[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
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 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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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)).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.'').
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.'').
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.'').
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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]
BILLING CODE 4410-30-P