[Federal Register Volume 85, Number 166 (Wednesday, August 26, 2020)]
[Proposed Rules]
[Pages 52491-52514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18676]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 85, No. 166 / Wednesday, August 26, 2020 /
Proposed Rules
[[Page 52491]]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003 and 1240
[EOIR Docket No. 19-0022; A.G. Order No. 4800-2020]
RIN 1125-AA96
Appellate Procedures and Decisional Finality in Immigration
Proceedings; Administrative Closure
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Justice (``Department'') proposes to amend
the regulations of the Executive Office for Immigration Review
(``EOIR'') regarding the handling of appeals to the Board of
Immigration Appeals (``BIA'' or ``Board''). The Department proposes
multiple changes to the processing of appeals to ensure the
consistency, efficiency, and quality of its adjudications. The
Department also proposes to amend the regulations to make clear that
there is no freestanding authority of line immigration judges or BIA
members to administratively close cases. Finally, the Department
proposes to remove inapplicable or unnecessary provisions regarding the
forwarding of the record of proceedings on appeal.
DATES: Written or electronic comments must be submitted on or before
September 25, 2020. Written comments postmarked on or before that date
will be considered timely. The electronic Federal Docket Management
System will accept comments prior to midnight Eastern Time at the end
of that day.
ADDRESSES: You may submit comments, identified by EOIR Docket No. 19-
0022, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Lauren Alder Reid, Assistant Director, Office of
Policy, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2616, Falls Church, VA 22041. To ensure proper handling, please
reference EOIR Docket No. 19-0022 on your correspondence. This mailing
address may be used for paper, disk, or CD-ROM submissions.
FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
Office of Policy, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2616, Falls Church, VA 22041, telephone (703) 305-
0289 (not a toll-free call).
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
rule. EOIR also invites comments that relate to the economic,
environmental, or federalism effects that might result from this rule.
Comments must be submitted in English, or an English translation must
be provided. To provide the most assistance to EOIR, comments should
reference a specific portion of the rule; explain the reason for any
recommended change; and include data, information, or authority that
support the recommended change.
All comments submitted for this rulemaking should include the
agency name and EOIR Docket No. 19-0022. 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 identifiable information (such as a person's name, address,
or any other data that might personally identify that individual) that
the commenter voluntarily submits.
If you want to submit personally identifiable information as part
of your comment, but do not want it to be posted online, you must
include the phrase ``PERSONALLY IDENTIFIABLE INFORMATION'' in the first
paragraph of your comment and precisely and prominently identify the
information of which you seek redaction.
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 and precisely and prominently identify the confidential
business information of which you seek redaction. 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 identifiable information and
confidential business information provided as set forth above will be
placed in the agency's public docket file, but not posted online. To
inspect the agency's public docket file in person, you must make an
appointment with agency counsel. Please see the FOR FURTHER INFORMATION
CONTACT paragraph above for the agency counsel's contact information
specific to this rule.
II. Executive Summary
Under this rule, for most appeals from immigration judge decisions
and from certain decisions of Department of Homeland Security (``DHS'')
officers, the parties would have a standardized briefing schedule with
the filing of simultaneous briefs within 21 days. The Department also
proposes to set the period of time by which the BIA may extend the
period for filing a brief at 14 days. Additionally, the Department
proposes to revise the regulations regarding cases that require current
identity, law enforcement, or security investigations or examinations
in order to eliminate unnecessary remands to the immigration court for
purposes of completing or updating identity, law enforcement, or
security investigations or examinations and to standardize the
authority of EOIR adjudicators to deem an application abandoned if an
applicant fails to comply with the necessary requirements regarding
identity, law enforcement, or security investigations or examinations.
Furthermore, the Department proposes to amend the regulations to
clearly authorize the BIA to issue dispositive decisions, including
decisions on voluntary departure, and to limit the BIA's authority to
consider new evidence on appeal or to grant motions to remand for
consideration of new evidence, except in cases where there is new
evidence or information obtained as the result of identity, law
enforcement, or security investigations or examinations or where the
new information raises a question of jurisdiction or removability. The
[[Page 52492]]
Department also proposes to clarify the limited situations in which the
BIA may engage in factfinding on appeal, to make it clear that the BIA
may affirm a decision based on any reason contained in the record, and
to make clear that there is no ``totality of the circumstances''
standard of review. It also proposes to clarify that the Board may
limit the purpose or scope of a remand when it divests jurisdiction to
the immigration judge on remand. The Department proposes to amend the
regulations to assure quality control and accuracy of Board decisions
through an immigration judge certification process in limited
circumstances.
The Department proposes to amend 8 CFR 1003.1(d)(1)(ii) and
1003.10(b) to make clear that those provisions--and similar provisions
in 8 CFR part 1240--provide no freestanding authority for immigration
judges or BIA members to administratively close immigration cases
absent an express regulatory or settlement basis to do so. The
Department also proposes to withdraw the Attorney General's delegated
authority to the BIA to certify cases to itself and the authority of
the BIA and immigration judges to sua sponte reopen a case or
reconsider a decision, except in limited circumstances evincing a need
to correct typographical errors or defective service. The Department
also proposes to allow the filing of motions to reopen notwithstanding
existing time and number bars in limited circumstances implicating
jurisdiction or removability, though such motions before the Board
could be granted only by a three-member panel. The Department further
proposes to clarify regulatory timeliness guidelines for appeals
assigned to three-member panels of the BIA. Finally, the Department is
proposing to add additional timeliness guidelines for the processing of
appeals, provide for a further delegation of authority from the
Attorney General to the EOIR Director (``Director'') regarding the
efficient disposition of appeals, and delete inapplicable or
unnecessary provisions regarding the forwarding of the record of
proceedings on appeal.
A party to EOIR proceedings may appeal immigration judge decisions
and certain DHS decisions, including administrative fines and visa
petitions under section 204 of the Immigration and Nationality Act
(``INA''), to the BIA. See 8 CFR 1003.1(b). Because the INA contains
few details regarding the appeals process, EOIR's regulations govern
the specific procedural requirements for appeals to the BIA. See
generally 8 CFR part 1003, subpart A.\1\ Over time, the Department has
frequently reviewed the relevant regulations in order to address
management challenges at the BIA and to ensure the efficient
adjudication of immigration proceedings to best use EOIR's resources.
This proposed rule will further ensure that cases heard at the BIA are
adjudicated in a consistent and timely manner.
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\1\ As the Supreme Court has recognized, ``the BIA is simply a
regulatory creature of the Attorney General, to which he has
delegated much of his authority under the applicable statutes.'' INS
v. Doherty, 502 U.S. 314, 327 (1992). Although there is a reference
to the BIA in section 101(a)(47)(B) of the INA, 8 U.S.C.
1101(a)(47)(B), that reference occurs only in the context of
establishing the finality of an order of deportation or removal
after the BIA has affirmed the order or the time allowed for appeal
to the BIA has expired. It does not address the scope of the BIA's
authority or its procedures.
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The number of cases pending within EOIR has increased tremendously,
particularly in recent years. EOIR had approximately 130,000 pending
cases in 1998. At the end of Fiscal Year (``FY'') 2019, EOIR had
approximately 1.08 million pending cases, up from approximately 430,000
pending at the end of FY 2014 and approximately 263,000 at the end of
FY 2010. EOIR's current pending caseload represents a more than 800
percent increase over the amount pending 21 years ago. See EOIR,
Adjudication Statistics: Pending Cases (Apr. 15, 2020), https://www.justice.gov/eoir/page/file/1242166/download; EOIR, Adjudication
Statistics: New Cases and Total Completions (Apr. 15, 2020), https://www.justice.gov/eoir/page/file/1060841/download.
With the increase in pending cases at the immigration courts, EOIR
has recently begun to have a corresponding increase in the number of
appeals of immigration judge decisions. In FY 2018, the number of such
appeals increased to 39,096--a 70 percent increase over the previous
high in the last five fiscal years. EOIR, Adjudication Statistics: Case
Appeals Filed, Completed, and Pending (Oct. 23, 2019), https://www.justice.gov/eoir/page/file/1198906/download. In FY 2019, the number
of such appeals increased to 54,092, a 38 percent increase from FY 2018
and a 250 percent increase from FY 2015. Id. The BIA ended FY 2019 with
65,201 pending appeals from immigration judge decisions, up from 12,677
at the end of FY 2017. Id.
Due to these significant increases, the Department believes it is
necessary to again review the BIA's regulations to reduce any
unwarranted delays in the appeals process and to ensure the efficient
use of BIA and EOIR resources. Additionally, the Department believes
that it is necessary to provide the BIA with the appropriate tools to
make final decisions wherever possible to reduce unnecessary and
inefficient remands to the immigration courts, including remands solely
for the completion of background checks or to allow a respondent to be
granted voluntary departure. Remands to the immigration court delay
case completion due to the amount of time it takes for the case to be
placed back on the immigration courts' already full dockets.
Additionally, remands to the immigration court for issues that could be
addressed by the BIA needlessly prolong case adjudications and take
valuable time away from other cases before the immigration court,
further straining the limited court resources.
Accordingly, the Department proposes to make seven changes to the
BIA's regulations regarding adjudicative and appellate procedures:
1. In all cases, shorten the time allowed for the BIA to grant an
extension for a party to file an initial brief or a reply brief from 90
days to 14 days, while also allowing the Board to seek supplemental
briefing if it believes such briefing would be beneficial;
2. Make all briefing for appeals of immigration judge decisions
simultaneous;
3. End the BIA practice of remanding to the immigration court
solely for the purpose of completing or updating identity, law
enforcement, or security investigations or examinations or solely
because an immigration judge did not provide required advisals
regarding an application for voluntary departure;
4. Delegate clear authority to the BIA to issue orders of removal,
termination or dismissal, and voluntary departure, and orders granting
relief or protection as part of the process to adjudicate appeals;
5. Decrease the scope of motions to remand that the BIA may
consider, make clear that the BIA cannot remand a case under a
``totality of the circumstances'' standard, clarify the limited
situations in which the BIA may engage in factfinding on appeal, and
make clear that the BIA may affirm a decision based on any valid reason
supported by the record;
6. Clarify that the BIA may limit or qualify the scope of a remand
while simultaneously divesting itself of jurisdiction over the case;
and
7. Allow immigration judges to certify BIA remand or reopening
decisions for further review in limited circumstances as part of a
quality assurance process.
Overall, the Department believes these proposed changes will enable
[[Page 52493]]
EOIR to better address the growing number of cases and related
challenges, as well as to ensure that all cases are treated in an
expeditious manner consistent with due process. These changes also
build on ongoing reviews of all procedures to ensure that cases are
completed in a timely manner consistent with due process. Each change
is discussed in turn below. The Department intends for these changes to
be effective for appeals filed with the BIA on or after the effective
date of the final rule.
The Department also proposes to clarify the scope of 8 CFR
1003.1(d)(1)(ii) and 1003.10(b) regarding the extent of authority of
immigration judges and Board members to take action ``appropriate and
necessary for the disposition'' of the cases they adjudicate. The broad
sweep of this language has caused confusion regarding the limits of
immigration judges and Board members' authority to take action in
handling cases before them, especially regarding administrative
closure. The proposed rule seeks to address that confusion by making it
clear that neither the Board nor immigration judges have authority
under 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to administratively close a
case--either unilaterally or with the consent of the parties--unless
authorized by regulation or a judicial settlement and that neither 8
CFR 1003.1(d)(1)(ii) nor 1003.10(b) provides such authorization.
The Department also proposes to make changes to the BIA to improve
its internal consistency in decision-making and its adjudicatory
efficiency. First, the proposed rule will improve consistency in BIA
decision-making by withdrawing, with limited exceptions, the delegation
of the Attorney General's authority for the BIA to sua sponte reopen or
reconsider decisions \2\ and for the Board to certify cases to itself
on its own motion. These procedures have few standards to ensure
consistent application. Without clear standards, and without the
possibility of further review in most cases, they are subject to
inconsistent application and even abuse. Moreover, they severely
undermine the importance of finality in immigration proceedings by
encouraging the filing of motions in contravention of the strict time
and number limits imposed by statute. See, e.g., Doherty, 502 U.S. at
323 (``Motions for reopening of immigration proceedings are disfavored
for the same reasons as are petitions for rehearing and motions for a
new trial on the basis of newly discovered evidence. This is especially
true in a deportation proceeding, where, as a general matter, every
delay works to the advantage of the deportable alien who wishes merely
to remain in the United States.'' (citation omitted)); INS v. Abudu,
485 U.S. 94, 107 (1988) (``The reasons why motions to reopen are
disfavored in deportation proceedings are comparable to those that
apply to petitions for rehearing, and to motions for new trials on the
basis of newly discovered evidence. There is a strong public interest
in bringing litigation to a close as promptly as is consistent with the
interest in giving the adversaries a fair opportunity to develop and
present their respective cases.'' (footnotes omitted)); see also Matter
of Beckford, 22 I&N Dec. 1216, 1221 (BIA 2000) (en banc) (``When
Congress directed the Attorney General to promulgate regulations
limiting motions to reopen and reconsider, it clearly sought to (1)
limit the ability of aliens to file motions, and (2) bring finality to
immigration proceedings.''). To ensure that there remains a mechanism
for reopening the proceedings of individuals with colorable claims to
United States citizenship or nationality and aliens whose removability
is vitiated in full prior to the execution of the removal order, the
Department also proposes to amend the regulations to allow the filing
of a motion to reopen, notwithstanding the time and number bars, in
certain circumstances. Those circumstances are when an alien claims
that an intervening change in law or fact renders the alien no longer
removable and the alien has exercised diligence in pursuing his or her
motion, or when an individual claims, supported by evidence, that he or
she is a United States citizen or national.
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\2\ For the same reasons, and to maintain a parallel level of
authority, the proposed rule also withdraws the delegation of the
Attorney General's authority for immigration judges to reopen or
reconsider decisions sua sponte, subject to a limited exception.
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Second, the proposed rule will ensure that cases at the Board are
timely adjudicated. Current regulations place an emphasis on timeliness
only near the end of the adjudication process, which ignores the
potential for significant delays much earlier in the process. Moreover,
the regulations do not provide for an overall timeliness goal, and the
BIA's accounting of the timeliness of adjudications is confusing and
potentially misleading. See Office of the Inspector Gen., Dep't of
Justice, Management of Immigration Cases and Appeals by the Executive
Office for Immigration Review 41 (Oct. 2012), https://oig.justice.gov/reports/2012/e1301.pdf (``DOJ OIG Report'') (``EOIR's performance
reporting does not reflect appeal delays and underreports actual
processing time, which undermines EOIR's ability to identify problems
and take corrective actions.''). Consequently, this proposed rule
ensures that all phases of the appeal process are subject to timeliness
goals, provides appropriate accounting of the timely disposition of
appeals, and provides a mechanism to ensure that no one appeal remains
pending for too long without a regulatory or operational basis for the
delay.
III. Background
A. Appellate Briefings
A party to EOIR proceedings may appeal immigration judge decisions
and certain DHS decisions, including administrative fines and visa
petitions under section 204 of the INA, to the BIA. See 8 CFR
1003.1(b). Because the INA contains few details regarding the appeals
process, EOIR's regulations govern the specific procedural requirements
for appeals to the BIA. See generally 8 CFR part 1003, subpart A. Over
time, the Department has reviewed the relevant regulations in order to
find the proper balance between the length of time allowed for the
appeal process and the efficient adjudication of immigration
proceedings that best uses EOIR's resources.
EOIR first implemented regulations regarding the time for filing a
BIA appeal in 1987. Aliens and Nationality; Rules of Procedure for
Proceedings Before Immigration Judges, 52 FR 2931 (Jan. 29, 1987).\3\
EOIR's regulations did not historically specify a particular time
period for the BIA briefing schedule, though EOIR did set briefing
schedules in certain situations by policy. See, e.g., EOIR, Operating
Policies and Procedures Memorandum 84-1: Case Priorities and Processing
1 (Feb. 6, 1984), https://www.justice.gov/sites/default/files/eoir/legacy/2001/09/26/84-1.pdf (``Because of the necessity of forwarding
bond appeals expeditiously to the Board, I [Chief Immigration Judge
William R. Robie] suggest that requests for briefing time wherever
possible be
[[Page 52494]]
limited to a maximum of ten days per party.'' (underlining in
original)).
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\3\ The 1987 final rule amended 8 CFR 3.36, in addition to other
regulatory sections. In 1992, 8 CFR 3.36 was redesignated as 8 CFR
3.38. Executive Office for Immigration Review; Rules of Procedures,
57 FR 11568 (Apr. 6, 1992). Following the creation of DHS in 2003
after the passage of the Homeland Security Act of 2002, Public Law
107-296, 116 Stat. 2135, EOIR's regulations were moved from chapter
I of Title 8 of the Code of Federal Regulations to chapter V. Aliens
and Nationality; Homeland Security; Reorganization of Regulations,
68 FR 9824 (Feb. 28, 2003). Accordingly, section 3.38 of the EOIR
regulations was transferred to 8 CFR 1003.38. Id. at 9830.
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Congress subsequently instructed the Department to implement
regulations regarding, among other things, ``the time period for the
filing of administrative appeals . . . and for the filing of appellate
and reply briefs.'' Immigration Act of 1990, Public Law 101-649, sec.
545(d)(2), 104 Stat. 4978, 5066. In 1996, the Department updated the
regulations regarding the BIA appeals process after publishing multiple
related proposed rules in 1994 and 1995. See Executive Office for
Immigration Review; Motions and Appeals in Immigration Proceedings, 61
FR 18900 (Apr. 29, 1996). The final rule established a sequential
filing schedule for BIA briefing, which allowed each party 30 days to
file a brief in sequence, although the BIA retained the authority to
set a shorter period in individual cases. Id. at 18906. The 30-day
period for all cases was a departure from the Department's 1994
proposal to allow 30 days to file a brief only in non-detained cases
and to allow 14 days for detained cases, which commenters objected to
for treating the different classes of appellants differently. See
Executive Office for Immigration Review; Motions and Appeals in
Immigration Proceedings, 59 FR 29386, 29386 (June 7, 1994).
In 2002, the Department again updated EOIR's regulations regarding
the BIA's appeals process. Board of Immigration Appeals: Procedural
Reforms To Improve Case Management, 67 FR 54878 (Aug. 26, 2002). The
reforms were designed to reduce the BIA's backlog of pending cases,
eliminate unwarranted delays in the adjudication of appeals, use the
BIA's resources efficiently, and focus resources on the most
complicated appeals. Board of Immigration Appeals: Procedural Reforms
To Improve Case Management, 67 FR 7309, 7310 (Feb. 19, 2002) (notice of
proposed rulemaking (``NPRM'') that was finalized with the publication
of 67 FR 54878). The Department reduced the time allowed for filing
briefs from 30 days to 21 days after the transcript becomes available,
regardless of the alien's detention status, and maintained the BIA's
ability to set a shorter time for briefing in individual cases. 67 FR
at 54904; 8 CFR 1003.3(c)(1). The Department also implemented a
simultaneous briefing requirement for cases involving a detained alien
but retained consecutive briefing for non-detained aliens. 67 FR at
54904.
In 2002, the Department also changed the standard time to file a
brief in support of or in opposition to an appeal from a DHS decision
from 30 days to 21 days. Id.; 8 CFR 1003.3(c)(2). These regulatory
changes standardized the briefing process for all appeals under the
BIA's jurisdiction.
The Department has not made any further amendments to the relevant
regulations governing BIA briefing schedules since 2002. Under the
current regulatory framework, for appeals of immigration judge
decisions in cases involving aliens who are not detained in DHS
custody, the appellant has 21 days to file a brief and the appellee
then has the same amount of time to file a response brief. 8 CFR
1003.3(c)(1).\4\ For appeals of immigration judge decisions in cases
involving aliens detained in DHS custody, as well as appeals from
certain DHS adjudications, the parties have 21 days to file briefs in
support of or in opposition to the appeal. 8 CFR 1003.3(c)(1) and
(2).\5\ The BIA may extend the time to file a brief, including a reply
brief, for an additional 90 days for good cause shown. 8 CFR
1003.3(c)(1). Briefs in appeals from an immigration judge decision
involving an alien who is in custody are filed simultaneously, while
briefs in appeals from an immigration judge decision involving an alien
who is not in custody are filed consecutively. Id.
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\4\ Although the regulation from 2002 refers to the appellee's
brief as a ``reply brief,'' the BIA Practice Manual refers to it as
a response brief. Bd. of Immigration Appeals, Dep't of Justice,
Practice Manual 63 (2018), https://www.justice.gov/eoir/page/file/1101411/download (``BIA Practice Manual''). By contrast, it refers
to a brief filed in reply to the response brief as a ``reply
brief.'' Id. The Supreme Court similarly distinguishes between
response briefs and reply briefs. E.g., Amgen, Inc. v. Sandoz, Inc.,
137 S.Ct. 908 (2017). By requiring simultaneous briefing in all
cases, the proposed rule makes clear that there are no longer
response briefs, only the possibility of reply briefs.
\5\ For appeals of immigration judge decisions in which the
underlying proceedings are transcribed, the briefing schedule is set
by the BIA after the transcript is available. 8 CFR 1003.3(c)(1).
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B. Identity, Law Enforcement, or Security Investigations or
Examinations
The BIA generally may not grant an application for relief or
protection unless DHS has completed the appropriate identity, law
enforcement, or security investigations or examinations of the
applicant and the results of those investigations or examinations are
current. 8 CFR 1003.1(d)(6).\6\ Affected applications include the forms
of relief or protection most frequently sought before EOIR, such as
asylum, statutory withholding of removal, and protection under the
regulations implementing U.S. obligations under Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (``CAT''); \7\ adjustment of status; and
cancellation of removal. 8 CFR 1003.47(b); see also 8 CFR
1003.1(d)(6)(i).
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\6\ Immigration judges are similarly unable to grant most
applications for relief or protection without complete and current
DHS identity, law enforcement, or security investigations or
examinations. See 8 CFR 1003.47. Further, by statute, no alien can
be granted asylum ``until the identity of the applicant has been
checked against all appropriate records or databases maintained by
the Attorney General and by the Secretary of State, including the
Automated Visa Lookout System, to determine any grounds on which the
alien may be inadmissible to or deportable from the United States,
or ineligible to apply for or be granted asylum.'' 8 U.S.C.
1158(d)(5)(A)(i).
\7\ See generally 8 CFR 1208.16(c), 1208.17, 1208.18.
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In cases where identity, law enforcement, or security
investigations or examinations have not been completed or the results
of such are no longer current, 8 CFR 1003.1(d)(6)(ii) currently allows
the BIA two alternatives in order to further the adjudication of the
case. First, the BIA may issue an order remanding the case to the
immigration judge with instructions to permit DHS to complete or update
investigations or examinations and report the results to the
immigration judge. 8 CFR 1003.1(d)(6)(ii)(A). Alternatively, the BIA
may provide notice to the parties that the case is being placed on hold
until all identity, law enforcement, or security investigations or
examinations are completed or updated and those results reported to the
BIA. 8 CFR 1003.1(d)(6)(ii)(B).
The current regulations regarding the identity, law enforcement, or
security investigations or examinations for aliens in EOIR proceedings
were implemented in 2005. Background and Security Investigations in
Proceedings Before Immigration Judges and the Board of Immigration
Appeals, 70 FR 4743 (Jan. 31, 2005).\8\ At that time, the Department
included the option for the BIA to remand a case to the immigration
judge while DHS completed or updated the appropriate investigations or
examinations. Id. at 4748. This option addressed those cases that were
pending before the BIA prior to publication of the interim rule. Id.
This was because, prior to the regulatory changes, the record before
the BIA would likely not have indicated whether DHS had ever conducted
identity, law enforcement, or security investigations or examinations,
and the BIA would not have been able to issue a final decision based on
an incomplete record. Id. The Department did not intend the BIA
issuance of
[[Page 52495]]
remands for the completion of identity, law enforcement, or security
investigations or examinations to be an ongoing practice. See id. at
4749 (noting that ``after the [rule's] implementation period, it [was]
expected that the number of cases where . . . the Board is required to
hold or remand a case under 8 CFR 1003.1(d)(6) [would] diminish over
time'').
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\8\ The regulations were promulgated through an interim rule
with request for comments, but that rule has not yet been finalized.
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Additionally, the EOIR regulations state that an alien's failure to
file necessary documentation or to comply with the requirements to
provide biometrics and other biographical information in conformity
with the applicable regulations, the instructions to the applications,
the biometrics notice, and instructions provided by DHS within the time
allowed by the immigration judge's order constitutes abandonment of the
application. 8 CFR 1003.47(c). The immigration judge may then enter an
appropriate order dismissing the application unless the applicant
demonstrates that such failure was the result of good cause. Id. For
cases pending before the BIA, if the alien fails to comply with
necessary procedures for collecting biometrics or other biographical
information, DHS may move to remand the record to the immigration judge
for consideration of whether the relief sought should be denied. 8 CFR
1003.1(d)(6)(iii). The regulations, however, do not currently provide
Board members with the same authority as immigration judges to deem an
application abandoned on this basis.
C. Voluntary Departure
An alien in removal proceedings may request voluntary departure
pursuant to section 240B of the INA, 8 U.S.C. 1229c. Voluntary
departure permits an eligible alien to leave the United States on his
or her own volition, and at his or her own expense, in lieu of
receiving an order of removal. INA 240B(a)(1), 8 U.S.C. 1229c(a)(1). To
qualify for voluntary departure before an immigration judge prior to
the conclusion of removal proceedings pursuant to INA 240B(a)(1), an
alien must make such request prior to or at the master calendar hearing
during which the case is initially calendared for a merits hearing;
make no additional requests for relief (or if such requests have been
made, withdraw such requests prior to any grant of voluntary departure
pursuant to that section); concede removability; waive appeal of all
issues; not be convicted of a crime described in section 101(a)(43) of
the INA, 8 U.S.C. 1101(a)(43); and not be deportable under section
237(a)(4) of the INA, 8 U.S.C. 1227(a)(4). See 8 CFR 1240.26(b). To
qualify for voluntary departure before an immigration judge at the
conclusion of removal proceedings, an alien must have at least one year
of physical presence in the United States; have been a person of good
moral character for five years preceding the application for voluntary
departure; must not be deportable under specified sections of the INA;
and must be able to establish by clear and convincing evidence that he
or she has the means and intention to depart the United States. INA
240B(b)(1)(A)-(D), 8 U.S.C. 1229c(b)(1)(A)-(D); 8 CFR 1240.26(c).\9\
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\9\ Under certain circumstances, an alien may be granted
voluntary departure by DHS in lieu of removal proceedings, as
provided in 8 CFR 240.25. This form of voluntary departure is
subject to regulatory procedures that are not implicated by the
proposed rule.
---------------------------------------------------------------------------
Although voluntary departure provides an alternative to an order of
removal, it does not allow an alien to remain in the United States
beyond a prescribed period, and the disposition of a request for
voluntary departure does not affect determinations of an alien's
removability or adjudication of an alien's application for protection
or relief from removal that would allow the alien to remain in the
United States. In Dada v. Mukasey, the Supreme Court described
voluntary departure as ``an agreed-upon exchange of benefits, much like
a settlement agreement.'' 554 U.S. 1, 19 (2008). An alien, in agreeing
to voluntary departure, avoids the consequences of being ordered
removed from the United States, thus preserving the opportunity for
future benefits, including the possibility of lawful readmission. Id.;
cf. INA 212(a)(9)(A), 8 U.S.C. 1182(a)(9)(A) (providing for the
inadmissibility of aliens ordered removed or who depart while under an
order of removal). The Supreme Court recognized that voluntary
departure is beneficial for the Government as well, as it ``expedites
the departure process and avoids the expense of deportation'' as well
as ``eliminate[s] some of the costs and burdens associated with
litigation over the departure.'' Dada, 554 U.S. at 11.
Upon granting a request for voluntary departure, an immigration
judge must also enter an alternate order of removal. 8 CFR 1240.26(d).
Failure to comply with specified conditions of voluntary departure,
filing a motion to reopen or reconsider during the voluntary departure
period, or filing a petition for review or any other judicial challenge
to the final administrative order may result in automatic termination
of voluntary departure and effectuate the alternative order of removal.
8 CFR 1240.26(c)(4), (e), (i). In addition to rendering the alien
subject to the alternate order of removal, failure to depart within the
voluntary departure period may result in civil penalties. INA 240B(b),
8 U.S.C. 1229c(b); 8 CFR 1240.26(j).
Currently, the regulations describe only an immigration judge's
authority to grant voluntary departure in the first instance. See
generally 8 CFR 1240.26. However, the regulations specify that in
limited circumstances, the BIA may reinstate an order of voluntary
departure when removal proceedings have been reopened for a purpose
other than solely requesting voluntary departure. 8 CFR 1240.26(h).
Under current EOIR practice, the BIA may remand a case to the
immigration court for the sole purpose of considering eligibility for
voluntary departure, a decision that has no bearing on the respondent's
removability or eligibility for relief or protection that would allow
the respondent to remain in the United States. The BIA may also remand
a case for the purpose of the immigration judge's ``ministerial
review'' of whether the alien received the proper voluntary departure
advisals described in 8 CFR 1240.26(b)(3)(iii), (c)(3) and (j). See
Batubara v. Holder, 733 F.3d 1040, 1042 (10th Cir. 2013). The BIA will
also remand a case when such advisals have not been given. Matter of
Gamero, 25 I&N Dec. 164, 168 (BIA 2010).
D. Motions To Remand
Parties to EOIR proceedings may file a motion to remand while their
appeal is pending before the BIA. A motion to remand seeks to return
jurisdiction of a case pending before the BIA to the immigration judge.
Motions to remand, which are not described in the INA, were initially a
judicially created concept rooted in principles of civil practice that
were later codified into Title 8 of the CFR. See Matter of Coelho, 20
I&N Dec. 464, 470-71 (BIA 1992); 61 FR at 18904.
Currently, a party asserting that the BIA cannot properly resolve
an appeal without further factfinding must file a motion to remand. 8
CFR 1003.1(d)(3)(iv). Motions to remand in most cases are subject to
the same substantive requirements as motions to reopen. See Matter of
Coelho, 20 I&N Dec. at 471. Accordingly, the BIA may deny a motion to
remand where the evidence was previously available at an earlier stage
in the proceedings or if the evidence is not material. See BIA Practice
Manual at 84.
A motion to remand is filed while an appeal is still pending before
the BIA, whereas a motion to reopen is typically filed after agency
review of the case has concluded. A motion to reopen a
[[Page 52496]]
decision rendered by an immigration judge that is pending when an
appeal is filed or that is filed while an appeal is pending may be
deemed a motion to remand and may be consolidated with the appeal. 8
CFR 1003.2(c)(4). Motions to remand are not subject to the same time or
number limitations as motions to reopen because they are made during
the pendency of an appeal. See Matter of Oparah, 23 I&N Dec. 1, 2 (BIA
2000). Currently, BIA policy states that if the BIA grants a motion to
remand a decision back to the immigration judge, a party may once again
file an appeal from the immigration judge's resulting decision, and
that party may pursue any new or unresolved issues from the prior
appeal. BIA Practice Manual at 85.
E. Factfinding
Except for taking administrative notice of commonly known facts
such as current events or the contents of official documents, the Board
does not engage in factfinding in the course of deciding appeals. 8 CFR
1003.1(d)(3)(iv). A party asserting that an appeal cannot be properly
resolved without further factfinding must file a motion for remand. Id.
If further factfinding is needed, the Board may remand the proceeding.
Id.
F. Scope of a Board Remand
When the Board remands a case, it divests itself of jurisdiction
unless jurisdiction is expressly retained. Matter of Patel, 16 I&N Dec.
600, 601 (BIA 1978). ``[W]hen this is done, unless the Board qualifies
or limits the remand for a specific purpose, the remand is effective
for the stated purpose and for consideration of any and all matters
which the service officer deems as appropriate . . . .'' Id. Cases
remanded for the completion of identity, law enforcement, or security
investigations or examinations pursuant to 8 CFR 1003.47(h) are also
treated as general remands, and an immigration judge may consider new
evidence in such a remanded case ``if it is material, was not
previously available, and could not have been discovered or presented
at the former hearing.'' Matter of M-D-, 24 I&N Dec. 138, 141 (BIA
2007). Circuit courts have construed Matter of Patel to mean that the
BIA can limit the scope of its remand only if it (1) expressly retains
jurisdiction and (2) qualifies or limits the scope of remand. Bermudez-
Ariza v. Sessions, 893 F.3d 685, 688 (9th Cir. 2018); Johnson v.
Ashcroft, 286 F.3d 696, 701 (3rd Cir. 2002). No regulation allows the
Board to expressly retain jurisdiction over a remanded case, however,
and the Board rarely, if ever, does so in practice unless the remand is
for a ministerial issue such as the need to forward the administrative
record. See BIA Practice Manual at 76 (``Once a case has been remanded
to the Immigration Judge, the only motion that the Board will entertain
is a motion to reconsider the decision to remand.'').
G. Quality Assurance
In contrast to other administrative adjudicatory agencies, the
Board does not have a formal quality assurance process to ensure that
its remand decisions provide appropriate and sufficient direction to
the immigration judges. See, e.g., Soc. Sec. Admin., Hearings, Appeals,
and Litigation Law Manual I-2-1-85 through I-2-1-88, https://www.ssa.gov/OP_Home/hallex/I-02/I-2-1.html (``HALLEX'') (outlining
policies for administrative law judges (``ALJs'') at the Social
Security Administration (``SSA'') to seek clarifications of remand
orders from the SSA Appeals Council and a feedback initiative allowing
ALJs to raise other issues regarding remand orders). Although the Board
has used various informal and internal quality control measures over
time, no formal mechanism exists allowing immigration judges to raise
issues regarding remand orders that may need clarification or further
explication.
H. 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) and Administrative Closure
Under 8 CFR 1003.1(d)(1)(ii) and 1003.10(b), Board members and
immigration judges are authorized, inter alia, to ``take any action
consistent with their authorities under the [INA] and regulations that
is appropriate and necessary for the disposition'' of cases before
them.\10\
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\10\ Similar language for immigration judges also occurs in 8
CFR 1240.1(a)(1)(iv) and (c).
---------------------------------------------------------------------------
Prior to 2012, the Department did not consider 8 CFR
1003.1(d)(1)(ii) or 1003.10(b) or any similar regulatory provision to
authorize an immigration judge or the Board to unilaterally
administratively close a case over a party's objection.\11\ To the
contrary, longstanding Board precedent made clear that an immigration
judge was required both to complete a case and to complete it through
only one of three avenues: An order of termination, an order of
removal, or an order of relief or protection. Matter of Chamizo, 13 I&N
Dec. 435, 437 (BIA 1969) (``We hold that 8 CFR 242.18(c) [now 8 CFR
1240.13(c)] requires that in deportation proceedings an order be
entered which will result in the proceedings being processed to a final
conclusion, whether by the deportation of the alien, the termination of
proceedings or the granting of some form of discretionary relief as
provided in the [INA].'' (emphasis added)).\12\
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\11\ ``In 1984, the Chief Immigration Judge instructed
immigration judges to consider administrative closure as one means
of addressing the `recurring problem' of respondents' failure to
appear at hearings. The Chief Immigration Judge did not identify any
basis for this authority. Nonetheless, immigration judges and the
Board soon employed administrative closure in all types of removal
proceedings. By 1988, the Board described the practice as an
`administrative convenience.' Between 1988 and 2012, Board precedent
held that an immigration judge could grant administrative closure
only where both parties supported the request. These decisions again
assumed without explanation that immigration judges and the Board
possessed this general authority.'' Matter of Castro-Tum, 27 I&N
Dec. 271, 273-74 (A.G. 2018) (citations omitted).
\12\ Administrative closure is not in itself relief from
removal. Matter of W-Y-U-, 27 I&N Dec. 17, 18 (BIA 2017)
(``Administrative closure is not a form of relief from removal and
does not provide an alien with any immigration status.''), overruled
on other grounds by Matter of Castro-Tum, 27 I&N Dec. 271. Courts,
however, have routinely (and erroneously) characterized it as such.
See, e.g., Caballero-Martinez v. Barr, 920 F.3d 543, 549-550 (8th
Cir. 2019); Perez Alba v. Gonzales, 148 F. App'x 593, 594 (9th Cir.
2005); Singh v. Gonzales, 123 F. App'x 299, 300 (9th Cir. 2005);
Mickeviciute v. INS, 327 F.3d 1159, 1161 n.1 (10th Cir. 2003).
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Moreover, similarly longstanding Board precedent and administrative
law separation-of-function principles dictated that the Board or an
immigration judge should not assume the role of the prosecutor and
determine which immigration cases should be adjudicated and which ones
should not. Thus, as one Board decision described the previous state of
affairs, an immigration judge ``may neither terminate nor indefinitely
adjourn the proceedings in order to delay an alien's deportation . . .
[and] [o]nce deportation proceedings have been initiated by the
District Director, the immigration judge may not review the
[discretion] of the District Director's action, but must execute his
duty to determine whether the deportation charge is sustained by the
requisite evidence in an expeditious manner.'' Matter of Quintero, 18
I&N Dec. 348, 350 (BIA 1982), aff'd sub nom. Quintero-Martinez v. INS,
745 F.2d 67 (9th Cir. 1984); see also Matter of Roussis, 18 I&N Dec.
256, 258 (BIA 1982) (``It has long been held that when enforcement
officials of the [Immigration and Naturalization Service (``INS''), now
DHS] choose to initiate proceedings against an alien and to prosecute
those proceedings to a conclusion, the immigration judge is obligated
to order deportation if the evidence supports a finding of
deportability on the ground charged.''); cf. Lopez-Telles v. INS, 564
F.2d 1302, 1304 (9th Cir. 1977) (``Rather, these decisions plainly hold
that the
[[Page 52497]]
immigration judge is without discretionary authority to terminate
deportation proceedings so long as enforcement officials of the INS
choose to initiate proceedings against a deportable alien and prosecute
those proceedings to a conclusion. The immigration judge is not
empowered to review the wisdom of the INS in instituting the
proceedings. His powers are sharply limited, usually to the
determination of whether grounds for deportation charges are sustained
by the requisite evidence or whether there has been abuse by the INS in
its exercise of particular discretionary powers. This division between
the functions of the immigration judge and those of INS enforcement
officials is quite plausible and has been undeviatingly adhered to by
the INS.''); Matter of Silva-Rodriguez, 20 I&N Dec. 448, 449-50 (BIA
1992) (undue delay by an immigration judge may frustrate or circumvent
statutory purpose of prompt immigration proceedings); Matter of
Yazdani, 17 I&N Dec. 626, 630 (BIA 1991) (``However, so long as the
enforcement officials of the [INS] choose to initiate proceedings
against an alien and to prosecute those proceedings to a conclusion,
the immigration judge and the Board must order deportation if the
evidence supports a finding of deportability on the ground charged.'').
In 2012, however, the Board relied, in part, on language in 8 CFR
1003.1(d)(1)(ii) and 1003.10(b) to hold that immigration judges may
unilaterally and indefinitely suspend immigration proceedings through
the use of administrative closure even if one party objected. Matter of
Avetisyan, 25 I&N Dec. 688, 697 (BIA 2012), overruled by Matter of
Castro-Tum, 27 I&N Dec. 271. The Avetisyan decision was overruled in
2018 when the Attorney General, in accordance with his statutory
authority, 8 U.S.C. 1103(a)(1), held that immigration judges and Board
members ``do not have the general authority to suspend indefinitely
immigration proceedings by administrative closure'' and that they ``may
only administratively close a case where a previous regulation or a
previous judicially approved settlement expressly authorizes such an
action.'' Matter of Castro-Tum, 27 I&N Dec. at 271. Notwithstanding the
Attorney General's controlling interpretation of the law under 8 U.S.C.
1103(a)(1), the question whether 8 CFR 1003.1(d)(1)(ii) and 1003.10(b)
allow immigration judges and Board members to indefinitely adjourn
immigration proceedings through the use of administrative closure
continues to drive litigation and cause inconsistent application of
immigration laws. See, e.g., Romero v. Barr, 937 F.3d 282 (4th Cir.
2019) (holding that 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) allow
immigration judges and Board members to indefinitely postpone
immigration proceedings through the use of administrative closure and
abrogating Matter of Castro-Tum within the jurisdiction of the Fourth
Circuit); see also Morales v. Barr, 963 F.3d 629 (7th Cir. 2020) (same
for the Seventh Circuit).\13\
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\13\ Matter of Castro-Tum continues to apply to immigration
proceedings outside of the Fourth and Seventh Circuits. Also,
neither Romero nor Morales addressed the statutory commitment to the
Attorney General to make ``controlling'' determinations of
immigration laws under 8 U.S.C. 1103(a)(1); the regulatory
specifications that only the Director, the Chief Appellate
Immigration Judge, and the Chief Immigration Judge--and not line
appellate immigration judges or line immigration judges--have
authority to defer adjudication of cases; nor the evident
superfluousness of those specifications for the Chief Appellate
Immigration Judge and the Chief Immigration Judge if all appellate
immigration judges and immigration judges already possess that
authority. See 8 CFR 1003.0(b)(1)(ii), 1003.1(a)(2)(i)(C),
1003.9(b)(3); compare 8 CFR 1003.0(b)(1)(ii) and 1003.1(a)(2)(i)(C),
with 8 CFR 1003.1(d)(1)(ii) and 1003.10(b).
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I. Sua Sponte Reopening or Reconsideration of Closed Cases
In general, motions to reopen or reconsider a case in which the
immigration judge or the Board has rendered a decision are subject to
time and number limitations. These limitations were initially
promulgated by regulation. See 8 CFR 3.2, 3.23, 103.5, and 208.19
(1996). Congress subsequently enacted statutory time and number
limitations for reopening or reconsideration of removal proceedings, as
provided in section 240(c)(6) and (7) of the INA, 8 U.S.C. 1229a(c)(6)
and (7). In general, the EOIR regulations and the statutory provisions
of section 240 of the INA provide that an alien may file only one
motion to reconsider the decision of the immigration judge or the BIA
and must do so within 30 days of the entry of the final administrative
order, and that the alien may file only one motion to reopen the
decision of the immigration judge or the BIA and must do so within 90
days of the entry of the final administrative order. However, there are
specific statutory exceptions from these time limits in cases involving
in absentia orders of removal, asylum claims based on changed country
conditions after the entry of the previous decision, or certain claims
involving battered spouses, children, or parents. See 8 U.S.C.
1229a(c)(7)(C)(ii)-(iv). These principles are embodied in the current
EOIR regulations at 8 CFR 1003.2 and 1003.23.
As a further exception to the time and number limitations on
motions to reopen and reconsider, both the BIA and immigration judges
presently have the authority to reopen or reconsider a case sua sponte.
See 8 CFR 1003.2(a), 1003.23(b)(1). The Board has made clear that this
authority ``is not meant to be used as a general cure for filing
defects or to otherwise circumvent the regulations, where enforcing
them might result in hardship.'' Matter of J-J-, 21 I&N Dec. 976, 984
(BIA 1997); see also Matter of G-D-, 22 I&N Dec. 1132, 1133-34 (BIA
1999) (explaining that the Board's discretion to reconsider a case sua
sponte is ``an extraordinary remedy reserved for truly exceptional
situations''). It has further emphasized the importance of both
complying with the time and number limitations on motions and ensuring
the finality of immigration proceedings and of not utilizing its sua
sponte authority to circumvent those considerations. Matter of
Beckford, 22 I&N Dec. at 1221.
J. Certification Authority
In most instances, decisions by immigration judges are brought to
the Board for review through an appeal filed by the respondent or by
DHS. Under 8 CFR 1003.38, the parties have 30 calendar days from the
issuance of an oral decision or the mailing of a written decision to
file an appeal with the Board. However, apart from the appeal process,
the Secretary of Homeland Security, any other duly authorized officer
of DHS, any immigration judge, or the Board itself may certify an
immigration judge's decision or a reviewable DHS decision for review by
the Board. 8 CFR 1003.1(c); see also 8 CFR 1001.1(c) and (d). The Board
can certify cases only for matters within its appellate jurisdiction. 8
CFR 1003.1(c); Matter of Sano, 19 I&N Dec. 299, 301 (BIA 1985).
Further, the Board cannot certify cases or issues implicitly. Matter of
Jean, 23 I&N Dec. 373, 380 n.9 (A.G. 2002). Although the regulations do
not specify any standard governing the Board's certification to itself,
the Attorney General has concluded that the Board's discretion is not
unbounded and is analogous to its authority to reopen or reconsider
proceedings sua sponte. Id.
K. Timeliness of the Adjudication of BIA Appeals and Composition of BIA
Panels
Except in limited circumstances, appeals assigned to a single Board
member are to be decided within 90 days of completion of the record on
appeal, whereas appeals assigned to a three-member panel are to be
decided within 180 days (including any
[[Page 52498]]
additional opinion by a member of the panel) of assignment to the
panel. 8 CFR 1003.1(e)(8)(i). The regulations do not specify completion
parameters for other categories of appeals, such as interlocutory
appeals and appeals subject to summary dismissal, nor do they specify
time frames for pre-adjudicatory processing such as requesting the
record of proceeding and ordering transcripts. See id.
If an appeal is taken from a decision of an immigration judge, the
record of proceeding is forwarded to the Board upon request or order of
the Board. 8 CFR 1003.5(a). Where transcription of a decision is
required, the immigration judge shall review the transcript within 14
days of receipt or within 7 days after returning to his or her duty
station. Id. If an appeal is taken from a decision by DHS, the record
of proceeding shall be forwarded to the Board by the DHS officer upon
receipt of the briefs or expiration of the time allowed for briefs. 8
CFR 1003.5(b); see also 8 CFR 1001.1(c).
IV. Proposed Changes
The changes proposed by the Department are summarized below. The
changes discussed in subsections A through G, K, and L below are
intended to apply to appeals filed on or after the effective date of
publication. The changes discussed in subsections H through J below are
intended to be effective on the date of publication.
A. Briefing Extensions
First, this NPRM would reduce the maximum allowable time for an
extension of the briefing schedule to 14 days. Although current
regulations allow an extension of up to 90 days, Board policy for many
years has been to grant an extension of only 21 days regardless of the
amount of time actually requested. BIA Practice Manual at 65; cf.
Revised General Practice Regarding First Briefing Deadline Extension
Request for Detained Aliens, 71 FR 51856, 51857 (Aug. 31, 2006) (noting
that Board policy will continue to allow granting briefing extension
requests of 21 days in detained cases). Because briefing extensions are
disfavored in the first instance, BIA Practice Manual at 65 (``In the
interest of fairness and the efficient use of administrative resources,
extension requests are not favored.''), and because the Board expects
any extension request to be for the purpose of completing or finalizing
a brief--rather than drafting it from the beginning--there is no
justification for a lengthy extension period. Moreover, reducing the
amount of time for an extension will decrease the likelihood of
gamesmanship associated with simultaneous briefing in which one party
files a last-minute extension request and then has a lengthy period of
time to review and address arguments made in the opposing party's brief
that was already filed consistent with the prior deadline.
If the appeal is from an immigration judge decision in a case that
is transcribed, the BIA will continue to set the briefing schedule
after the transcript becomes available. This proposal would not
eliminate the BIA's continued ability to extend the time allowed for
filing a brief for good cause shown or to consider a late-filed brief
as a matter of discretion. 8 CFR 1003.3(c). However, it would expressly
limit the number of allowable extensions consistent with current Board
policy ``not to grant second briefing extension requests.'' BIA
Practice Manual at 65 (emphasis in original).
The proposed rule further clarifies that there is no right to a
briefing extension by any party in any case and prohibits the Board
from adopting a policy of granting all extension requests without an
individualized finding of good cause. Should the Board determine that
supplemental briefing may be beneficial in particular cases, however,
the proposed rule allows the Board to ask for such briefing after the
expiration of the initial briefing schedule.
Under the proposed framework, depending on whether the case
requires the preparation of a transcript, whether the transcript can be
timely prepared, and whether a briefing extension is granted, a party
would have at least a month and potentially up to almost three months
to submit a brief if it chooses, from the time an appeal is filed,
which the Department expects to be ample time even without access to
the transcript to address the issues in most cases. Approximately 78
percent of respondents have representation on appeal, and DHS is
represented in all appeals. EOIR, Adjudication Statistics: Current
Representation Rates (Apr. 15, 2020), https://www.justice.gov/eoir/page/file/1062991/download. Consequently, in most cases, both parties
have reviewed the case at the time an appeal is filed. Moreover, the
issues should be squarely presented in the Notice of Appeal, which
requires specific details about the case and arguments to be
considered, well before any briefs are filed. Under 8 CFR 1003.3(b),
the party taking the appeal must identify the reasons for the appeal in
the Notice of Appeal (Form EOIR-26 or Form EOIR-29) or in any
attachments thereto, in order to avoid summary dismissal pursuant to
Sec. 1003.1(d)(2)(i). Such a statement must specifically identify the
findings of fact, the conclusions of law, or both, that are being
challenged. Moreover, if a question of law is presented, supporting
authority must be cited. If the dispute is over the findings of fact,
the specific facts contested must be identified. In addition, where the
appeal concerns discretionary relief, the appellant must state whether
the alleged error relates to statutory grounds of eligibility or to the
exercise of discretion and must identify the specific factual and legal
finding or findings that are being challenged. Furthermore, the parties
frequently do not file a brief at all.\14\ For instance, in FY 2019,
the Board issued a briefing schedule in approximately 17,069 cases. Of
those, the respondent did not file a brief in approximately 4,400
cases, DHS did not file a brief in roughly 10,900 cases, and neither
party filed a brief in over 3,000 cases.\15\
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\14\ Neither the appellee nor the appellant is required to
submit a brief. The party taking an appeal will indicate on Form
EOIR 26, Notice of Appeal from a Decision of an Immigration Judge,
whether it intends to submit a brief on appeal by checking a box.
\15\ These numbers treat the filing of a motion to summarily
affirm the decision below as the filing of a brief. These numbers do
not exclude cases in which a party indicated on the Notice of Appeal
that it did not intend to file a separate brief.
---------------------------------------------------------------------------
Consequently, although the changes will allow the Board to more
expeditiously address its growing caseload, they should have relatively
little impact on the preparation of cases by the parties on appeal.
Further, it is expected that these changes will shorten the time
required for a case to work through the BIA's adjudicatory process,
enabling the BIA to maximize its adjudicatory capacity and EOIR to meet
its obligation to complete cases in an expeditious manner. EOIR will be
able to adjudicate more cases annually, ensuring that both parties
receive a final decision expeditiously following notice and an
opportunity to be heard consistent with the requirements of due
process.
B. Simultaneous Briefing
Additionally, the Department proposes to adopt simultaneous
briefing schedules instead of consecutive briefing schedules for cases
involving aliens who are not in custody. This change would reduce
adjudicatory delay by shortening the briefing period for non-detained
cases from a total of 63 days (21 days for the initial brief, plus a
21-day extension, and 21 days for the responsive brief) to a total of
35 days (21 days for simultaneous briefs, plus a 14-day extension), not
counting any time needed for preparation of a transcript
[[Page 52499]]
and setting the briefing schedule or filing of a reply brief, if
applicable. This change in turn will enable the BIA to more
expeditiously review and adjudicate non-detained appeals. The proposed
regulation maintains the BIA's ability to permit reply briefs in
certain cases. 8 CFR 1003.3(c).
The Department previously considered simultaneous briefing for all
appeals but ultimately adopted the practice only for detained appeals.
67 FR 54895. Simultaneous briefing has worked well for appeals
involving aliens who are in custody, and upon further consideration,
there is no apparent reason not to apply it to non-detained cases as
well, particularly when both parties are frequently represented on
appeal and one or both parties may often choose not to file a brief at
all. It is also important to harmonize the briefing requirements to the
maximum extent possible to ensure that all cases--and not solely
detained cases--are adjudicated in a timely manner. Both the parties
and the Department have a strong interest in ensuring that appeals are
adjudicated expeditiously, and there is currently no legal or
operational reason to adjudicate non-detained cases in a less efficient
manner than detained cases. In light of the Department's experience
with simultaneous briefing in detained cases, the Department believes
that, whatever basis there may have been previously to treat the two
categories of cases differently, see id., those reasons are no longer
sufficiently compelling to warrant the continued disparate treatment of
detained and non-detained cases on appeal. To that end, the Department
believes that implementing simultaneous briefing would allow non-
detained cases to be adjudicated in a more expeditious manner. The
Department also notes that this change is consistent with a previously-
expressed public concern that treating two classes of appellants
differently--i.e., non-detained aliens and detained aliens--was
``inequitable and fundamentally unfair.'' See 61 FR 18902-03.
C. BIA Remands for Identity, Law Enforcement, or Security
Investigations or Examinations
The Department proposes to revise 8 CFR 1003.1(d)(6)(ii) to provide
that, when a case before the BIA requires completing or updating
identity, law enforcement, or security investigations or examinations,
the exclusive course of action would be for the BIA to place the case
on hold while identity, law enforcement, or security investigations or
examinations are being completed or updated, unless DHS reports that
identity, law enforcement, or security investigations or examinations
are no longer necessary or until DHS does not timely report the results
of completed or updated identity, law enforcement, or security
investigations or examinations. Under this NPRM, the BIA would no
longer remand a case to the immigration court for the sole purpose of
completing or updating identity, law enforcement, or security
investigations or examinations, which has become a common practice in
the 14 years since the relevant regulations were last updated. See,
e.g., Matter of S-A-K- and H-A-H-, 24 I&N Dec. 464, 466 (BIA 2008)
(order sustaining appeal and remanding the case to the immigration
judge for DHS to complete or update background checks). There is no
apparent operational reason why the BIA cannot hold a decision until it
receives information from DHS regarding completed or updated identity,
law enforcement, or security investigations or examinations. And
routinely remanding cases solely for that purpose both needlessly
delays resolution of a case and takes up space on an immigration court
docket that could otherwise be used to address another case. In light
of the growing immigration court backlog and the necessity to preserve
overburdened judicial resources at the immigration courts, it is
appropriate to remove the option to remand cases to the immigration
court for the sole purpose of completing or updating identity, law
enforcement, or security investigations or examinations to ensure that
such cases are addressed as expeditiously as possible.\16\ The Board
need not hold a case, however, if it decides to dismiss a respondent's
appeal or to deny the relief or protection sought. 8 CFR
1003.1(d)(6)(iv).\17\
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\16\ As discussed further, infra, the Board may remand cases to
the immigration judge in which the identity, law enforcement, or
security investigations or examinations need to be completed or
updated but DHS has not timely reported the results of those checks.
Further, DHS may move to remand a case based on the results of the
identity, law enforcement, or security investigations or
examinations.
\17\ The proposed rule makes conforming edits to 8 CFR
1003.1(d)(6)(iv) due to the proposed changes to 8 CFR
1003.1(d)(6)(ii). It also makes a clarifying edit to 8 CFR
1003.1(d)(6)(iv) in recognition of the fact that the Board considers
appeals of applications for protection--e.g., withholding of removal
under the INA or protection under the CAT--in addition to appeals of
applications for relief.
---------------------------------------------------------------------------
Only if the results are not reported by DHS within 180 days of the
Board's notice of placing a case on hold will the Board remand a case
to an immigration court for further proceedings. The proposed rule
makes clear, however, that the Board may also remand a case if the
results of the identity, law enforcement, or security investigations or
examinations raise an issue that should be considered by the
immigration judge in the first instance.
Additionally, the Department proposes to authorize the BIA to deem
an application abandoned when the applicant fails, after being notified
by DHS, to comply with the requisite procedures for DHS to complete the
identity, law enforcement, or security investigations or examinations
within 90 days of the BIA's notice that the case is being placed on
hold for the completion of the identity, law enforcement, or security
investigations or examinations. This change provides the BIA with
similar authority already delegated to immigration judges pursuant to 8
CFR 1003.47(c) and (d).\18\ The Department believes that authorizing
the BIA to deem such applications abandoned will promote uniformity in
EOIR adjudicatory procedure and maximize the prompt adjudication of
cases.
---------------------------------------------------------------------------
\18\ Because DHS is responsible for biometrics checks for
detained aliens, because a non-detained alien will have already had
biometrics taken at the immigration court level, and because the
biometrics checks can often be updated without requiring the alien
to be fingerprinted again, see U.S. Citizenship & Immigration
Servs., Dep't of Homeland Sec., Fingerprint Check Update Request:
Agreement Between USCIS and ICE (July 27, 2016), https://www.uscis.gov/forms/fingerprints/fingerprint-check-update-request-agreement-between-uscis-and-ice, the alien will not generally need
to do anything once the BIA issues its notice. Nevertheless, the
BIA's notice will notify the alien that, if the alien is non-
detained and biometrics need to be taken again, DHS will contact the
alien.
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D. Finality of BIA Decisions and Voluntary Departure Authority
The Department proposes to amend 8 CFR 1003.1(d)(7) to provide
further guidance regarding the finality of BIA decisions. First, the
Department proposes to add a new paragraph (d)(7)(i) to clarify that
the BIA has authority to issue final orders when adjudicating an
appeal, including final orders of removal when a finding of
removability has been made by an immigration judge and an application
for protection or relief from removal has been denied; \19\ grants of
relief or
[[Page 52500]]
protection from removal; and orders to terminate or dismiss
proceedings. Most circuit courts to consider this issue have concluded
that the BIA possesses such authority.\20\ See, e.g., Sosa-Valenzuela
v. Gonzales, 483 F.3d 1140, 1146 (10th Cir. 2007) (collecting cases);
accord Solano-Chicas v. Gonzales, 440 F.3d 1050, 1054 (8th Cir. 2006)
(``[T]he BIA's power is not just one of merely affirming or reversing
IJ decisions; it may order relief itself. We find it entirely
consistent that the BIA also may deny status and order an alien
removed.'' (internal citations omitted)).
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\19\ An immigration judge generally will not consider an
application for protection or relief from removal until a finding of
removability has been made. Thus, in cases in which an immigration
judge has terminated proceedings after finding an alien not
removable, DHS has appealed that decision, and the Board sustains
the appeal, the Board would remand that case to the immigration
judge for consideration of any applications for protection or relief
the alien may choose to file rather than issuing an order of removal
in the first instance.
\20\ The Department is not aware of a circuit court that has
concluded to the contrary. Although the Ninth Circuit in 2004 held
the Board lacked such authority, it reversed itself in 2007 and
agreed with three other circuits that the Board does possess such
authority. See Lolong v. Gonzales, 484 F.3d 1173, 1176 (9th Cir.
2007) (overruling Molina-Camacho v. Ashcroft, 393 F.3d 937 (9th Cir.
2004)).
---------------------------------------------------------------------------
The Department also proposes to add a new paragraph (d)(7)(iii) to
8 CFR 1003.1 to delegate clear authority to the BIA to consider issues
relating to the immigration judge's decision on voluntary departure de
novo and, within the scope of the BIA's review authority on appeal, to
issue final decisions on requests for voluntary departure based on the
record of proceedings. The proposed rule enumerates procedural and
substantive requirements related to this authority, including, inter
alia, the content of advisals that the BIA must provide to the alien,
the means by which the BIA must provide advisals, the means by which an
alien may accept or decline the BIA's grant of voluntary departure, and
how an alien is required to post a voluntary departure bond. These
amendments follow the current regulations regarding voluntary departure
before the immigration court at 8 CFR 1240.26 and are intended to
create analogous authority at the BIA, based on the record developed at
the immigration judge hearing.
Additionally, the proposed rule would directly state that the BIA
may not remand a case to the immigration court solely to consider a
request for voluntary departure under section 240B(b) of the INA.
Because the Board may provide relevant advisals to a respondent
regarding voluntary departure; because appeals raising the issue of
voluntary departure will proffer a respondent's eligibility for that
relief before the immigration court (or else the issue will be deemed
waived); and because the record will otherwise contain evidence of such
eligibility (or else the opportunity to present such evidence will be
deemed waived), a remand solely to consider that issue is a waste of
resources and places wholly unnecessary burdens on immigration courts.
In short, there is no operational reason that the BIA cannot resolve a
request for voluntary departure rather than remanding the case to an
immigration judge, prolonging the case unnecessarily, and inviting an
additional appeal if the respondent disagrees with the immigration
judge's determination. Any BIA final order or grant of voluntary
departure would continue to be a legal determination based upon the
facts as found by the immigration judge during the course of the
underlying proceedings, subject to a ``clearly erroneous'' standard.
Moreover, for cases in which an immigration judge failed to provide
advisals related to a request for voluntary departure, the Board can
provide such advisals without needing to engage in factfinding--and
without remanding the case--because the advisals are established by
regulation.
Together with the amendment to the identity, law enforcement, or
security investigations or examinations procedures described above,
these amendments would ensure that the BIA is empowered to make all
relevant decisions related to an appeal and prevent the BIA from
issuing an order to remand a case solely to instruct the immigration
judge to issue a particular final order that is within the BIA's
authority.
E. Prohibition on Consideration of New Evidence, Limitations on Motions
To Remand, Factfinding by the BIA, and the Standard of Review
The Department proposes several changes to clarify the BIA's
ability to take certain actions in adjudicating an appeal to ensure
that appeals are adjudicated in a timely fashion without undue remands
and consistent with the applicable law. First, the Department proposes
to limit the scope of motions to remand that the BIA may consider.
Under the proposed paragraph (d)(7)(v) to 8 CFR 1003.1, the BIA would
be prohibited from receiving new evidence on appeal, remanding a case
for the immigration judge to consider new evidence in the course of
adjudicating an appeal, or considering a motion to remand based on new
evidence. Parties who wish to have new evidence considered in other
circumstances may file a motion to reopen in accordance with the
standard procedures for such motions, i.e., compliance with the
substantive requirements for such a motion at 8 CFR 1003.2(c). There
would be three exceptions to these prohibitions. The first would be for
new evidence that is the result of identity, law enforcement, or
security investigations or examinations, including civil or criminal
investigations of immigration fraud.\21\ The second would be for new
evidence pertaining to a respondent's removability under the provisions
of 8 U.S.C. 1182 and 8 U.S.C. 1227. The third would be for new evidence
that calls into question an aspect of the jurisdiction of the
immigration courts, such as evidence pertaining to alienage, e.g.,
Matter of Fuentes, 21 I&N Dec. 893, 898 (BIA 1997) (EOIR has no
jurisdiction over United States citizens), or EOIR's authority vis-
[agrave]-vis DHS regarding an application for immigration benefits,
see, e.g., 8 U.S.C. 1158(b)(3)(C) (DHS has initial jurisdiction over an
asylum application filed by a genuine unaccompanied alien child (as
defined in 6 U.S.C. 279(g))); Matter of M-A-C-O-, 27 I&N Dec. 477, 480
(BIA 2018) (an immigration judge has initial jurisdiction over an
asylum application filed by a respondent who was previously determined
to be an unaccompanied alien child but who turned 18 before filing the
application); Matter of Martinez-Montalvo, 24 I&N Dec. 778, 778-89 (BIA
2009) (immigration judges have no jurisdiction to adjudicate an
application filed by an arriving alien seeking adjustment of status
under the Cuban Refugee Adjustment Act of November 2, 1966, with the
limited exception of an alien who has been placed in removal
proceedings after returning to the United States pursuant to a grant of
advance parole to pursue a previously filed application); Matter of
Singh, 21 I&N Dec. 427, 433-34 (BIA 1996) (EOIR lacks jurisdiction over
legalization applications pursuant to section 245A of the INA).
---------------------------------------------------------------------------
\21\ The proposed rule makes clear that nothing in the
regulation prohibits the Board from remanding a case based on new
evidence or information obtained after the date of the immigration
judge's decision as a result of identity, law enforcement, or
security investigations or examinations, including investigations
occurring separate from those required by 8 CFR 1003.47.
---------------------------------------------------------------------------
Ordinarily the BIA does not consider new evidence on appeal. Matter
of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984). In other cases, however,
it will remand a case for consideration of new evidence when the alien
``ha[s] met the `heavy burden' of showing that the new evidence
presented `would likely change the result in the case.' '' Matter of L-
O-G-, 21 I&N Dec. 413, 420 (BIA 1996) (quoting Matter of Coelho, 20 I&N
Dec. at 473). It will also sometimes construe the submission of new
evidence on appeal as a motion to remand for further factfinding
pursuant to 8 CFR 1003.1(d)(3)(iv). The lines
[[Page 52501]]
between these three views of new evidence on appeal are not clearly
delineated and may lead to inconsistent application. Cf. Ramirez-
Alejandre v. Ashcroft, 319 F.3d 365, 376 (9th Cir. 2003) (``However,
the BIA was inconsistent with respect to its treatment of relevant
supplemental evidence tendered on appeal. It did not have formal
procedures for consideration of such evidence. In some cases, it
accepted the evidence; in other cases it remanded for further findings;
and in some, like the present case, it declared itself precluded from
entertaining the evidence.''). Their lack of clarity also allows
gamesmanship on appeal--e.g., a respondent whose application is denied
might seek additional evidence to present on appeal in order to procure
a second attempt at establishing eligibility, even though such evidence
should have been presented in the first instance. Although a motion to
remand must ``be based on new, previously unavailable'' evidence,
Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 192 (BIA 2018), respondents
frequently seek remands based on evidence that could have been
submitted to the immigration judge in the first instance. Consequently,
to eliminate confusion, avoid inconsistent results, and encourage the
presentation of all available and probative evidence at the trial level
before an immigration judge, the Department believes it is appropriate
to establish a clearer, bright-line rule regarding the submission of
new evidence on appeal.
Prohibiting the BIA from considering new evidence on appeal as a
ground for remand is in keeping with the general authority of EOIR
adjudicators to manage the filing of applications and collection of
relevant documents. Additionally, this prohibition reduces the
likelihood of the need for a remand to the immigration court given the
BIA's general inability to engage in factfinding about the newly
proffered evidence. The proposed exceptions cover situations in which
the need for a remand due to new evidence--e.g., to address an issue of
alienage or removability--overrides any other consideration because the
new evidence calls into question the availability or scope of
proceedings in the first instance. In all other situations, the
potential for gamesmanship, the need to ensure that evidence is heard
in a timely manner at the trial level, and the operational burden of
sending the case back to an immigration judge to begin the adjudicatory
process anew strongly counsel against allowing the Board to consider
allegedly new evidence on direct appeal. Given the requirement to
submit relevant evidence within the deadlines set by the immigration
judge and the ability to submit newly discovered or previously
unavailable evidence as part of a motion to reopen, the Department
believes that these changes are an appropriate means to reduce remands
and ensure the BIA is able to move forward independently with as many
appeals as possible without further delay.
An immigration judge loses jurisdiction over a motion to reopen
that is pending when an appeal of the immigration judge's decision is
filed with the BIA, and an immigration judge lacks jurisdiction over a
motion to reopen filed while an appeal is already pending at the BIA.
See 8 CFR 1003.23(b)(1). The proposed rule would remove 8 CFR
1003.2(c)(4) and eliminate the treatment of motions to reopen in such
situations as motions to remand for the same reasons that the proposed
rule seeks to establish clearer rules for the submission of new
evidence and the handling of remands by the BIA. Due to the requirement
to submit relevant evidence within the deadlines set by the immigration
judge and the ability to submit newly discovered or previously
unavailable evidence as part of a motion to reopen, these changes are
an appropriate means to reduce remands and ensure the BIA is able to
move forward independently with as many appeals as possible without
further delay.
The Department proposes to more clearly delineate the circumstances
in which the BIA may engage in factfinding on appeal. Because the BIA
is not authorized to consider new evidence on appeal, see 8 CFR
1003.1(d)(3)(iv), and because an issue not raised before the
immigration judge is waived, see, e.g., Matter of J-Y-C-, 24 I&N Dec.
260, 266 n.1 (BIA 2007), the BIA should not have any need to engage in
factfinding in the mine run of immigration case appeals, nor should it
have a need to remand for further factfinding. To that end, the
proposed rule more clearly spells out the limitations on the Board's
ability to remand for additional factfinding, subject to an exception
related to factual issues raised by identity, law enforcement, or
security investigations or examinations, or other investigations as
noted above in footnote 21.
Nevertheless, the Department recognizes that there may be
situations in which the Board should engage in factfinding and proposes
to clarify limited circumstances in which the Board may do so--i.e.,
situations in which the Board may take administrative notice of facts
that are not reasonably subject to dispute, such as current events, the
contents of official documents outside the record, or facts that can be
accurately and readily determined from official government sources and
whose accuracy is not disputed. The proposed rule makes clear, however,
that if the Board intends to administratively notice a fact outside the
record that would be the basis for overturning a grant of relief or
protection issued by an immigration judge, the Board must give notice
to the parties and an opportunity for them to address the matter.
The Department further proposes to amend the regulations to make
clear that the Board may take administrative notice of any undisputed
facts contained in the record. There is simply no operational or legal
reason to remand a case for factfinding if the record already contains
evidence of undisputed facts, and the BIA may appropriately rely on
such facts without remanding the case. See generally Guerrero-Lasprilla
v. Barr, 140 S. Ct. 1062, 1072 (2020) (holding that ``the application
of a legal standard to established or undisputed facts'' is a question
of law).\22\ To that end, the proposed rule also makes clear that the
BIA may affirm the decision of the immigration judge or DHS on any
basis supported by the record, including a basis supported by facts
that are not disputed.\23\
---------------------------------------------------------------------------
\22\ Facts may be undisputed when the one party proffers them
and the opposing party concedes the truth of those facts, see, e.g.,
Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193, 193-94 (BIA 2010), or
when they are found by the immigration judge and they are ``not
meaningfully challenged on appeal,'' Matter of Diaz & Lopez, 25 I&N
Dec. 188, 189 (BIA 2010).
\23\ Although the Board is not an Article III appellate
tribunal, this rule also follows the longstanding principle of
federal appellate review that a reviewing court may affirm a lower
court decision on any basis contained in the record. See, e.g.,
Richison v. Ernest Group, Inc., 634 F.3d 1123, 1130 (10th Cir. 2011)
(``We have long said that we may affirm on any basis supported by
the record, even if it requires ruling on arguments not reached by
the district court or even presented to us on appeal.''); cf.
Helvering v. Gowran, 302 U.S. 238, 245 (1937) (``In the review of
judicial proceedings the rule is settled that, if the decision below
is correct, it must be affirmed, although the lower court relied
upon a wrong ground or gave a wrong reason.'').
---------------------------------------------------------------------------
Finally, the proposed rule would make clear that the BIA cannot
remand a case based solely on the ``totality of the circumstances.''
Although the Board sometimes uses that standard to justify remanding a
case, there is no statutory or regulatory basis for this standard.
Accordingly, the proposed rule makes clear that the BIA could not
employ such a standard in its review.
[[Page 52502]]
F. Scope of a Board Remand
When the Board remands a case, it divests itself of jurisdiction
unless jurisdiction is expressly retained. Matter of Patel, 16 I&N Dec.
at 601. When this is done, unless the Board qualifies or limits the
remand for a specific purpose, the remand is effective for the stated
purpose and for consideration of any and all other matters as
appropriate. Id. Cases remanded for the completion of identity, law
enforcement, or security investigations or examinations pursuant to 8
CFR 1003.47(h) are also treated as general remands, and an immigration
judge may consider new evidence in such a remanded case ``if it is
material, was not previously available, and could not have been
discovered or presented at the former hearing.'' Matter of M-D-, 24 I&N
Dec. at 141. Circuit courts have construed Matter of Patel to mean that
the BIA can only limit the scope of its remand if it (1) expressly
retains jurisdiction and (2) qualifies or limits the scope of remand.
Bermudez-Ariza, 893 F.3d at 688; Johnson, 286 F.3d at 701.
Confusion arises, however, because no regulation allows the Board
to expressly retain jurisdiction over a remanded case, and the Board
rarely, if ever, does so in practice. See BIA Practice Manual at 76
(``Once a case has been remanded to the Immigration Judge, the only
motion that the Board will entertain is a motion to reconsider the
decision to remand.''). Consequently, even though a Board remand may
clearly be intended for a limited purpose, the Board's failure to
explicitly state that it is retaining jurisdiction over an appeal while
simultaneously remanding the case--consistent with both its practice
and the lack of clear regulatory authority to do so--means that the
remand is not actually so limited. See, e.g., Bermudez-Ariza, 893 F.3d
at 688-89 (``We think it likely that the BIA limited the scope of
remand to a specific purpose in this case by stating that it was
remanding `for further consideration of the respondent's claim under
the Convention Against Torture.' That said, the BIA's remand order
nowhere mentioned jurisdiction, much less expressly retained it. Thus,
irrespective of whether the BIA qualified or limited the scope of
remand, the IJ had jurisdiction to reconsider his earlier decisions . .
. .'').
Put differently, even if the Board clearly indicates that the
remand is for a limited purpose, most--if not all--of its remands would
be interpreted to be general remands allowing for consideration of
issues well beyond the intended scope of the remand. Consequently, even
where the Board clearly intends a remand to be for a limited purpose,
an immigration judge faces potential confusion regarding the scope of
the remand and will often treat the order as a general remand that
would allow consideration of other issues. See id. (a remand to
consider a claim under the CAT does not preclude consideration of an
asylum claim because the Board did not specifically reserve
jurisdiction); see also Matter of M-D-, 24 I&N Dec. at 141-42 (a remand
for completion of background checks for one application does not
preclude consideration of new evidence for another application).
To eliminate this confusion for immigration judges, the Department
proposes to amend the regulations to make it clear that the Board may
limit the scope of a remand while simultaneously divesting itself of
jurisdiction on remand.\24\ Thus, a remand for a limited purpose--e.g.,
the completion of identity, law enforcement, or security investigations
or examinations--would be limited solely to that purpose consistent
with the Board's intent, and the immigration judge would be precluded
from considering any issues beyond the scope of the remand.
---------------------------------------------------------------------------
\24\ The only exception would be cases in which the Board
remands a case to an immigration court due to the court's failure to
forward the administrative record in response to the Board's
request.
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G. Immigration Judge Quality Assurance Certification of a BIA Decision
To ensure the quality of Board decision-making, the Department
proposes to allow immigration judges to certify BIA decisions reopening
or remanding proceedings for further review by the Director in
situations in which the immigration judge alleges that the BIA made an
error. Currently, there is no clear mechanism to efficiently address
concerns regarding errors made by the BIA in reopening or remanding
proceedings. Although parties may file a motion to reconsider, that
process is cumbersome, time-consuming, and may not fully address the
alleged error. If the error inures to the favor of DHS, the respondent
must again wait for an order of removal in order to bring another
appeal, either to the BIA or to federal court through a petition for
review. If the error inures to the favor of the respondent, DHS has no
effective mechanism of correcting the error, except through another
hearing and an appeal to the BIA. Additionally, an erroneous remand by
the BIA inappropriately affects an immigration judge's performance
evaluation by affecting that judge's remand rate, which is a component
of the judge's performance evaluation. Overall, an immigration judge is
in the best position to identify an error made by the BIA and to seek
to remedy it expeditiously without needlessly placing additional
burdens on the parties. Consequently, the Department has determined
that it is appropriate to ensure immigration judges have a mechanism
through which they can request the correction of errors by the Board
and thereby improve the quality of adjudications as whole.
The Department's proposal is limited only to cases in which the
immigration judge articulates a specific error allegedly committed by
the Board within a narrow set of criteria: (1) The Board decision
contains a typographical or clerical error affecting the outcome of the
case; (2) the Board decision is clearly contrary to a provision of the
INA, any other immigration law or statute, any applicable regulation,
or a published, binding precedent; (3) the Board decision is vague,
ambiguous, internally inconsistent, or otherwise did not resolve the
basis for the appeal; or (4) a material factor pertinent to the
issue(s) before the immigration judge was clearly not considered in the
Board decision. These criteria are used in similar circumstances at
other adjudicatory agencies, e.g., HALLEX I-3-6-10 (delineating
criteria for protests of decisions by SSA ALJs or administrative
appellate judges), and they are intended to strike an appropriate
balance in situations in which errors by the Board should be corrected
as quickly as possible.
The Department's proposal also outlines three procedural criteria
that an immigration judge must follow in order to certify a Board
decision for review: (1) The certification order must be issued within
30 days of the Board decision if the alien is not detained and within
15 days of the Board decision if the alien is detained; (2) the
immigration judge, in the certification order, must specify the
regulatory basis for the certification and summarize the underlying
procedural, factual, or legal basis; and (3) the immigration judge must
provide notice of the certification to both parties. To ensure a
neutral arbiter between the immigration judge and the Board, such
certification orders would be reviewed by the Director. In reviewing
such orders, the Director would have delegated authority from the
Attorney General similar to that of the Board but would be limited in
deciding the merits of the case. For a case certified to the Director,
the Director would be allowed to dismiss
[[Page 52503]]
the certification and return the case to the immigration judge or to
remand the case back to the Board for further proceedings; the
Director, however, would not issue an order of removal, grant a request
for voluntary departure, or grant or deny an application for relief or
protection from removal. Finally, the Department's quality assurance
certification process would make clear that it is a mechanism to ensure
that BIA decisions are accurate and dispositive--and not a mechanism
solely to express disagreements with Board decisions or to lodge
objections to particular legal interpretations.
H. 8 CFR 1003.1(d)(1)(ii) and 1003.10(b)
Prior to 2012, the Department did not consider 8 CFR
1003.1(d)(1)(ii) or 1003.10(b), or similar language in 8 CFR part 1240,
to authorize an immigration judge or the Board to unilaterally
administratively close a case over a party's objection. In fact,
longstanding Board precedent was clear that an immigration judge was
required both to complete a case and to complete it through only one of
three avenues: An order of termination, an order of removal, or an
order of relief \25\ or protection. Matter of Chamizo, 13 I&N Dec. at
437.
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\25\ Relief, as used here, includes voluntary departure, even
though such an order is issued with an alternate order of removal. 8
CFR 1240.26(d).
---------------------------------------------------------------------------
Further, as previously noted, longstanding Board precedent and
well-established administrative law separation-of-function principles
strongly oppose placing the immigration judge in the role of the
prosecutor and determining which immigration cases should be
adjudicated and which ones should not. See, e.g., Matter of Quintero,
18 I&N Dec. at 350; cf. Lopez-Telles v. INS, 564 F.2d at 1304; Matter
of Silva-Rodriguez, 20 I&N Dec. at 449-50.
Nevertheless, the Board in 2012 departed from these established
precedents without explanation and held that an immigration judge--and
by extension, the Board itself--could unilaterally determine which
cases should not be adjudicated by administratively closing cases over
the objections of one or both parties. Matter of Avetisyan, 25 I&N Dec.
at 690. In doing so, the Board did not substantively engage with its
prior precedent, e.g., Matter of Chamizo, Matter of Quintero, or Matter
of Roussis. Rather, it simply asserted--paradoxically and without
justification--that its decision would not preclude DHS from pursuing
removal proceedings, even though administrative closure, in fact, does
preclude DHS from pursuing the removal proceedings while the
administrative closure order is in effect.\26\ Compare Matter of
Avetisyan, 25 I&N Dec. at 694 (``Although administrative closure
impacts the course removal proceedings may take, it does not preclude
the DHS from . . . pursuing those proceedings . . . .''), with Matter
of Amico, 19 I&N Dec. 652, 654 (BIA 1988) (``When a case is
administratively closed, the respondent is allowed . . . to avoid an
order regarding his deportability, and the consequences an order of
deportation could bring.''). It also did not address regulatory
provisions that assign the authority to defer adjudication of cases to
the Director, the Board Chairman, and the Chief Immigration Judge--but
not to immigration judges or Board members themselves. See 8 CFR
1003.0(b)(1)(ii), 1003.1(a)(2)(i)(C), 1003.9(b)(3). Further, the Board
did not acknowledge that, if 8 CFR 1003.1(d)(1)(ii) and 1003.10(b)
provided freestanding authority for administrative closures, then other
regulatory provisions that do expressly provide for such closures would
be superfluous. See, e.g., 8 CFR 1245.13(d)(3)(i) (stating that
immigration judges or the BIA ``shall, upon request of the alien and
with the concurrence of [DHS], administratively close the
proceedings''). Finally, the Board did not address the reference in 8
CFR 1003.1(d)(1)(ii) and 1003.10(b) to the ``disposition'' of cases,
which ordinarily connotes a final or dispositive decision, which an
order of administrative closure is not. Compare Black's Law Dictionary
(11th ed. 2019) (defining ``disposition'' as ``[a] final settlement or
determination'' (emphasis added)), with Matter of Avetisyan, 25 I&N
Dec. at 695 (describing the ``fact that administrative closure does not
result in a final order'' as ``undisputed'') and Matter of Amico, 19
I&N Dec. at 654 n.1 (``The administrative closing of a case does not
result in a final order.'').
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\26\ Although DHS could still move to recalendar proceedings
after Matter of Avetisyan, such recalendaring was no longer
automatic, and it would be strange to expect an immigration judge to
simply recalendar a case upon a motion by DHS that he or she had
already determined should not proceed.
---------------------------------------------------------------------------
In 2018, the Attorney General overruled Matter of Avetisyan and
expressly renounced reliance on 8 CFR 1003.1(d)(1)(ii) and 1003.10(b)
as a basis for Board members and immigration judges to utilize a
freestanding authority to administratively close cases. See Matter of
Castro-Tum, 27 I&N Dec. at 284 (``Neither section 1003.10(b) nor
section 1003.1(d)(1)(ii) confers the authority to grant administrative
closure. Grants of general authority to take measures `appropriate and
necessary for the disposition of such cases' would not ordinarily
include the authority to suspend such cases indefinitely.
Administrative closure, in fact, is the antithesis of a final
disposition. These provisions further direct immigration judges or the
Board to resolve matters `in a timely fashion'--another requirement
that conflicts with a general suspension authority.'').\27\ Although
the Department continues to maintain that Matter of Castro-Tum is the
correct reading of the law, it also seeks to codify that determination
in the regulations in order to eliminate any residual confusion
regarding the scope of 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) and
associated regulations in 8 CFR part 1240.
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\27\ The Board is subject to the decisions of the Attorney
General under 8 CFR 1003.1(d)(1)(i), which provides that the Board
shall be governed by the provisions and limitations prescribed by
applicable law, regulations, and procedures, and by decisions of the
Attorney General. Also, section 1003.1(d)(1)(ii) provides that the
authority of the Board in adjudicating cases is ``[s]ubject to [the]
governing standards'' in paragraph (d)(1)(i). Immigration judges are
similarly subject to the Attorney General's decisions under 8 CFR
1003.10(d).
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To that end, the Department proposes to amend 8 CFR
1003.1(d)(1)(ii) and 1003.10(b) to make clear that those provisions--
and similar provisions in 8 CFR part 1240--provide no freestanding
authority for immigration judges or Board members to administratively
close immigration cases absent an express regulatory or judicially
approved settlement basis to do so. The balance of authority is clear
that DHS exercises prosecutorial functions in immigration proceedings
and that it is inappropriate for neutral arbiters such as immigration
judges or Board members to second-guess DHS prosecution decisions in
order to determine which cases should be prosecuted. See, e.g., Lopez-
Telles, 564 F.2d at 1304; Matter of Quintero, 18 I&N Dec. at 350;
Matter of Roussis, 18 I&N Dec. at 258. Moreover, the regulations make
clear that general authority to defer the adjudication of cases lies
with EOIR leadership and not with individual Board members or
immigration judges themselves. See 8 CFR 1003.0(b)(1)(ii),
1003.1(a)(2)(i)(C), 1003.9(b)(3). Further, as the Attorney General
previously noted, interpreting 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to
allow for general authority for adjudicators to administratively close
cases would render other regulatory provisions referencing such
authority superfluous.
[[Page 52504]]
Finally, as a policy matter, the changes wrought by Matter of
Avetisyan simply exacerbated both the extent of the existing backlog of
immigration court cases and the difficulty in addressing that backlog
in a fair and timely manner. In the six-plus years between the
decisions in Matter of Avetisyan in 2012 and Matter of Castro-Tum in
2018, despite the lowest levels of new case filings by DHS since the
early and mid-2000s, the active pending caseload in immigration
proceedings increased from 301,250 cases to 715,246 cases and the
inactive pending caseload increased from 149,006 cases to 306,785
cases. See EOIR, Adjudication Statistics: Active and Inactive Pending
Cases Between February 1, 2012 and May 17, 2018 (Jan. 30, 2019),
https://www.justice.gov/eoir/page/file/1296536/download. Similarly,
between FY 2012 and FY 2017, the number of completed cases annually
fell below 200,000 for the first time in a decade, including dropping
below 145,000 for three consecutive years and to the lowest overall
number since 1995. EOIR, Adjudication Statistics: New Cases and Total
Completions (Apr. 15, 2020), https://www.justice.gov/eoir/page/file/1139176/download. After averaging approximately 225,000 completions per
year in the five full FYs prior to the FY in which Matter of Avetisyan
was decided, immigration judges averaged only approximately 149,500
completions per year in the five full FYs after it was decided. See id.
This marked decline in productivity, which is correlated with the
increase in the use of administrative closure caused by Matter of
Avetisyan, unquestionably exacerbated the growth in the pending
caseload during that time period.\28\
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\28\ The Department notes that in the first full FY after Matter
of Castro-Tum was decided, it completed the highest number of
immigration court cases in its history. EOIR, Adjudication
Statistics: New Cases and Total Completions (Apr. 15, 2020), https://www.justice.gov/eoir/page/file/1139176/download. That level of
productivity would have been sufficient to reduce the pending
caseload in every FY prior to FY 2017. See id.
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Additionally, by definition, administrative closure lengthens and
delays proceedings because it defers disposition of a case until an
unknown and unpredictable date. Although administrative closure removes
a case from an immigration court's active calendar, it does not remove
the case from the docket. Consequently, the practice of administrative
closure does not reduce the overall pending caseload, and the strain on
immigration courts due to the volume of cases is the same, regardless
of whether administrative closure is available. Moreover, indefinite
delay does not create flexibility in docketing; it merely puts off a
decision until an unknown time in the future. Thus, as additional cases
continue to accrue while an administratively closed case remains
pending, the deferral of a significant number of cases in the present
ultimately undermines the ability of an immigration court to address
both new cases and postponed cases in the future.\29\ Further, the
churning of cases required to separate those to administratively close
and those to proceed, as well as the likelihood of inconsistent
outcomes among immigration judges regarding which cases should proceed
and which ones should not, strongly militates against the use of
administrative closure as an efficient or fair docket management
strategy. Overall, administrative closure does little to manage
immigration court dockets effectively and does much to undermine the
efficient and timely administration of immigration proceedings.
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\29\ For example, in the first full FY after Matter of Castro-
Tum was decided, DHS filed the highest number of new immigration
cases in the Department's history, 537,793, representing a 70
percent increase over the previous high. EOIR, Adjudication
Statistics: New Cases and Total Completions (Apr. 15, 2020), https://www.justice.gov/eoir/page/file/1139176/download. The need to
address both that volume of new cases and the significant volume of
cases deferred following the decision in Matter of Avetisyan, some
of which would have otherwise already been completed, illustrates
that the practice of administrative closure makes fair and efficient
docket administration harder, not easier.
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In short, administrative closure of cases by the immigration judges
or the Board, especially the unilateral use of administrative closure,
failed as a policy matter and is unsupported by the law; accordingly,
the Department proposes to amend 8 CFR 1003.1(d)(1)(ii) and 1003.10(b)
to ensure that it is clearly prohibited unless authorized by a
Department regulation \30\ or a judicially approved settlement
agreement.
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\30\ A regulation applying only to another agency cannot provide
authorization for an immigration judge or Board member to
administratively close a case. Matter of Castro-Tum, 27 I&N Dec. at
277 n.3 (``Regulations that apply only to DHS do not provide
authorization for an immigration judge or the Board to
administratively close or terminate an immigration proceeding.'').
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The Department also proposes to revise Sec. Sec. 1003.1(d)(1)(ii)
and 1003.10(b) for clarity, to provide explicitly that the existing
references in those paragraphs to ``governing standards'' refer to the
applicable governing standards as set forth in the existing provisions
of Sec. Sec. 1003.1(d)(1)(i) and 1003.10(d), respectively.
I. Sua Sponte Authority
As currently constituted, 8 CFR 1003.2(a) and 8 CFR 1003.23(b)(1)
allow the BIA and immigration judges, respectively, to reopen
proceedings or reconsider a decision sua sponte without regard to the
time or number limits that would otherwise apply to motions to reopen
or reconsider filed by a party. This sua sponte authority is entirely a
product of delegated authority from the Attorney General, pursuant to 8
U.S.C. 1103(g)(1)-(2), which is codified in the regulations. See 8 CFR
1003.1(a)(1) (``Board members shall be attorneys appointed by the
Attorney General to act as the Attorney General's delegates in the
cases that come before them.''); 8 CFR 1003.10(a) (``Immigration judges
shall act as the Attorney General's delegates in the cases that come
before them.''). Although use of sua sponte authority is limited to
``exceptional situations,'' Matter of J-J-, 21 I&N Dec. at 984, that
term is not defined by statute or regulation. Further, as explained in
Lenis v. United States Attorney General, ``no statute expressly
authorizes the BIA to reopen cases sua sponte; rather, the regulation
at issue derives from a statute that grants general authority over
immigration and nationalization matters to the Attorney General, and
sets no standard for the Attorney General's decision-making in this
context.'' 525 F.3d 1291, 1293 (11th Cir. 2008).
Notwithstanding the BIA's disclaimer that sua sponte authority ``is
not meant to be used as a general cure for filing defects or to
otherwise circumvent the regulations, where enforcing them might result
in hardship,'' Matter of J-J-, 21 I&N Dec. at 984, and despite the
Supreme Court's instruction that a sua sponte order is one necessarily
independent of any party's motion or request, see Calderon v. Thompson,
523 U.S. 538, 554 (1998), aliens often invite the BIA and immigration
judges to reopen or reconsider a case sua sponte where the alien's
motion for such an action was untimely or otherwise procedurally
improper.\31\ See also
[[Page 52505]]
Gonzales-Veliz v. Barr, 938 F.3d 219, 227 n.3 (5th Cir. 2019) (``If the
BIA does something because an alien requests it to do it, then the
BIA's action cannot be characterized as sua sponte.''); Malukas v.
Barr, 940 F.3d 968, 969 (7th Cir. 2019) (``Reopening in response to a
motion is not sua sponte; it is a response to the motion and thus
subject to the time-and-number limits.'').
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\31\ Despite this case law to the contrary, the Board has
sometimes granted motions using what it erroneously labels as ``sua
sponte'' authority. See, e.g., Matter of Sandra Gabriela Martinez-
Reyes, 2016 WL 6519966 (BIA Sept. 28, 2016) (``Based on the totality
of the circumstances in this case, we will grant the respondent's
motion to reopen to allow her to pursue relief from removal pursuant
to our sua sponte authority.''); Matter of Nana Owusu Poku, 2016 WL
4120576 (BIA July 8, 2016) (``[W]e are granting the motion to reopen
in the exercise of our sua sponte authority.''); Matter of Tania
Suyapa Padgett-Zelaya, 2010 WL 4035400 (Sept. 29, 2010) (``This case
was last before us on August 31, 2009, when we denied the
respondent's motion to reopen as untimely and numerically barred.
The respondent now has filed another motion to reopen based on
changed country conditions in Honduras. We will grant the
respondent's motion sua sponte and will remand the record to the
Immigration Judge for further proceedings consistent with this
order.''). The Board's putative use of its ``sua sponte'' authority
in response to a motion highlights the inherent problems in
exercising sua sponte authority based on procedurally improper
motions or requests.
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Further, eleven federal circuit courts agree that, as a general
matter, no meaningful standards exist to evaluate the BIA's decision
not to reopen or reconsider a case based on sua sponte authority. See
Tamenut v. Mukasey, 521 F.3d 1000, 1004 (8th Cir. 2008) (en banc) (per
curiam); Lenis, 525 F.3d at 1293; Ali v. Gonzalez, 448 F.3d 515, 518
(2d Cir. 2006) (per curiam); Doh v. Gonzales, 193 F. App'x 245, 246
(4th Cir. 2006) (per curium); Enriquez-Alvarado v. Ashcroft, 371 F.3d
246, 249 (5th Cir. 2004), overruled on other grounds by Mata v. Lynch,
576 U.S. 143 (2015); Harchenko v. INS, 379 F.3d 405, 411 (6th Cir.
2004); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003);
Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir. 2003); Belay-Gebru v.
INS, 327 F.3d 998, 1000-01 (10th Cir. 2003); Ekimian v. INS, 303 F.3d
1153, 1159 (9th Cir. 2002); Luis v. INS, 196 F.3d 36, 41 (1st Cir.
1999); accord Malukas, 940 F.3d at 970 (``Gonzalez [v. Crosby, 545 U.S.
524 (2005)] and Calderon require us to reject Malukas's position that
adding the phrase `sua sponte' to an untimely or number-barred motion
makes those limits go away and opens the Board's decision to plenary
judicial review. Instead we reiterate the conclusion of Anaya-Aguilar
v. Holder, 683 F.3d 369, 371-73 (7th Cir. 2012) that, because the Board
has unfettered discretion to reopen, or not, sua sponte, its decision
is not subject to judicial review at all.'').\32\ Consequently, Federal
circuit courts are, in most cases, unable to review decisions not to
reopen or reconsider based on the BIA's or immigration judges' sua
sponte authority. See Tamenut, 521 F.3d at 1004-05 (collecting cases).
---------------------------------------------------------------------------
\32\ Several circuit courts have concluded that there is a
limited exception to this jurisdictional limitation where the BIA's
decision not to exercise its sua sponte authority is based on a
legally erroneous determination, or where a colorable constitutional
issue is raised in a petition for review. See Bonilla v. Lynch, 840
F.3d 575, 587-89 (9th Cir. 2016) (citing 8 U.S.C. 1252(a)(2)(D));
Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013);
Zambrano-Reyes v. Holder, 725 F.3d 744, 751 (7th Cir. 2013); Pllumi
v. U.S. Att'y Gen., 642 F.3d 155, 160 (3d Cir. 2011); Mahmood v.
Holder, 570 F.3d 466, 471 (2d Cir. 2009). Otherwise, however, the
Board's choice not to exercise its sua sponte authority is
unreviewable. See, e.g., Bonilla, 840 F.3d at 586; Mahmood, 570 F.3d
at 471. As noted, however, the Board's authority in these contexts
was not genuinely sua sponte because it involved the Board ruling on
a motion. See Gonzales-Veliz, 938 F.3d at 227 n.3 (``If the BIA does
something because an alien requests it to do it, then the BIA's
action cannot be characterized as sua sponte.''); Malukas, 940 F.3d
at 969 (``Reopening in response to a motion is not sua sponte; it is
a response to the motion and thus subject to the time-and-number
limits.'').
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The Board has never utilized genuine sua sponte authority--rather
than in response to a motion--as the direct basis for any precedential
decision.\33\ Although it has putatively invoked such authority on
occasion--e.g., Matter of X-G-W-, 22 I&N Dec. 71, 73 (BIA 1998)--in
each case its invocation was in response to a motion rather than a true
exercise of its sua sponte authority. Further, although it ostensibly
used its sua sponte authority in response to a motion in 1998 to
effectuate a policy change allowing the Board to grant untimely motions
to reopen due to a fundamental change in law, see id., it subsequently
withdrew from that policy in 2002 due to finality concerns and has not
relied on such authority to effectuate policy in the subsequent 18
years, see Matter of G-C-L-, 23 I&N Dec. 359, 361 (BIA 2002) (ending
the policy of considering untimely motions to reopen asylum claims sua
sponte). The Department has determined that this one-time, sui generis
use of sua sponte authority to make policy, which was subsequently
ended after 4 years and has not been repeated in the subsequent 18
years, does not justify continuing the delegation of such authority
from the Attorney General. To the contrary, the Board's one-time direct
use of genuine sua sponte authority in a precedential decision, coupled
with its more frequent misapplication of the sua sponte label,
demonstrate the problems with such authority and strongly counsel in
favor of withdrawing it.
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\33\ In 2011, the Board did sua sponte reopen a case in an
unpublished interim order and then reinstate an appeal following a
decision by the Ninth Circuit. Following briefing by both parties,
it subsequently issued a precedential decision in the case in 2012.
See Matter of Valenzuela Gallardo, 25 I&N Dec. 838 (BIA 2012).
---------------------------------------------------------------------------
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, the lack of a definition of ``exceptional
situations'' for purposes of exercising sua sponte authority, the
resulting potential for inconsistent application or even abuse of this
authority, the inherent problems in exercising sua sponte authority
based on a procedurally improper motion or request, and the strong
interest in finality, the Attorney General has concluded that such
delegation of sua sponte authority, particularly to the extent that it
may be used to circumvent timing and numerical limits for such motions,
is no longer appropriate. See Doherty, 502 U.S. at 323; Abudu, 485 U.S.
at 107. Although there may be rare instances in which sua sponte
authority could be appropriately used--e.g., correcting clerical
mistakes \34\--the Department has concluded, on balance, that the
negative consequences delineated above outweigh any benefits that may
accrue as a result of Board members or immigration judges retaining
such authority. Accordingly, the regulation would remove the Attorney
General's general delegation of sua sponte authority to the BIA and
immigration judges to reopen or reconsider cases.
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\34\ The Department is retaining the ability of the Board and
immigration judges to use sua sponte authority to correct
ministerial mistakes or typographical errors or to reissue decisions
if service was defective.
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The inherent problems in exercising sua sponte authority based on a
procedurally improper motion or request, its potential for inconsistent
usage and abuse, and the strong interest in bringing finality to
immigration proceedings all strongly outweigh its one-time, limited
usage over 20 ago. First, as noted, genuine sua sponte authority has
been used directly by the Board only once in a precedential decision in
the past several decades and not at all in a precedential decision
since 2002. Second, there is no right by a respondent to the exercise
of sua sponte authority; to the contrary, the Board maintains
``unfettered discretion to reopen, or not, sua sponte.'' Malukas, 940
F.3d at 970. Third, the regulations already contemplate a mechanism for
overcoming time and numerical limitations in order to reopen cases,
thus making sua sponte authority unnecessary, as the time or numerical
limitations that would otherwise prompt a request for sua sponte
reopening do not apply to joint motions to reopen. See 8 CFR
1003.2(c)(3)(iii), 1003.23(b)(4)(iv). Nothing in this proposed rule
precludes the parties from filing such joint motions, including in
situations in which there has been a relevant change in facts or law.
Other regulations similarly provide expressly that the parties may file
a joint
[[Page 52506]]
motion to circumvent time and number limits, rather than rely on an
immigration judge's or the Board's sua sponte authority, when an
intervening event no longer makes an alien removable. See, e.g., 8 CFR
214.11(d)(9)(ii), 214.14(c)(5)(i) (both noting that the parties may
file a joint motion to reopen an order of removal issued by an
immigration judge in order to overcome any time or number bars when an
alien has received a nonimmigrant visa subsequent to the issuance of
the removal order). Moreover, nothing in this proposed rule precludes
the ability of a respondent to argue, in an appropriate case, that a
time limit is inapplicable due to equitable tolling. In short, given
the exceptional nature of a situation required to invoke sua sponte
authority in the first instance, the general lack of use of genuine sua
sponte authority since 2002, and the availability of multiple other
avenues to reopen or reconsider cases and to alleviate the hardships
imposed by time and number deadlines, the Attorney General no longer
sees a need to retain the delegation of sua sponte authority to the
Board or to immigration judges as either a matter of law or policy.
In addition, the Department recognizes that the Board may have
cited its sua sponte authority to reopen--albeit typically in response
to a motion rather than a genuine sua sponte situation--in
circumstances where an alien is no longer removable due, for example,
to an intervening change in law or the vacatur of a criminal conviction
on the merits. To ensure that aliens whose removability is vitiated in
toto prior to the execution of the removal order retain a mechanism for
reopening their proceedings, the Department proposes to amend the
regulations to allow the filing of a motion to reopen, notwithstanding
the time and number bars, when an alien claims that an intervening
change in law or fact renders the alien no longer removable at all and
the alien has exercised diligence in pursuing his or her motion.\35\
This amendment is consistent with current case law allowing the
equitable tolling of the time and number bars for motions to reopen in
exceptional circumstances when an alien has shown diligence in pursuing
the claim. See, e.g., Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357,
1363-64 & n.2 (11th Cir. 2013). To ensure consistency of application
regarding both what constitutes a change in law or fact and whether an
alien exercised diligence, the proposed rule provides that such a
motion could be granted only by a three-member panel at the Board
level. Similarly, the Department proposes to amend the regulations to
allow the filing of a motion to reopen, notwithstanding the time and
number bars, when an individual claims that he or she is a United
States citizen or national in recognition that the law provides
jurisdiction only in removal proceedings for aliens. See 8 U.S.C.
1229a(a)(1).
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\35\ This provision would apply only when the intervening change
vitiated the alien's removability completely--an alien charged with
multiple removability grounds would remain subject to the time and
number bars unless the intervening change vitiated each removability
ground. Additionally, this provision would apply only to grounds of
removability. Aliens arguing that an intervening change in law or
fact affected their eligibility for relief or protection from
removal would remain subject to existing regulatory provisions on
such motions.
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Finally, the Department proposes to amend the regulations to
clarify that the filing of a motion to reopen with the Board by DHS in
removal proceedings or in proceedings initiated pursuant to 8 CFR
1208.2(c) is not subject to the time and numerical limits applicable to
such motions. Such an allowance already exists for DHS motions to
reopen at the immigration court level, 8 CFR 1003.23(b)(1), and
extending that allowance to DHS motions filed with the Board would
provide greater parity between proceedings at the immigration court
level and the appellate level. Moreover, doing so would ameliorate the
effects of the withdrawal of sua sponte authority to reopen cases from
the Board for DHS just as the exceptions discussed above ameliorate any
deleterious effects of the withdrawal of such authority for
respondents.
J. Certification Authority
Current regulations authorize the Board to certify cases to itself
for review but provide no standards for deciding when to exercise that
authority. 8 CFR 1003.1(c). Although the Attorney General has concluded
that the Board's self-certification authority is similar to its sua
sponte authority and, thus, should be used only in ``exceptional''
situations, Matter of Jean, 23 I&N Dec. at 380 n.9, the certification
authority is subject to inconsistent application for the same reasons
as the sua sponte authority. Further, unlike certification requests
made by DHS or an immigration judge, which require notice to the
parties, 8 CFR 1003.7, the Board may certify a case without notice if
it concludes that the parties have been given a fair opportunity to
make representations before the Board regarding the case, 8 CFR
1003.1(c). In those circumstances, however, the parties would not have
had the opportunity to address whether self-certification by the Board
is appropriate--i.e., whether the case presents an exceptional
situation--because they would have had no way of knowing that the Board
was considering taking the case through self-certification.
Additionally, despite clear language requiring the Board to have
jurisdiction over the underlying matter in the first instance in order
to exercise its certification authority, see 8 CFR 1003.1(c)
(restricting self-certification to cases arising under the Board's
appellate jurisdiction), the Board often reverses that principle and
uses its certification authority to avoid deciding a question of
jurisdiction. Compare Matter of Sano, 19 I&N Dec. at 300 (holding that
the use of certification authority to circumvent a jurisdictional
requirement is ``inappropriate''), with, e.g., Matter of Carlos Daniel
Jarquin-Burgos, 2019 WL 5067262, at *1 n.1 (BIA Aug. 5, 2019) (``On
March 29, 2019, we accepted the respondent's untimely appeal. To
further settle any issues of jurisdiction, we accept this matter on
appeal pursuant to 8 CFR 1003.1(c).''), Matter of Daniel Tipantasig-
Matzaquiza, 2016 WL 4976725, at *1 (BIA Jul. 22, 2016) (``To settle any
issues regarding jurisdiction, we will exercise our discretionary
authority to accept this appeal on certification. See 8 CFR
1003.1(c).''), and Matter of Rafael Antonio Hanze Fuentes, 2011 WL
7071021, at *1 n.1 (BIA Dec. 29, 2011) (``In order to avoid any
question regarding our jurisdiction over this appeal, we take
jurisdiction over this matter by certification pursuant to 8 CFR
1003.1(c).'').
Similarly, despite the clear directive in Matter of Jean that
certification should be used only in ``exceptional'' situations, the
Board frequently uses its certification authority in otherwise
unexceptional circumstances, such as to avoid finding appeals untimely,
or to simply correct filing defects. Matter of Alhassan Kamara, 2015
WL4873247, at *1 (BIA Jun. 30, 2015) (``To resolve any issue of
timeliness, we adjudicate the appeal in the exercise of our
certification authority. 8 CFR 1003.1(c).''); Matter of Mohamed Saad
Maroof, 2006 WL 3712722, at *1 n.1 (BIA Nov. 17, 2006) (``We will take
this appeal on certification to correct any filing defects. See 8 CFR
1003.1(c)(2006).''); Matter of Edwin R. Jimenez, 2005 WL 3016034, at *1
n.1 (BIA Aug. 8, 2005) (``To resolve any questions of timeliness, we
will assume jurisdiction over the appeal by certification pursuant to
our authority
[[Page 52507]]
under 8 CFR 1003.1(c).''); cf. Matter of Liadov, 23 I&N Dec. 990, 993
(BIA 2006) (short delays in filing timely are not ``rare'' or
``extraordinary'' such that the acceptance of an appeal through the
Board's certification authority would be warranted).
Due to the lack of clear governing standards, the lack of a
definition of ``exceptional'' situations for purposes of utilizing
self-certification, the potential for lack of notice of the Board's use
of certification authority, the overall potential for inconsistent
application and abuse of this authority, and the strong interest in
finality, the Attorney General has concluded that such delegation of
self-certification authority to the BIA, particularly to the extent it
may be used to circumvent appellate filing deadlines, is no longer
appropriate. Accordingly, for reasons similar to those underlying the
withdrawal of the delegation of sua sponte authority, this rule would
withdraw the delegation of certification authority from the Board. No
other aspect of the regulations governing certification of cases to the
Board would be affected.\36\
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\36\ On November 25, 2002, the President signed into law the
Homeland Security Act of 2002, creating the new DHS and transferring
the functions of the former INS to DHS. Public Law 107-296, tit. IV,
subtitles D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002).
Accordingly, this rule also replaces outdated references to the INS
in 8 CFR 1003.1(c) and 1003.7 with references to DHS.
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K. Timeliness of Adjudication of BIA Appeals
The number of cases pending before EOIR has increased tremendously,
particularly in recent years. EOIR had approximately 130,000 pending
cases in 1998. At the end of FY 2019, EOIR had 1,079,168 pending cases,
up from 430,123 at the end of FY 2014 and 262,748 at the end of FY
2010. See EOIR, Adjudication Statistics: Pending Cases (Apr. 15, 2020),
https://www.justice.gov/eoir/page/file/1242166/download. Put
differently, EOIR's current pending caseload has increased more than
800 percent in the past 21 years.
With the increase in pending cases at the immigration courts, EOIR
has recently begun to have a corresponding increase in the number of
appeals of immigration judge decisions. In FY 2019, 54,092 case appeals
were filed with the BIA--an increase of over 250 percent from FY 2015,
when 15,423 case appeals were filed. The BIA ended FY 2019 with 65,201
pending case appeals, up from 12,677 at the end of FY 2017. EOIR,
Adjudication Statistics: Case Appeals1 Filed, Completed, and Pending
(Oct. 23, 2019), https://www.justice.gov/eoir/page/file/1198906/download. Paradoxically, although the Board operated with between 16
and 21 adjudicators for all of FY 2018, adjudications of case appeals
actually fell by roughly 500 from FY 2017 when it had no more than 16
adjudicators for nearly all of the fiscal year. Id. Case appeal
completions fell yet again in FY 2019, by nearly 1500, even though the
Board operated with at least 18 adjudicators--and, at times, as many as
21 total--for the entire fiscal year. Id. Overall, Board productivity
in adjudicating case appeals has declined by 33 percent since FY
2008.\37\ Although the Department has utilized multiple temporary Board
members and increased the number of permanent Board members in 2018,
see Expanding the Size of the Board of Immigration Appeals, 83 FR 8321
(Feb. 27, 2018), an increase in the number of adjudicators is not
necessarily commensurate with an increase in productivity. Due to these
concerns about BIA productivity--and the need to ensure that improved
productivity at the immigration court level is not subverted by
inefficient practices at the administrative appellate level--the
Department believes it is necessary to again review the BIA's
regulations to reduce any unwarranted delays in the appeals process and
to ensure that the BIA's, as well as the rest of EOIR's, resources are
used efficiently.
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\37\ The Board completed 29,433 case appeals in FY 2008, but
only 19,449 in FY 2019. See EOIR, Case Appeals Filed, Completed, and
Pending (Oct. 23, 2019), https://www.justice.gov/eoir/page/file/1198906/download.
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To that end, the Department is changing the BIA's case management
system to ensure that all appeals are being adjudicated in a timely
manner. Currently, except in limited circumstances, appeals assigned to
a single Board member are expected to be decided within 90 days of
completion of the record on appeal, whereas appeals assigned to a
three-member panel are to be decided within 180 days of assignment to
the panel (including any additional opinion by a member of the panel),
which may occur well after the record on appeal is complete. 8 CFR
1003.1(e)(8)(i). Although the Board maintains a single case management
system to screen cases for either single-member or three-member panel
disposition, the current regulatory language sets timeliness deadlines
based on different criteria, which may cause inefficiencies and
potential delays. See 8 CFR 1003.1(e). It has also caused confusion
regarding how the Board tracks cases and raised questions about the
accuracy of the Board's statistics and the timeliness of the Board's
adjudications. See DOJ OIG Report at 50 (``Further, EOIR's tracking
method for the length of appeals does not include total processing
times for appeals. Depending on the type of review--one or three board
members--EOIR counts the appeal processing time from different starting
points. These different starting points significantly skew the reported
achievement of its completion goals for appeals and impede EOIR's
effective management of the appeals process. The total number of days
taken to review and decide appeals, not EOIR's count of days,
represents how long the aliens and the DHS wait for decisions on their
appeals.''). Because the number of appeals has risen considerably in
recent years, the Department believes it is important to eliminate all
potential inefficiencies to ensure that appeals are completed in a
timely manner. Consequently, the Department is changing the regulatory
language to harmonize the time limits for adjudicating appeals so that
both the 90- and 180-day deadlines are set from the same starting
point--when the record is complete.
The Department is also implementing additional changes to ensure
that appeals are adjudicated in a timely manner. For example, the
proposed rule establishes specific time frames for review by the
screening panel, processing of transcripts, issuance of briefing
schedules, and review by a single Board member to determine whether a
single member or a three-member panel should adjudicate the appeal,
none of which are considered in the current regulations or tracked
effectively to prevent delays. It also adds tracking and accountability
requirements for the Board Chairman in cases where the adjudication of
appeals must be delayed to ensure that no appeals are overlooked or
lost in the process. It also establishes specific time frames for the
adjudication of summary dismissals, providing substance to the current
language that such cases be identified ``promptly'' by the screening
panel. See 8 CFR 1003.1(d)(2)(ii). Additionally, it establishes
specific time frames for the adjudication of interlocutory appeals,
which are not currently addressed in the regulations, except insofar as
they may be referred to a three-member panel for review. The BIA does
not normally entertain interlocutory appeals, and neither transcripts
nor briefing schedules are generally issued for interlocutory appeals.
See BIA Practice Manual at 63, 70-71. Consequently, there is no reason
[[Page 52508]]
that those appeals also cannot be addressed promptly within 30 days,
unless the BIA determines that they involve ``important jurisdictional
questions regarding the administration of the immigration laws or
recurring questions in the handling of cases by Immigration Judges''
amenable to review by a three-member panel. Id. at 70 (citing Matter of
K-, 20 I&N Dec. 418 (BIA 1991)). Finally, these changes will ensure
that EOIR will ``improve its collecting, tracking, and reporting of BIA
appeal statistics to accurately reflect actual appeal processing
times,'' as has previously been recommended. DOJ OIG Report at 50.
Further, the Department is cognizant that, absent a regulatory
basis for delay,\38\ there is no reason for a typical appeal to take
more than 335 days to adjudicate--including time for transcription,
briefing, and adherence to the existing 90- or 180-day time frames for
decision.\39\ The rule therefore also ensures timely dispositions by
referring appeals pending beyond that mark to the EOIR Director for
adjudication.\40\ As indicated in 8 CFR 1003.1(e)(8)(vi), these changes
reflect management directives in favor of timely dispositions and do
not establish any substantive or procedural rights. Because most
appeals are already decided within these parameters, unless there is a
regulatory or policy basis for delay, the Department expects few, if
any, appeals to need to be referred to the Director. Nevertheless, such
authority is necessary to ensure management oversight consistent with
the Director's authority to ``set priorities or time frames for the
resolution of cases'' and the Director's responsibility ``to ensure the
efficient disposition of all pending cases.'' 8 CFR
1003.0(b)(1)(ii).\41\ Moreover, this delegation of authority to the
Director does not change the applicable law that the Board or the
Director must apply in deciding each appeal, nor does it change
appellate briefing procedures, which would be expected to be completed
before any case would need to be referred. Rather, this delegation
ensures that any unwarranted delays in the adjudication of appeals are
eliminated and any bottlenecks in the Board's processing of appeals are
minimized or eliminated.
---------------------------------------------------------------------------
\38\ For example, in exigent circumstances, the BIA Chairman may
grant a 60-day extension of the 90- and 180-day adjudicatory
processing deadlines currently in the regulations. 8 CFR
1003.1(e)(8)(ii). Additionally, the BIA may place a case on hold
while it awaits the completion or updating of all identity, law
enforcement, or security investigations or examinations. 8 CFR
1003.1(d)(6)(ii)(B). The Chairman may also hold a case pending a
decision by the U.S. Supreme Court or a U.S. Court of Appeals, in
anticipation of a Board en banc decision, or in anticipation of an
amendment to regulations. 8 CFR 1003.1(e)(8)(iii). The proposed rule
amends this last category by removing a pending Court of Appeals
decision and a pending regulatory action as bases for a hold. Unlike
Supreme Court decisions, which are typically issued by the end of a
fixed term, and Board en banc decisions, which are subject to
regulatory timelines discussed herein, neither regulatory actions
nor Court of Appeals decisions have a fixed deadline and may stretch
out for years, making them poor bases to warrant an adjudicatory
delay. In recognition of the need for efficient decision-making and
finality in case adjudications, the rule also places a 120-day limit
on the length of a hold imposed by the Chairman.
\39\ The median time for all appeals from immigration judge
decisions in FY 2019 was 168 days. Excluding interlocutory appeals,
appeals from custody redetermination decisions, and appeals from
decisions on motions to reopen, the median time to completion for
case appeals in FY 2019 was 323 days, which is consistent with the
timeline outlined in the proposed rule. More specifically, the
proposed rule provides that screening should occur no later than 14
days after the notice to appeal is filed with the Board. If there is
funding and vendor availability, the transcript should be ordered
within 7 days, and transcription takes 14 to 28 days. The briefing
schedule is then issued within seven days of receipt of the
transcript. Completion of briefing requires, at most, 63 days under
the current regulation and would require less time under the
proposed rule. Once the record is complete, a single panel member
should review the case within 14 days to determine whether it should
be referred to a three-member panel or adjudicated by that single
Board member. If it is referred, the panel has 180 days to decide
the appeal. Combined, even under the current regulations, a typical
appeal should take no longer than 313 days to adjudicate from the
date it was filed, though the proposed rule provides an additional
allowance to account for miscellaneous delays that may occur due to
human error or movement of the record of proceeding from one
location to another.
\40\ The Attorney General recently delegated authority to the
EOIR Director to potentially adjudicate appeals that have exceeded
the established 90- and 180-day regulatory time limits, unless the
Board Chairman assigns the case to himself or the Vice Chairman.
Organization of the Executive Office for Immigration Review, 84 FR
44537, 44538 (Aug. 26, 2019). As the DOJ OIG previously pointed out,
however, those time limits count only part of the overall appellate
processing time, ``and the parts that are excluded represent a
significant portion of the processing time.'' DOJ OIG Report at 48.
The narrowness of the prior delegation and the lack of an overall
timeliness metric for deciding appeals that accounts for all of the
appellate processing time limits the utility of that delegation in
addressing delays in the overall appeals process.
\41\ The Director is also responsible for providing
``comprehensive, continuing training and support'' for, inter alia,
EOIR staff ``in order to promote the quality and consistency of
adjudications.'' 8 CFR 1003.0(b)(1)(vii). Consequently, the Director
will ensure that any support staff assisting in preparing cases for
adjudication under this delegation of authority are sufficiently
trained. Additionally, the proposed rule makes clear that the
Director may not delegate this authority further to any employee
within EOIR.
---------------------------------------------------------------------------
Finally, the rule removes and reserves 8 CFR 1003.1(e)(8)(iv). That
provision allowed the BIA Chairman to grant an extension of 120 days to
the 90- and 180-day adjudicatory time frames for cases ready for
adjudication as of September 25, 2002, that had not been completed
within those time frames. That provision is no longer necessary because
the relevant dates and time frames have long since passed.
L. Forwarding the Record on Appeal
The Department is also revising 8 CFR 1003.5 regarding the
forwarding of the record of proceedings in an appeal to ensure that the
transcription process does not cause any unwarranted delays. The
Department notes that it is not necessary for immigration judges to
affirmatively review, potentially revise, and then approve the
transcripts of oral decisions; EOIR utilizes reliable digital audio
recording technology that produces clear audio recordings, and the
additional 7- or 14-day review period creates an unnecessary delay in
the adjudication of appeals. Moreover, because errors should not be
corrected during the review, see, e.g., Mamedov v. Ashcroft, 387 F.3d
918, 920 (7th Cir. 2004) (``[I]n general it is a bad practice for a
judge to continue working on his opinion after the case has entered the
appellate process . . . .''); because EOIR already has a procedure for
the parties to address defective or inaccurate transcripts on appeal,
BIA Practice Manual at 51-52; and because the BIA may remedy defects
through a remand for clarification or correction if necessary, 8 CFR
1003.1(e)(2), there is no operational reason for immigration judges to
continue to review transcripts of their decisions solely for minor
typographical errors. Accord Witjaksono v. Holder, 573 F.3d 968, 976
(10th Cir. 2009) (``When an alien follows these procedures [under the
regulations and the BIA Practice Manual], the BIA is able to evaluate
whether the `gaps [in the transcript] relate to matters material to
[the] case and [whether] they materially affect [the alien's] ability
to obtain meaningful review.' Moreover, if the BIA concludes that a
defective transcript did not cause prejudice, these procedures create a
record that facilitates the meaningful and effective judicial review to
which a petitioner is entitled.'' ((first alteration added) (internal
citation omitted)). Further, such review also takes immigration judges
away from their primary duty of adjudicating cases expeditiously and
impartially, consistent with the law. Finally, federal courts have
criticized the practice of immigration judges revising transcripts
after an appeal has been filed. See Mamedov, 387 F.3d at 920.
Accordingly, there is simply no reason to retain the requirement that
immigration judges continue to review transcripts, and removing this
requirement will also eliminate the possibility of the transcript being
amended incorrectly, even
[[Page 52509]]
inadvertently, after a decision has been rendered.
Further, the Department notes that the section regarding the
forwarding of the physical record of proceeding to the BIA is being
rendered obsolete by the EOIR Court & Appeals System (``ECAS''), which
has been deployed to 14 immigration courts and adjudication centers and
is currently in the midst of a nationwide rollout following a
successful pilot.\42\ See EOIR Electronic Filing Pilot Program, 83 FR
29575 (June 25, 2018); EOIR, EOIR Launches Electronic Filing Pilot
Program (July 19, 2018), https://www.justice.gov/eoir/pr/eoir-launches-electronic-filing-pilot-program; EOIR Policy Memorandum 20-13, EOIR
Practices Related to the COVID-19 Outbreak 3 n.7 (June 11, 2020),
https://www.justice.gov/eoir/page/file/1284706/download. ECAS will
enable EOIR to maintain fully electronic records of proceeding, which
in turn will enable the BIA to directly access all relevant records in
an appeal from the decision of an immigration judge without the need
for court staff to forward the record. In short, there is no basis to
retain 8 CFR 1003.5(a) in its current format, and the Department is
revising it accordingly.\43\
---------------------------------------------------------------------------
\42\ The rollout was temporarily paused on March 16, 2020, due
to the outbreak of COVID-19 in the United States and will resume at
an appropriate time.
\43\ The Department is also streamlining the language in Sec.
1003.5(a) to better reflect responsibility for ensuring the timely
processing of transcripts consistent with the EOIR Director's
authority to ensure the efficient disposition of all pending cases.
8 CFR 1003.0(b)(1)(ii).
---------------------------------------------------------------------------
Finally, 8 CFR 1003.5(b) describes procedures regarding appeals
from DHS decisions that are within the BIA's appellate jurisdiction.
See 8 CFR 1003.1(b)(4)-(5). Much of the language in that paragraph
concerns authority exercised by DHS officers rather than by EOIR.
Accordingly, EOIR is proposing to delete language that is not
applicable to its adjudicators and modifying the regulatory text
accordingly. In doing so, EOIR also proposes replacing outdated
references to the INS. See supra, note 36. The changes do not
substantively affect the Board's adjudication of any appeals subject to
8 CFR 1003.5(b).
IV. Regulatory Requirements
A. Regulatory Flexibility Act
The Department has reviewed this rule in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that
this rule will not have a significant economic impact on a substantial
number of small entities. The rule will not regulate ``small
entities,'' as that term is defined in 5 U.S.C. 601(6). The rule will
not economically impact representatives of aliens in immigration
proceedings. It does not limit the fees they may charge, or the number
of cases a representative may ethically accept under the rules of
professional responsibility.
B. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year (adjusted annually for inflation), and
it will not significantly or uniquely affect small governments.
Therefore, no actions were deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.
C. Congressional Review Act
This proposed rule is not a major rule as defined by section 804 of
the Congressional Review Act. 5 U.S.C. 804. This rule will not result
in an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
D. Executive Order 12866 and Executive Order 13563
The Department has determined that this rule is a ``significant
regulatory action'' under section 3(f) of Executive Order 12866,
Regulatory Planning and Review. Accordingly, this rule has been
submitted to the Office of Management and Budget for review.
The Department certifies that this regulation has been drafted in
accordance with the principles of Executive Order 12866 and Executive
Order 13563. Executive Orders 12866 and 13563 direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, reducing costs, harmonizing rules, and promoting
flexibility.
The Department believes that shortening the time for briefing
extensions and schedules and clarifying the standards for review will
help reduce the number of cases pending before EOIR and will enable the
BIA to adjudicate more appeals annually. The Department believes the
costs to the public will be negligible, if any, because the basic
briefing procedures will remain the same, because current BIA policy
already disfavors multiple briefing extension requests, and because the
BIA is already prohibited from considering new evidence on appeal. The
proposed rule does not impose any new costs, and most, if not all, of
the proposed rule is directed at internal case processing. Any changes
contemplated by the rule would have no apparent impact on the public
but would substantially improve both the quality and efficiency of BIA
appellate adjudications.
E. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
This rule does not propose new or revisions to existing
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter
35, and its implementing regulations, 5 CFR part 1320.
List of Subjects
8 CFR Part 1003
Administrative practice and procedure, Immigration.
8 CFR Part 1240
Administrative practice and procedure, Aliens.
Accordingly, for the reasons set forth in the preamble, the
Department proposes to amend 8 CFR parts 1003 and 1240 as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
1. The authority citation for part 1003 continues to read as follows:
[[Page 52510]]
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
0
2. Amend Sec. 1003.1 by:
0
a. Revising paragraphs (c), (d)(1)(ii), and (d)(3)(iv);
0
b. Adding paragraph (d)(3)(v);
0
c. Revising paragraphs (d)(6)(ii) through (iv), (d)(7), (e)(1), (e)(8)
introductory text, and (e)(8)(i) and (iii);
0
d. Removing and reserving paragraph (e)(8)(iv);
0
e. Adding four sentences at the end of paragraph (e)(8)(v); and
0
f. Adding paragraph (k).
The revisions and additions read as follows:
Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.
* * * * *
(c) Jurisdiction by certification. The Secretary, or any other duly
authorized officer of DHS, or an immigration judge may in any case
arising under paragraph (b) of this section certify such case to the
Board for adjudication.
(d) * * *
(1) * * *
(ii) Subject to the governing standards set forth in paragraph
(d)(1)(i) of this section, Board members shall exercise their
independent judgment and discretion in considering and determining the
cases coming before the Board, and a panel or Board member to whom a
case is assigned may take any action consistent with their authorities
under the Act and the regulations as is appropriate and necessary for
the disposition of the case. Nothing in this paragraph shall be
construed as authorizing the Board to administratively close or suspend
adjudication of a case unless a regulation promulgated by the
Department of Justice or a previous judicially approved settlement
expressly authorizes such an action. Only the Director or Chief
Appellate Immigration Judge may direct the deferral of adjudication of
any case or cases by the Board.
* * * * *
(3) * * *
(iv)(A) The Board will not engage in factfinding in the course of
deciding appeals, except that the Board may take administrative notice
of facts that are not reasonably subject to dispute, such as
(1) Current events;
(2) The contents of official documents outside the record;
(3) Facts that can be accurately and readily determined from
official government sources and whose accuracy is not disputed; or
(4) Undisputed facts contained in the record.
(B) If the Board intends to rely on an administratively noticed
fact outside of the record, such as those indicated in paragraphs
(d)(3)(iv)(A)(1) through (3) of this section, as the basis for
reversing an immigration judge's grant of relief or protection from
removal, it must provide notice to the parties of its intent and afford
them an opportunity of not less than 14 days to respond to the notice.
(C) The Board shall not sua sponte remand a case for further
factfinding unless the factfinding is necessary to determine whether
the immigration judge had jurisdiction over the case.
(D) Except as provided in paragraph (d)(6)(iii) or (d)(7)(v)(B) of
this section, the Board shall not remand a case for additional
factfinding unless
(1) The party seeking remand preserved the issue by presenting it
before the immigration judge;
(2) The party seeking remand, if it bore the burden of proof before
the immigration judge, attempted to adduce the additional facts before
the immigration judge;
(3) The additional factfinding would alter the outcome or
disposition of the case;
(4) The additional factfinding would not be cumulative of the
evidence already presented or contained in the record; and
(5) One of the following circumstances is present in the case:
(i) The immigration judge's factual findings were clearly
erroneous, or
(ii) Remand to DHS is warranted following de novo review.
(v) The Board may affirm the decision of the immigration judge or
the Department of Homeland Security on any basis supported by the
record, including a basis supported by facts that are not reasonably
subject to dispute, such as undisputed facts in the record.
* * * * *
(6) * * *
(ii) Except as provided in paragraph (d)(6)(iv) of this section, if
identity, law enforcement, or security investigations or examinations
have not been completed or DHS reports that the results of prior
investigations or examinations are no longer current under the
standards established by DHS, and the completion of the investigations
or examinations is necessary for the Board to complete its adjudication
of the appeal, the Board will provide notice to both parties that, in
order to complete adjudication of the appeal, the case is being placed
on hold until such time as all identity, law enforcement, or security
investigations or examinations are completed or updated and the results
have been reported to the Board. Unless DHS advises the Board that such
information is no longer necessary in the particular case, the Board's
notice will notify the alien that DHS will contact the alien to take
additional steps to complete or update the identity, law enforcement,
or security investigations or examinations only if DHS is unable to
independently update the necessary investigations or examinations. The
Board's notice will also advise the alien of the consequences for
failing to comply with the requirements of this section. DHS is
responsible for obtaining biometrics and other biographical information
to complete or update the identity, law enforcement, or security
investigations or examinations with respect to any alien in detention.
(iii) In any case placed on hold under paragraph (d)(6)(ii) of this
section, DHS shall report to the Board promptly when the identity, law
enforcement, or security investigations or examinations have been
completed or updated. If a non-detained alien fails to comply with
necessary procedures for collecting biometrics or other biographical
information within 90 days of the Board's notice under paragraph
(d)(6)(ii) of this section, the Board shall deem the application
abandoned unless the alien shows good cause before the 90-day period
has elapsed, in which case the alien should be given no more than an
additional 30 days to comply with the procedures. If the Board deems an
application abandoned under this section, it shall adjudicate the
remainder of the appeal within 30 days and shall enter an order of
removal or a grant of voluntary departure, as appropriate. If DHS
obtains relevant information as a result of the identity, law
enforcement, or security investigations or examinations, including
civil or criminal investigations of immigration fraud, DHS may move the
Board to remand the record to the immigration judge for consideration
of whether, in view of the new information, any pending applications
for immigration relief or protection should be denied, either on
grounds of eligibility or, where applicable, as a matter of discretion.
If DHS fails to report the results of timely-completed or updated
identity, law
[[Page 52511]]
enforcement, or security investigations or examinations within 180 days
of the Board's notice under paragraph (d)(6)(ii) of this section, the
Board shall remand the case to the immigration judge for further
proceedings under Sec. 1003.47(h).
(iv) The Board is not required to hold a case pursuant to paragraph
(d)(6)(ii) of this section if the Board decides to dismiss the
respondent's appeal or deny the relief or protection sought.
* * * * *
(7) Finality of decision--(i) In general. The decision of the Board
shall be final except in those cases reviewed by the Attorney General
in accordance with paragraph (h) of this section. In adjudicating an
appeal, the Board possesses authority to issue an order of removal, an
order granting relief from removal, an order granting protection from
removal combined with an order of removal as appropriate, an order
granting voluntary departure with an alternate order of removal, and an
order terminating or dismissing proceedings, provided that the issuance
of any order is consistent with applicable law. The Board may affirm
the decision of the immigration judge or DHS on any basis supported by
the record. In no case shall the Board order a remand for an
immigration judge to issue an order that the Board itself could issue.
(ii) Remands. After applying the appropriate standard of review on
appeal, the Board may issue an order remanding a case to an immigration
judge or DHS for further consideration based on an error of law or
fact, subject to any applicable statutory or regulatory limitations,
including paragraph (d)(3)(iv)(D) of this section and the following:
(A) The Board shall not remand a case for further action without
identifying the standard of review it applied and the specific error or
errors made by the adjudicator below.
(B) The Board shall not remand a case based on the ``totality of
the circumstances.''
(C) The Board shall not remand a case based on a legal argument not
presented below unless that argument pertains to an issue of
jurisdiction over an application or the proceedings, or to a material
change in fact or law underlying a removability ground or grounds
specified in section 212 or 237 of the Act that occurred after the date
of the immigration judge's decision, and substantial evidence indicates
that change has vitiated all grounds of removability applicable to the
alien.
(D) The Board shall not sua sponte remand a case unless the basis
for such a remand is solely a question of jurisdiction over an
application or the proceedings.
(E) The Board shall not remand a case to an immigration judge
solely to consider a request for voluntary departure nor solely due to
the failure of the immigration judge to provide advisals following a
grant of voluntary departure. In such situations, the Board shall
follow the procedures in Sec. 1240.26(k).
(iii) Scope of the remand. Where the Board remands a case to an
immigration judge, it divests itself of jurisdiction of that case,
unless the Board remands a case due to the court's failure to forward
the administrative record in response to the Board's request. The Board
may qualify or limit the scope or purpose of a remand order without
retaining jurisdiction over the case following the remand. In any case
in which the Board has qualified or limited the scope or purpose of the
remand, the immigration judge shall not consider any issues outside the
scope or purpose of that order, unless such an issue calls into
question the immigration judge's continuing jurisdiction over the case.
(iv) Voluntary departure. The Board may issue an order of voluntary
departure under section 240B of the Act, with an alternate order of
removal, if the alien requested voluntary departure before an
immigration judge, the alien's notice of appeal specified that the
alien is appealing the immigration judge's denial of voluntary
departure and identified the specific factual and legal findings that
the alien is challenging, and the Board finds that the alien is
otherwise eligible for voluntary departure, as provided in Sec.
1240.26(k). In order to grant voluntary departure, the Board must find
that all applicable statutory and regulatory criteria have been met,
based on the record and within the scope of its review authority on
appeal, and that the alien merits voluntary departure as a matter of
discretion. If the Board does not grant the request for voluntary
departure, it must deny the request.
(v) New evidence on appeal. (A) Subject to paragraph (d)(7)(v)(B)
of this section, the Board shall not receive or review new evidence
submitted on appeal, shall not remand a case for consideration of new
evidence received on appeal, and shall not consider a motion to remand
based on new evidence. A party seeking to submit new evidence shall
file a motion to reopen in accordance with applicable law.
(B) Nothing in paragraph (d)(7)(v)(A) of this section shall
preclude the Board from remanding a case based on new evidence or
information obtained after the date of the immigration judge's decision
as a result of identity, law enforcement, or security investigations or
examinations, including civil or criminal investigations of immigration
fraud, regardless of whether the investigations or examinations were
conducted pursuant to Sec. 1003.47(h) or paragraph (d)(6) of this
section, nor from remanding a case to address a question of
jurisdiction over an application or the proceedings or a question
regarding a ground or grounds of removability specified in section 212
or 237 of the Act.
(e) * * *
(1) Initial screening. All cases shall be referred to the screening
panel for review upon the filing of a Notice of Appeal or a motion.
Screening panel review shall be completed within 14 days of the filing.
Appeals subject to summary dismissal as provided in paragraph (d)(2) of
this section, except for those subject to summary dismissal as provided
in paragraph (d)(2)(i)(E) of this section, shall be promptly dismissed
no later than 30 days after the Notice of Appeal was filed. Unless
referred for a three-member panel decision pursuant to paragraph (e)(6)
of this section, an interlocutory appeal shall be adjudicated within 30
days of the filing of the appeal.
* * * * *
(8) Timeliness. The Board shall promptly enter orders of summary
dismissal, or other miscellaneous dispositions, in appropriate cases
consistent with paragraph (e)(1) of this section. In all other cases,
the Board shall promptly order a transcript, if appropriate, within
seven days after the screening panel completes its review and shall
issue a briefing schedule within seven days after the transcript is
provided. If no transcript may be ordered due to a lack of available
funding or a lack of vendor capacity, the Chairman shall so certify
that fact in writing to the Director. The Chairman shall also maintain
a record of all such cases in which transcription cannot be ordered and
provide that record to the Director. If no transcript is required, the
Board shall issue a briefing schedule within seven days after the
screening panel completes its review. The case shall be assigned to a
single Board member for merits review under paragraph (e)(3) of this
section within seven days of the completion of the record on appeal,
including any briefs or motions. The single Board member shall then
determine whether to adjudicate the appeal or to designate the case for
decision by a three-member panel under paragraphs (e)(5) and (6) of
this section within 14 days of being
[[Page 52512]]
assigned the case. The single Board member or three-member panel to
which the case is assigned shall issue a decision on the merits
consistent with this section and with a priority for cases or custody
appeals involving detained aliens.
(i) Except in exigent circumstances as determined by the Chairman,
subject to concurrence by the Director, or as provided in paragraph
(d)(6) of this section or as provided in Sec. 1003.6(c) and Sec.
1003.19(i), the Board shall dispose of all appeals assigned to a single
Board member within 90 days of completion of the record on appeal, or
within 180 days of completion of the record on appeal for all appeals
assigned to a three-member panel (including any additional opinion by a
member of the panel).
* * * * *
(iii) In rare circumstances, when an impending decision by the
United States Supreme Court or an impending en banc Board decision may
substantially determine the outcome of a group of cases pending before
the Board, the Chairman, subject to concurrence by the Director, may
hold the cases until such decision is rendered, temporarily suspending
the time limits described in this paragraph (e)(8). The length of such
a hold shall not exceed 120 days.
* * * * *
(v) * * * The Chairman shall notify the Director of all cases in
which an extension under paragraph (e)(8)(ii) of this section, a hold
under paragraph (e)(8)(iii) of this section, or any other delay in
meeting the requirements of this paragraph (e)(8) occurs. For any case
still pending adjudication by the Board more than 335 days after the
appeal was filed and not otherwise subject to an extension under
paragraph (e)(8)(ii) or a hold under paragraph (e)(8)(iii), the
Chairman shall refer that case to the Director for decision. For a case
referred to the Director under this paragraph (e)(8)(v), the Director
shall exercise delegated authority from the Attorney General identical
to that of the Board as described in this section, including the
authority to issue a precedential decision and the authority to refer
the case to the Attorney General for review, either on his own or at
the direction of the Attorney General. The Director may not further
delegate this authority.
* * * * *
(k) Quality assurance certification. (1) In any case in which the
Board remands a case to an immigration judge or reopens and remands a
case to an immigration judge, the immigration judge may forward that
case by certification to the Director for further review only in the
following circumstances:
(i) The Board decision contains a typographical or clerical error
affecting the outcome of the case;
(ii) The Board decision is clearly contrary to a provision of the
Act, any other immigration law or statute, any applicable regulation,
or a published, binding precedent;
(iii) The Board decision is vague, ambiguous, internally
inconsistent, or otherwise did not resolve the basis for the appeal; or
(iv) A material factor pertinent to the issue(s) before the
immigration judge was clearly not considered in the decision.
(2) In order to certify a decision under paragraph (k)(1) of this
section, an immigration judge must:
(i) Issue an order of certification within 30 days of the Board
decision if the alien is not detained and within 15 days of the Board
decision if the alien is detained;
(ii) In the order of certification, specify the regulatory basis
for the certification and summarize the underlying procedural, factual,
or legal basis; and
(iii) Provide notice of the certification to both parties.
(3) For a case certified to the Director under this paragraph, the
Director shall exercise delegated authority from the Attorney General
identical to that of the Board as described in this section, except as
otherwise provided in this paragraph, including the authority to issue
a precedent decision and the authority to refer the case to the
Attorney General for review, either on the Director's own or at the
direction of the Attorney General. For a case certified to the Director
under this paragraph, the Director may dismiss the certification and
return the case to the immigration judge or the Director may remand the
case back to the Board for further proceedings. In a case certified to
the Director under this paragraph, the Director may not issue an order
of removal, grant a request for voluntary departure, or grant or deny
an application for relief or protection from removal.
(4) The quality assurance certification process shall not be used
as a basis solely to express disapproval of or disagreement with the
outcome of a Board decision unless that decision is alleged to reflect
an error described in paragraph (k)(1) of this section.
0
3. Amend Sec. 1003.2 by:
0
a. Revising the first sentence of paragraph (a);
0
b. Removing the second and third sentences of paragraph (b)(1);
0
c. Adding paragraphs (c)(3)(v) through (vii); and
0
d. Removing and reserving paragraph (c)(4).
The revisions and additions read as follows:
Sec. 1003.2 Reopening or reconsideration before the Board of
Immigration Appeals.
(a) * * * The Board may at any time reopen a case in which it has
rendered a decision on its own motion solely in order to correct a
ministerial mistake or typographical error in that decision or to
reissue the decision to correct a defect in service. In all other
cases, the Board may only reopen or reconsider any case in which it has
rendered a decision solely pursuant to a motion filed by one or both
parties. * * *
* * * * *
(c) * * *
(3) * * *
(v) For which a three-member panel of the Board agrees that
reopening is warranted when the following circumstances are present,
provided that a respondent may file only one motion to reopen pursuant
to this paragraph:
(A) A material change in fact or law underlying a removability
ground or grounds specified in section 212 or 237 of the Act that
occurred after the entry of an administratively final order that
vitiates all grounds of removability applicable to the alien; and
(B) The movant exercised diligence in pursuing the motion to
reopen;
(vi) Filed based on specific allegations, supported by evidence,
that the respondent is a United States citizen or national; or
(vii) Filed by DHS in removal proceedings pursuant to section 240
of the Act or in proceedings initiated pursuant to Sec. 1208.2(c).
* * * * *
0
4. Amend Sec. 1003.3 by revising paragraphs (a)(2) and (c) to read as
follows:
Sec. 1003.3 Notice of appeal.
(a) * * *
(2) Appeal from decision of a DHS officer. A party affected by a
decision of a DHS officer that may be appealed to the Board under this
chapter shall be given notice of the opportunity to file an appeal. An
appeal from a decision of a DHS officer shall be taken by filing a
Notice of Appeal to the Board of Immigration Appeals from a Decision of
a DHS Officer (Form EOIR-29) directly with DHS in accordance with the
instructions in the decision of the DHS officer within 30 days of the
service of the decision being appealed. An appeal
[[Page 52513]]
is not properly filed until it is received at the appropriate DHS
office, together with all required documents, and the fee provisions of
Sec. 1003.8 are satisfied.
* * * * *
(c) Briefs--(1) Appeal from decision of an immigration judge.
Briefs in support of or in opposition to an appeal from a decision of
an immigration judge shall be filed directly with the Board. In those
cases that are transcribed, the briefing schedule shall be set by the
Board after the transcript is available. In all cases, the parties
shall be provided 21 days in which to file simultaneous briefs unless a
shorter period is specified by the Board. Reply briefs shall be
permitted only by leave of the Board and only if filed within 14 days
of the deadline for the initial briefs. The Board, upon written motion
and a maximum of one time per case, may extend the period for filing a
brief or, if permitted, a reply brief for up to 14 days for good cause
shown. If an extension is granted, it is granted to both parties, and
neither party may request a further extension. Nothing in this
paragraph shall be construed as creating a right to a briefing
extension for any party in any case, and the Board shall not adopt a
policy of granting all extension requests without individualized
consideration of good cause. In its discretion, the Board may consider
a brief that has been filed out of time. In its discretion, the Board
may request supplemental briefing from the parties after the expiration
of the briefing deadline. All briefs, filings, and motions filed in
conjunction with an appeal shall include proof of service on the
opposing party.
(2) Appeal from decision of a DHS officer. Briefs in support of or
in opposition to an appeal from a decision of a DHS officer shall be
filed directly with DHS in accordance with the instructions in the
decision of the DHS officer. The applicant or petitioner and DHS shall
be provided 21 days in which to file a brief, unless a shorter period
is specified by the DHS officer from whose decision the appeal is
taken, and reply briefs shall be permitted only by leave of the Board
and only if filed within 14 days of the deadline for the initial
briefs. Upon written request of the alien and a maximum of one time per
case, the DHS officer from whose decision the appeal is taken or the
Board may extend the period for filing a brief for up to 14 days for
good cause shown. After the forwarding of the record on appeal by the
DHS officer the Board may, solely in its discretion, authorize the
filing of supplemental briefs directly with the Board and may provide
the parties up to a maximum of 14 days to simultaneously file such
briefs. In its discretion, the Board may consider a brief that has been
filed out of time. All briefs and other documents filed in conjunction
with an appeal, unless filed by an alien directly with a DHS office,
shall include proof of service on the opposing party.
* * * * *
0
5. Revise Sec. 1003.5 to read as follows:
Sec. 1003.5 Forwarding of record on appeal.
(a) Appeal from decision of an immigration judge. If an appeal is
taken from a decision of an immigration judge, the record of proceeding
shall be promptly forwarded to the Board upon the request or the order
of the Board, unless the Board already has access to the record of
proceeding in electronic format. The Director, in consultation with the
Chairman and the Chief Immigration Judge, shall determine the most
effective and expeditious way to transcribe proceedings before the
immigration judges. The Chairman and the Chief Immigration Judge shall
take such steps as necessary to reduce the time required to produce
transcripts of those proceedings and to ensure their quality.
(b) Appeal from decision of a DHS officer. If an appeal is taken
from a decision of a DHS officer, the record of proceeding shall be
forwarded to the Board by the DHS officer promptly upon receipt of the
briefs of the parties, or upon expiration of the time allowed for the
submission of such briefs, unless the DHS officer reopens and approves
the petition.
Sec. 1003.7 [Amended]
0
6. Amend Sec. 1003.7 by removing the word ``Service'' each place that
it appears and adding in its place the word ``DHS''.
0
7. Amend Sec. 1003.10 in paragraph (b) by removing ``governing
standards'' and adding in its place ``governing standards set forth in
paragraph (d) of this section'' and by adding two sentences at the end.
The additions read as follows:
Sec. 1003.10 Immigration judges.
* * * * *
(b) * * * Nothing in this paragraph nor in any regulation contained
in 8 CFR part 1240 shall be construed as authorizing an immigration
judge to administratively close or suspend adjudication of a case
unless a regulation promulgated by the Department of Justice or a
previous judicially approved settlement expressly authorizes such an
action. Only the Director or Chief Immigration Judge may direct the
deferral of adjudication of any case or cases by an immigration judge.
* * * * *
0
8. Amend Sec. 1003.23 by revising the first sentence of, and adding a
new second sentence to, paragraph (b)(1), and adding paragraphs
(b)(4)(v) and (vi) to read as follows:
Sec. 1003.23 Reopening or reconsideration before the immigration
court.
* * * * *
(b) * * *
(1) * * * Unless jurisdiction is vested with the Board of
Immigration Appeals, an immigration judge may at any time reopen a case
in which he or she has rendered a decision on his or her own motion
solely in order to correct a ministerial mistake or typographical error
in that decision or to reissue the decision to correct a defect in
service. Unless jurisdiction is vested with the Board of Immigration
Appeals, in all other cases, an immigration judge may only reopen or
reconsider any case in which he or she has rendered a decision solely
pursuant to a motion filed by one or both parties. * * *
* * * * *
(4) * * *
(v) The time and numerical limitations set forth in paragraph
(b)(1) of this section shall not apply to a motion to reopen
proceedings filed when each of the following circumstances is present,
provided that a respondent may file only one motion to reopen pursuant
to this paragraph:
(A) A material change in fact or law underlying a removability
ground or grounds specified in section 212 or 237 of the Act occurred
after the entry of an administratively final order that vitiates all
grounds of removability applicable to the alien; and
(B) The movant exercised diligence in pursuing the motion to
reopen.
(vi) The time limitations set forth in paragraph (b)(1) of this
section shall not apply to a motion to reopen proceedings filed based
on specific allegations, supported by evidence, that the respondent is
a United States citizen or national.
PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
0
9. The authority citation for part 1240 continues to read as follows:
Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226,
1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L.
105-277 (112 Stat. 2681).
0
10. Amend Sec. 1240.26 by:
[[Page 52514]]
0
a. Redesignating paragraph (j) as paragraph (l);
0
b. Adding and reserving a new paragraph (j); and
0
c. Adding paragraph (k).
The additions read as follows:
Sec. 1240.26 Voluntary departure--authority of the Executive Office
for Immigration Review.
* * * * *
(j) [Reserved]
(k) Authority of the Board to grant voluntary departure in the
first instance. The following procedures apply to any request for
voluntary departure reviewed by the Board:
(1) The Board shall not remand a case to an immigration judge to
reconsider a request for voluntary departure. If the Board first finds
that an immigration judge incorrectly denied an alien's request for
voluntary departure or failed to provide appropriate advisals, the
Board shall consider the alien's request for voluntary departure de
novo and, if warranted, may enter its own order of voluntary departure
with an alternate order of removal.
(2) The Board shall not grant voluntary departure under section
240B(a) of the Act unless:
(i) The alien requested voluntary departure under that section
before the immigration judge, the immigration judge denied the request,
and the alien timely appealed;
(ii) The alien's notice of appeal specified that the alien is
appealing the immigration judge's denial of voluntary departure and
identified the specific factual and legal findings that the alien is
challenging;
(iii) The Board finds that the immigration judge's decision was in
error; and
(iv) The Board finds that the alien meets all applicable statutory
and regulatory criteria for voluntary departure under that section.
(3) The Board shall not grant voluntary departure under section
240B(b) of the Act unless:
(i) The alien requested voluntary departure under that section
before the immigration judge, the immigration judge denied the request,
and the alien timely appealed;
(ii) the alien's notice of appeal specified that the alien is
appealing the immigration judge's denial of voluntary departure and
identified the specific factual and legal findings that the alien is
challenging;
(iii) The Board finds that the immigration judge's decision was in
error; and
(iv) The Board finds that the alien meets all applicable statutory
and regulatory criteria for voluntary departure under that section.
(4) The Board may impose such conditions as it deems necessary to
ensure the alien's timely departure from the United States, if
supported by the record on appeal and within the scope of the Board's
authority on appeal. The Board shall advise the alien in writing of the
conditions set by the Board, consistent with the conditions set forth
in paragraphs (c), (d), (e), (h), and (i) (other than paragraph
(c)(3)(ii)) of this section. If the Board imposes conditions beyond
those specifically enumerated, the Board shall advise the alien in
writing of such conditions. The alien may accept or decline the grant
of voluntary departure and may manifest his or her declination either
by written notice to the Board within five days of receipt of its
decision, by failing to timely post any required bond, or by otherwise
failing to comply with the Board's order. The grant of voluntary
departure shall automatically terminate upon a filing by the alien of a
motion to reopen or reconsider the Board's decision, or by filing a
timely petition for review of the Board's decision. The alien may
decline voluntary departure if he or she is unwilling to accept the
amount of the bond or other conditions.
Dated: August 20, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-18676 Filed 8-21-20; 4:15 pm]
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