 335 days after receipt of a filed appeal or motion, or remand from a federal court, would be referred to the EOIR Director for a decision unless subject to an extension, hold, deferral, or remand.

Id.

at 81653 (8 CFR 1003.1(e)(8)(v)). The Director would then exercise delegated authority from the Attorney General identical to that of the Board, including the authority to issue precedential decisions or refer cases to the Attorney General.

Id.

However, the AA96 Final Rule limited further delegation of such authority from the EOIR Director to other individuals.

Id.

K. Director's Authority To Issue Decisions

1. Before Promulgation of the AA96 Final Rule

Until 2019, the EOIR Director had no authority to adjudicate cases arising under the Act, including appeals before the Board.

See

8 CFR 1003.0(c) (2018). Instead, the regulations simply provided that for cases not completed within the relevant time limits and not subject to any exceptions, the Chairman should self-refer them or refer them to the Vice Chairman for completion within 14 days. Alternatively, the Chairman could refer them to the Attorney General. 8 CFR 1003.1(e)(8)(ii) (2018).

In 2019, the Department established a narrow discretionary authority for the EOIR Director to decide appeals in certain circumstances.

See

Organization of the Executive Office for Immigration Review, 84 FR 44537, 44539-40 (Aug. 26, 2019) (issued as an interim final rule), 85 FR 69465, 69466 (Nov. 3, 2020) (final rule);

see also

8 CFR 1003.1(e)(8)(ii) (authorizing the EOIR Director to decide an appeal that exceeded the 90- and 180-day regulatory time limits unless the Chairman self-referred the case or referred the case to the Vice Chairman); 8 CFR 1003.0(c) (providing that the EOIR Director may not adjudicate cases arising under the Act “[e]xcept as provided by statute, regulation, or delegation of authority from the Attorney General, or when acting as a designee of the Attorney General”). The Department subsequently codified, at the final rule stage, language stating that the EOIR Director's authority to decide appeals in certain circumstances under 8 CFR 1003.1(e)(8)(ii) could not be further delegated. 85 FR at 69480-81; 8 CFR 1003.0(b)(2)(ii) (“The Director may not delegate the authority assigned to the Director in [8 CFR] 1003.1(e)(8)(ii) . . .”).

2. Changes Made by the AA96 Final Rule

The AA96 Final Rule authorized the EOIR Director to decide cases in two distinct circumstances. First, the rule directed the Chairman to refer any case still pending 335 days after an appeal or motion was filed or a remand was received to the EOIR Director for adjudication. 85 FR at 81653 (8 CFR 1003.1(e)(8)(v)). Under the AA96 Final Rule, the following categories of cases were not subject to the EOIR Director's adjudication authority: (1) cases subject to a hold under 8 CFR 1003.1(d)(6)(ii); (2) cases subject to an extension under 8 CFR 1003.1(e)(8)(ii); (3) cases subject to a hold under 8 CFR 1003.1(e)(8)(iii); (4) cases whose adjudication had been deferred by the EOIR Director pursuant to 8 CFR 1003.0(b)(1)(ii); (5) cases that were remanded by the EOIR Director under 8 CFR 1003.1(k) in which 335 days had elapsed following remand; and (6) cases that were administratively closed prior to 335 days after the appeal was filed pursuant to a regulation promulgated by the Department or a previous judicially approved settlement that authorized such an action but for which the administrative closure caused the pendency of the appeal to exceed 335 days.

Id.

(8 CFR 1003.1(e)(8)(v)(A)-(F)).

Second, the rule established a procedure for an immigration judge to certify a Board decision to the EOIR Director when the immigration judge believed the Board made one or more enumerated errors.

Id.

(8 CFR 1003.1(k)). This authority is discussed in further detail in the section on the “Quality Assurance Certification” provision.

For cases referred to the EOIR Director, the EOIR Director would exercise delegated authority from the Attorney General identical to that of the Board, including the authority to issue precedential decisions and the authority to refer cases to the Attorney General for review.

Id.

(8 CFR 1003.1(e)(8)(v)). The AA96 Final Rule prohibited the EOIR Director from further delegating this authority.

Id.

Of note, the AA96 Final Rule did not amend the existing regulatory provision reiterating that 8

CFR 1003.1(e)(8) did not confer substantive or procedural rights enforceable before any immigration judge, the Board, or any court of law or equity, 8 CFR 1003.1(e)(8)(vi), which, under the AA96 Final Rule, included case referrals to the EOIR Director.

L. Quality Assurance Certification

1. Before Promulgation of the AA96 Final Rule

Prior to the AA96 Final Rule, various options were available to ensure quality case adjudications. If a party were dissatisfied with a Board decision, the party could file a motion to reconsider. 8 CFR 1003.2(a). Alternatively, the noncitizen could file a petition for review of a final order of removal with a federal court of appeals. INA 242(a)(1), 8 U.S.C. 1252(a)(1). In addition, DHS could seek to certify a Board decision to the Attorney General for review, 8 CFR 1003.1(h)(1)(iii), or the Attorney General could self-certify a Board decision for review, 8 CFR 1003.1(h)(1)(i). The Board could also reconsider or reopen a decision by exercising its

sua sponte

authority. 8 CFR 1003.2(a) (2019) (providing that “[t]he Board may at any time reopen or reconsider on its own motion” any Board decision). The process by which an immigration judge could certify a decision to the EOIR Director did not exist prior to the AA96 Final Rule.

See generally

8 CFR 1003.23(b) (2019).

2. Changes Made by the AA96 Final Rule

The AA96 Final Rule did not change some of the existing options to ensure quality case adjudications discussed above, including a party's ability to file a motion to reconsider with the Board, the ability to file a petition for review of a final order of removal with a federal court of appeals, and the case referral options outlined in 8 CFR 1003.1(h).

18

In addition to these options, the AA96 Final Rule implemented a quality assurance certification, wherein the immigration judge could forward a case by certification to the EOIR Director for further review if the Board decision: (1) contained a typographical or clerical error that affected the outcome of the case; (2) was clearly contrary to an immigration law or statute, applicable regulation, or published binding precedent; (3) was “vague, ambiguous, internally inconsistent, or otherwise did not resolve the basis for the appeal”; or (4) did not consider a material factor pertinent to the issues before the immigration judge. 85 FR at 81653-54 (8 CFR 1003.1(k)(1)). To certify a decision, the immigration judge was required to issue an order of certification within 30 days of the Board decision, or within 15 days if the noncitizen was detained, specifying the regulatory basis for the certification, summarizing the underlying factual basis, and providing notice of the certification to both parties.

Id.

at 81653 (8 CFR 1003.1(k)(2)).

18

The AA96 Final Rule limited the Board's

sua sponte

authority to reopen or reconsider a decision as discussed in Section III.D of this preamble.

For such cases, the EOIR Director would exercise delegated authority from the Attorney General identical to that of the Board.

Id.

(8 CFR 1003.1(k)(3)). The Director could dismiss the certification and return the case to the immigration judge or remand the case back to the Board.

Id.

The Director could not, however, issue an order of removal, grant a request for voluntary departure, or grant or deny an application for relief or protection from removal.

Id.

The AA96 Final Rule further barred the quality assurance certification process from being used solely to express general disapproval or disagreement with the outcome of a Board decision.

Id.

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

M. Forwarding of Record on Appeal

1. Before Promulgation of the AA96 Final Rule

The pre-AA96 regulation provided that, when a transcript of an oral decision was required, an immigration judge would review the transcript and approve the decision within 14 days of receipt (or within seven days following an immigration judge's return from leave or a detail). 8 CFR 1003.5(a) (2019). Further, the regulation required the transcript to be forwarded to the Board upon its request or order.

Id.

The regulation instructed the Chairman and Chief Immigration Judge to determine the most effective and expeditious way to transcribe proceedings before immigration judges, including reducing the time necessary to produce transcripts and improving the quality of such transcripts.

Id.

2. Changes Made by the AA96 Final Rule

The AA96 Final Rule amended 8 CFR 1003.5(a) so that immigration judges would not need to forward the record to the Board if the Board already had electronic access to the record. 85 FR at 81654 (8 CFR 1003.5(a)). The AA96 Final Rule also removed the requirement that immigration judges review transcripts of oral decisions, which included review of, potential revisions to, and approval of the transcript.

Compare

8 CFR 1003.5(a) (2019) (“Where transcription of an oral decision is required, the immigration judge shall review the transcript and approve the decision . . .”),

with

85 FR at 81654 (8 CFR 1003.5(a)) (omitting that requirement).

The AA96 Final Rule did not alter the requirement that the EOIR Director, in consultation with the Chairman and Chief Immigration Judge, determine the most effective and expeditious way to transcribe proceedings. 85 FR at 81654 (8 CFR 1003.5(a)). However, it directed the Chairman and Chief Immigration Judge to “ensure,”

id.

(8 CFR 1003.5(a)), rather than simply “improve,” 8 CFR 1003.5(a) (2019), the quality of such transcripts.

The AA96 Final Rule also amended 8 CFR 1003.5(b) by removing language describing procedures regarding appeals from DHS decisions that are within the BIA's appellate jurisdiction and stated that those procedures were not applicable to EOIR adjudicators. 85 FR at 81654 (8 CFR 1003.5(b)).

N. Centro Legal de la Raza Litigation

On March 10, 2021, the United States District Court for the Northern District of California granted a nationwide preliminary injunction barring the Department from implementing or enforcing the AA96 Final Rule or any portion thereof and staying the effectiveness of the rule under 5 U.S.C. 705.

Centro Legal de la Raza

v.

Exec. Off. for Immigr. Rev.,

524 F. Supp. 3d 919 (N.D. Cal. 2021). The preliminary injunction and stay of the rule's effectiveness remain in effect.

19

In granting the preliminary injunction and stay under 5 U.S.C. 705, the court determined that plaintiffs were likely to ultimately succeed on several substantive and procedural challenges raised with respect to the AA96 Final Rule.

Id.

at 954-76.

20

19

In addition to this preliminary injunction, the United States District Court of the District of Columbia granted a stay of the implementation of the AA96 Final Rule on April 3, 2021, determining that the 30-day comment period associated with the rulemaking was procedurally insufficient.

See Catholic Legal Immigration Network, Inc.

v.

Exec. Off. for Immigr. Rev.,

No. 21-00094, 2021 WL 3609986 (D.D.C. Apr. 4, 2021).

20

Procedurally, the court stated that plaintiffs were likely to succeed on their claim that the Department's 30-day notice-and-comment period was insufficient under the Administrative Procedure Act (“APA”) due to the rule's complexity, the COVID-19 pandemic, and other concerns.

Centro Legal de la Raza,

524 F. Supp. 3d at 954-58. The court also raised “serious concerns” with the Department's “staggered rulemaking” approach, explaining that because “numerous intertwined proposed rules were promulgated at different times, including after the close of the comment period in this case, the true impact of the [AA96 Final Rule] was obscured and the public was deprived of a meaningful opportunity to comment.”

Id.

at 958, 962.

1. “Arbitrary and Capricious” Challenges

Substantively, the court determined that the plaintiffs demonstrated a likelihood of success on the merits of their arguments that the AA96 Final Rule's changes to the briefing schedule for BIA appeals, administrative closure, and

sua sponte

reopening and reconsideration authority were arbitrary and capricious.

Id.

at 963-71. The court also made a generally applicable finding that EOIR's failure to adequately consider the Booz Allen Hamilton report that EOIR “specifically commissioned to analyze the very concerns that purportedly animate” the AA96 Final Rule raised significant APA concerns.

Id.

at 963.

i. Changes to BIA Briefing Schedule

The court found that there was a substantial likelihood that the AA96 Final Rule's changes to the briefing schedule for BIA appeals are arbitrary and capricious because the Department failed to adequately consider the impact on pro se individuals and how the changes would operate, in conjunction with existing BIA practices and procedures, to create difficulties for noncitizens and their attorneys in meeting briefing deadlines.

Id.

at 964-66. The court was not persuaded by the Department's position that noncitizens need not wait until the BIA briefing schedule had been issued to seek representation for an appeal because, the court stated, “the vast majority of individuals appearing before immigration courts are pro se,”

21

and many face language barriers.

Id.

at 965. Additionally, the court noted that, “of critical importance[,]” immigration judges often issue oral decisions; accordingly, noncitizens may not have the documents necessary to seek representation until after the Board issues and mails the briefing schedule, transcript, and a copy of the immigration judge's order.

Id.

The court stated that the Department failed to address how challenges to the compressed briefing schedule might be exacerbated by the Board's mail-based system, failure to follow the “mailbox rule,” and unpredictable briefing schedules.

22

Id.

The court also found the Department's reliance on future implementation of an electronic filing system unpersuasive.

Id.

The court further stated that the Department failed to consider the challenges that the COVID-19 pandemic may present to compliance with the compressed briefing schedule.

Id.

at 966.

21

EOIR data reports an 86% representation rate for “all completed appeals,” a 90% representation rate for “all pending appeals,” and a 45% representation rate for “overall pending” adjudications.

See

EOIR,

Adjudication Statistics: Current Representation Rates, https://www.justice.gov/eoir/page/file/1062991/download

(data generated Apr. 21, 2023).

22

The court noted that the “U.S. Postal service is experiencing historic backlogs” due to the COVID-19 pandemic.

Centro Legal de la Raza,

524 F. Supp. 3d at 966.

ii. Administrative Closure

The court also determined that plaintiffs were likely to succeed on their argument that the AA96 Final Rule's restrictions on administrative closure are arbitrary and capricious. First, the court found that, although the Department cited efficiency reasons for promulgating the rule, it failed to meaningfully address the existence of “extensive contrary evidence showing that administrative closure enhances efficiency.”

Id.

at 967. The court also noted that EOIR's consultants had previously recommended that EOIR work with DHS to explore developing policies regarding administrative closure, and yet EOIR did not discuss or consider that recommendation in its rulemaking.

Id.

The court further stated that the Department improperly dismissed and minimized commenter concerns that eliminating administrative closure could lead to the removal of noncitizens with meritorious claims for relief or protection, including removal in violation of the United States' non-refoulement obligations under international law.

Id.

at 968. The court explained that, although the Department cited the availability of administrative closure in some circumstances, it did not adequately address the issue that administrative closure would no longer be available for “the vast majority of noncitizens in removal proceedings, including people for whom Congress has specifically crafted humanitarian relief.”

Id.

Additionally, the court determined that the Department did not adequately engage with commenter concerns that the AA96 Final Rule conflicted with section 212(a)(9)(B)(v) of the Act, 8 U.S.C. 1182(a)(9)(B)(v), as DHS has interpreted it.

Id.; see also

8 CFR 212.7(e)(4)(iii) (rendering an individual in removal proceedings ineligible for an unlawful presence hardship waiver unless the proceedings are administratively closed);

see also Garcia-DeLeon,

999 F.3d at 993 (“We conclude that immigration judges and the BIA retain the authority to grant administrative closure so that noncitizens may apply for a provisional unlawful presence waiver.”).

The court noted that, although DHS had previously determined that individuals who have been granted voluntary departure would not be eligible for such provisional waivers,

see

Expansion of Provisional Unlawful Presence Waivers of Inadmissibility, 81 FR 50244, 50256 (July 29, 2016), EOIR nevertheless asserted in the AA96 Final Rule that eliminating general authority to administratively close cases would have no bearing on a noncitizen's “ability to obtain an order of voluntary departure and then a provisional waiver before departing to receive the final waiver abroad.” 85 FR at 81601. The court determined that the Department did not provide a “reasoned basis” for this position.

Centro Legal de la Raza,

524 F. Supp. 3d at 969.

iii. Sua Sponte Reopening and Reconsideration Authority

The court also determined that the Department's decision to eliminate adjudicators'

sua sponte

reopening and reconsideration authority was likely arbitrary and capricious. The court expressed that it was “extremely troubled” by the Department's contention that, because there is no right to

sua sponte

reopening, the Department was not required to assess commenter concerns about any reliance interests or weigh such interests against competing policy concerns.

Id.

at 970;

see also Dep't of Homeland Sec.

v.

Regents of the Univ. of Cal.,

140 S. Ct. 1891, 1913 (2020) (“When an agency changes course . . . it must be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.” (internal quotation marks omitted)).

The court similarly expressed concerns with the Department's justifications for eliminating

sua sponte

reopening and reconsideration in light of “the reality that its elimination will foreclose the only avenue of relief for some noncitizens who would otherwise be eligible for relief from removal.”

Centro Legal de la Raza,

524 F. Supp. 3d at 971. For example, the Department asserted that the rule would promote fairness by withdrawing an authority that may be subject to inconsistent and potentially abusive usage and could undermine finality in proceedings.

Id.

However, the court found that the Department failed to provide examples of inconsistent application or abuse and did not adequately explain why “it could not articulate or clarify a meaningful standard to govern” when “ `exceptional situations' would permit

sua sponte

reopening or reconsideration.”

Id.; see also Motor Vehicle Mfrs. Ass'n of U.S.

v.

State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 48-49 (1983) (“[A]n agency must cogently

explain why it has exercised its discretion in a given manner.”).

2. Regulatory Flexibility Act Challenge

The court determined that the plaintiffs raised serious questions that the AA96 Final Rule violated the Regulatory Flexibility Act (“RFA”), which requires federal agencies to analyze the impact of proposed rules on small entities.

Centro Legal de la Raza,

524 F. Supp. 3d at 971-74;

see also

5 U.S.C. 601-12. Specifically, the court determined that the plaintiff, Centro Legal de la Raza, was likely a small entity under the RFA and that the AA96 Final Rule would apply to it because it would be required to comply with the changes implemented by the rule.

Centro Legal de la Raza,

524 F. Supp. 3d at 973. Further, the court expressed doubt that the AA96 Final Rule's “cursory” statement that the rule would not have a substantial impact on small entities was a sufficient factual basis to avoid engaging in an RFA analysis, particularly in light of the scope of the AA96 Final Rule and the numerous comments from organizations claiming that the AA96 Final Rule would economically impact them.

Id.

at 974.

3. Delegation of Rulemaking Authority to the EOIR Director

Lastly, the court determined that the plaintiffs had raised serious questions regarding whether the AA96 Final Rule's delegation of rulemaking authority to the EOIR Director, based on the specific facts of that case, violated the APA.

Centro Legal de la Raza,

524 F. Supp. 3d at 976. The court was troubled by the manner by which the delegation occurred.

Id.

Specifically, the court stated that while the Attorney General signed the AA96 NPRM, the Attorney General did not delegate rulemaking authority until after the close of the NPRM's comment period and did so through a non-public order.

Id.

The court also expressed particular concern that the AA96 Final Rule, signed by the EOIR Director pursuant to the delegated rulemaking authority, significantly expanded the EOIR Director's authority to adjudicate Board appeals.

Id.

The court stated that although the AA96 NPRM—as signed by the Attorney General—proposed expanding the EOIR Director's authority in this manner, the NPRM did not disclose that the EOIR Director would issue the final rule and, thus, would ultimately be in charge of considering the public's comments about expanding the EOIR Director's own authority.

Id.

IV. Description of Proposed Regulatory Changes

The Department has carefully reconsidered the AA96 Final Rule, the comments received on the AA96 Proposed Rule, the issues identified in the

Centro Legal de la Raza

decision, and other experience gained since that decision. The Department now proposes to restore the longstanding procedures in place prior to the AA96 Final Rule, subject to several changes. For the reasons described below, the Department believes that these amendments will promote the efficient and expeditious adjudication of cases, afford immigration judges and the BIA flexibility to efficiently allocate their limited resources, and protect due process for parties before immigration judges and the Board.

A. Briefing Schedule Changes

The Department proposes to rescind changes that the AA96 Final Rule made to briefing schedules before the Board.

Specifically, the Department proposes to restore regulatory language, in effect before the promulgation of the AA96 Final Rule, that would re-establish longstanding consecutive briefing schedules for non-detained noncitizens and simultaneous briefing schedules for detained noncitizens. 8 CFR 1003.3(c)(1) (proposed). The proposed language states that those subject to a simultaneous briefing schedule would have 21 days to submit simultaneous briefs unless the Board specifies a shorter period.

Id.

The proposed language also states that in appeals involving simultaneous briefing, the Board may permit parties to file reply briefs within 21 days of the deadline for the initial briefs.

Id.

Those subject to a consecutive briefing schedule would again have 21 days to file initial briefs, unless the Board specifies a shorter period.

Id.

Parties would have the same amount of time to file reply briefs as was provided for filing the initial brief, including any extensions.

23

Id.

The Board would also again be authorized to grant one or more extensions for filing briefs or reply briefs for up to 90 days for good cause shown.

Id.

The Board could also, in its discretion, request supplemental briefings from parties after the briefing deadline has expired.

Id.

The Board would remain authorized to consider untimely filed briefs.

Id.

23

In the ECAS Rule, the finalized regulatory language reverted 8 CFR 1003.3(c)(2) (Appeal from decision of a DHS officer) to pre-AA96 standards.

See

ECAS Rule, 86 FR at 70721. Specifically, the ECAS Rule removed the maximum 14-day period for the filing of a single permitted reply brief, the 14-day limitation on extensions, and procedures for filing supplemental briefs implemented by the AA96 Final Rule.

Id.

The ECAS Rule retained the AA96 Final Rule's technical edits to replace “Service” with “DHS” where appropriate,

id.,

and this NPRM proposes additional minor, technical changes, as discussed at Section IV.O of this preamble.

As stated in the AA96 Final Rule, there is “no entitlement” to a briefing schedule under the Act.

See

85 FR at 81636. Indeed, the Act does not enumerate the procedures that apply to the Board's adjudication of appeals. Nevertheless, a noncitizen, with certain limited exceptions, is entitled to seek appellate review before the Board of an immigration judge's decision and, in some cases, a decision of a DHS officer.

24

8 CFR 1003.3(a)(1)-(2). As part of that review, the noncitizen is entitled to certain rights under the Act, including the right to have legal representation before the Board (at no expense to the government). INA 292, 8 U.S.C. 1362. The Department believes that truncating the briefing schedule that had been in place for over 20 years,

see

Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 FR 54878, 54895 (Aug. 26, 2002) (discussing changes to 8 CFR 3.3(c)), could impact a noncitizen's ability to adequately prepare their case for appeal or secure legal representation to do so, and create undue confusion for pro se noncitizens and practitioners appearing before EOIR. Concerns about adequate preparation time are particularly relevant given the possibility of unique and unaccounted-for future issues, similar to the COVID-19 pandemic, which may present new obstacles to seeking and securing representation, as well as preparing and submitting briefs.

See Centro Legal de la Raza,

524 F. Supp. 3d at 965-66 (“[T]he agency completely disregarded the fact that the challenges of briefing on a compressed timetable are compounded by the BIA's mail-based system, failure to follow the `mailbox rule,' and unpredictable briefing schedules. . . Moreover, the agency entirely dismissed the impact of imposing the briefing schedule changes during the COVID-19 pandemic, a concern raised by numerous commenters.”).

24

Examples of DHS officer decisions subject to appellate review before the Board include denials of waivers under INA 212(d)(3), 8 U.S.C. 1182(d)(3), and denials of visa petitions made on a Form I-130.

The Department notes that it has now implemented electronic filing procedures for registered attorneys through the EOIR Courts & Appeals System,

see

ECAS Rule, 86 FR 70708, which may mitigate some concerns about mail service and its potential effect on briefing schedule timing

because parties will be able to view and download documents for cases with electronic records of proceeding. However, the Department has not yet fully implemented electronic filing and case access for pro se noncitizens,

see

86 FR at 70709-10, and therefore believes that the current availability of electronic filing in most, but not all, circumstances is insufficient to address concerns about the AA96 Final Rule's truncated briefing schedules. Indeed, briefing schedules that allow adjudicators the flexibility to establish deadlines as appropriate for a particular case, within given parameters, are a fixture of legal practice. For example, in the federal courts, Rule 31 of the Federal Rules of Appellate Procedure establishes a “good cause” exception to its specified time frame. Fed. R. App. P. 31(a)(1) (explaining that “a reply brief must be filed at least 7 days before argument, unless the court, for good cause, allows a later filing”). Similarly, Rule 12 of the Federal Rules of Civil Procedure also builds flexibility into its established timeframes. Fed. R. Civ. P. 12(a)(1)(C) (“A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.”).

Upon reconsideration, the Department believes that the Board should have the discretion to manage briefing schedules and extensions. An inflexible rule that requires all briefs to be filed within 35 days would be unable to accommodate the continually changing landscape that may affect parties' ability to seek and retain counsel, as well as to prepare and submit briefs within a specified period of time. To the extent that shorter briefing schedules or, conversely, extensions for both initial and reply briefs, might be appropriate given the particular facts and circumstances of an individual case, the Board is optimally situated to make such determinations on a case-by-case basis to ensure that briefing schedules do not impede access to the appellate process and the right to counsel.

Cf. Meza Morales,

973 F.3d at 665 (“`[T]imeliness' is not a hard and fast deadline; some cases are more complex and simply take longer to resolve. Thus, not all mechanisms that lengthen the proceedings of a case prevent `timely' resolution.”). Under the proposed rule, the Board would again have the discretion to specify shorter briefing schedules as it deems appropriate.

Numerous organizations and commenters on the AA96 Final Rule, including those who administer the Board Pro Bono Program, claimed that the policies set forth in the AA96 Final Rule would have (and in some cases already have had) an impact on their ability to provide appellate representation.

See

Complaint,

CLINIC

v.

EOIR,

No. 21-CV-094 (D.D.C. Jan. 11, 2021); Plaintiffs' Motion for a Preliminary Injunction,

Centro Legal de la Raza

v.

EOIR,

No. 21-CV-00463 (N.D. Cal. Jan. 22, 2021). This proposed rule is intended to remove the possibility that reducing the total amount of time that a noncitizen has to file an appeal brief would impede access to the appellate process and the fair and efficient adjudication of appeals for at least some pro se individuals and those seeking representation.

The Department also proposes to amend the briefing schedule, with respect to motions to reopen or reconsider before the BIA, to extend the deadline to submit a reply brief from 13 days to 21 days. 8 CFR 1003.2(g)(3) (proposed). The Department currently sees no reason to distinguish between applicable deadlines for reply briefs for appeals and for motions to reopen or reconsider.

B. Administrative Closure Authority—Immigration Judges and the Board

The Department proposes to remove the AA96 Final Rule's language that would, if effectuated, limit an EOIR adjudicator's authority to administratively close cases. Instead, this NPRM proposes to explicitly state that EOIR adjudicators have the general authority to administratively close, and to recalendar,

25

individual cases pursuant to a party's motion. The proposed rule would also set forth factors that adjudicators should consider, as the circumstances of the case warrant, in adjudicating such motions. The Department believes that the proposed changes will improve the efficiency and fairness of EOIR proceedings.

25

The Department notes that the term “reinstate” has been used interchangeably with “recalendar” before the Board.

See, e.g., Matter of Avetisyan,

25 I&N Dec. at 692. However, consistent with longstanding practice and to avoid confusion, the Department is using “recalendar” for both the immigration courts and the Board in this regulation.

As described above, there is a long history of EOIR adjudicators utilizing administrative closure as a helpful tool for managing dockets at both the immigration courts and the Board.

See Garcia-DeLeon,

999 F.3d at 989 (“For at least three decades, immigration judges and the BIA regularly administratively closed cases.”);

Matter of Avetisyan,

25 I&N Dec. at 690 (“Administrative closure is a procedural tool created for the convenience of the Immigration Courts and the Board.”). Indeed, the Attorney General acknowledged this longstanding practice in overruling

Matter of Castro-Tum. See Matter of Cruz-Valdez,

28 I&N Dec. at 329 (“Because

Castro-Tum

departed from long-standing practice, it is appropriate to overrule that opinion in its entirety . . .”). In

Matter of Cruz-Valdez,

the Attorney General restored administrative closure authority, specifically directing immigration judges and the Board to apply the standard for administrative closure set forth in

Matter of Avetisyan

and

Matter of W-Y-U-

while the Department reconsiders the AA96 Final Rule.

Id.

Additionally, circuit court case law undercuts the AA96 Final Rule's assertion that administrative closure is unsupported by the law and that

Matter of Avetisyan

was wrongly decided.

See Romero,

937 F.3d at 294-95 (holding that the regulations “unambiguously confer upon [immigration judges] and the [Board] the general authority to administratively close cases”);

Meza Morales,

973 F.3d at 667 (concluding that

Matter of Castro-Tum

was contrary to the unambiguous meaning of the regulations and that immigration judges and the Board are “not precluded from administratively closing cases when appropriate”);

Arcos Sanchez,

997 F.3d at 122 (holding that “the plain language establishes that general administrative closure authority is unambiguously authorized by these regulations”);

see also Zelaya Diaz

v.

Rosen,

986 F.3d 687, 691-92 (7th Cir. 2021) (applying

Meza Morales

).

Although two circuit courts have rejected challenges to

Matter of Castro-Tum,

both left open the possibility that the regulations could permissibly be interpreted to permit administrative closure in at least some circumstances. In

Garcia

v.

Garland,

64 F.4th 62 (2d Cir. 2023), the Second Circuit held that the pre-AA96 regulations were ambiguous as to whether they authorized general administrative closure and deferred to the Attorney General's interpretation in

Matter of Castro-Tum.

In reaching that conclusion, the Second Circuit did not interpret 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) (2018) to foreclose general administrative closure authority. Rather, the Second Circuit focused narrowly on the text of those regulations and held that it was not unreasonable for the Attorney General in

Matter of Castro-Tum

to interpret them as not explicitly authorizing general administrative closure.

See id.

at 73-74. The Second Circuit acknowledged EOIR adjudicators' use of administrative closure since at least 1990, however,

id.

at 66, and recognized that before

Castro-Tum,

whether to allow administrative

closure was “a matter reserved to the discretion of the Immigration Judge or the Board.”

Id.

at 76 n.13.

The Sixth Circuit agreed with

Matter of Castro-Tum

that the regulatory language prior to the AA96 Final Rule does not provide EOIR adjudicators a free-standing authority to administratively close cases.

See Hernandez-Serrano,

981 F.3d at 466. However, it later clarified that immigration judges and the Board have the authority to grant administrative closure to permit a noncitizen to apply for a provisional unlawful presence waiver, even though this authority was not explicitly stated in the regulations.

See Garcia-DeLeon,

999 F.3d at 992-93. As such, the AA96 Final Rule introduced novel restrictions on EOIR adjudicators' long-standing authority to manage the cases before them, including through the use of administrative closure when appropriate.

See Matter of Cruz-Valdez,

28 I&N Dec. at 328-29 (stating that the AA96 Final Rule “effectively codified

Castro-Tum

[,]” which “departed from long-standing practice . . .”).

Although several courts of appeals have determined that the authority to administratively close cases was clearly encompassed in the regulations prior to the AA96 Final Rule, that authority was not explicitly stated. As the decisions from the Second and Sixth Circuits make clear, this lack of explicit language has led to debate and confusion over the full scope of EOIR adjudicators' authority to manage cases before them.

See, e.g., Garcia

v.

Garland,

64 F.4th 62 at 74 (concluding the pre-AA96 regulations “do not unambiguously permit [general] administrative closure.”);

Hernandez-Serrano,

981 F.3d at 466 (holding that the regulations prior to the AA96 Final Rule did not give adjudicators the general authority to administratively close cases);

see also Garcia-DeLeon,

999 F.3d at 992-93 (concluding that an application for a provisional unlawful presence waiver “is a limited circumstance where administrative closure is `appropriate and necessary' under [8 CFR] 1003.10(b) and 1003.1(d)(1)(ii)”). It is in the interests of the Department and the public to have a clear understanding of the scope of an adjudicator's authority. Accordingly, the Department proposes to amend the regulations to make an EOIR adjudicator's long-standing authority to administratively close cases explicit in the regulations.

Additionally, the court in

Centro Legal de la Raza

identified a number of issues with the AA96 Final Rule's changes made with respect to administrative closure. 524 F. Supp. 3d at 966-69. Specifically, the court noted that the Department failed to adequately consider or meaningfully address: (1) the impact that the AA96 Final Rule would have on the vast majority of applicants for administrative closure or how it would affect noncitizens with meritorious claims for relief; (2) commenter concerns that the AA96 Final Rule's restriction on administrative closure conflicted with the inadmissibility waiver provision at section 212(a)(9)(B)(v) of the INA, 8 U.S.C. 1182(a)(9)(B)(v), as it has been interpreted by DHS; and (3) the existence of “extensive contrary evidence showing that administrative closure enhances efficiency.”

Id.

In this NPRM, the Department proposes further rulemaking on this topic to address these concerns.

The Department believes that codifying general administrative closure authority will serve the interests of the Department and the public in fairness and administrative efficiency. Immigration judges and the Board have used administrative closure as a safeguard to ensure fairness and to postpone cases in appropriate circumstances, such as cases involving certain juvenile noncitizens or those with mental competency issues.

See Matter of Avetisyan,

25 I&N Dec. at 691 (stating that EOIR adjudicators may determine that it is “necessary or, in the interests of justice and fairness to the parties, prudent to defer further action for some period of time”). Retaining the AA96 Final Rule's restrictions on administrative closure could limit the ability of noncitizens to pursue certain statutory immigration benefits and forms of discretionary relief, including: (1) Special Immigrant Juvenile status, INA 101(a)(27)(J), 8 U.S.C. 1101(a)(27)(J); (2) visas for victims of certain crimes who are cooperating with law enforcement (U visas), INA 101(a)(15)(U), 8 U.S.C. 1101(a)(15)(U); (3) visas for certain family-sponsored immigrants (

e.g.,

“Petition for Alien Relative” (Form I-130)), INA 203(a), 8 U.S.C. 1153(a); (4) adjustment of status as a VAWA self-petitioner, INA 204, 8 U.S.C. 1154; (5) Temporary Protected Status (“TPS”), INA 244, 8 U.S.C. 1254a; and (6) provisional unlawful presence waivers, 8 CFR 212.7(e)(4)(iii). USCIS approval of any of these benefits would generally eliminate the need for continued removal proceedings. Moreover, a removal order entered by an immigration judge and affirmed by the Board could cut off the noncitizen's ability to obtain such benefit or relief. Additionally, if EOIR moves forward with removal proceedings while a prima facie eligible application for relief is pending before DHS, the outcome of the case may ultimately depend upon which agency is the first to issue a final administrative decision. Administrative closure, therefore, allows for the full consideration of a noncitizen's application for relief without exposing the noncitizen to the risk of removal.

See Meza Morales,

973 F.3d at 665 (acknowledging the Attorney General's efficiency justification in

Matter of Castro-Tum

but stating that cases must also be “disposed of fairly, and granting a noncitizen the opportunity to pursue relief to which she is entitled may be appropriate and necessary for a fair disposition”).

Without administrative closure, by contrast, individuals are often unable to sufficiently postpone their proceedings before EOIR and, as a result, often are issued a removal order from EOIR that impedes the ability of USCIS to grant relief unless the individual files a motion to reopen with EOIR to have that order lifted. Requiring individuals to file motions to reopen and accompanying stay of removal requests, if necessary, creates additional procedural hurdles that increase the risk of removal while a potentially valid request for relief is pending with USCIS. Moreover, such procedural hurdles are significantly more challenging to overcome if the individual is physically removed from the United States and must pursue a motion to reopen from abroad.

In addition, upon reconsideration, the Department is now of the belief that the procedures set forth in the AA96 Final Rule would not improve efficient adjudication and may, in some cases, undermine the efficiency of certain adjudications.

See Centro Legal de la Raza,

524 F. Supp. 3d at 968 (“Indeed, the Fourth Circuit found that the Attorney General's efficiency justification in

Matter of Castro Tum

—the same efficiency rationale cited in the NPRM and Final Rule—was `internally inconsistent.' ”).

In particular, speed in adjudicating an individual case is not the only factor that bears on administrative efficiency.

But see

AA96 Final Rule at 81598 (characterizing administrative closure as creating delays that conflict with EOIR's mission to expeditiously adjudicate cases before it). Efficiency also encompasses consideration of prioritization and allocation of resources among different cases.

Cf. Meza Morales,

973 F.3d at 665 (“[T]he . . . requirement that cases be resolved in `timely' fashion does not foreclose administrative closure. For one thing, `timeliness' is not a hard and fast

deadline; some cases are more complex and simply take longer to resolve. Thus, not all mechanisms that lengthen the proceedings of a case prevent `timely' resolution.”);

Arcos Sanchez,

997 F.3d at 123 (“The authority to administratively close cases, within the appropriate and necessary context of each case, can and does permit [immigration judges] and the Board to answer the questions before them in a timely and impartial manner consistent with the Act and the regulations. Or in other words, delay in the case through administrative closure does not, by definition, prevent the timely disposition of the case and resolution of questions.”). Moreover, as pointed out in

Meza Morales,

the Department is tasked with the dual imperatives to adjudicate cases with both speed and fairness—the combination of which offers a better measure of administrative efficiency than speed alone. 973 F.3d at 665.

In addition, as observed by the Second Circuit, “it is wasteful to commit judicial resources to immigration cases when circumstances suggest that, if the Government prevails, it is unlikely to promptly effect the petitioner's removal.”

In re Immigr. Petitions,

702 F.3d at 160. Relatedly, it would be wasteful to commit judicial resources to cases where there are pending alternative resolutions to the case that would obviate the need for, or significantly narrow the issues in, removal proceedings.

See Meza Morales,

973 F.3d at 665 (“Unsurprisingly . . . an immigration judge might sometimes conclude, in exercising the discretion granted by [8 CFR 1003.10], that it is appropriate and necessary to dispose of a case through administrative closure.”);

Matter of Hashmi,

24 I&N Dec. 785, 791 n.4 (BIA 2009) (noting that administrative closure could “avoid the repeated rescheduling of a case that is clearly not ready to be concluded”). Given EOIR's overburdened dockets, as well as the growing backlog of pending cases, it is imperative that EOIR effectively allocate its limited resources—including docket time—to first adjudicate those cases where there are no pending alternative resolutions to removal. To do otherwise would expend precious judicial resources on a practically “empty exercise tantamount to issuing an advisory opinion” where such resources could instead be used to adjudicate those cases where no alternative resolutions may be possible.

See In re Immigr. Petitions,

702 F.3d at 161 (internal quotations omitted).

Procedurally, administrative closure is often more efficient than repeatedly postponing proceedings through multiple continuances, which requires repeatedly reserving hearing time on the immigration court's docket. Notably, before

Matter of Avetisyan,

the Board had encouraged DHS to consider moving for administrative closure rather than multiple continuances in “appropriate circumstances, such as where there is a pending prima facie approvable visa petition.”

Matter of Hashmi,

24 I&N Dec. at 791 n.4;

see also Matter of Rajah,

25 I&N Dec. 127, 135 n.10 (BIA 2009). The Board described administrative closure as “an attractive option in these situations, as it will assist in ensuring that only those cases that are likely to be resolved are before the Immigration Judge.”

Matter of Hashmi,

24 I&N Dec. at 791 n.4. The Board also noted that administrative closure could “avoid the repeated rescheduling of a case that is clearly not ready to be concluded.”

Id.

With respect to those cases that could result in motions to reopen being filed with EOIR because of insufficient time to postpone the conclusion of proceedings for noncitizens to pursue pending relief outside of EOIR, the AA96 Final Rule framework would also create significant inefficiencies, as the immigration courts and the Board must adjudicate both the initial removal proceedings and the subsequent motion to reopen, as well as any stay of removal requests. Administrative closure could put such cases on hold until any related matters pending outside of EOIR are adjudicated, which, in turn, would allow the immigration judge or the Board to put that adjudication time towards another case before EOIR.

Similarly, some statutes necessarily delay EOIR proceedings while noncitizens pursue collateral applications before USCIS. For example, the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), Public Law 110-457, 122 Stat. 5044, mandates that USCIS has initial jurisdiction over any asylum applications filed by unaccompanied children in removal proceedings before EOIR.

See

INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C) (codifying the TVPRA's requirement). Under such circumstances, administrative closure of proceedings while USCIS considers any applications for asylum would likely be more efficient than repeatedly setting aside docket time for future hearings that are then continued.

Matter of Hashmi,

24 I&N Dec. at 791 n.4 (noting that administrative closure could “assist in ensuring that only those cases that are likely to be resolved are before the [i]mmigration [j]udge” and prevent “the repeated rescheduling of a case” that is unready to be concluded).

The AA96 Final Rule asserted that administrative closure, and in particular administrative closure over a party's objection, “failed as a policy” because of an increased backlog of immigration cases after

Matter of Avetisyan

was decided. 85 FR at 81599 (quoting AA96 NPRM, 85 FR at 52504). However, to the extent that eliminating administrative closure was designed to control the backlog of cases, EOIR's pending case data does not support a conclusion that eliminating administrative closure led to such a result. Between May 17, 2018, when

Matter of Castro-Tum

was issued, and July 15, 2021, when

Matter of Cruz-Valdez

was issued, the backlog of pending cases at EOIR increased from 796,791 on September 30, 2018, to 1,408,669 on September 30, 2021.

26

Even accounting for the pandemic and looking only to the end of FY 2019, the number of pending cases at EOIR increased from 796,791 to 1,088,499.

27

26

See

EOIR,

Adjudication Statistics, Pending Cases, New Cases, and Total Completions, https://www.justice.gov/eoir/page/file/1242166/download

(data generated Apr. 21, 2023).

27

Id.

While no single factor alone was responsible for the increase in the backlog, numerous factors may have contributed, including: a general increase in the number of proceedings initiated by DHS; increasing complexity in immigration cases; fluctuating numbers of defensive asylum applications filed in and adjudicated by EOIR; external factors requiring court closures that generally result in cancellation of non-detained hearings, such as the COVID-19 pandemic-related closures and an appropriations lapse between December 2018 and January 2019; and the limited number of appropriated immigration judge positions.

See

Congressional Research Service, R47077,

U.S. Immigration Courts and the Pending Cases Backlog,

at 19-30 (Apr. 25, 2022); EOIR, Congressional Budget Submission for FY 2023 (Mar. 2022) (“Over the years, several factors have contributed to record growth in both the number of pending immigration cases and the time required to adjudicate them. . . Recently, this caseload increase has been exacerbated by the closures and reductions in service associated with the COVID-19 pandemic, as well as the consistent rise in the number of new NTAs that DHS has filed before the immigration court over the last five years, even with the reduction in filings over FY 2020 and FY 2021 (from a high of almost 550,000 in FY 2019).”).

Additionally, as discussed above, the growing backlog of cases is one significant reason it is important for EOIR adjudicators to be able to efficiently manage their dockets to first adjudicate those cases that are ripe for review, where removal is a priority, or where there are no pending alternative resolutions to removal. Administrative closure is a critical tool that helps EOIR adjudicators manage their dockets.

See Cruz-Valdez,

28 I&N Dec. at 326 (noting that administrative closure has become “a routine `tool used to regulate proceedings' and `manage an Immigration Judge's calendar (or the Board's docket)' ” (quoting

Avetisyan,

25 I&N Dec. at 694));

Arcos Sanchez,

997 F.3d at 123 (“[D]elay in the case through administrative closure does not, by definition, prevent the timely disposition of the case and resolution of questions . . . Without the general authority to administratively close appropriate cases when necessary, the [immigration judges] and the Board . . . may be less effective in managing cases.”);

Romero,

937 F.3d at 292-93 (“[D]ocket management actions such as administrative closure [ ] often facilitate . . . case resolution . . . As illustrated by

Matter of Avetisyan

and other BIA cases, administrative closure is `appropriate and necessary' in a variety of circumstances.”).

Indeed, an outside consultant previously recommended that EOIR explore administrative closure as a potential tool that could enhance the efficiency for EOIR proceedings without compromising fairness. EOIR, Booz Allen Hamilton,

Legal Case Study: Summary Report

at 26 (Apr. 6, 2017). Specifically, the consultant, after engaging in a year-long study of EOIR operations, identified numerous external factors that contribute to delays in adjudications.

See generally id.

Among other things, the consultant recommended that the Department engage in discussions with DHS to explore the development of policies regarding administrative closure as one way to improve processing efficiency.

Id.

at 26.

Separately, while the AA96 Final Rule asserted that administrative closure would place the EOIR adjudicator in the position of the prosecutor, 85 FR at 81599, upon reconsideration, the Department now concurs with the reasoning in

Matter of Avetisyan,

which “considered the respective roles and responsibilities of the DHS, the Immigration Judges, and the Board in removal proceedings” and concluded that “[a]lthough administrative closure impacts the course removal proceedings may take, it does not preclude the DHS from instituting or pursuing those proceedings and so does not infringe on the DHS's prosecutorial discretion.” 25 I&N Dec. at 694.

28

Indeed, administrative closure is similar to the widespread practice of stays of proceedings in federal court, which are often utilized to avoid unnecessary litigation.

See, e.g., Ayanian

v.

Garland,

64 F.4th 1074, 1078-79 (9th Cir. 2023) (explaining that the court previously granted a motion to stay appellate proceedings “to allow time to examine grounds for a possible alternative to litigation”).

28

The AA96 NPRM asserted that the Board, in

Matter of Avetisyan

departed, without explanation, from its prior precedent in

Matter of Chamizo,

13 I&N Dec. 435 (BIA 1969),

Matter of Quintero,

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

Matter of Roussis,

18 I&N Dec. 256 (BIA 1982). 85 FR at 52503. However, upon further examination, the Department is now of the opinion that the AA96 NPRM's reliance on those cases for the proposition that administrative closure infringes upon DHS's prosecutorial discretion was inapposite. Notably, none of those cases involved administrative closure. Further,

Matter of Chamizo

cannot reasonably be read to implicate DHS's prosecutorial discretion authority, as that case was about the impropriety of an immigration judge granting voluntary departure without entering an alternative order of removal, as was required by the Act and pertinent regulations at the time. 13 I&N Dec. at 437. As to

Matter of Quintero

and

Matter of Roussis,

those cases are most logically read to stand for the proposition that an immigration judge is not permitted to take an action that is within the exclusive jurisdiction of or otherwise committed to the discretion of the former INS District Director.

Matter of Quintero,

18 I&N Dec. at 350;

Matter of Roussis,

18 I&N Dec. at 258. Accordingly,

Matter of Avetisyan

is not inconsistent with those cases because the administrative closure of a case does not usurp authority from DHS or require that DHS take or refrain from taking any specific action otherwise committed to its discretion.

The AA96 NPRM stated that administrative closure precludes DHS from pursuing removal proceedings while the administrative closure order is in effect. 85 FR at 52503. However, either party can file a motion to recalendar a case at any time. Thus, if, for example, an individual's case has been administratively closed while the individual's prima facie eligible application for adjustment of status is pending before DHS and DHS has a strong interest in concluding proceedings, DHS need only complete adjudication of the application before it and file a motion to recalendar the case, actions well within its control. If the EOIR adjudicator grants the motion to recalendar, the case will proceed.

Therefore, for the reasons discussed above, the Department proposes regulatory language explicitly providing that immigration judges' and the Board's authority to take “any action” includes administratively closing cases.

See

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

29

The Department's proposed language emphasizes that the phrase “any action” is intended to be interpreted broadly to include the general authority to take actions regardless of whether they are explicitly described by regulation by stating that “[s]uch actions include,” but are not limited to, administrative closure, so long as such actions, are “necessary or appropriate” and are otherwise consistent with governing statutes and regulations.

Id.

29

As discussed above, the Department finds persuasive the reasoning of several circuit courts that have determined that this authority was previously inherent but not explicitly stated in the regulations as they existed prior to the AA96 Final Rule.

See Romero,

937 F.3d at 294-95 (holding that the regulations “unambiguously confer upon [immigration judges] and the BIA the general authority to administratively close cases” but stating that even if ambiguous, “the Attorney General's reading of the regulations does not warrant deference because it amounts to an `unfair surprise' ”);

Meza Morales,

973 F.3d at 667 (concluding that

Matter of Castro-Tum

was contrary to the unambiguous meaning of the regulations and that immigration judges and the Board are “not precluded from administratively closing cases when appropriate”);

Arcos Sanchez,

997 F.3d at 122 (holding that “the plain language establishes that general administrative closure authority is unambiguously authorized by these regulations”);

see also Zelaya Diaz

v.

Rosen,

986 F.3d at 691-92 (applying

Meza Morales

).

The Department does not believe that existing regulations that expressly authorize administrative closure in certain circumstances are sufficient to capture the numerous scenarios where it may be necessary or appropriate for EOIR adjudicators to administratively close proceedings based upon the particular facts of any given case.

See, e.g.,

8 CFR 1214.2(a) (referencing administrative closure for T visa applicants); 1214.3 (referencing administrative closure for V visa applicants); 1240.62(b) (referencing administrative closure for certain

American Baptist Church

(ABC) class members); 1240.70(f)-(h) (referencing administrative closure for ABC class members, among others); 1245.13(d)(3)(i) (referencing administrative closure for certain nationals of Nicaragua and Cuba); 1245.15(p)(4)(i) (referencing administrative closure for Haitian Refugee Immigration Fairness Act of 1998 (“HRIFA”) applicants); 1245.21(c) (referencing administrative closure for certain nationals of Vietnam, Cambodia, and Laos). Limiting administrative closure to these discrete scenarios would not permit EOIR adjudicators to consider other important factors that may render a case ripe for administrative closure. Thus, using administrative closure only in these enumerated circumstances would limit

administrative closure's efficacy as a docket-management tool. Nor do the regulations explicitly authorize administrative closure in common scenarios where administrative closure may be necessary or appropriate, such as where noncitizens may have pending applications for relief before DHS.

The Department proposes revising the phrase “appropriate and necessary” to read “necessary or appropriate” to emphasize that adjudicators may choose to administratively close cases, or take other actions, even if such action is not required.

30

For example, administrative closure may be appropriate even where other docket management tools, such as continuances, may be available.

See Meza Morales,

973 F.3d at 665 (“Administrative closure is plainly an `action.' . . . in cases in which two coordinate offices in the executive branch are simultaneously adjudicating collateral applications, closing one proceeding might help advance a case toward resolution.”);

Matter of Avetisyan,

25 I&N Dec. at 691 (stating that adjudicators may determine that it is “necessary or, in the interests of justice and fairness to the parties, prudent to defer further action for some period of time”);

Matter of Hashmi,

24 I&N Dec. at 791 n.4 (noting that administrative closure could “avoid the repeated rescheduling of a case that is clearly not ready to be concluded”). As another example, the Sixth Circuit recently determined that, although a noncitizen could theoretically apply for an unlawful presence waiver from outside of the United States if EOIR did not administratively close their case (a prerequisite for applying for a provisional unlawful presence waiver in the United States pursuant to 8 CFR 212.7(e)(4)(iii)), administrative closure was still appropriate because it “increases the likelihood that noncitizens will obtain legal status and resolve their immigration proceedings.”

Garcia-DeLeon,

999 F.3d at 992;

see id.

(“True, a noncitizen in removal proceedings whose case[ ] is not administratively closed may still submit an I-601 Waiver of Inadmissibility after they complete their consular interview and are determined inadmissible. This old path, however, deterred noncitizens in removal proceedings from obtaining legal status as permanent residents.”).

30

The Department would like to make this distinction clear in light of

Hernandez-Serrano,

which stated that the

Romero

“court's conclusion—that any action for the disposition of the case is read most naturally to encompass actions of whatever kind appropriate for the resolution of a case—reads out of the regulations the requirement of necessity.” 981 F.3d at 464 (cleaned up).

The Department also proposes to amend the term “disposition” to read “disposition or alternative resolution” of a case. 8 CFR 1003.1(d)(1)(ii) (proposed), 1003.10(b) (proposed). The Department proposes this amendment to establish that actions other than those that lead to a final disposition in a case may still be necessary or appropriate for resolution of the case.

31

See Arcos Sanchez,

997 F.3d at 117 (“Administrative closure allows an [immigration judge] or the Board to `temporarily pause removal proceedings' and place the case on hold because of a pending alternative resolution or because events outside the control of either party may affect the case.”).

31

The Department would like to make this distinction clear in light of

Hernandez-Serrano,

which stated that “the regulations expressly limit their delegation to actions `necessary for the disposition' of the case . . . [a]nd that more restricted delegation cannot support a decision not to decide the case for reasons of administrative `convenience' or the `efficient management of the resources of the immigration courts and the BIA.' ” 981 F.3d at 464.

But see Meza Morales,

973 F.3d at 665 (“Unsurprisingly, then, an immigration judge might sometimes conclude, in exercising the discretion granted by 8 CFR 1003.10, that it is appropriate and necessary to dispose of a case through administrative closure.”).

Moreover, the Department proposes to amend 8 CFR 1003.1(d)(1)(ii) (proposed) and 1003.10(b) (proposed) to explain that the adjudicator should determine whether the use of administrative closure meets the relevant standard in accordance with 8 CFR 1003.1(

l

) (proposed) or 1003.18(c) (proposed), as applicable. The Department notes that some of the factors proposed for administrative closure may be similar to factors proposed for other authorities such as termination.

Compare

8 CFR 1003.1(

l

) (proposed Board administrative closure provision),

and

1003.18(c) (proposed immigration judge administrative closure provision),

with

8 CFR 1003.1(m) (proposed Board termination provision),

and

1003.18(d) (proposed immigration judge termination provision). Thus, an adjudicator should decide which of these tools, if any, to use based upon the specific facts of each particular case in an exercise of the adjudicator's independent judgment and discretion. 8 CFR 1003.1(d)(1)(ii), 1003.10(b). Furthermore, the Department also proposes to clarify that the administrative closure authority would not be limited by the existence of any other regulations authorizing or requiring administrative closure.

See, e.g.,

8 CFR 1214.2(a), 1214.3, 1240.62(b), 1240.70(f)-(h), 1245.13, 1245.15(p)(4)(i), and 1245.21(c).

As discussed above, the Department proposes to add regulatory language that would define administrative closure and set forth guidance to assist adjudicators with determining whether administrative closure is necessary or appropriate for the disposition or alternative resolution of a case. 8 CFR 1003.1(

l

)(1), (3) (proposed), 1003.18(c)(1), (3) (proposed). Such guidance is consistent with established precedent prior to

Matter of Castro-Tum. See Matter of Avetisyan,

25 I&N Dec. at 688. Additionally, the proposed language would also define recalendaring and set forth guidance for adjudicators to consider when determining whether it is appropriate to recalendar a case. 8 CFR 1003.1(

l

), (

l

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

Specifically, the proposed rule would define administrative closure as “the temporary suspension of a case.” 8 CFR 1003.1(

l

) (proposed), 1003.18(c) (proposed);

see Matter of Avetisyan,

25 I&N Dec. at 695 (stating that it is an “undisputed fact that administrative closure does not result in a final order”). Accordingly, the regulations would describe administrative closure as an act that would remove a case from the Board's or immigration court's active docket or calendar until the case is recalendared. 8 CFR 1003.1(

l

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

32

The proposed rule would specify that an EOIR adjudicator “shall grant a motion to administratively close or recalendar filed jointly by both parties, or filed by one party where the other party has affirmatively indicated its non-opposition, unless [the adjudicator] articulates unusual, clearly identified, and supported reasons for denying the motion.”

33

8 CFR 1003.1(

l

)(3)

(proposed), 1003.18(c)(3) (proposed). This language adopts the standard articulated in BIA precedent in the context of joint and affirmatively unopposed motions to continue.

See Matter of Hashmi,

24 I&N Dec. at 791 (“The [motion to continue should be granted] by the Immigration Judge in the absence of unusual, clearly identified, and supported reasons for not doing so.”). The Department believes that it is appropriate to extend this standard to motions for administrative closure or recalendaring, as well as motions to terminate, as discussed in Section IV.C of this preamble, to help promote greater administrative efficiency and eliminate needless confusion for adjudicators and parties.

32

The regulations also specify that immigration judges may manage their dockets through the use of continuances. 8 CFR 1003.29. Continuances keep the case on the immigration judge's active docket and are used “to await additional action required of the parties” to ready the case for final adjudication “that will be, or is expected to be, completed within a reasonably certain and brief amount of time.”

Matter of Avetisyan,

25 I&N Dec. at 691. By comparison, administrative closure is a tool that removes a case from an immigration judge's active docket, normally to await some collateral event whose outcome is not yet known and may not be known within a definitive time period, that may impact the course of removal proceedings, and requires a party to move to recalendar in order to re-initiate adjudication.

Id.

at 692.

33

In practice, immigration judges are encouraged to resolve administrative closure issues as early as possible in a case by affirmatively asking parties whether they wish for cases to be administratively closed.

See

EOIR,

Director's Memorandum 22-03, Administrative Closure

(Nov. 22, 2021) at 3-4. The Department notes that a motion to administratively

close a case before the immigration court may be made in writing or, alternatively, orally in court.

Moreover, the Department believes that where a motion to administratively close or recalendar a case either is filed jointly or is affirmatively unopposed, a denial of such a motion serves no adversarial interest and that, absent other very compelling reasons, the interests in administrative efficiency dictate granting the motion.

See Matter of Yewondwosen,

21 I&N Dec. 1025, 1026 (BIA 1997) (stating that the parties' “agreement on an issue or proper course of action should, in most instances, be determinative”);

see alsoBadwan

v.

Gonzales,

494 F.3d 566, 568 (6th Cir. 2007) (noting that when the government expressed “`no objection to opposing counsel's request' . . . the government's position demonstrate[d] at a minimum that, as between the parties to the case, no adversarial interest was served by the denial” of the noncitizen's motion);

Meza Morales

, 973 F.3d at 665 (discussing the interests served by the administrative closure of cases). By requiring the adjudicator to articulate on the record unusual, clearly identified, and supported reasons for denying a joint or affirmatively unopposed motion, the Department acknowledges that rare circumstances might arise when, in the adjudicator's judgment, administrative closure or recalendaring might be inappropriate. Thus, the standard provides adjudicators the flexibility to address the complexities of an individual case, while requiring the adjudicator to issue a reasoned explanation that provides the parties with due notice of the basis for a denial. 8 CFR 1003.1(l)(3) (proposed), 1003.18(c)(3) (proposed).

In the case of motions to administratively close or recalendar proceedings that are neither presented jointly nor affirmatively unopposed, the proposed rule would permit EOIR adjudicators, having considered the totality of the circumstances, to grant such a motion over any party's objection. 8 CFR 1003.1(

l

)(3) (proposed), 1003.18(c)(3) (proposed);

see Matter of Avetisyan,

25 I&N Dec. at 694 (holding that EOIR adjudicators may administratively close proceedings over a party's objection). The proposed rule would specify that, though administrative closure may be appropriate where a petition, application, or other action is pending outside of EOIR proceedings, there is no requirement of a pending petition, application, or other action for a case to be administratively closed. 8 CFR 1003.1(

l

)(3) (proposed), 1003.18(c)(3) (proposed). The proposed rule would specify that any other regulations that separately authorize or require adjudicators to administratively close cases in specific circumstances do not impact the adjudicator's general authority to administratively close cases. 8 CFR 1003.1(

l

)(1) (proposed), 1003.18(c)(1) (proposed);

see Meza Morales,

973 F.3d at 667 (construing the term “any action” broadly).

In all cases where only one party moves for administrative closure or recalendaring, and the motion is not affirmatively unopposed, the proposed rule would require adjudicators to weigh the totality of the circumstances, taking into consideration all relevant factors, including any relevant factors from a nonexhaustive list, before determining whether, in their discretion, administrative closure or recalendaring

34

is appropriate. The nonexhaustive list of factors relevant to administrative closure includes: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) any requirement that a case be administratively closed for a petition, application, or other action to be filed with, or granted by, DHS; (4) the likelihood the noncitizen will succeed on any petition, application, or other action that the noncitizen is pursuing, or that the noncitizen states in writing or on the record at a hearing that they plan to pursue, outside of proceedings before the adjudicator; (5) the anticipated duration of the administrative closure; (6) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (7) the ultimate anticipated outcome of the case. 8 CFR 1003.1(

l

)(3)(i) (proposed), 1003.18(c)(3)(i) (proposed);

see Matter of Avetisyan,

25 I&N Dec. at 696 (listing factors for consideration relevant to administrative closure).

34

See Matter of W-Y-U-,

27 I&N Dec. 17, 18 n.4 (BIA 2017) (stating that the same factors should be considered for recalendaring as for administrative closure).

When considering whether it would be appropriate to administratively close a case, the EOIR adjudicator must weigh the totality of the listed factors to the extent they are applicable.

See Matter of Avetisyan,

25 I&N Dec. at 696 (“[I]t is appropriate for an Immigration Judge or the Board to weigh all

relevant

factors presented . . .”) (emphasis added). Accordingly, the existence or absence of any one factor is not dispositive of the immigration judge's determination.

Cf. Hernandez-Castillo

v.

Sessions,

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

Matter of Avetisyan

only required the BIA to evaluate the “relevant factors presented in the case” and did not require the BIA to “evaluate every factor in detail”). For example, there is no requirement that the noncitizen must be pursuing, or must plan to pursue, a petition, application, or other action outside of proceedings as a prerequisite for an immigration judge to administratively close a case. Instead, the immigration judge in such a case would consider the other factors that are applicable to the particular facts and circumstances of the case in order to determine whether to grant or deny administrative closure. Ultimately, the immigration judge's or the Board's determination whether to grant administrative closure is a discretionary decision. The Department notes that the proposed administrative closure factors differ from those set forth in

Matter of Avetisyan

by adding a factor for consideration: whether the need for administrative closure is a prerequisite to a petition, application, or other action being filed with, or granted by, DHS. The Department is proposing this factor in light of the fairness and efficiency interests that would be served by allowing a noncitizen to pursue relief that may be available, and that may resolve a case, without expending unnecessary EOIR and party resources on litigation.

With respect to the second factor for consideration, the Department proposes to make it clear that adjudicators should consider whether there is any opposition to administrative closure, in addition to the basis for any such opposition. An EOIR adjudicator may administratively close a case based on a joint motion, a motion that is unopposed, or over any party's opposition. The principle that an adjudicator, having considered the totality of the circumstances, may administratively close a case over a party's objection is consistent with

Matter of Avetisyan. See

25 I&N Dec. at 694 (stating that “neither an Immigration Judge nor the Board may abdicate the responsibility to exercise independent judgment and discretion in a case by permitting a party's opposition to act as an absolute bar to administrative closure of that case when circumstances otherwise warrant such action”).

The Department notes that one reason administrative closure is sought could be a representation by DHS that it wishes for a particular case to be administratively closed based on an exercise of prosecutorial discretion. As described above, administrative closure has long been used to facilitate DHS's exercise of prosecutorial discretion,

see

Section III.B.1 of this preamble, and it generally would be inefficient for EOIR to otherwise press forward with proceedings in such cases.

See, e.g., United States

v.

Texas,

143 S. Ct. 1964, 1972 (2023) (“In light of inevitable resource constraints and regularly changing public-safety and public-welfare needs, the Executive Branch must balance many factors when devising arrest and prosecution strategies.”). The Department believes that an EOIR adjudicator's role as a neutral arbiter is better served by devoting resources to those cases where DHS has expressed a continued interest in effectuating an order of removal. In other words, an EOIR adjudicator may grant administrative closure solely for equitable considerations in order to suspend the proceedings before EOIR, such as DHS's determination that it will not use its limited resources to proceed with removal proceedings against a particular noncitizen at that time.

On the other hand, the Department notes that a noncitizen may, at times, oppose a motion for administrative closure due to the noncitizen's desire to seek immigration relief available in proceedings before EOIR.

See Matter of W-Y-U-,

27 I&N Dec. at 20 (“The respondent is opposed to the continuation of administrative closure and has requested recalendaring of the proceedings. He has explained that he wants to pursue his application for asylum to its resolution.”). As set out in the proposed rule, the noncitizen's objection to administrative closure in such a situation would be considered as a factor in the analysis but would not by itself be dispositive. The Department notes that DHS may also have valid reasons for objecting to administrative closure where, for example, it is clearly unlikely that an individual will obtain relief in other proceedings.

See, e.g.,

Jesus Garcia-Garcia, A092-286-960 (BIA May 28, 2009) (non-precedential) (“DHS has continued to oppose administrative closure by reason of the respondent's failure to meet the eligibility requirements [for a 212(c) waiver].”).

The Department seeks comments regarding whether the proposed rule should include any further protections for noncitizens who wish to have their cases adjudicated despite DHS's desire to seek administrative closure, including whether the rule, if finalized, should provide that, where one party opposes administrative closure, the primary consideration for the adjudicator is whether the party opposing closure has provided a persuasive reason for the case to proceed.

See Matter of W-Y-U-,

27 I&N Dec. at 20, n.5 (holding that “the primary consideration for an Immigration Judge in determining whether to administratively close . . . proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits,” but “continu[ing] to hold that neither party has absolute veto power over administrative closure requests” (quotation omitted)). As noted above, there may be situations where DHS opposes administrative closure.

With respect to the fifth and sixth factors for consideration—the anticipated duration of the closure and the responsibility of either party, if any, in contributing to any current, anticipated, or continuing need for delay—the Department notes that adjudicators should consider both the noncitizen's and DHS's responsibility for any delay. DHS's responsibility for any delay may include DHS's failure to resolve the noncitizen's pending applications or requests for relief that, if granted, may obviate the need for removal proceedings or significantly narrow the issues before EOIR. Moreover, the potential duration of the administrative closure while awaiting DHS adjudication, for example, of a pending application before USCIS, should not weigh against the decision to administratively close proceedings.

Although the Department generally agrees with

Matter of W-Y-U-'

s determination that the factors for administrative closure and recalendaring should be similar, recalendaring requires slightly different considerations than the initial decision to administratively close a case because, at the time an EOIR adjudicator may be considering recalendaring, there may be more available information regarding developments in the case that have happened during the administrative closure. Such information could aid adjudicators in their decisions. For example, while considering administrative closure, EOIR adjudicators can only anticipate the duration of the requested administrative closure; however, for recalendaring, adjudicators will have more definitive knowledge about the length of time that the case has actually been administratively closed. As another example, when considering recalendaring, EOIR adjudicators would have the benefit of knowing whether parties have taken important steps towards achieving the purpose of the administrative closure—such as filing for relief with another agency—or knowing whether another agency has completed adjudication of alternative forms of relief. In addition, EOIR adjudicators would have additional information about any new positive or negative factors, such as subsequent criminal history, that would weigh for or against recalendaring a case. Therefore, the proposed rule sets out a separate list of relevant factors that adjudicators should consider, as the circumstances of the case warrant, when evaluating a motion to recalendar.

The nonexhaustive list of factors for recalendaring includes: (1) the reason recalendaring is sought; (2) the basis for any opposition to recalendaring; (3) the length of time elapsed since the case was administratively closed; (4) if the case was administratively closed to allow the noncitizen to file a petition, application, or other action outside of proceedings before the adjudicator, whether the noncitizen filed the petition, application, or other action and, if so, the length of time that elapsed between when the case was administratively closed and when the noncitizen filed the petition, application, or other action; (5) if a petition, application, or other action that was pending outside of proceedings has been adjudicated, the result of that adjudication; (6) if a petition, application, or other action remains pending outside of proceedings, the likelihood the noncitizen will succeed on that petition, application, or other action; and (7) the ultimate anticipated outcome if the case is recalendared. 8 CFR 1003.1(

l

)(3)(ii) (proposed), 1003.18(c)(3)(ii) (proposed). Additionally, the proposed rule would permit EOIR adjudicators, having considered the totality of the circumstances, to recalendar a case over any party's objection. 8 CFR 1003.1(

l

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

The Department emphasizes that the proposed list of factors for recalendaring is non-exhaustive, with no single factor necessarily dispositive. For example, with respect to the fourth factor—

measuring the duration between the administrative closure of the case and the time when the noncitizen filed a petition, application, or other action with DHS—the Department notes that the length of time is not, on its face, determinative. The Department is aware that some petitions, applications, or other actions are more complex or require more time, and that the passage of time is not necessarily a reflection of a lack of diligence or an intent to unnecessarily delay proceedings. Rather, the adjudicator may consider this as one of many factors, including whether the noncitizen has not exercised diligence in applying for collateral relief with DHS or is seeking to unnecessarily delay proceedings.

Given the complexity of these issues, the Department specifically requests public comment on whether the specified factors for adjudicators to consider in adjudicating motions to administratively close and motions to recalendar cases are appropriate and whether the proposed factors should be revised in any way. Specifically, the Department seeks public input on whether the proposed rule should specify that a request for administrative closure to allow for the adjudication of a petition, application, or other action should generally be granted as long as the noncitizen demonstrates a reasonable likelihood of success on the merits, and that the noncitizen has been reasonably diligent in pursuing such relief. The Department also seeks comment on whether the proposed rule should set out specific scenarios in which administrative closure may be appropriate where there is no petition, application, or other action pending outside EOIR proceedings. Moreover, the Department seeks comment on whether administrative closure should be upon the motion of a party or whether it might be necessary or appropriate in certain situations for an immigration judge or a Board member to administratively close a case without having received a written motion and, if on appeal, in situations in which parties do not generally have the opportunity to make an oral motion before the Board.

C. Termination and Dismissal

The Department proposes to amend its regulations at 8 CFR 1003.1(d)(1)(ii) (pertaining to Appellate Immigration Judges) and 8 CFR 1003.10(b) (pertaining to immigration judges) to make clear that EOIR adjudicators' authority to “take any action consistent with their authorities under the Act and the regulations that is necessary or appropriate for the disposition or alternative resolution of such cases” includes the authority to terminate or dismiss proceedings.

35

The Department believes that the termination or dismissal of proceedings in appropriate situations is consistent with immigration judges' and Appellate Immigration Judges' statutory authority and duties.

See Matter of Coronado Acevedo,

28 I&N Dec at 651-52;

Gonzalez,

16 F.4th at 141 (“[W]e fail to see how the general power to terminate proceedings is inconsistent with the authorities bestowed by the INA.”) (cleaned up);

see also

8 CFR 1240.12(c) (indicating that an immigration judge's order “shall direct the respondent's removal from the United States, or the termination of proceedings, or other such disposition of the case as may be appropriate”).

35

The Department notes that termination is a case “disposition” under 8 CFR 1003.1(d)(1)(ii) and 1003.10(b), not an “alternative resolution,” and is only referred to as such throughout this NPRM.

Gonzalez,

16 F.4th at 141 (“Termination of proceedings certainly falls within this court's reading of `any action'; indeed, termination actually ends a proceeding rather than merely facilitating its end.”) (cleaned up)

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