[Federal Register Volume 89, Number 104 (Wednesday, May 29, 2024)]
[Rules and Regulations]
[Pages 46742-46795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11121]
[[Page 46741]]
Vol. 89
Wednesday,
No. 104
May 29, 2024
Part V
Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 1001, 1003, 1239, et al.
Efficient Case and Docket Management in Immigration Proceedings; Final
Rule
Federal Register / Vol. 89, No. 104 / Wednesday, May 29, 2024 / Rules
and Regulations
[[Page 46742]]
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DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1001, 1003, 1239, and 1240
[Docket No. EOIR 021-0410; AG Order No. 5930-2024]
RIN 1125-AB18
Efficient Case and Docket Management in Immigration Proceedings
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Final rule.
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SUMMARY: On September 8, 2023, the Department of Justice
(``Department'') published a notice of proposed rulemaking (``NPRM'')
proposing to rescind an enjoined December 2020 rule (the ``AA96 Final
Rule'') that imposed novel limits on the authority of immigration
judges and the Board of Immigration Appeals (``BIA'' or ``Board'') to
efficiently dispose of cases. Because the AA96 Final Rule has been
enjoined since shortly after its issuance, the proposed rule was
designed to largely codify the currently operative status quo. After
reviewing and considering the public comments received during the
comment period, the Department is finalizing the proposed rule with the
limited changes described in the preamble. The Department believes that
this rule will promote the efficient and expeditious adjudication of
cases, afford immigration judges and the Board flexibility to
efficiently allocate their limited resources, and protect due process
for parties before immigration judges and the Board.
DATES: This rule is effective July 29, 2024.
FOR FURTHER INFORMATION CONTACT: Raechel Horowitz, Chief, Immigration
Law Division, Office of Policy, Executive Office for Immigration
Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041,
telephone (703) 305-0289.
SUPPLEMENTARY INFORMATION:
I. Background
On December 16, 2020, the Department published a final rule that
amended Executive Office for Immigration Review (``EOIR'') regulations
regarding the handling of appeals and motions before the Board, as well
as the authority of immigration judges and Appellate Immigration Judges
to administratively close cases. See Appellate Procedures and
Decisional Finality in Immigration Proceedings; Administrative Closure,
85 FR 81588 (Dec. 16, 2020) (``AA96 Final Rule''). The AA96 Final Rule
changes included: (1) implementing simultaneous briefing schedules at
the Board for both detained and non-detained cases; (2) limiting
adjudicators' freestanding authority to administratively close cases;
(3) curtailing adjudicators' sua sponte authority to reopen or
reconsider cases; (4) allowing for more expansive factfinding before
the Board; (5) restricting the Board's authority to remand cases to the
immigration judge; (6) modifying the background checks process at the
Board; (7) implementing regulatory internal appeal processing deadlines
at the Board; (8) providing the EOIR Director with authority to
adjudicate cases in specific circumstances; and (9) allowing for
quality case certifications from an immigration judge to the EOIR
Director.
The AA96 Final Rule's effective date was January 15, 2021, but the
rule was preliminarily enjoined on March 10, 2021, and has not been in
effect since that date. See Centro Legal de la Raza v. Exec. Off. for
Immigr. Rev., 524 F. Supp. 3d 919 (N.D. Cal. 2021). The United States
District Court for the Northern District of California determined that
the plaintiffs were likely to succeed on the merits of their challenge
to the AA96 Final Rule. Id. at 928. Specifically, the court concluded
that plaintiffs were likely to succeed in claiming that (1) changes
implemented by the rule were arbitrary and capricious; (2) the rule
violated the Regulatory Flexibility Act; and (3) the rule's delegation
of rulemaking authority to the EOIR Director violated the
Administrative Procedure Act (``APA''). Id. at 962-76.
On September 8, 2023, after reconsidering the AA96 Final Rule,
including the comments received during that rulemaking, and the issues
identified in the Centro Legal de la Raza litigation, the Department
published an NPRM in the Federal Register proposing to largely rescind
the changes made by the AA96 Final Rule, as well as setting standards
for administrative closure and the termination of proceedings. See
Appellate Procedures and Decisional Finality in Immigration
Proceedings; Administrative Closure, 88 FR 62242 (Sept. 8, 2023). The
NPRM also proposed to retain, with modifications, a limited number of
AA96 Final Rule changes, including: (1) allowing the Board to review
voluntary departure issues de novo and to issue final decisions on
voluntary departure requests in some instances, id. at 62267; (2)
allowing the Board to retain an appeal while background checks are
pending, rather than remand to the immigration judge, id. at 62270; (3)
modifying the Board's 180-day adjudication timeline for three-member
panels to begin running after completion of the record, id. at 62270-
71; and (4) retaining some technical changes from the AA96 Final Rule,
id. at 62273. Further, the NPRM also proposed adding definitions for
the terms ``noncitizen'' and ``unaccompanied child,'' as well as
proposed minor technical changes. Id. at 62272-73.
As explained more fully in the NPRM, the Department believes that
rescinding the AA96 Final Rule will promote the efficient and
expeditious adjudication of cases, afford immigration judges and the
Board flexibility to efficiently allocate their limited resources, and
protect due process for parties before immigration judges and the
Board. See generally id. at 62254-73 (explaining bases for each
proposed change).
The comment period for the NPRM opened on September 8, 2023, and
closed on November 7, 2023, with 851 comments received.\1\ The
Department summarizes and responds to the public comments in section
III of this preamble, followed by a description of changes made to the
NPRM in this final rule in section IV.
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\1\ Of these 851 comments, 849 comments were available on
https://www.regulations.gov for public inspection. The Department
did not post one comment because it was a duplicate and withdrew
another comment because it contained an inappropriate hyperlink.
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II. Legal Authority
The Department issues this rule pursuant to section 103(g) of the
Immigration and Nationality Act (``INA'' or ``the Act''), 8 U.S.C.
1103(g), as amended by the Homeland Security Act of 2002 (``HSA''),
Public Law 107-296, 116 Stat. 2135 (as amended). Under the HSA, the
Attorney General retains authority to ``establish such regulations, . .
. issue such instructions, review such administrative determinations in
immigration proceedings, delegate such authority, and perform such
other acts as the Attorney General determines to be necessary for
carrying out'' the Attorney General's authorities under the INA. HSA
1102, 116 Stat. at 2273-74; INA 103(g)(2), 8 U.S.C. 1103(g)(2).
III. Public Comments and Responses
Comments received on the NPRM are organized by topic below. Most
commenters were supportive of the rule, stating, for example, that
administrative closure and termination authority
[[Page 46743]]
would provide adjudicators with needed flexibility to help manage
overburdened immigration court dockets, and that rescinding the AA96
Final Rule's appeal-related provisions would help noncitizens more
effectively present appeals. In contrast, commenters opposing the rule
primarily raised concerns about the administrative closure and
termination provisions, which these commenters believed would
exacerbate the immigration court backlog, needlessly delay proceedings,
and increase incentives for irregular immigration into the United
States. The Department addresses these comments below.
A. Briefing Schedule Changes
Comment: Most commenters expressed support for the proposed rule's
provisions rescinding the AA96 Final Rule's changes to briefing
schedules before the Board and reinstating longstanding consecutive
briefing schedules for noncitizens who are not detained and
simultaneous briefing schedules for detained noncitizens.
In doing so, some commenters also proposed a number of changes to
briefing schedule procedures. First, commenters suggested increasing
the opening briefing schedule from 21 days to 30, 40, or 45 days to
provide noncitizens with additional time to submit their briefs.
Second, for cases involving detained noncitizens, commenters proposed
implementing consecutive rather than simultaneous briefing schedules
or, alternatively, allowing reply briefs as a matter of right, rather
than as permitted after the filing of a motion, to allow the parties to
best address opposing arguments. Third, commenters recommended creating
a presumption to automatically extend the brief filing period for pro
se applicants to the full extended 90-day period. Fourth, commenters
recommended removing the 90-day limit on briefing extensions, stating
that there may be good cause for extending beyond that time limit, in
up to 90-day increments. Lastly, commenters recommended modifying
briefing extension timelines at the Board to ensure meaningful access
to additional preparation time, including by relaxing the standards for
granting second briefing extensions and using the EOIR Courts & Appeals
System (``ECAS'') to streamline extension requests so that they may be
granted more expediently.
Commenters also recommended implementing a ``mailbox rule'' for
paper filings at the immigration courts and the Board, which would
treat a document as filed upon mailing instead of upon arrival or
receipt. Commenters explained that a mailbox rule would help alleviate
burdens on pro se noncitizens filing in paper, particularly when filing
deadlines begin from the date of the immigration judge or Board
decision, which may not reach the noncitizen by mail for several days.
Alternatively, commenters recommended a limited ``mailbox rule,''
whereby use of overnight delivery services or private couriers would
create a presumption that any delivery failure qualifies as an
extraordinary circumstance allowing for late filing.
Commenters opposed to this rule's briefing schedule changes stated
that the AA96 Final Rule's briefing schedule provisions were more
efficient, while still providing for briefing extensions when
warranted.
Response: The Department is finalizing the NPRM's proposed changes
to briefing schedules and extensions without further amendment. The
Department believes that the briefing procedures in this rule--which
recodifies longstanding practices in place prior to the publication of
AA96 Final Rule and which have again been in use since the AA96 Final
Rule was enjoined--allow necessary flexibility for the Board to set a
briefing schedule as appropriate for each appeal in a manner that will
serve both fairness and efficiency interests. See 8 CFR 1003.3(c)(1).
As an initial matter, the Department believes 21 days to be a
generally sufficient baseline, with which parties are familiar, for
submitting initial appeal briefs. This longstanding 21-day filing
timeline allows those parties who are prepared to submit briefing on
schedule to proceed efficiently, while preserving the availability of
briefing extensions when necessary. See BIA Practice Manual ch. 4.7(c)
(Oct. 25, 2023) (``Extensions''). Further, the Department continues to
believe that simultaneous briefing is appropriate in detained cases
given the need for expeditious resolution of such cases implicating
liberty interests. Id.
Additionally, the Department declines to codify procedures allowing
for the filing of reply briefs in detained cases as a matter of right.
Under this rule, in all non-detained cases, appellees are provided the
same time period to file a reply brief that was initially granted to
the appellant to file their brief. See 8 CFR 1003.3(c)(1). For detained
cases, the Board provides a simultaneous 21-day time period for the
submission of briefs. Id. The Department believes that, in such cases,
the simultaneous briefing schedule provides both parties sufficient
opportunity to address any issues needed to be resolved on appeal or to
identify any reasons for opposing the appeal, while balancing the need
to expeditiously resolve the case.
Further, whether briefs are filed consecutively or simultaneously,
the party appealing the immigration judge's decision is tasked with
pointing out factual or legal error in the decision warranting remand
or reversal, while the party opposing the appeal generally argues in
the vast majority of cases that the immigration judge's decision is
correct based on the reasoning contained within that decision. Thus,
the Department does not believe that the arguments in the opposing
party's brief will take the appellant by surprise such that a reply
brief would be needed to fairly resolve the appeal in most instances.
When rare circumstances arise such that the appeal cannot be fairly
adjudicated without additional briefing, in either detained or non-
detained cases, the Department believes that the Board has the
expertise to determine whether additional briefing--including reply
briefing, supplemental briefing, or amicus briefing--is needed to
resolve the appeal in any individual case and the flexibility to
request such briefing. Moreover, the Department believes that the
Board's internal practices and procedures are sufficient to address any
additional briefing issues in each individual case. See generally BIA
Practice Manual chs. 4.6 (``Appeal Briefs''), 4.7 (``Briefing
Deadlines'').
The Department also declines to automatically extend briefing
timelines for pro se noncitizens. Such a provision presents significant
administrability concerns, as many noncitizens are searching for, or
obtain, representation during the initial appeal and briefing time
frame.\2\ Automatically providing an extended briefing timeline would
result in different briefing timelines for noncitizens depending on
whether they obtained counsel before or after briefing schedules were
set. That said, in the event that a pro se noncitizen obtains counsel
subsequent to the briefing schedule being set, then the noncitizen's
counsel may request a briefing extension if needed.
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\2\ The Department is cognizant of the challenges faced by
unrepresented detained noncitizens who wish to file an appeal before
the Board. Accordingly, since 2001, EOIR has operated the BIA Pro
Bono Project to increase pro bono representation for detained
noncitizens whose cases are on appeal. See EOIR, BIA Pro Bono
Project, https://www.justice.gov/eoir/bia-pro-bono-project
(explaining that the Pro Bono Project ``continues to provide a
highly valuable service connecting pro se respondents to pro bono
counsel'').
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The Department also declines to remove the 90-day limit on briefing
extensions. The Department believes
[[Page 46744]]
that this longstanding pre-AA96 Final Rule limit ensures that parties
are provided sufficient time to file their briefs, while also helping
ensure that the record on appeal is completed and ready for
adjudication in a reasonable time frame. See, e.g., Board of
Immigration Appeals: Procedural Reforms To Improve Case Management, 67
FR 54878, 54878, 54895 (Aug. 26, 2002) (maintaining the then-existing
90-day Board briefing limits as part of a rule intended to efficiently
``improve the adjudicatory process for the Board'').
However, the rule retains the Board's ability to extend filing
deadlines. See 8 CFR 1003.3(c)(1). Should the Board wish to accept
briefing extension requests via ECAS, as suggested by commenters, then
the Department need not amend the regulations; rather, the Board may
update its procedures within the BIA Practice Manual to implement this
change. See generally BIA Practice Manual chs. 4.6 (``Appeal Briefs''),
4.7 (``Briefing Deadlines''). The rule also preserves the Board's
ability to consider, in its discretion, a brief that has been filed out
of time, as well as to request supplemental briefing from the parties
after the expiration of the briefing deadline. 8 CFR 1003.3(c)(1). The
Department believes that both the regulations and the Board's
application of the regulations through internal practices and
procedures allow the parties sufficient opportunity to submit relevant
arguments via briefing before the Board.
Additionally, comments regarding a ``mailbox rule'' for paper
filings before the immigration courts or the Board are outside of the
scope of this rulemaking. This rule focused on the changes made by the
AA96 Final Rule to briefing schedules and whether to retain, modify, or
rescind those specific provisions. See 88 FR at 62254. However, the
Department is always considering potential regulatory changes to
improve EOIR processes and will take commenter suggestions regarding a
``mailbox rule'' under advisement.
In response to commenters in favor of the AA96 Final Rule's
briefing schedule provisions, the Department believes that this rule's
briefing schedule provisions better balance efficient appeal processing
with procedural fairness. In general, the Department does not
anticipate that retaining the longstanding pre-AA96 Final Rule briefing
schedules will draw out or lengthen proceedings, but rather will ensure
that parties have adequate time to prepare and file briefs before the
Board that will best serve Board members in their adjudications.
The Department also notes that maintaining these longstanding
briefing schedules strikes an appropriate balance of providing the
parties adequate time for initial briefing, while preserving the
opportunity for briefing extensions, as well as the Board's ability to
request additional briefing, if such extensions or additional briefing
would aid in the ultimate resolution of the case. Further, maintaining
these longstanding briefing schedules and procedures may, for example,
allow parties to have adequate time to obtain counsel for assistance
with the appeal or to submit more detailed briefs that adequately
address complex issues. Both of these factors may ultimately increase
the efficiency with which Board members can issue a decision in a case
because the issues may be more clearly articulated and thoroughly
presented. Cf. EOIR DM 22-01, Encouraging and Facilitating Pro Bono
Legal Services 1 (Nov. 5, 2021) (``Competent legal representation
provides the court with a clearer record and can save hearing time
through more focused testimony and evidence, which in turn allows the
judge to make better-informed and more expeditious rulings.'').
In sum, the Department believes that the rule's retention of the
longstanding briefing procedures before the Board strikes an
appropriate balance between the need for expeditious resolution of
cases, while maintaining procedural fairness for all parties seeking
appellate review before the Board. Accordingly, the Department declines
to make further amendments to the regulatory provisions governing
briefing before the Board.
B. Administrative Closure
1. Authority for Administrative Closure
Comment: Some commenters claimed that this rule's administrative
closure provisions are unlawful, stating that administrative closure is
not authorized by statute. Commenters favorably cited language from the
now-overruled decision in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G.
2018), as support for their position that there is no statutory basis
for administrative closure in the INA. Commenters further stated that
any regulatory administrative closure provision would be contrary to
statutory language providing procedures for the completion of removal
proceedings, citing INA 240, 8 U.S.C. 1229a. Another commenter stated
that, to be consistent with the INA, administrative closure authority
should be limited to cases where the noncitizen has a pending
application outside of EOIR which, if granted, would obviate the need
for removal proceedings.
Response: Authorizing administrative closure falls within the
Attorney General's broad authority under the INA. The INA not only
directs immigration judges to adjudicate cases and sets forth some
specific procedures for adjudicating removal proceedings, it also
charges the Attorney General with supervising that adjudication system,
see INA 240, 8 U.S.C. 1229a; INA 103(g)(1), 8 U.S.C. 1103(g)(1), and
authorizes the Attorney General, broadly, to ``establish such
regulations . . . as the Attorney General determines to be necessary''
for carrying out his duties in implementing the INA, see INA 103(g)(2),
8 U.S.C. 1103(g)(2). That authority comfortably encompasses
establishing additional procedural rules that the Attorney General
deems will promote the fair and efficient functioning of the
adjudication system, especially on the many procedural issues that the
INA itself does not address. Indeed, the Attorney General for decades
has exercised that authority in myriad ways, including, for example,
providing for Board review of most immigration judge decisions, see
generally 8 CFR 1003.1(b) (``Appellate jurisdiction''), and generally
conferring on adjudicators the power to take any action ``appropriate
and necessary'' for the disposition or alternative resolution of a
case, as consistent with the law, id. Sec. Sec. 1003.1(d)(1)(ii),
1003.10(b); see also Miscellaneous Amendments to Chapter, 23 FR 2670,
2671 (Apr. 23, 1958) (original 1958 regulatory provision authorizing
EOIR adjudicators to exercise their discretion as may be ``appropriate
and necessary'' for the disposition of a case). Given the Attorney
General's clear and broad authority, and the long history of its
exercise to establish similar procedural rules, the only question is
whether Congress precluded the Attorney General from using this
authority to provide for administrative closure. Congress has not
precluded the Attorney General from doing so.
In a more specific way, too, history confirms that the Attorney
General's broad authority under the INA encompasses administrative
closure. Since at least the 1980s, immigration judges and the Board
have exercised their authority, where appropriate, to use
administrative closure as a docketing tool. See Arcos Sanchez v. Att'y
Gen., 997 F.3d 113, 116-17 (3d Cir. 2021); see also 88 FR 62243-46
(describing the history of administrative closure). And in the HSA,
Congress specified that the Attorney General has ``such authorities and
functions under
[[Page 46745]]
[the INA] relating to the immigration and naturalization of
[noncitizens] as were exercised by [EOIR], or by the Attorney General
with respect to [EOIR]'' prior to the HSA. HSA 1102, 116 Stat. at 2274;
INA 103(g)(1), 8 U.S.C. 1103(g)(1); see also 6 U.S.C. 521. The HSA
confirms that the Attorney General may continue to provide for the
administrative closure authority that EOIR adjudicators in fact
exercised prior to the HSA.
Administrative closure is also a reasonable exercise of the
Attorney General's authority to ``establish such regulations . . . as
[he] determines to be necessary'' for carrying out his duties in
overseeing the EOIR adjudication system, see INA 103(g)(2), 8 U.S.C.
1103(g)(2). Administrative closure authority ``is not limited to the
immigration context'' and is ``utilized throughout the Federal court
system, under a variety of names, as a tool for managing a court's
docket.'' Matter of Avetisyan, 25 I&N Dec. 688, 690 n.2 (BIA 2012). And
immigration adjudicators, like other adjudicators, can in appropriate
circumstances use administrative closure to promote the fair and
efficient management of their dockets. For example, an immigration
judge or an Appellate Immigration Judge may determine that a case may
be most efficiently and fairly completed by administratively closing
the case to first allow U.S. Citizenship and Immigration Services
(``USCIS'') to adjudicate a relief application, which, if granted, may
provide the noncitizen with legal status or some other basis that would
prevent enforcing an order of removal, thus eliminating the need for
further removal proceedings, reducing the immediate need to conclude
removal proceedings, or otherwise narrowing the issues before EOIR. As
a result, EOIR adjudicators, and EOIR more generally, can direct
resources to other cases ripe for adjudication. Commenters have not
identified anything that would withdraw administrative closure from the
measures that the Attorney General may determine are ``necessary.''
Administrative closure, like the other actions described previously, is
a regulatory action the Attorney General has determined should be
available for adjudicators to use, to fulfill their statutory
responsibilities under the INA and in accordance with due process.
The Department also does not agree that, to be consistent with the
INA, administrative closure authority should be limited to cases where
the noncitizen has a pending application outside of EOIR, which, if
granted, would obviate the need for removal proceedings. Commenters did
not point to any provision in the INA that would suggest that
administrative closure should be limited in such a way. The Department
has previously entered into judicially approved, binding settlement
agreements and issued numerous regulations, in compliance with the INA,
that provide for administrative closure in a variety of specified
situations. See generally 88 FR 62244-45. Further, EOIR adjudicators
have long had authority to use administrative closure to pause removal
proceedings to give noncitizens an opportunity to pursue newly
available pathways to lawful status. See, e.g., Veliz v. Caplinger, No.
96-1508, 1997 WL 61456, at *1 (E.D. La. Feb. 12, 1997) (noting that the
removal proceedings before the agency were administratively closed to
allow noncitizens to apply for legalization under the Immigration
Reform and Control Act of 1986).
Contrary to any commenter suggestions otherwise, administrative
closure does not prevent the ultimate adjudication of removal
proceedings, as the case remains pending with EOIR while
administratively closed. See, e.g., 8 CFR 1003.18(c) (defining
administrative closure as the ``temporary suspension of a case'').
Rather, administrative closure temporarily pauses the case until a
party files a motion to recalendar the case and the motion is granted.
Once recalendared, the case is completed through an order of relief,
removal, termination, or dismissal, as warranted by the circumstances
of each case. See, e.g., Arevalo v. Barr, 950 F.3d 15, 18 (1st Cir.
2020) (noting that once the Board recalendared, the case was ``awaiting
only the entry of a final decision by the BIA'').
Additionally, commenters' reliance on a portion of an Attorney
General decision, Matter of Castro-Tum, for the proposition that
administrative closure is unauthorized by statute is misplaced. See 27
I&N Dec. at 283 (citing Diaz-Covarrubias v. Mukasey, 551 F.3d 1114,
1118 (9th Cir. 2009); Hernandez v. Holder, 579 F.3d 864, 877 (8th Cir.
2009), vacated in part, 606 F.3d 900 (8th Cir. 2010); Gonzalez-Caraveo
v. Sessions, 882 F.3d 885, 889 (9th Cir. 2018); Vahora v. Holder, 626
F.3d 907, 917 (7th Cir. 2010)). The Attorney General has overruled
Matter of Castro-Tum in its entirety. See Matter of Cruz-Valdez, 28 I&N
Dec. 326, 328-29 (A.G. 2021) (indicating that because various courts of
appeals had rejected the reasoning in Matter of Castro-Tum and because
that decision departed from long-standing practice, the Attorney
General found it appropriate to overrule Matter of Castro-Tum in its
entirety).
Even taken on its own terms, Matter of Castro-Tum did not suggest
that administrative closure is unauthorized by statute. First, although
that decision significantly limited EOIR adjudicators' administrative
closure authority, it did not call into question the validity of
regulatory provisions expressly authorizing administrative closure. 27
I&N Dec. at 272 (holding that EOIR adjudicators may ``only
administratively close a case where a previous regulation or a previous
judicially approved settlement expressly authorizes such an action'').
Second, none of the four Federal courts of appeals cases cited by
Matter of Castro-Tum determined that administrative closure was a
statutorily invalid procedural tool in immigration court. See Diaz-
Covarrubias, 551 F.3d at 1116-20; Gonzalez-Caraveo, 882 F.3d at 891-94;
Vahora, 626 F.3d at 914-19; Hernandez, 579 F.3d at 877. Rather, each of
these decisions addressed the narrow jurisdictional question of whether
courts had authority to review an immigration court's denial of
administrative closure. All four cases simply referenced, in dicta, the
INA's silence on administrative closure in determining whether the INA
included statutory language that would provide a meaningful standard by
which to review claims challenging administrative closure decisions.
See Diaz-Covarrubias, 551 F.3d at 1118; Gonzalez-Caraveo, 882 F.3d at
891-94; Vahora, 626 F.3d at 914-19; Hernandez, 579 F.3d at 877-78.
Notably, none of these decisions questioned the availability of
administrative closure as an immigration court procedural tool. See
Diaz-Covarrubias, 551 F.3d at 1116-20; Gonzalez-Caraveo, 882 F.3d at
889-94; Vahora, 626 F.3d at 914-21; Hernandez, 579 F.3d at 877-78. For
example, in Vahora, the court held EOIR's administrative closure
determinations to be unreviewable as ``a procedural device, not unlike
the myriad other procedural devices employed by quasi-judicial bodies
in administrative agencies and in the Executive Office for Immigration
Review in particular.'' 626 F.3d at 917.
For these reasons, contrary to commenter claims, administrative
closure falls squarely within the authority the INA grants to the
Attorney General to establish regulations deemed necessary to
administering the immigration laws, INA 240, 8 U.S.C. 1229a; and no
provision of the INA prohibits the Attorney General from exercising his
broad authority to provide for administrative closure by regulation.
Comment: One commenter expressed that EOIR adjudicators should not
take
[[Page 46746]]
on prosecutorial discretion functions by determining which cases should
be adjudicated and which should not, citing separation-of-function
principles. Separately, another commenter claimed that the rule would
allow immigration judges to unilaterally decline to adjudicate cases
rather than ruling on all cases brought before them, which the
commenter claimed violates separation of powers.
Response: The Department disagrees with commenter assertions that
this rule would raise concerns by allowing EOIR adjudicators to decline
to adjudicate cases or exercise prosecutorial discretion functions
belonging to DHS. The Department is cognizant of and respects the
different roles and responsibilities of DHS and EOIR adjudicators in
removal proceedings, see 88 FR at 62258, and this rule neither alters,
impacts, nor diminishes DHS's prosecutorial authority or discretion,
nor does the rule authorize immigration judges or Appellate Immigration
Judges to unilaterally decline to adjudicate cases, as administratively
closed cases still remain pending on EOIR's docket, without actively
drawing resources, until a case becomes ripe for adjudication and a
decision is issued, see id. at 62264-65 (explaining that the rule
``would not change the longstanding principle that immigration judges
and Appellate Immigration Judges have no authority to review or second-
guess DHS's exercise of prosecutorial discretion, including its
decision whether to commence removal proceedings'').
DHS ``exercises its prosecutorial discretion when it decides
whether to commence removal proceedings and what charges to lodge
against a respondent.'' Matter of Avetisyan, 25 I&N Dec. at 694 (citing
Heckler v. Chaney, 470 U.S. 821, 831 (1985) and Wayte v. United States,
470 U.S. 598, 607 (1985)). This rule does not impede, preclude, or
alter DHS's authority or ability to initiate proceedings in the
exercise of prosecutorial discretion or authority. Once DHS decides to
institute proceedings, that decision is not reviewable by an EOIR
adjudicator. Id.; see also Matter of Bahta, 22 I&N Dec. 1381, 1391 (BIA
2000). However, after DHS exercises its authority to initiate
proceedings and jurisdiction over removal proceedings vests with the
immigration judge, the immigration judge has the authority to regulate
the proceedings, consistent with applicable law and regulations. Matter
of Avetisyan, 25 I&N Dec. at 694; 8 CFR 1003.14(a) (stating that
jurisdiction vests when a charging document is filed with the
immigration court), 1240.1(a)(iv) (providing immigration judges with
the authority to take any action ``consistent with applicable law and
regulations as may be appropriate''), 1240.1(c) (providing immigration
judges with the authority to ``regulate the course of the hearing'').
Further, EOIR does not use administrative closure as a
prosecutorial function. As stated previously, administrative closure
has been ``utilized throughout the Federal court system, under a
variety of names, as a tool for managing a court's docket,''
underscoring that the use of administrative closure is not a
prosecutorial tool and therefore does not violate separation-of-
functions principles. See Matter of Avetisyan, 25 I&N Dec. at 690 n.2.
Administrative closure is a docket-management tool for EOIR
adjudicators, separate and distinct from DHS's prosecutorial discretion
authority, and is one such way for EOIR adjudicators to manage and
regulate proceedings and, more broadly, an immigration judge's calendar
or the Board's docket. Accordingly, the rule includes guidelines for
specific docket-management tools that are available to EOIR
adjudicators as necessary or appropriate to improve the fairness and
efficiency of proceedings before them. For example, administrative
closure is a tool that can be used, where necessary or appropriate, to
temporarily suspend a case that may not be ripe for active
adjudication; where there may be pending alternative resolutions to
removal that, once resolved, could obviate the need for further
proceedings or significantly narrow the issues before EOIR, thus
improving fairness and reducing the resources required to ultimately
resolve the case; or where the above circumstances are not present but
one party requests the case be removed from the active docket or
calendar and the other party joins in the request or affirmatively
indicates its non-opposition.
For those cases that are administratively closed, either party may
file a motion to recalendar, and where the EOIR adjudicator determines
that the case should be recalendared, proceedings will be put back on
the active docket or calendar. See 8 CFR 1003.1(l)(2), 1003.18(c)(2).
Thus, while administrative closure may impact the course of
proceedings, it does not impact DHS's ability to initiate proceedings,
and therefore, does not amount to an exercise of prosecutorial
discretion by an EOIR adjudicator. See 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 instituting or
pursuing those proceedings and so does not infringe on the DHS's
prosecutorial discretion.'').
In addition, this rulemaking does not infringe on separation of
powers. The rule does not impermissibly assign a judicial role to the
Executive Branch because immigration judges and Appellate Immigration
Judges are not part of the Judicial Branch. Rather, they are attorneys
whom the Attorney General appoints as administrative judges within
EOIR, see INA 101(b)(4), 8 U.S.C. 1101(b)(4), and who conduct
administrative adjudications within the Executive Branch. Furthermore,
there continues to be judicial review over EOIR's administrative
adjudications unless otherwise directed by law. See Immigration Court
Practice Manual ch. 1.4(g) (Oct. 25, 2023).
2. Efficiency and Immigration Court Backlog
Comment: Many commenters supported explicitly authorizing
administrative closure by regulation to help ease the immigration court
backlog. Commenters stated that, previously, in cases where noncitizens
were awaiting USCIS processing of an application or benefit request,
those noncitizens would have to appear in immigration court for
multiple master calendar hearings to provide status updates to the
immigration judge. Commenters explained that these immigration court
appearances were an inefficient use of resources for noncitizens,
attorneys, and immigration judges. Thus, commenters stated that the
rule's administrative closure provisions would increase efficiency by
avoiding unnecessary immigration court hearings while awaiting USCIS
adjudication of applications.
In contrast, other commenters opposed codifying administrative
closure authority, claiming that the use of administrative closure only
serves to delay proceedings because it does not dispose of a case on
the merits. Commenters stated that immigration judges should instead
focus on concluding removal proceedings through a substantive order of
relief or removal. Commenters expressed concern that administrative
closure would act as a de facto amnesty provision, creating a permanent
class of noncitizens without legal status in the United States, and
would further incentivize illegal migration. To support this
contention, commenters pointed to statistics on existing
administratively closed cases that have been closed for many years.
These commenters stated that, instead of providing for administrative
closure, the Department
[[Page 46747]]
should have considered the use of status dockets, continuances, and
limited termination authority, which commenters stated would be more
appropriate tools when noncitizens are waiting for, or have obtained,
relief outside of EOIR.
Response: The Department believes that the rule's provisions
explicitly codifying administrative closure authority help promote the
efficient use of EOIR resources, including valuable docket time. As
explained in the NPRM, requiring immigration judges or Appellate
Immigration Judges to adjudicate cases where the noncitizen in
proceedings has a pending application or petition with USCIS is often
an inefficient use of resources, as many of these noncitizens may
obtain legal status that obviates the need for further removal
proceedings. See generally 88 FR at 62257 (explaining that there are
scenarios where ``it would be wasteful to commit judicial resources to
cases where there are pending alternative resolutions to the case that
would obviate the need for, or significantly narrow the issues in,
removal proceedings''). When administratively closed cases are removed
from the immigration court's active calendar or the Board's docket,
EOIR adjudicators can then reallocate that docket time to cases ripe
for adjudication, including those where DHS has prioritized the removal
of the noncitizen or where there are no pending alternative resolutions
to removal, thereby helping to reduce the overall number of cases
pending before the immigration courts and the Board. Further, once
administratively closed cases are recalendared, they often require
fewer resources to resolve, as they are often near final completion due
to the narrowing of issues resulting from any external adjudications,
and for the same reasons, often have a reduced need for any additional
continuances.
Moreover, alternatives to administrative closure, including
continuances, status dockets, and motions to reopen, are comparatively
less efficient than administrative closure in many cases. See, e.g.,
id. at 62257. For example, while a relief application is pending with
USCIS, the use of multiple continuances in removal proceedings would
require repeatedly rescheduling hearings as each successive continuance
is granted. See Matter of Hashmi, 24 I&N Dec. 785, 791 n.4 (BIA 2009)
(noting that administrative closure can ``avoid the repeated
rescheduling of a case that is clearly not ready to be concluded'').
Status dockets may also be less efficient in such cases, as the
immigration court would be spending valuable time repeatedly requesting
status updates for the case, rather than considering whether the case
is ripe for adjudication once a party moves to recalendar proceedings
after any outside actions have been completed.
Similarly, if the EOIR adjudicator was required to complete
adjudication of removal proceedings while a relief application was
pending with USCIS, the noncitizen might need to file a motion to
reopen the concluded removal proceedings if USCIS ultimately granted
their application. This process would require EOIR adjudicators to
adjudicate the removal proceeding, a potential appeal, and then a
subsequent motion to reopen, which is far less efficient than
administratively closing the proceeding until the USCIS adjudication is
completed. Such efficiency concerns are further supported by the
fairness benefits provided by administrative closure. See 88 FR at
62256 (explaining that, in many circumstances, administrative closure
allows noncitizens who are prima facie eligible for relief to pursue
such relief without threat of immediate removal).
Additionally, the Department believes that administrative closure
furthers finality goals, as it helps ensure that, when necessary or
appropriate, noncitizens are able to pursue options for reasonably
available legal status before removal proceedings are concluded. This
helps ensure that the conclusion of removal proceedings, and any
related appeals, will be the final determination on a noncitizen's
ability to remain in the United States.
Further, the Department rejects commenters' assertion that the use
of administrative closure is inefficient because it delays proceedings
and does not dispose of a case on the merits. As the Department has
explained, administrative closure allows EOIR adjudicators to focus
resources on cases that are ripe for adjudication, including those
cases with no pending alternative resolutions to removal, thereby
improving efficiency in the aggregate. See id. at 62256 (``Efficiency
also encompasses consideration of prioritization and allocation of
resources among different cases.'').
By contrast, commenters opposed to the use of administrative
closure authority described an excessively narrow view of
``efficiency,'' focusing solely on completing some individual removal
proceedings as quickly as possible, with no concern for (1) the
resources needed to facilitate those proceedings on an EOIR
adjudicator's active docket or calendar; (2) whether the noncitizen is
a priority for removal; (3) whether pausing proceedings to allow for
the result of collateral dispositions could obviate the need for
continued proceedings or significantly narrow the issues; and (4)
whether such temporary removal from the active docket or calendar is
necessary or appropriate to the fairness of the proceedings.
Additionally, by primarily focusing on some individual cases in removal
proceedings, these commenters have not accounted for the larger,
systemic efficiencies that administrative closure may create for EOIR
in the aggregate. In the Department's view, focusing docket time and
other resources on actively adjudicating cases ripe for resolution
while cases with other possible resolutions remain pending--like a case
with an outstanding petition or application before USCIS as described
previously--often results in the overall most efficient use of
resources.
Moreover, these regulations do not permit administrative closure to
be used as a de facto ``amnesty'' provision. Rather, they permit
adjudicators to use administrative closure to temporarily remove cases
from EOIR's active docket only until such cases are ripe for
adjudication or resolution. 8 CFR 1003.1(l), 1003.18(c) (defining
administrative closure as ``the temporary suspension of a case'').
While a case is administratively closed, the proceedings remain
pending, and the administrative closure itself confers no status upon a
noncitizen. Administrative closure is solely a procedural tool to
permit the efficient use of resources.
3. General Standards for Administrative Closure
Comment: Commenters provided several suggestions regarding the
general standards for administrative closure. For example, commenters
recommended requiring EOIR adjudicators to grant joint and
affirmatively unopposed motions and removing the provision providing
EOIR adjudicators with the ability to deny such motions based on
unusual, clearly identified, and supported reasons. Commenters were
concerned that EOIR adjudicators would use this exception to improperly
deny such motions when neither party wished to proceed with the removal
proceeding.
Relatedly, commenters recommended that, similar to the proposed
standard governing joint and affirmatively unopposed motions, granting
motions should also be favored when DHS does not respond to a
noncitizen's motion for administrative closure in a timely
[[Page 46748]]
manner. Commenters stated that favoring the grant of a motion when DHS
does not indicate its response would prevent a situation where motions
that would otherwise be granted would remain pending indefinitely due
to DHS's failure to respond.
Response: The regulatory language governing joint and affirmatively
unopposed motions sets forth that EOIR adjudicators shall grant motions
to administratively close or recalendar that have either been filed
jointly by both parties, or filed by one party where the other party
has affirmatively indicated its non-opposition. 8 CFR 1003.1(l)(3),
1003.18(c)(3). EOIR adjudicators may only deny such motions where they
have articulated unusual, clearly identified, and supported reasons for
doing so. Id. The Department declines to remove the exception allowing
an EOIR adjudicator to deny the motion for unusual, clearly identified,
and supported reasons. As explained in the NPRM, EOIR adjudicators are
in the best position to determine how a case should proceed, and there
may be circumstances in which the removal proceeding should continue
despite the parties' motion. See 88 FR at 62260 (explaining that this
exception ``provides adjudicators the flexibility to address the
complexities of an individual case, while requiring the adjudicator to
issue a reasoned explanation that provides the parties with due notice
of the basis for a denial'' of a joint motion to administratively close
proceedings).
Moreover, the Department does not share commenters' concerns that
EOIR adjudicators would use this exception to improperly deny joint or
affirmatively unopposed motions. The Department expects all of its
adjudicators to make decisions in accordance with the Act and the
regulations, and that they will not improperly deny joint or
affirmatively unopposed motions. 8 CFR 1003.1(d)(1) (``The Board shall
resolve the questions before it in a manner that is timely, impartial,
and consistent with the Act and regulations.''); 8 CFR 1003.10(b)
(same). Additionally, there is a presumption of regularity that
attaches to the actions of Government agencies, see United States
Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001), and adjudicators such
as immigration judges are ``assumed to be . . . capable of judging a
particular controversy fairly on the basis of its own circumstances,''
Withrow v. Larkin, 421 U.S. 35, 55 (1975) (internal quotation mark
omitted). Moreover, adjudicators are required to clearly identify and
support the reasons for denying such motions, thereby creating a record
that could be subject to further review.
The Department also declines to treat motions without a DHS
response in the same manner as joint and affirmatively unopposed
motions and declines to expand the termination ground for joint and
affirmatively unopposed motions further. See id. at 62259-60
(explaining the joint and affirmatively unopposed standard). While
joint and affirmatively unopposed motions should generally be granted
in the interests of efficiency given the lack of an adversarial
posture, a lack of DHS response to a motion, alone, is not the same as
DHS's affirmative expression of non-opposition and does not necessarily
convey that DHS maintains no adversarial interest in the case.
Additionally, as this rule does not supplant the immigration
courts' or the Board's procedures for processing motions, the
Department notes that a motion for administrative closure will not
remain pending indefinitely in the event that DHS does not respond.
Rather, as is consistent with EOIR's motions practice, the EOIR
adjudicator will rule upon the motion once any time limits for
responses to motions have passed. See 8 CFR 1003.23(a) (``The
Immigration Judge may set and extend time limits for the making of
motions and replies thereto.''); see also Immigration Court Practice
Manual ch. 5.12 (Oct. 25, 2023) (governing responses to motions); BIA
Practice Manual ch. 5.11 (May 8, 2023) (providing that an opposing
party has 13 days to respond after being served with the motion and
noting that a failure to oppose ``will not necessarily result in a
grant of [the] motion'').
Comment: Commenters recommended that the Department specify that a
motion to withdraw or substitute representation can be filed and
adjudicated while a case remains administratively closed. According to
commenters, current practice requires an administratively closed case
to be recalendared before a motion to withdraw or substitute can be
filed and adjudicated, and then requires the case to be
administratively closed again. Other commenters indicated that
providing clarity on this issue would improve pro bono representation
rates by reducing uncertainty over a representative's ability to move
for withdrawal or substitution without risking premature recalendaring
of an administratively closed case.
Response: In response to comments regarding motions to withdraw or
substitute counsel while a case is administratively closed, the
Department clarifies that the EOIR adjudicator may adjudicate such
motions without recalendaring the case. Additionally, the Department
notes that recalendaring must be upon the motion of a party, and an
immigration judge would not be authorized under this rule to recalendar
sua sponte to adjudicate a motion to withdraw or substitute counsel. 8
CFR 1003.1(l)(2), 1003.18(c)(2) (authorizing EOIR adjudicators to
``recalendar [a] case pursuant to a party's motion to recalendar'').
The Department further notes that motions to withdraw or substitute
counsel should comply with standards for such motions. See Immigration
Court Practice Manual ch. 2.1(b)(3)(B) (June 20, 2023) (motions to
substitute), (C) (motions to withdraw). Consistent with existing
standards, attorneys requesting withdrawal from representation should
provide evidence with their motion that they notified, or attempted to
notify, the noncitizen of the ongoing nature of their proceedings and
any upcoming deadlines or hearings, which would reasonably include an
explanation that their case is administratively closed but may be
recalendared in the future. See id. ch. 2.1(b)(3)(C) (calling for
notification of pending deadlines; the date, time, and place of the
next scheduled hearing; the necessity of meeting deadlines and
appearing at scheduled hearings; and the consequences of failing to
meet deadlines or appear at scheduled hearings). The Department
believes that this rule, which does not impose any limitations on
adjudication of such motions, provides sufficient guidance for counsel
to make determinations about whether to engage in representation.
Comment: Commenters also recommended clarifying that administrative
closure is available to detained noncitizens, who may be pursuing
alternative relief with USCIS.
Response: As an initial matter, the Department notes that the rule,
in general, does not distinguish between detained and non-detained
cases regarding the exercise of administrative closure authority, as
the Department does not believe such an explicit distinction is
necessary. Rather, the rule provides that EOIR adjudicators may, in
their discretion, administratively close cases after consideration of
the totality of the circumstances. See 8 CFR 1003.1(l), 1003.18(c)
(administrative closure standards).
However, after further consideration, the Department is adding an
additional factor--the U.S. Immigration and Customs Enforcement
(``ICE'') detention status of the noncitizen--to the nonexhaustive list
of factors for EOIR
[[Page 46749]]
adjudicators to consider as part of the totality of the circumstances
when evaluating motions to administratively close or recalendar a case.
See id. Sec. 1003.1(l)(3)(i)(H) (administrative closure before the
Board), 1003.18(c)(3)(i)(H) (administrative closure before immigration
judges), 1003.1(l)(3)(ii)(H) (recalendaring before the Board),
1003.18(c)(3)(ii)(H) (recalendaring before immigration judges).
Accordingly, where relevant and in addition to other factors applicable
to a particular case, EOIR adjudicators must consider a noncitizen's
ICE detention status when making a determination about whether to
administratively close or recalendar a case.
Several considerations warrant adding this factor for EOIR
adjudicators to consider when adjudicating motions to administratively
close or recalendar cases where the ``totality-of-the-circumstances''
standard applies. See infra section IV.A of this preamble (providing
additional explanation of this change). Administrative closure in cases
involving a detained noncitizen may prolong the noncitizen's detention,
imposing a greater burden on the noncitizen and additional costs to the
Government during the pendency of a case. For those reasons, detained
cases present a heightened need for stringent monitoring and continuous
reevaluation regarding whether a case is ready to proceed to minimize,
to the greatest extent possible, the risk of lengthier than necessary
detention and the resulting costs. Accordingly, although the Department
reiterates that no single factor is dispositive or more heavily
weighted than others in adjudicating a motion to administratively close
or recalendar a case, see 8 CFR 1003.1(l)(3), 1003.18(c)(3), the fact
that a noncitizen is detained in ICE custody will generally weigh
against the appropriateness of administrative closure. Conversely, for
detained cases that are already administratively closed, the
noncitizen's detention status will generally weigh in favor of
recalendaring in order to resume proceedings. In most detained cases,
granting continuances as needed while maintaining the case on--or
returning the case to--the active docket will be the most appropriate
course of action.
That said, this rule does not expressly preclude the administrative
closure of a case involving a noncitizen in ICE detention. Again,
because a noncitizen's status in ICE detention is not a dispositive
factor, there may be some cases where administrative closure is
necessary or appropriate despite the noncitizen's detention in ICE
custody. As explained below, see infra section IV.A of this preamble,
such circumstances may include, for example, permitting a detained
noncitizen to pursue available relief with USCIS, such as a Form I-
601A, Provisional Unlawful Presence Waiver, or to permit evaluations or
treatment related to mental competency concerns. Moreover, the
Department is cognizant that there may be unique or compelling
circumstances warranting the administrative closure of a case involving
a noncitizen in ICE detention based on the totality of the
circumstances. Though the Department anticipates that such compelling
circumstances will be rare, the Department believes that EOIR
adjudicators have the expertise and judgment to evaluate the individual
facts and circumstances in each case, including in cases where
noncitizens are in ICE detention, to identify whether administrative
closure is necessary or appropriate in that particular case.
In sum, the Department believes that the ICE detention status of a
noncitizen is a crucial factor for EOIR adjudicators to carefully
evaluate when considering a motion to administratively close or
recalendar a case. Adding ICE detention status as an explicit factor
for EOIR adjudicators to consider when applying the ``totality-of-the-
circumstances'' standard ensures that detained cases will continue to
be monitored in the most appropriate fashion, while maintaining EOIR
adjudicator discretion to administratively close detained cases in the
limited scenarios where it may be appropriate.
Comment: Commenters recommended clarifying that both written and
oral motions for administrative closure are acceptable. In addition,
one commenter raised concerns about a lack of guidance distinguishing
when administrative closure or discretionary termination should be
used.
Response: With regard to written and oral motions, the Department
concludes that the proposed regulatory text is sufficient as written to
make clear that an administrative closure motion need not take a
particular form and can therefore include both written and oral
motions. See 8 CFR 1003.1(l)(1) (``Board members may, in the exercise
of discretion, administratively close a case upon the motion of a party
. . . .''), 1003.18(c)(1) (``An immigration judge may, in the exercise
of discretion, administratively close a case upon the motion of a party
. . . .''). If the Department had intended to permit only written
motions, the proposed regulatory text would have explicitly stated that
limitation.
In response to a commenter's request to provide EOIR adjudicators
with more guidance on the differences between administrative closure
and termination, the Department believes the rule provides clear
standards for the applicability of both administrative closure and
termination. See generally 8 CFR 1003.18(c), 1003.18(d). The Department
notes that there may be limited circumstances where both options are
available in a particular case, namely when a noncitizen is pursuing
outside relief with USCIS. Compare 8 CFR 1003.18(c)(3)(i)(D)
(administrative closure factor requiring demonstrating a likelihood of
success on outside relief, but not requiring a filing with USCIS), with
8 CFR 1003.18(d)(1)(ii)(B) (discretionary termination provision
requiring a prima facie showing on outside relief, and requiring a
filing with USCIS).
For example, if the noncitizen is seeking discretionary
termination, has a pending filing with USCIS, and is prima facie
eligible, the adjudicator may still deny termination as a matter of
discretion, but, depending on the individual facts and circumstances of
the case, may determine that administrative closure is more
appropriate. Because the Department believes that adjudicators are in
the best position to determine which procedural tool is most
appropriate in a particular case, the Department does not wish to
constrain the EOIR adjudicator's discretion, beyond what is already
delineated in this rule, by dictating which procedural tool may be
necessary or appropriate in any individual case. See id. Sec.
1003.1(d)(1)(ii) (requiring adjudicators to use their ``independent
judgment and discretion'' to resolve cases before them), 8 CFR
1003.10(b) (same); see also Matter of Avetisyan, 25 I&N Dec. at 695
(explaining that the decision to administratively close proceedings
``involves an assessment of factors that are particularly relevant to
the efficient management of the resources of the Immigration Courts and
the Board,'' which falls squarely within the duties of EOIR
adjudicators).
However, as explained further in section III.C.4 of this preamble,
the Department has provided additional guidance on this discretionary
termination ground that the Department believes will better assist EOIR
adjudicators in weighing whether administrative closure or termination
is most appropriate if both tools are potentially available in a
particular case. See 8 CFR 1003.1(m)(1)(ii), 1003.18(d)(1)(ii). For
example, the rule now includes a requirement that the noncitizen file
any associated petition,
[[Page 46750]]
application, or other action with USCIS, with limited exception, before
discretionary termination may be granted, which is not required for the
similar administrative closure factor. See id. Sec. Sec.
1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B). Additionally, the final rule
clarifies that EOIR adjudicators do not have sua sponte authority to
grant termination and must consider the basis for any opposition to
termination raised by a party, which will also help EOIR adjudicators
to determine whether termination, as opposed to administrative closure,
is the most appropriate option if both tools are available in the case.
See id. Sec. Sec. 1003.1(m)(1)(ii), 1003.18(d)(1)(ii).
4. Totality-of-the-Circumstances Factors for Administrative Closure
Comment: Numerous commenters raised concerns with specific factors
being dispositive to a request for administrative closure.
Response: As a general matter, the Department first emphasizes that
the proposed administrative closure factors are encompassed within a
broader totality-of-the-circumstances analysis, and no single factor is
dispositive. To the extent that commenters raised concerns with
specific factors included in the rule, the Department notes that the
totality analysis allows adjudicators to consider all relevant factors
holistically. For example, the totality analysis allows for the
adjudicator to consider and weigh relevant factors, as appropriate,
given the particular facts of a given case, including parties'
arguments and evidence on how much weight to give a certain factor or
why a certain factor may be outweighed by other factors.
Fundamentally, the factors enumerated in the rule, along with any
other relevant considerations, are intended to elicit evidence relevant
to answering straightforward questions, such as: would administrative
closure efficiently and fairly help a case reach its ultimate
resolution or alternative disposition? See 8 CFR 1003.1(l)(3)(i)(A) and
(B), (G) and (H), 1003.18(c)(3)(i)(A) and (B), (G) and (H). Is there an
outside application, petition, or action that needs to be adjudicated
to determine if further removal proceedings are warranted? See id.
Sec. Sec. 1003.1(l)(3)(i)(C), 1003.18(c)(3)(i)(C). If so, how likely
is the noncitizen to succeed on such a petition, application, or other
action? See id. Sec. Sec. 1003.1(l)(3)(i)(D), 1003.18(c)(3)(i)(D). And
is the noncitizen being diligent in pursuing such petition,
application, or action? See id. Sec. Sec. 1003.1(l)(3)(i)(F),
1003.18(c)(3)(i)(F). The Department believes the factors enumerated in
the rule help provide EOIR adjudicators with guidance to answer such
questions. Commenters' concerns regarding each of the specific factors
will be addressed in greater detail elsewhere in this section of this
preamble.
Comment: Commenters provided a number of suggested revisions to the
proposed administrative closure factors. One commenter recommended
modifying the ``reason administrative closure is sought'' factor to
explicitly state that a noncitizen's employment authorization is a
valid consideration for the adjudicator. The commenter explained that
employment authorization considerations should weigh in favor of
administrative closure when a noncitizen has an application pending
with EOIR that serves as the basis for their employment authorization.
Commenters noted that, in this situation, dismissing or terminating the
noncitizen's proceedings can withdraw the underlying pending
application for relief on which the noncitizen's employment
authorization eligibility is based.
Response: The Department declines to explicitly include employment
authorization eligibility as a factor for administrative closure. The
Department believes that the totality-of-the-circumstances analysis
broadly covers any relevant considerations EOIR adjudicators may
assess, and noncitizens may raise such issues identified by commenters
if they believe they are relevant to an administrative closure
determination. This rule does not preclude EOIR adjudicators from
considering employment authorization eligibility as part of the
totality of the circumstances for administrative closure where relevant
to a particular case. However, the Department notes that employment
authorization does not constitute relief, protection, lawful status,
deferred action, or similar benefits that would typically have any
bearing on removability or relief from removability.
Comment: Commenters also recommended broadening the factor focusing
on ``any requirement that a case be administratively closed in order
for a petitioner, application, or other action to be filed with, or
granted by DHS.'' Commenters recommended broadening this to include any
outside agency. Commenters explained that noncitizens may be pursuing
collateral relief with agencies other than DHS, and that administrative
closure should be available in such instances. Other commenters stated
that this factor should clarify that administrative closure is
available even when it is not required for USCIS to adjudicate a
specific application.
Response: The Department declines to broaden the factor focusing on
any ``requirement that a case be administratively closed in order for a
petition, application, or other action to be filed with, or granted by,
DHS'' to include any outside agency, and not just DHS. This factor is
intended to include situations similar to the I-601A, Application for
Provisional Unlawful Presence Waiver, where the regulations require
administrative closure as a prerequisite to consider that type of
waiver. Commenters did not provide, and the Department is unaware of,
any specific examples of other entities or agencies where
administrative closure is a prerequisite for the petition, application,
or other action to be considered or granted.
Lastly, in response to comments stating that administrative closure
should be available even when not required for USCIS to adjudicate a
specific application, the Department notes that EOIR adjudicators are
permitted to administratively close a case when necessary or
appropriate, considering the totality of the circumstances, including
all relevant factors. 8 CFR 1003.1(d)(1)(ii) (authority of Board),
(l)(3) (general administrative closure standards for Board), 1003.10(b)
(authority of immigration judges), 1003.18(c)(3) (general
administrative closure standards for immigration judges). Thus, the
rule does not limit administrative closure in the way commenters
suggest, and the Department declines to make any further changes to
this specific factor relevant to DHS petitions, applications, or other
actions.
Comment: Regarding the ``likelihood of success'' factor, commenters
stated that immigration judges should not be required to consider the
likelihood of success of any relief outside of EOIR when determining
whether to grant administrative closure, as that ultimate relief
determination is made by another adjudicative body, and any initial
determination by an immigration judge would be speculative. Instead,
one commenter recommended focusing this factor simply on whether the
noncitizen filed their application with USCIS. Other commenters
recommending retaining, but modifying, this ``likelihood of success''
factor to focus on the likelihood of ``eligibility'' or ``prima facie
eligibility'' for relief before USCIS, rather than a likelihood of
``success.'' These commenters believed that such a change would better
focus on a noncitizens' prima facie eligibility
[[Page 46751]]
for relief, and not whether they would ultimately prevail before USCIS.
Additional commenters stated that, while EOIR adjudicators may consider
the likelihood of success on any relief outside of EOIR when
determining whether to grant administrative closure, this factor should
not be relied upon to deny administrative closure. Similarly, another
commenter stated that certain evidence, such as bona fide
determinations made by USCIS, should be dispositive of this factor,
although not required.
Additionally, one commenter recommended explicitly stating that
applications filed on behalf of another, such as under the Central
American Minors (``CAM'') program, should be considered under the
``likelihood of success'' factor.
Response: Regarding concerns about the factor addressing the
likelihood of success on a petition, application, or other action
outside of EOIR, 8 CFR 1003.1(l)(3)(i)(D), 1003.18(c)(3)(i)(D), the
Department first notes that this factor has long existed in
administrative closure jurisprudence. See Matter of Avetisyan, 25 I&N
Dec. at 696. Accordingly, as this factor has long been relevant to the
determination of whether to grant or deny a request for administrative
closure, the Department declines to preclude EOIR adjudicators from
considering the ``likelihood of success'' factor as part of the
totality of the circumstances in a decision denying administrative
closure, as commenters suggested. Moreover, the Department believes
that this factor will help ensure that administrative closure is
reserved for cases with a realistic possibility of relief outside of
EOIR and is not used as a tool to delay removal proceedings. In
practice, this factor can be used to distinguish cases where potential
relief is clearly unavailable or so speculative that administrative
closure is unwarranted. See, e.g., id. (explaining that administrative
closure is not appropriate if, for example, ``the request is based on a
purely speculative event or action (such as a possible change in a law
or regulation); an event or action that is certain to occur, but not
within a period of time that is reasonable under the circumstances (for
example, remote availability of a fourth-preference family-based visa);
or an event or action that may or may not affect the course of [a
noncitizen's] immigration proceedings (such as a collateral attack on a
criminal conviction)''). Accordingly, the Department declines to modify
the ``likelihood of success'' factor to likelihood of ``eligibility''
or ``prima facie eligibility'' as commenters suggested. In retaining
this factor, the Department also generally notes that no factor alone
is dispositive, and the consideration of this factor is not intended to
be a full adjudication of the merits of the outside relief. Rather, the
rule instructs adjudicators to consider the likelihood of success
outside of EOIR along with any other relevant factors in the totality
of the circumstances.
Furthermore, the Department also declines to make any specific
evidence dispositive of this factor, such as bona fide determinations
by USCIS. Although such evidence may often weigh heavily in favor of
this factor, the Department does not believe it should be treated as
dispositive, and notes that the weight given to this factor will be
dependent upon a totality analysis. See generally Matter of Interiano-
Rosa, 25 I&N Dec. 264, 265 (BIA 2010) (``Immigration Judges have broad
discretion . . . to admit and consider relevant and probative
evidence.'').
In response to commenters' concerns regarding the applicability of
the ``likelihood of success'' factor to the CAM program, the Department
clarifies that adjudicators may consider any petition, application, or
other action outside of EOIR proceedings, which can include programs
such as CAM. The totality analysis would allow the adjudicator to
consider all relevant considerations related to such a program,
including whether the noncitizen would likely succeed in qualifying for
such a program and what effects such a program would have on the
noncitizen's removal proceeding, among others.
Comment: With regard to the anticipated duration factor, commenters
recommended explicitly stating that adjudicatory timelines or delays at
USCIS should not be considered, as those are outside the control of the
noncitizen. Other commenters recommended omitting this factor
altogether, claiming that the length of administrative closure is
outside of a noncitizens' control when it involves waiting on another
adjudicative agency. Another commenter recommended making explicit that
administrative closure is appropriate to await visa availability, which
may otherwise be viewed as a negative under this factor.
Response: After further consideration, the Department declines to
add additional language to the regulatory text for the ``anticipated
duration'' factor, or to remove this factor altogether. Despite
commenter suggestions, the Department has decided against adding
language explicitly barring EOIR adjudicators from considering
adjudicatory timelines or delays at USCIS. As written, the
``anticipated duration'' factor is a longstanding consideration
imported from Matter of Avetisyan, 25 I&N Dec. at 696.
The Department acknowledges that the NPRM preamble explained that
DHS adjudication timelines should not be considered as a negative
factor weighing against administrative closure. See 88 FR at 62261
(``Moreover, the potential duration of the administrative closure while
awaiting DHS adjudication, for example, of a pending application before
USCIS, should not weigh against the decision to administratively close
proceedings.''); 8 CFR 1003.1(l)(3)(i)(E), 1003.18(c)(3)(i)(E)
(anticipated duration). However, the Department does not believe it is
appropriate to foreclose all consideration of USCIS adjudicatory
timelines under this factor, and therefore declines to remove or
further limit this provision. For example, remote visa availability may
weigh against administrative closure if visa availability is so distant
as to be speculative, while an otherwise ready-to-adjudicate
application merely waiting on USCIS processing may weigh in favor of
administrative closure, despite a potentially lengthy processing time.
See, e.g., Matter of Avetisyan, 25 I&N Dec. at 696 (explaining that
administrative closure was not appropriate when an event or action ``is
certain to occur, but not within a period of time that is reasonable
under the circumstances (for example, remote availability of a fourth-
preference family-based visa)''). More generally, USCIS adjudicatory
timelines will be given appropriate weight depending upon the totality
of the circumstances of each particular case. Accordingly, the
Department also declines to include explicit language stating that
administrative closure is appropriate to await visa availability, or
any other specific adjudication. By not listing specific examples in
the regulatory text, EOIR adjudicators may determine whether
administrative closure is appropriate after consideration of the
individual facts and circumstances of each case.
Comment: Some commenters recommended omitting the factor focusing
on the responsibility of the parties in contributing to any current or
anticipated delays, which commenters believed would be used to fault
noncitizens for delays outside of their control, such as adjudications
with outside agencies or time to obtain counsel.
Response: In response to commenter concerns about the consideration
of parties' contribution to any delays, the
[[Page 46752]]
Department notes that the parties may submit arguments and evidence
explaining any delays or potential delays. For example, a noncitizen
may submit evidence demonstrating that their relief application was not
immediately filed with USCIS because it was particularly complex or
required certain additional supporting evidence. The EOIR adjudicator
may then consider such evidence in the totality of the circumstances.
The Department notes that the NPRM preamble explained that EOIR
adjudicators ``should consider both the noncitizen's and DHS's
responsibility for any delay.'' 88 FR at 62261. Accordingly, the
Department declines to omit this factor altogether from the regulatory
text because whether either party contributed to any delay is relevant
to an EOIR adjudicator's assessment of the totality of the
circumstances.
Comment: Commenters recommended removing the factor focusing on the
ultimate anticipated outcome of the case. Commenters explained that
this factor may fail to consider circumstances, such as prosecutorial
discretion, where administrative closure itself is the ultimate outcome
of the case. Additionally, commenters stated that the term ``case'' is
ambiguous as to whether it refers to removal proceedings before EOIR or
other relief the noncitizen may be pursuing outside of EOIR.
Response: The Department declines to remove the ``ultimate
anticipated outcome of the case'' factor. 8 CFR 1003.1(l)(3)(i)(G),
1003.18(c)(3)(i)(G). This factor is intended to help adjudicators
determine whether administrative closure would ultimately assist in
efficiently concluding removal proceedings. For example, if a case is
administratively closed for the noncitizen to pursue relief that would
result in lawful status if granted, once recalendared, the case would
be able to conclude efficiently by terminating proceedings. See id.
Sec. Sec. 1003.1(m)(1)(i)(D) (requiring termination where the
noncitizen has, since the initiation of proceedings, obtained status),
1003.18(d)(1)(i)(D) (same). In contrast, if the underlying basis for
the administrative closure request would have little to no effect on
the need for continued removal proceedings, then this would weigh
against the administrative closure request, although other potential
options, such as termination or dismissal, may be available. See, e.g.,
8 CFR 239.2(a)(6) (dismissing improvidently issued Notice to Appear).
Additionally, to the extent that DHS requests administrative
closure pursuant to their prosecutorial discretion authority, the
Department notes that such a request would not change the ultimate
anticipated outcome of the case, which ultimately must be resolved
through an order of relief, removal, termination, or dismissal once
recalendared.
Finally, to further clarify, the term ``case'' refers to the
removal proceeding before EOIR. By looking at the ultimate anticipated
outcome of the case before EOIR, this factor is intended to help
adjudicators determine what effect, if any, administrative closure
would have in helping adjudicators ultimately complete removal
proceedings, whether through an order of relief, removal, dismissal, or
termination, as relevant.
5. Specific Calls for Comments
i. Weighing in Favor of Granting Certain Motions for Administrative
Closure
Comment: Commenters were supportive of adding language favoring
granting motions for administrative closure when the noncitizen
demonstrates prima facie eligibility for relief and has demonstrated
reasonable diligence in pursuing such relief. Other commenters went
further, stating that a pending application with USCIS should be a
dispositive factor for granting administrative closure, or that
administrative closure should be generally granted so long as the
noncitizen states which relief they will be pursuing. These commenters
explained that requiring a prima facie eligibility showing was
unnecessary, and particularly burdensome for pro se noncitizens.
Moreover, one commenter suggested that, rather than requiring pro
se noncitizens to demonstrate a reasonable likelihood of success on the
merits--which the commenter stated requires responding to questions of
law--and diligence in pursuing any available relief, EOIR instead
require that pro se noncitizens demonstrate the basis for the petition,
application, or other action and an explanation of the steps that a pro
se noncitizen has pursued or intends to pursue within a reasonable time
of the administrative closure in furtherance of the petition,
application, or other action for adjudication.
Another commenter recommended clarifying that ``reasonable
diligence'' should not consider any adjudicatory delays outside the
noncitizen's control. One commenter requested clarification as to what
would constitute ``reasonably diligent.''
Response: Upon further consideration, including consideration of
the comments received, the Department declines to further amend this
provision to weigh in favor of granting certain motions for
administrative closure, other than joint motions, as set forth in 8 CFR
1003.1(l)(3) and 1003.18(c)(3). The Department does not believe that
any single factor should be dispositive, nor required to be weighed
more heavily than another, in the ``totality-of-the-circumstances''
determination. Rather, the totality determination allows the
adjudicator to consider all relevant factors and weigh them
accordingly. Treating a single factor as dispositive, or requiring it
to be weighed more heavily, would unnecessarily limit adjudicator
discretion to determine the best course of action in each individual
case. See, e.g., Matter of Avetisyan, 25 I&N Dec. at 694 (explaining
that EOIR adjudicators have ``the responsibility to exercise
independent judgment and discretion'' in adjudicating the cases before
them). For example, in many cases, a pending application with USCIS may
ultimately be a determinative factor weighing in favor of
administrative closure while that application is being adjudicated by
USCIS, while in other cases, administrative closure may not be
necessary or appropriate where there is such a pending application with
USCIS.
Because the Department is codifying a totality analysis, wherein
the adjudicator may consider, and weigh accordingly, a noncitizen's
reasonable likelihood of success on the merits and reasonable diligence
in pursuing such relief, rather than ascribing the weight of such
considerations in the rule, the Department declines to further address
concerns related to the ``reasonable likelihood of success'' or
``reasonable diligence'' standards.
ii. Specific Scenarios Allowing Administrative Closure With No Pending
Relief Outside of EOIR
Comment: Some commenters were in favor of adding explicit scenarios
allowing for administrative closure when there is no pending relief
outside of EOIR, which they believed would help provide consistency to
adjudicators. For example, commenters recommended adding the following
non-exclusive scenarios: (1) the noncitizen marries a U.S. citizen and
intends to pursue an I-130 petition followed by adjustment of status or
consular processing; (2) the noncitizen has been a victim of a
qualifying crime for U nonimmigrant status and intends to pursue a law
enforcement certification; (3) the noncitizen is prima facie eligible
for Special Immigrant Juvenile classification (``SIJ'') and intends to
pursue an SIJ predicate order
[[Page 46753]]
in State court; (4) the noncitizen intends to seek mental health
treatment and there is a reasonable possibility that such treatment
could assist with the noncitizen's pursuit of relief from removal; (5)
the noncitizen has suffered abuse in their country of origin but is not
able to discuss the details of the abuse with their attorney, though
the incident could make them eligible for asylum; (6) the noncitizen is
otherwise eligible for cancellation of removal but needs to accrue
additional physical presence; (7) the noncitizen is in withholding-only
proceedings but is not considered a removal priority by DHS; or (8) the
noncitizen believes that they are stateless.
Another commenter stated that limiting administrative closure to
specific scenarios was unnecessary, while another commenter stated that
they did not have concerns with doing so, as long as the scenarios were
not exclusive. Moreover, another commenter recommended clarifying that,
in scenarios where the noncitizen is not pursuing outside relief, any
reasons for requesting administrative closure should be considered.
Response: After further consideration, the Department has decided
against adding explicit scenarios in which administrative closure may
be appropriate outside of a pending relief application. Commenters
provided several examples of scenarios that may warrant administrative
closure, depending on the circumstances of the individual case. EOIR
may, as appropriate, issue further nonregulatory case examples or
training to adjudicators regarding administrative closure and other
docket management tools. However, the Department believes that
retaining the overall totality-of-the-circumstances analysis will best
allow EOIR adjudicators to determine whether a specific request for
administrative closure should be granted. Certain totality factors may
be more relevant than others in a specific case, such as the
speculative nature of the underlying reason for requesting
administrative closure, the diligence in pursuing the underlying
reason, and how success in pursuing the underlying reason would
ultimately affect the pending removal proceeding.
The Department also declines to incorporate the commenter's
suggestion to clarify that any reasons for requesting administrative
closure should be considered in cases where a noncitizen is not pursing
outside relief. The Department believes that the regulatory text is
sufficiently clear that pursuing relief outside of EOIR proceedings is
not a prerequisite for the administrative closure of a case and that
the totality-of-the-circumstances analysis appropriately encompasses
consideration of factors relevant to a determination of whether to
administratively close a case, including the reason administrative
closure is sought. See 8 CFR 1003.1(l)(3) (explaining the totality-of-
the-circumstances analysis and stating that ``[a]lthough administrative
closure may be appropriate where a petition, application, or other
action is pending outside of proceedings[,] . . . such a pending
petition, application, or other action is not required for a case to be
administratively closed''), 1003.18(c)(3) (same); see also id.
Sec. Sec. 1003.1(l)(3)(i)(A) (identifying ``[t]he reason
administrative closure is sought'' as a relevant factor for
consideration as the circumstances of the case warrant),
1003.18(c)(3)(i)(A) (same).
iii. Weighing Opposition to Motions for Administrative Closure
Comment: Many commenters supported making a noncitizen's opposition
to administrative closure at least a primary consideration, stating
that a noncitizen's desire to proceed with their case before EOIR
should be a persuasive reason not to administratively close their case.
Some commenters recommended going further, proposing that adjudicators
should not be able to administratively close proceedings over a
noncitizen's objection, particularly if the noncitizen desires to move
forward with their removal proceedings in order to pursue available
relief before EOIR. Commenters explained that administratively closing
proceedings in such circumstances could foreclose relief that is only
available in removal proceedings, remove the noncitizen's eligibility
for work authorization that is premised on a pending application before
EOIR, as well as discourage legal service providers from providing
representation before EOIR. Relatedly, one commenter recommended
providing noncitizens with 60 days to submit an opposition brief to a
DHS motion for administrative closure.
One commenter stated that they would be opposed to the final rule
implementing a provision that would provide that if one party opposed
administrative closure, the primary consideration for an adjudicator
would be whether that party provided a persuasive reason for the case
to proceed. Specifically, the commenter stated that such a provision
would codify the holding in Matter of W-Y-U-, 27 I&N Dec. 17, 20 (BIA
2017), and disproportionately benefit DHS, as DHS would be more likely
to oppose administrative closure. The commenter was also concerned that
including such a primary consideration requirement would, in cases
involving DHS opposition, outweigh a noncitizen's otherwise approvable
motion for administrative closure in the name of efficiency at the
expense of a noncitizen's due process rights.
One commenter also requested general clarification as to the
meaning of ``a persuasive reason'' that the party opposing
administrative closure must provide.
Response: After further consideration, the Department has decided
not to include a regulatory provision requiring the weighting of any
specific administrative closure factor more than any others. The
Department ultimately believes that EOIR adjudicators are in the best
position to determine when administrative closure is appropriate under
the totality of the circumstances, and weighting certain factors
differently would unnecessarily reduce adjudicators' discretion.
Accordingly, to the extent that the Board's holding in Matter of W-Y-U-
that ``the primary consideration . . . in determining whether to
administratively close or recalendar proceedings is whether the party
opposing administrative closure has provided a persuasive reason for
the case to proceed and be resolved on the merits,'' id., is
inconsistent with the unweighted, ``totality-of-the-circumstances''
standard implemented by this rule, Matter of W-Y-U-, 27 I&N Dec. 17, is
superseded.\3\
---------------------------------------------------------------------------
\3\ The Attorney General has the authority to overrule Board
decisions, see 8 CFR 1003.1(g)(1) (describing Board decisions as
binding ``[e]xcept as Board decisions may be modified or overruled
by the Board or the Attorney General''), and, in general, agencies
are permitted to change their policies, provided that a reasoned
explanation for the policy is given. See generally Encino Motorcars,
LLC v. Navarro, 579 U.S. 211, 221 (2016) (``Agencies are free to
change their existing policies as long as they provide a reasoned
explanation for the change.'' (citing Nat'l Cable & Telecomms. Ass'n
v. Brand X internet Servs., 545 U.S. 967, 981-82 (2005))). Such
policy changes may be through rulemaking or through adjudication.
See SEC v. Chenery Corp., 332 U.S. 194, 215 (1947) (holding that
agencies may promulgate a general rule of law by either regulation
or adjudication).
---------------------------------------------------------------------------
To be clear: this is not to say that a party's opposition to a
motion for administrative closure is not a relevant factor for EOIR
adjudicators to consider; to the contrary, it is listed in the
regulatory text as such. 8 CFR 1003.1(l)(3)(i)(B), 1003.18(c)(3)(i)(B).
And, practically speaking, in many cases a noncitizen's opposition to
administrative closure based on a desire to pursue relief before EOIR
will likely weigh heavily in favor of denying a
[[Page 46754]]
motion to administratively close proceedings. However, requiring EOIR
adjudicators to weight a party's opposition more heavily when
adjudicating a motion for administrative closure or maintaining the
``primary consideration'' standard from Matter of W-Y-U- unnecessarily
limits adjudicator discretion to evaluate the totality of the
circumstances presented by each case.
In response to commenters' suggestions to not allow administrative
closure over a noncitizen's objection, the Department believes that the
importance of providing EOIR adjudicators with the authority to take
``necessary or appropriate'' action for the disposition or alternative
resolution of cases weighs in favor of providing adjudicators with the
ability to administratively close proceedings over a party's objection.
See 8 CFR 1003.1(d)(1)(ii), 1003.10(b). As explained in the NPRM,
``there is a long history of EOIR adjudicators utilizing administrative
closure as a helpful tool for managing dockets at both the immigration
courts and the Board.'' 88 FR at 62255. The decision to
administratively close proceedings ``involves an assessment of factors
that are particularly relevant to the efficient management of the
resources of the Immigration Courts and the Board.'' Matter of
Avetisyan, 25 I&N Dec. at 695. As such, immigration judges and
Appellate Immigration Judges are in the best position to determine how
a case should proceed, which includes the use of administrative closure
when necessary or appropriate.
Moreover, the rule provides, and motions practice before EOIR
dictates, that an adjudicator will consider a party's objection in the
totality of the circumstances, which provides the noncitizen the
ability to explain why administrative closure should not be granted.
Practically speaking, the Department expects that it would be rare for
an adjudicator to administratively close proceedings over a
noncitizen's objection if the noncitizen prefers to proceed with a
relief application in removal proceedings. However, there may be cases
where an immigration judge or Appellate Immigration Judge determines it
is necessary or appropriate to do so. In these cases, the Department
notes that the parties also retain the ability to move for
recalendaring as necessary.
Because the Department believes that EOIR adjudicators will provide
parties with a sufficient opportunity to explain any opposition to a
motion to administratively close a case pursuant to both the
requirements of this rule and existing EOIR motions practice, the
Department declines to add a 60-day opposition briefing regulatory
requirement specific to administrative closure motions. See generally
Immigration Court Practice Manual ch. 5 (explaining standards and
procedures for motions before EOIR); BIA Practice Manual ch. 5 (same).
Finally, because the Department is not adding the ``persuasive
reason'' language to the regulatory text, the Department has determined
it is unnecessary to further clarify that phrase as part of this
rulemaking.
iv. Sua Sponte Administrative Closure
Comment: Some commenters stated that EOIR adjudicators should be
able to sua sponte administratively close proceedings, particularly in
cases involving pro se noncitizens. Commenters explained that pro se
noncitizens may not know that administrative closure is available to
them, particularly when they may be eligible for relief with USCIS.
Commenters noted that the EOIR adjudicator should explain the possible
availability of administrative closure to the noncitizen and allow the
noncitizen to raise any concerns with administratively closing
proceedings.
In contrast, other commenters opposed sua sponte administrative
closure, stating that parties should have the opportunity to present
their views on administrative closure before the adjudicator makes
their decision. Alternatively, commenters noted that, if the Department
decides to provide for sua sponte administrative closure authority,
certain safeguards should be implemented, including: (1) preventing sua
sponte administrative closure over a noncitizens' objection; and (2)
requiring 60 days' notice of sua sponte administrative closure, which
would allow the parties time to object. Commenters also recommended
providing pro se noncitizens with simple written resources explaining
administrative closure (as well as termination).
Response: After further consideration, the Department has decided
not to include sua sponte administrative closure authority. The
Department wants to ensure that the parties are able to provide any
evidence relevant to an administrative closure determination, and sua
sponte administrative closure authority would potentially allow
adjudicators to exercise such authority without consideration of such
evidence.
However, the Department notes that, in practice, if an adjudicator
believes that administrative closure may be appropriate in a given
case, the adjudicator can raise the issue with the parties. If a party
is then amenable to administrative closure, the adjudicator may inquire
whether the party wishes to move for administrative closure. For those
cases before the Board, the adjudicator may request supplemental
briefing from the parties to ensure that the positions of the parties
are considered as part of the administrative closure determination. 8
CFR 1003.3(c)(1). The requirement of a motion seeking administrative
closure ensures that the parties can state their positions on
administrative closure before the adjudicator decides whether
administrative closure is appropriate in the totality of the
circumstances.
Additionally, although the Department is not providing for sua
sponte administrative closure authority, the Department appreciates
commenter suggestions related to ensuring information about
administrative closure and termination is available to all noncitizens
before EOIR, including those who may not be represented by counsel.
While the Department declines to implement suggestions like providing
written information about administrative closure and termination to pro
se noncitizens as regulatory requirements via this rulemaking, the
Department remains committed to providing information to assist pro se
respondents in EOIR proceedings and exploring ways outside of the
rulemaking process to adequately do so. See generally EOIR, Immigration
Court Online Resource, https://icor.eoir.justice.gov (last visited Jan.
25, 2024) (providing information about EOIR proceedings).
6. Recalendaring
Comment: Commenters provided a number of suggestions for modifying
the recalendaring factors. First, commenters requested that the
Department clarify which party bears the burden of persuasion on the
second factor--the basis for any opposition to recalendaring--and
whether the burden of persuasion on that factor will shift during the
EOIR adjudicator's consideration.
Second, commenters stated that the factor at 8 CFR
1003.1(l)(3)(ii)(D) and 1003.18(c)(3)(ii)(D), considering the length of
time between administrative closure and the filing of any application,
should be removed altogether, or at least carefully applied. Commenters
argued that, for example, relief applications for noncitizen children
may take longer to prepare, and that any such preparation should not be
viewed as dilatory under this recalendaring factor. Commenters
recommended removal of this factor and
[[Page 46755]]
stated that it does not adequately take into account the underlying
reasons for any delay in filing.
Third, commenters recommended amending the ``likelihood of
success'' factor at 8 CFR 1003.1(l)(3)(ii)(F) and 1003.18(c)(3)(ii)(F)
to focus on prima facie eligibility for outside relief, rather than
ultimate success of the relief. Commenters stated that this would
prevent immigration judges from making initial determinations on
outside relief, and instead focus on general eligibility.
Fourth, commenters recommended modifying the factor at 8 CFR
1003.1(l)(3)(ii)(G) and 1003.18(c)(3)(ii)(G), focusing on the ultimate
anticipated outcome of the case, to prevent immigration judges from
assessing the merits of any relief applications filed with EOIR before
the noncitizen has had a chance to present evidence. Commenters
suggested focusing this provision on the anticipated outcome if such
outcome is other than seeking a final adjudication before EOIR.
Fifth, one commenter recommended using a ``good cause'' standard
for recalendaring, which the commenter stated would benefit noncitizens
who did not wish for their removal proceeding to be closed.
Response: As an initial matter, the Department notes that a case
will be recalendared only upon the motion of a party. See 8 CFR
1003.1(l)(2) (``[T]he Board may, in the exercise of discretion,
recalendar the case pursuant to a party's motion to recalendar.''),
1003.18(c)(2) (same provision for immigration judges). The rule sets
forth a non-exhaustive list of factors for the EOIR adjudicator to
consider when making a decision with respect to a party's motion to
recalendar a case. Id. Sec. Sec. 1003.1(l)(3)(ii)(A) through (H),
1003.18(c)(3)(ii)(A) through (H) (listing factors). And, as discussed
in section III.B.3 of this preamble and explained in further detail in
section IV.A, the Department is adding an additional factor--the ICE
detention status of the noncitizen--to the non-exhaustive list of
factors for consideration when evaluating a motion to recalendar. Id.
Sec. Sec. 1003.1(l)(3)(ii)(H), 1003.18(c)(3)(ii)(H).
Further, as is consistent with general motions practice before
EOIR, a party moving to recalendar will have the opportunity to present
their argument to the EOIR adjudicator as to why they believe the case
should be recalendared. In doing so, the party may identify the factors
they believe are relevant in the recalendaring determination, either
from the factors provided by regulation, or by indicating any other
factors the party believes to be relevant to their argument. As is
customary in motions practice before EOIR, the adjudicator will then
give the opposing party the opportunity to respond to the motion to
recalendar. However, this is not a burden-shifting framework, as the
adjudicator will ultimately be making the determination based on the
totality of the circumstances--considering the arguments made by the
parties in support of and in opposition to the motion--and in the
exercise of the adjudicator's discretion. See id. Sec. Sec.
1003.1(l)(2), 1003.18(c)(2) (adjudicators may recalendar in their
discretion).
Second, with regard to the factor considering the length of time
between administrative closure and the filing of any application, the
Department notes that EOIR adjudicators will consider any relevant
evidence in the totality of the circumstances. Id. Sec. Sec.
1003.1(l)(3), 1003.18(c)(3). Using the commenter's example of preparing
a relief application for a noncitizen child, the Department notes that
the party may present evidence that any gap in time between
administrative closure and the filing of a relief application was due
to the complicated nature of preparing that specific relief
application, which the adjudicator will consider in assessing the
totality of the circumstances. The Department reiterates that in cases
where a motion to recalendar is not filed jointly or affirmatively
unopposed, the ultimate determination made by EOIR adjudicators will be
based on the totality of the circumstances, guided by the non-
exhaustive factors established by this rule. Id. This standard provides
EOIR adjudicators the flexibility to consider all relevant evidence and
circumstances, including those surrounding the length of time between
the granting of administrative closure and the filing of any petition,
application, or other action.
Third, the Department declines to amend the ``likelihood of
success'' factor at 8 CFR 1003.1(l)(3)(ii)(F) and 1003.18(c)(3)(ii)(F)
to adopt a ``prima facie'' standard as commenters suggested. Including
a consideration of the likelihood that a noncitizen will succeed on a
petition, application, or other action pending outside of EOIR as a
relevant factor for reopening is not meant to establish an onerous
requirement for EOIR adjudicators. Rather, this factor, derived from
Matter of Avetisyan, 25 I&N Dec. at 696, is meant to identify
circumstances where there is little to no likelihood of success on an
outside petition, application, or other action, such that recalendaring
may be appropriate in light of the totality of the circumstances. As
discussed in section III.B.4 of this preamble, this factor is intended
to ensure that administrative closure is reserved for cases with a
realistic probability of relief outside of EOIR.
Fourth, the Department does not intend that EOIR adjudicators
substantively adjudicate a noncitizen's ultimate eligibility for relief
when assessing the recalendaring factor focusing on ``the ultimate
anticipated outcome [of] the case.'' 8 CFR 1003.1(l)(3)(ii)(G),
1003.18(c)(3)(ii)(G). Rather, this factor is included for the
adjudicator to consider whether recalendaring is sought to request
termination of proceedings or to seek relief before EOIR, among other
actions, which would ultimately conclude removal proceedings. Using the
commenter's example, if a noncitizen is moving to recalendar
proceedings to seek relief for which they are newly eligible, and
should the totality of the circumstances support recalendaring, then
the EOIR adjudicator may decide to recalendar proceedings to allow the
noncitizen to pursue that relief, which would bring finality to the
removal proceedings. The EOIR adjudicator will not, as commenters
suggested, determine the noncitizen's ultimate eligibility for relief
outside of the normal course of proceedings before EOIR.
Fifth, the Department is of the opinion that the factors set forth
in this rulemaking provide clear guidance to adjudicators that is more
workable than a generalized ``good cause'' standard. Accordingly, the
Department declines to codify a ``good cause'' standard for
recalendaring proceedings and will retain the recalendaring provisions
as proposed in the NPRM, with the addition of one factor--the ICE
detention status of the noncitizen--as explained previously. See id.
Sec. Sec. 1003.1(l)(3)(ii)(H), 1003.18(c)(3)(ii)(H).
C. Termination and Dismissal
1. Distinguishing Between Termination and Dismissal
Comment: Commenters expressed support for the rule's distinction
between termination and dismissal, stating that it provided needed
clarity to allow EOIR adjudicators and parties to focus on the
substantive bases for disposition of a case rather than diverting
attention to semantic or formal distinctions. However, some commenters
stated that DHS motions to dismiss should not be granted as a matter of
course or treated as dispositive; rather, commenters
[[Page 46756]]
emphasized the importance of allowing noncitizens the opportunity to
provide argument before the motion is adjudicated. Commenters also
explained that granting DHS motions to dismiss could foreclose a
noncitizen's ability to pursue relief before EOIR.
Response: The Department agrees with the need to draw a distinction
between termination and dismissal and has not made any additional
changes to the language proposed by the NPRM. See 88 FR at 62262
(distinguishing between termination and dismissal); 8 CFR 1239.2(b).
Regarding commenter concerns that DHS motions to dismiss may be treated
as dispositive or granted as a matter of course, the Department
reiterates that, while this rule clarifies the distinction between
termination and dismissal, it does not otherwise alter how EOIR
adjudicators evaluate motions, including DHS motions to dismiss. See
Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998) (explaining that the
language of 8 CFR 239.2(a) (1998) and 239.2(c) (1998) ``marks a clear
boundary between the time prior to commencement of proceedings, where
[DHS] has decisive power to cancel proceedings, and the time following
commencement, where [DHS] merely has the privilege to move for
dismissal of proceedings'' and that, based on the distinction, ``the
regulation presumably contemplates not just the automatic grant of a
motion . . . , but an informed adjudication by'' EOIR adjudicators
``based on an evaluation of the factors underlying [DHS's] motion'').
Further, the Department notes that nothing in the rule mandates
that a DHS motion to dismiss should be granted automatically or as a
matter of course. Rather, the rule distinguishes between dismissal and
termination and clarifies that DHS may only seek dismissal of
proceedings for reasons specified in 8 CFR 239.2(a), as cross
referenced by 8 CFR 239.2(c). See 8 CFR 1239.2(b) and (c). Otherwise, a
motion to dismiss that is not in accordance with 8 CFR 239.2(a) ``shall
be deemed a motion to terminate'' and adjudicated pursuant to the
standards outlined in this rule for those motions, which include
consideration of a party's opposition to a motion to terminate. 8 CFR
1239.2(b); id. Sec. Sec. 1003.1(m)(1)(ii), 1003.18(d)(1)(ii).
Moreover, the Department emphasizes that in scenarios where a
noncitizen opposes dismissal of their case because they would prefer to
pursue relief before EOIR in removal proceedings, nothing in the rule
prevents the parties from presenting relevant evidence as to whether
proceedings should be dismissed for any of the reasons provided in 8
CFR 239.2(a) or prevents a noncitizen in removal proceedings before
EOIR from indicating that they wish for proceedings to go forward
despite a DHS motion to dismiss. Rather, motions to dismiss follow the
same general motions practice before EOIR as any other type of motion,
which includes responses to motions. See generally Immigration Court
Practice Manual ch. 5; BIA Practice Manual ch. 5. As with any motion,
before making a determination on a DHS motion to dismiss, an EOIR
adjudicator will consider the basis for the motion, any opposition to
the motion, and any relevant arguments and evidence presented by the
parties. See, e.g., Matter of G-N-C-, 22 I&N Dec. at 284-85 (concluding
that ``a [DHS] motion to terminate proceedings must be adjudicated . .
. as would any other motion'' and finding error to the extent that an
immigration judge terminated proceedings ``without considering
arguments from both sides'').
In sum, the rule neither precludes noncitizens from making
arguments regarding a DHS motion to dismiss, nor indicates that a DHS
motion to dismiss should be granted as a matter of course. Therefore,
the Department has retained the provision at 8 CFR 1239.2(b), as
proposed in the NPRM, without further change.
2. Authority To Terminate Cases
Comment: One commenter stated that this rule would inappropriately
give EOIR adjudicators the authority to terminate cases that is not
supported by the INA or other law. The commenter opined that EOIR
adjudicators only have the authority to terminate or dismiss a pending
case if DHS cannot sustain the charges of removability, or if a
noncitizen has obtained an immigration benefit or relief that gives
them lawful status or U.S. citizenship, or renders the noncitizen no
longer subject to removal. Citing section 240(c)(1)(A) of the Act, 8
U.S.C. 1229a(c)(1)(A), and Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462
(A.G. 2018), the commenter asserted that EOIR adjudicators otherwise
lack the authority to end removal proceedings entirely using
termination or dismissal because the INA requires an immigration judge
to decide whether a noncitizen is removable at the conclusion of
removal proceedings. Specifically, the commenter stated that
terminating cases to allow noncitizens to apply for an immigration
benefit or relief from a separate agency is premature, presupposes that
a noncitizen will receive a benefit or relief--despite EOIR not being
the adjudicator of the relief--and conflicts with the statutory
obligation to determine whether a noncitizen is removable. The
commenter also expressed concern about maintaining separation-of-
function principles and stated that an immigration judge may not
override or usurp DHS's exercise of prosecutorial discretion or
authority.
Response: The Department disagrees with the commenter and believes
that the termination and dismissal authorities implemented by this rule
are fully consistent with the INA. As the Department explained in
response to similar concerns related to administrative closure
authority, see section III.B.1 of this preamble, the INA provides the
Attorney General with the authority to promulgate regulations that the
Attorney General deems necessary for implementing the INA, which
includes overseeing EOIR's adjudication system. See INA 103(g)(1)-(2),
8 U.S.C. 1103(g)(1)-(2). Exercising this statutory authority, the
Attorney General has promulgated regulations providing EOIR
adjudicators with the general authority to ``take any action consistent
with their authorities'' as ``appropriate and necessary for the
disposition'' of cases. 8 CFR 1003.1(d)(1)(ii), 1003.10(b). The
Department is now using this rulemaking to explicitly define these
actions to include termination and dismissal. See id. (``Such actions
include administrative closure, termination of proceedings, and
dismissal of proceedings.'').
By adding this language, the Department is making clear that
termination and dismissal authority is ``consistent with . . .
authorities under the Act and the regulations.'' Id. Sec. Sec.
1003.1(d)(1)(ii), 1003.10(b); see also Gonzalez v. Garland, 16 F.4th
131, 141 (4th Cir. 2021) (explaining that the general regulatory
authority encompassing the termination of proceedings is consistent
with the INA). Nothing in the INA explicitly precludes EOIR
adjudicators from terminating or dismissing removal proceedings. See
Gonzalez, 16 F.4th at 141-42 (``[W]e fail to see how the general power
to terminate proceedings is `[in]consistent' with the authorities
bestowed by the INA [and] . . . have found no provisions stating that
[EOIR adjudicators] cannot terminate removal proceedings . . . .'').
Indeed, such authority is necessarily inherent in the statute,
including, as noted by the commenter, when charges of removability
cannot be sustained. See, e.g., Matter of Sanchez-Herbert, 26 I&N Dec.
43, 44 (BIA 2012) (``If the DHS meets its burden, the [i]mmigration
[j]udge should issue an order of removal; if it cannot, the
[i]mmigration [j]udge should terminate proceedings.'').
[[Page 46757]]
The Department also believes these termination and dismissal
provisions are consistent with the specific INA provisions governing
removal proceedings. Much like administrative closure authority,
termination and dismissal authority provides methods for EOIR
adjudicators to manage the cases on their dockets in furtherance of
their statutory responsibility to adjudicate cases. See INA 240(a)(1),
8 U.S.C. 1229a(a)(1) (``An immigration judge shall conduct proceedings
for deciding the inadmissibility or deportability of [a
noncitizen].''). For example, the discretionary termination provision
raised by the commenter, which focuses on a noncitizen pursuing outside
relief with USCIS, is consistent with this statutory scheme governing
removal proceedings. See 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B). In many cases, noncitizens in removal proceedings
may be eligible for relief before USCIS that would, if granted, nullify
the grounds of inadmissibility or removability in removal proceedings.
Thus, authorizing, but not requiring, EOIR adjudicators to
discretionarily terminate such cases, where appropriate, for
noncitizens to pursue the specified relief furthers the statutory
scheme by allowing USCIS to adjudicate relief that would directly
affect whether the noncitizen is removable. See Matter of Coronado
Acevedo, 28 I&N Dec. 648, 651-52 (A.G. 2022) (indicating that
precluding termination of proceedings in certain common situations not
accounted for in the regulations ``would undermine fair and efficient
adjudication'' of cases in some instances, including where
``termination is necessary for the respondent to be eligible to seek
immigration relief before USCIS'') (cleaned up).
Similarly, the Department also agrees with the Fourth Circuit's
reasoning in Gonzalez, concluding that the INA's requirement that an
immigration judge shall decide whether a noncitizen is removable at the
conclusion of proceedings ``certainly does not forbid a termination or
delay of `the proceeding.' '' 16 F.4th at 141; INA 240(c)(1)(A), 8
U.S.C. 1229a(c)(1)(A).
Moreover, the Department, as well as DHS, have long recognized that
termination is consistent with the INA by authorizing or acknowledging
its use in certain circumstances, such as when it would allow
noncitizens to seek specific relief or status that the INA makes
available to them outside of removal proceedings. See, e.g., 8 CFR
1239.2(f) (2023) (allowing a noncitizen to seek termination to proceed
on a naturalization application if certain conditions are met); see
also id. 214.14(c)(1)(i) (recognizing that a noncitizen may seek
termination before EOIR while USCIS adjudicates their petition for U
nonimmigrant status); id. 214.11(d)(1)(i) (recognizing that a
noncitizen may seek termination before EOIR while USCIS adjudicates
their petition for T nonimmigrant status). However, as explained in the
NPRM, the Department believes that it is important for EOIR
adjudicators to have termination authority outside of these existing
circumstances, which do not capture all situations where EOIR
adjudicators' exercise of that authority may be necessary or
appropriate for the disposition of a case. See, e.g., 88 FR at 62263-64
(discussing reasons for requiring or permitting termination in
circumstances specified by the rule).
In opposing these changes, the commenter's reliance on Matter of S-
O-G- & F-D-B- is misplaced. Matter of S-O-G- & F-D-B- held that
immigration judges have no inherent authority to terminate or dismiss
removal proceedings and that immigration judges may dismiss or
terminate proceedings only under the circumstances expressly identified
in the regulations or where DHS fails to sustain charges of
removability. 27 I&N Dec. at 462. Notably, this decision did not call
into question the validity of regulatory provisions expressly
authorizing termination, and so does not support the proposition that
termination and dismissal are not statutorily authorized. Id. at 463
(holding that EOIR adjudicators ``may not terminate or dismiss those
proceedings for reasons other than those expressly set out in the
relevant regulations or where DHS has failed to sustain the charges of
removability.''). Matter of S-O-G- & F-D-B- instead focused on whether
an EOIR adjudicator's general regulatory authority to take any
necessary and appropriate actions includes termination. See id. at 466
(analyzing whether termination or dismissal would ``exceed the
authorized bases for dismissal or termination in the regulations'').
In any event, Matter of S-O-G- & F-D-B- has been overruled by the
Attorney General and its rationale for limiting termination and
dismissal to certain narrow circumstances was previously rejected by
the Fourth Circuit. See Matter of Coronado Acevedo, 28 I&N Dec. at 651
(explaining that ``S-O-G- & F-D-B- has imposed rigid procedural
requirements that would undermine . . . fair and efficient adjudication
in certain immigration cases'') (cleaned up); Gonzalez, 16 F.4th at
142. Furthermore, this rulemaking now clarifies the scope of an EOIR
adjudicator's termination authority by amending the general regulatory
provision discussed in Matter of S-O-G- & F-D-B- to explicitly include
termination as an available action. See 8 CFR 1003.1(d)(1)(ii),
1003.10(b).
For similar reasons, these provisions are also consistent with the
policies underlying the INA by giving EOIR adjudicators the authority
to terminate cases where it would advance the fairness and efficiency
goals of the immigration system. See Stone v. INS, 514 U.S. 386, 398
(1995) (noting that ``[u]nderlying considerations of administrative . .
. efficiency and fairness to the [noncitizen]'' are important
considerations when interpreting the INA). The Department believes that
this provision of the rule will help to promote fairness by allowing
discretionary termination for noncitizens to pursue an application for
relief or status with USCIS that Congress has made available to them.
See Meza-Morales v. Barr, 973 F.3d 656, 665 (7th Cir. 2020) (explaining
that ``cases must be disposed of fairly, and granting a noncitizen the
opportunity to pursue relief to which she is entitled may be
appropriate and necessary for a fair disposition''). The Department
believes that discretionary termination provisions would also help
promote efficiency by saving adjudicatory resources for other cases
that are ready for resolution in removal proceedings and by limiting
the issues to be resolved by EOIR adjudicators should DHS initiate new
proceedings.
The Department also disagrees with the commenter that the
termination provisions raise separation-of-function concerns or impede
DHS's prosecutorial authority in any way. The Department has fully
considered the separate roles and responsibilities of DHS and EOIR in
removal proceedings and has determined that codifying EOIR
adjudicators' authority to grant termination under the specific
circumstances identified in the rule is consistent with EOIR's
independent adjudicatory authority and would not interfere with DHS's
prosecutorial functions. It is well-established that DHS exercises its
prosecutorial authority by initiating proceedings and that EOIR
adjudicators do not have the authority to review that decision. See,
e.g., Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 170 (BIA 2017)
(explaining that EOIR adjudicators do not have the authority to review
DHS's decision to initiate removal proceedings in a particular case).
This rule in no way precludes, alters, or reduces DHS's authority or
ability to initiate
[[Page 46758]]
proceedings, as such a decision is exclusively within the purview of
DHS.
Further, this rule implements several limitations to ensure that
discretionary termination authority is not used in a manner that would
otherwise conflict with DHS's prosecutorial authority. First, the rule
limits the availability of termination to specific, well-defined
scenarios. See 8 CFR 1003.1(m)(1), 1003.18(d)(1); see also 88 FR 62242,
62264 (explaining the bases for discretionary termination in specific
discrete scenarios, including where the noncitizen is a beneficiary of
TPS, deferred action, and deferred enforced departure, or where an
immigrant visa is immediately available to the noncitizen and USCIS has
granted a Form 601-A waiver).
Second, in cases where discretionary termination may be authorized
because a noncitizen is seeking relief or lawful status that would end
the need for continued removal proceedings, the rule imposes additional
requirements to ensure that termination is not granted prematurely. For
example, as discussed in section IV.G of this preamble, the Department
has modified this provision to apply only to cases where the noncitizen
has first filed their application with USCIS and has demonstrated prima
facie eligibility for such relief, with limited exceptions. See 8 CFR
1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B). The Department believes that
this modification will mitigate the risk that termination is granted
where a noncitizen has no intention of filing the application or does
not have a substantial likelihood of obtaining such relief.
Additionally, the Department believes that the filing requirement will
ensure a seamless transition of the noncitizen's case to USCIS and
allow DHS to monitor the adjudication of that case and, if appropriate,
refer the noncitizen to removal proceedings after the conclusion of any
USCIS adjudications. See 8 CFR 239.1(a) (providing DHS immigration
officers, including certain USCIS officers, with the authority to issue
notices to appear to initiate removal proceedings.).
Third, the rule only allows termination upon the motion of a party,
thereby precluding an EOIR adjudicator's use of sua sponte termination.
See id. Sec. Sec. 1003.1(m)(1)(ii), 1003.18(d)(1)(ii).
Fourth, the rule also explicitly requires EOIR adjudicators to
consider the parties' arguments in support of or in opposition to
discretionary termination when adjudicating the motion to terminate, to
ensure that the adjudicator has the full benefit of the parties'
positions on such termination. The Department believes that this
requirement will ensure that DHS's prosecutorial interests in the case
are considered. If DHS believes that termination is not warranted in a
particular case, the rule provides DHS with an opportunity to present
its reasons for opposing termination and requires EOIR adjudicators to
consider those reasons in deciding whether termination is necessary or
appropriate in the case. See id. Additionally, the Department notes
that DHS can appeal an immigration judge's decision to the Board or
seek reconsideration should DHS disagree with termination. See 8 CFR
1003.38 (appeals); 1003.23 (reconsideration).
Fifth, the rule's catch-all discretionary termination ground
explicitly provides that EOIR adjudicators may only terminate outside
of the enumerated circumstances where, ``[d]ue to circumstances
comparable to'' the enumerated provisions, ``termination is similarly
necessary or appropriate for the disposition or alternative resolution
of the case.'' 8 CFR 1003.1(m)(1)(ii)(F), 8 CFR 1003.18(d)(1)(ii)(F).
However, the rule specifies that the EOIR adjudicator may not terminate
a case for purely humanitarian reasons, unless DHS expressly consents
to such termination, joins in a motion to terminate, or affirmatively
indicates its non-opposition to a noncitizen's motion. See 8 CFR
1003.1(m)(1)(ii)(F), 8 CFR 1003.18(d)(1)(ii)(F).
Sixth, the Department notes that the rule does not require EOIR
adjudicators to terminate proceedings with prejudice. In cases where an
EOIR adjudicator terminates proceedings without prejudice, nothing in
this rule precludes DHS from deciding, in the exercise of their
prosecutorial authority and discretion, to reinitiate removal
proceedings.
Seventh, the longstanding dismissal provision at 8 CFR 1239.2(c),
which the Departments have retained in the final rule, reinforces the
principle that EOIR adjudicators have no authority to grant
discretionary termination for reasons that would encroach on DHS's
exercise of prosecutorial discretion. That provision allows for
dismissal of removal proceedings in certain circumstances related to
DHS's exercise of prosecutorial discretion, such as where the charging
document was ``improvidently issued'' or continuation of the case is no
longer ``in the best interest of the government.'' See 8 CFR
239.2(a)(6), (7). However, an EOIR adjudicator may only grant dismissal
of proceedings for these reasons where DHS has affirmatively moved to
dismiss the case on one of these grounds. The rule provides no similar
basis for discretionary termination on the motion of the noncitizen.
See 8 CFR 1003.1(m)(1)(ii), 1003.18(d)(1)(ii).
Taken together, the Department believes that these limitations and
additional modifications of discretionary termination authority are
sufficient to address any concerns that the rule would allow EOIR
adjudicators to encroach on DHS's prosecutorial authority.
3. Mandatory Termination
Comment: Commenters provided several recommendations regarding the
mandatory termination grounds. Commenters recommended modifying the
factor covering scenarios when no charge of deportability,
inadmissibility, or excludability can be sustained, to include
``alienage.'' Commenters explained that, if DHS fails to establish
alienage, then the case must be terminated.
Response: The Department believes it is unnecessary to explicitly
include DHS's failure to establish alienage under the mandatory
termination ground related to a failure to sustain the charges of
inadmissibility against the noncitizen, as such scenarios are already
encompassed by the mandatory termination ground for a failure to
sustain charges of inadmissibility. 8 CFR 1003.1(m)(1)(i)(A),
1003.18(d)(1)(i)(A) (listing ``[n]o charge of deportability,
inadmissibility, or excludability can be sustained'' as a ground for
mandatory termination). By necessity, charges of inadmissibility are
not sustainable if the noncitizen's alienage is not first established
where relevant. See 8 CFR 1240.8(c) (``In the case of a respondent
charged as being in the United States without being admitted or
paroled, [DHS] must first establish the alienage of the respondent.'').
Additionally, as ``alienage is a jurisdictional fact,'' U.S. ex rel.
Bilokumsky v. Tod, 263 U.S. 149, 153 (1923) (citing United States v.
Sing Tuck, 194 U.S. 161, 167 (1904)), if DHS fails to establish
alienage, there would be no legal basis to continue proceedings, and,
accordingly, proceedings must be terminated as required by law. 8 CFR
1003.1(m)(1)(i)(F); 1003.18(d)(1)(i)(F) (requiring termination where
required by law); see also 8 CFR 1240.8.
Comment: Commenters also recommended that the standard for
mandatorily granting joint or affirmatively unopposed motions to
terminate should be expanded to also cover circumstances where DHS does
not timely respond to the motion.
[[Page 46759]]
Commenters stated that this change would help avoid prolonging removal
proceedings while waiting on DHS's response. Other commenters stated
that joint or affirmatively unopposed motions to terminate should be
granted without exception.
Response: As explained in section III.B.3 of this preamble in
relation to the similar administrative closure provision, the
Department does not believe that expanding the joint or affirmatively
unopposed motion standard to DHS non-responses best serves the
interests underlying this termination provision. See 88 FR at 62263
(explaining that joint and affirmatively unopposed motions should
generally be granted as there is no adversarial interest). Moreover,
any non-responsiveness from DHS will not substantially delay
proceedings, as motions and responses are subject to EOIR adjudicator-
imposed time limits. See 8 CFR 1003.23(a).
Comment: Commenters proposed adding an additional mandatory
termination ground for noncitizens with an approved SIJ petition.
Commenters stated that this would allow the noncitizen to remain in the
United States pending the outcome of their SIJ adjustment of status
application, which are currently subject to a backlog while awaiting a
priority date.
Response: The Department declines to add a provision requiring
termination for all individuals with an approved SIJ petition, as the
Department does not believe that termination in every such case would
be necessary or appropriate. Because an approved SIJ petition itself
does not result in lawful status, the Department does not believe it
should be included under the mandatory termination provision with other
forms of relief that do provide lawful status. See 87 FR 13075 (noting
that ``SIJ is a `classification'; an individual does not receive an
actual `status' until they become an LPR based on the underlying SIJ
classification''). Depending on visa availability, the noncitizen may
be able to apply to adjust status in concurrence with their SIJ
petition or, if relevant, they may be considered for deferred action
while awaiting a visa to become available. See USCIS, Policy Alert PA-
2022-10, Special Immigrant Juvenile Classification and Deferred Action
(Mar. 7, 2022) (``USCIS SIJ Policy Alert'') (``Due to ongoing visa
number unavailability, the protection that Congress intended to afford
SIJs through adjustment of status is often delayed for years, leaving
this especially vulnerable population in limbo.''). Alternatively, a
noncitizen with an approved SIJ petition may never apply to adjust
status.
By contrast, the mandatory termination provisions at 8 CFR
1003.1(m)(1)(i)(D) and 1003.18(d)(1)(i)(D) apply to situations in which
``the noncitizen would not have been deportable, inadmissible, or
excludable as charged if the noncitizen had obtained such status before
the initiation of proceedings.'' Approved SIJ petitions do not meet
this definition. See USCIS SIJ Policy Alert (``Noncitizens without
lawful status who have an approved SIJ petition remain subject to
removal . . . .'').
This rule does not foreclose termination for noncitizens with
approved SIJ petitions, but rather permits discretionary termination
after the adjudicator has had the opportunity to consider whether
termination may be appropriate for a given case--for example, where the
noncitizen is prima facie eligible to adjust status or has received
deferred action in connection with their SIJ classification. 8 CFR
1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B) (discretionary termination
where the noncitizen has demonstrated prima facie eligibility for an
application, such as adjustment of status, that USCIS has jurisdiction
to adjudicate); 8 CFR 1003.1(m)(1)(ii)(C), 1003.18(d)(1)(ii)(C)
(discretionary termination where a noncitizen is the beneficiary of
deferred action). The Department believes it is appropriate to limit
mandatory termination under 8 CFR 1003.1(m)(1)(i)(D) and
1003.18(d)(1)(i)(D) to situations in which lawful status has been
obtained and allow for broader discretion to terminate only as
appropriate, particularly when a vulnerable category of noncitizens is
still pursuing relief. This provision would allow adjudicators to
consider a noncitizen's SIJ classification and availability of
adjustment status or deferred action in determining whether termination
is appropriate but would not require termination in any such case.
Comment: With regard to the mental competency termination ground,
one commenter recommended providing standards detailing what qualifies
as ``mentally incompetent'' and what constitutes ``adequate
safeguards.'' To do so, the commenter largely recommended codifying the
Matter of M-A-M- standards, along with related best practices. See 25
I&N Dec. 474 (BIA 2011). Relatedly, another commenter believed this
termination ground was improper, as it would leave the noncitizen in
limbo without legal status and would likely result in a drain on public
resources.
Response: The Department continues to believe that it is
appropriate to include a termination ground covering scenarios when a
noncitizen is not mentally competent and adequate safeguards are not
available. 8 CFR 1003.1(m)(1)(i)(B), 1003.18(d)(1)(i)(B). Noncitizens
must be afforded a procedurally fair hearing, and if a noncitizen lacks
sufficient competency to proceed with a hearing, then safeguards must
be implemented ```to protect the rights and privileges of the'''
noncitizen. Matter of M-A-M-, 25 I&N Dec. at 478 (quoting section
240(b)(3) of the INA, 8 U.S.C. 1229a(b)(3)); see also id. at 483
(providing examples of safeguards). As the Board has recognized, ``even
where the court and the parties undertake their best efforts to ensure
appropriate safeguards,'' concerns over the procedural fairness of
proceedings may remain, and thus, the ``[i]mmigration [j]udge may
pursue alternatives with the parties.'' Id. at 483. The Department is
of the opinion that termination of proceedings can be an appropriate
alternative to carrying out proceedings that would not be fundamentally
fair due to the noncitizen's lack of competency and the lack of
appropriate safeguards.\4\
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\4\ The Department notes, however, that in many cases, legal
representation is a proper and adequate safeguard. See Matter of M-
J-K-, 26 I&N Dec. 773, 777 (BIA 2016) (noting that prior to
determining that no adequate safeguards are available, the ``proper
course'' of action is ``to apply the safeguard of legal
representation,'' as ``[t]he participation of counsel increases the
likelihood of finding a means to proceed fairly''). Moreover, the
Board has permitted the use of administrative closure as an
appropriate option to allow a noncitizen who is experiencing mental
health issues impacting competency to seek treatment to mitigate
competency issues so that fundamentally fair proceedings can go
forward. Matter of M-A-M-, 25 I&N Dec. at 483. Given the wide array
of safeguards available in immigration proceedings, the Department
anticipates that only in rare cases will there be a lack of
appropriate safeguards such that fundamentally fair proceedings are
not possible. See id. at 481-83 (listing immigration regulations
that provide guidance as to appropriate safeguards and drawing from
case law to provide a non-exhaustive list of examples of safeguards
that immigration judges may apply in cases where a noncitizen lacks
mental competency). Ultimately, however, in cases involving issues
of mental competency, an immigration judge is best positioned to
determine which safeguards are appropriate under the circumstances
of a particular case. Matter of M-J-K-, 26 I&N Dec. at 775.
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That said, the Department notes that ``competency is not a static
condition. It varies in degree. It can vary over time. It interferes
with an individual's functioning at different times in different
ways.'' Id. at 480 (quoting Indiana v. Edwards, 554 U.S. 164, 175
(2008) (internal quotations omitted)). Thus, should a noncitizen's
mental competency be restored, or should adequate safeguards become
available,
[[Page 46760]]
nothing in this rulemaking prevents future, procedurally fair
proceedings from going forward.
Additionally, the Department declines to codify broad regulatory
standards related to mental competency in this rulemaking as requested
by a commenter. The Department does not believe this rulemaking is the
appropriate vehicle for such broad standards, as it only contains a
single termination ground related to mental competency. Moreover, the
Department similarly declines to define these terms solely for the
purposes of this narrow termination provision, which would risk
confusion with broader mental competency guidelines. Notably, however,
the Board's decision in Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011),
continues to provide applicable guidelines for assessment of competency
issues in proceedings before EOIR. Accordingly, the Department does not
believe that further codification of competency standards in this
rulemaking is necessary at this time.
4. Discretionary Termination
Comment: Commenters recommended broadening the discretionary
termination ground for an unaccompanied child (``UC'') to pursue asylum
before USCIS to cover noncitizens previously determined to be UCs.
Specifically, commenters stated that longstanding USCIS policy and a
nationwide preliminary injunction extends USCIS's initial asylum
jurisdiction not only to an individual determined to meet the UC
definition at 8 CFR 1001.1(hh) during the course of EOIR proceedings,
but also to individuals previously determined to be UCs, absent an
affirmative act by DHS or HHS to terminate such a determination prior
to the filing of the individual's asylum application. Commenters also
stated that this section should explicitly defer to USCIS's
determinations as to when a noncitizen is considered a UC.
Commenters also recommended treating the UC termination ground as
mandatory rather than discretionary, which commenters stated would help
safeguard due process for child applicants and help reduce the
immigration court backlog.
In contrast, other commenters opposed this discretionary
termination ground, stating that EOIR should keep UCs on their dockets
until they have had their asylum application adjudicated by USCIS.
Commenters raised concerns that terminating proceedings before the UC
has their asylum application adjudicated by USCIS would result in the
Government losing track of the UC.
Response: After further consideration, and as detailed in section
IV of this preamble, the Department is modifying the discretionary
termination ground relating to UCs pursuing asylum before USCIS. See 8
CFR 1003.1(m)(1)(ii)(A), 1003.18(d)(1)(ii)(A). First, the Department is
modifying this discretionary termination ground to apply to all
noncitizens whose asylum applications are considered to have been filed
by a UC such that USCIS may exercise initial jurisdiction pursuant to
INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C). The Department recognizes
that there may be circumstances, such as by court order, internal USCIS
policy, or by a determination of a noncitizen's unaccompanied status,
where applications are considered to have been filed by UCs
specifically for purposes of this statutory provision. This change
ensures that discretionary termination is available when necessary to
allow qualifying noncitizens to pursue asylum relief before USCIS under
INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C). This change is discussed in
further detail in section IV.B of this preamble.
Second, the Department is modifying this UC provision to require
the filing of an asylum application with USCIS before an EOIR
adjudicator may grant discretionary termination. After further
deliberation, the Department believes that this change will best ensure
that the noncitizen does not enter a position where they do not have a
relief application or removal proceeding pending. This change will
therefore allow the Department and DHS to most efficiently track the
noncitizen's status and take appropriate action subsequent to USCIS's
adjudication of their asylum application.
However, the Department declines to make this provision mandatory
rather than discretionary. The Department limited the mandatory
termination provisions relating to outside relief to scenarios where
such relief has already been obtained. See 8 CFR 1003.1(m)(1)(i)(C) and
(D), 1003.18(d)(1)(i)(C) and (D). The Department believes it is more
appropriate to make discretionary termination available when a
noncitizen is still pursuing relief but does not currently have valid
legal status. See, e.g., 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B) (discretionary termination available when pursuing
relief with USCIS).
As the Department notes further, in section IV.C of this preamble,
the final rule will require those considered to be filing as UCs to
have filed the asylum application with USCIS, rather than state an
intent to file, as proposed in the NPRM, see 88 FR at 62264, because
the Department believes that this change is necessary to ensure that
EOIR adjudicators do not terminate cases involving such vulnerable
groups without first mitigating the risk that their cases end up
outside of the immigration process with no operationally feasible
mechanism to ensure that such noncitizens will submit an affirmative
application promptly to USCIS. The Department believes that ensuring
that there will be a transition between proceedings before EOIR to
proceedings before USCIS is particularly important for cases involving
UCs and other similarly situated noncitizens so as to mitigate
vulnerabilities of such individuals to trafficking, fraud, or abuse
without actively pursuing a path for relief or protection or status.
Such concerns would be exacerbated by a policy requiring mandatory
termination for such individuals, and the EOIR adjudicator should have
the discretion to consider whether termination might be appropriate in
each case.
Additionally, the Department notes that this provision does not
alter any substantive determinations regarding when, how, or by whom
any UC determinations are made.
Comment: With regard to the discretionary termination ground based
on prima facie eligibility for outside relief, some commenters
recommended clarifying that immigration judges may determine prima
facie eligibility for naturalization, rather than relying on an
``affirmative communication'' from USCIS. Commenters cited two Board
decisions that they believed were erroneously decided and have resulted
in USCIS holding an effective veto of an immigration judge's
termination decision when the noncitizen is pursuing naturalization.
See Matter of Acosta Hidalgo, 24 I&N Dec. 103 (BIA 2007); Matter of
Cruz, 15 I&N Dec. 236 (BIA 1975).
Response: The Department notes that the Board, in Matter of Acosta
Hidalgo, was interpreting the specific regulatory text of 8 CFR
1239.2(f) (2023), which is being removed and reserved in this
rulemaking. See 24 I&N Dec. at 105-06. Similarly, in Matter of Cruz, 15
I&N Dec. at 237, the Board was interpreting the regulatory
``predecessor'' to 8 CFR 1239.2(f) (2023), which was ``essentially
identical to'' 8 CFR 1239.2(f) (2023). 24 I&N Dec. at 104. Under the
previous regulation, EOIR adjudicators were permitted to terminate
removal proceedings only to allow a noncitizen
[[Page 46761]]
to proceed to a final hearing on a pending application or petition for
naturalization when the noncitizen demonstrated prima facie eligibility
and the matter involved exceptionally appealing or humanitarian
factors. See 8 CFR 1239.2(f) (2023). The Board's holdings in the cases
cited by the commenters do not apply to the provisions of this rule,
which, while designed to include the circumstances described under
former 8 CFR 1239.2(f), are broader in nature. Compare 8 CFR 1239.2(f)
(2023) (``An immigration judge may terminate removal proceedings to
permit the [noncitizen] to proceed to a final hearing on a pending
application or petition for naturalization when the [noncitizen] has
established prima facie eligibility for naturalization and the matter
involves exceptionally appealing or humanitarian factors; in every
other case, the removal hearing shall be completed as promptly as
possible notwithstanding the pendency of an application for
naturalization during any state of the proceedings.''), with 8 CFR
1003.1(m)(1)(ii)(B) and 8 CFR 1003.18(d)(1)(ii)(B) (authorizing
termination where ``[t]he noncitizen is prima facie eligible for
naturalization'').
Additionally, circuit courts have criticized the framework
established by Acosta Hidalgo and former 8 CFR 1239.2(f) (2023)
together, noting that it has created operational frustrations, as well
as inefficiencies, inconsistencies, and confusion. In particular,
Perriello v. Napolitano, 579 F.3d 135, 140 (2d Cir. 2009), asserted
that former 8 CFR 1239.2(f) (2023) was ``antiquated'' in light of
amendments made by the Immigration Act of 1990 (``IMMACT'') to the
naturalization process. Public Law 101-649, 511(a), 104 Stat. 4978,
5044. As relevant, the changes made by IMMACT, and as codified with
minor changes, provide that ``. . . no application for naturalization
shall be considered by the Attorney General if there is pending against
the applicant a removal proceeding . . . .'' IMMACT Sec. 407(d)(3),
104 Stat. at 5041; INA 318, 8 U.S.C. 1429. After this amendment, some
courts called into question the continued viability of former 8 CFR
1239.2(f) (2023). See Perriello, 579 F.3d at 140 (collecting cases). In
Acosta Hidalgo, the BIA reaffirmed that EOIR adjudicators must
``require some form of affirmative communication'' from DHS before
terminating under former 8 CFR 1239.2(c) (2023).
This framework was confusing, Perriello stated, whereby former 8
CFR 1239.2(f) (2023) required an ``affirmative communication'' by DHS
regarding prima facie eligibility for naturalization before terminating
removal proceedings, but where the statute prohibited consideration of
an application while the removal proceedings were pending, which could
be read to include a prohibition on assessments of prima facie
eligibility. Perriello, 579 F.3d at 142. The court stated that ``[t]he
law, in effect, seems to be chasing its tail.'' Id. at 138. Recognizing
these concerns, and as discussed in section IV.F of this preamble, this
rule eliminates the certification requirement while continuing to
recognize DHS's role in the naturalization context. This rule, which
authorizes EOIR adjudicators to make a prima facie inquiry into
naturalization eligibility, will provide significant efficiencies, and
address operational frustrations, inconsistencies, and confusion over
adopting a similar requirement to the holding in Acosta Hidalgo in
relevant cases involving naturalization applications, as EOIR
adjudicators will no longer be reliant on USCIS prima facie
naturalization determinations before they may adjudicate a motion to
terminate, and parties will no longer be required to obtain and produce
such certifications.\5\ The Department notes that evidence of any such
certification from USCIS may be considered by the EOIR adjudicator in
determining whether to terminate under this provision. Additionally,
this provision does not require EOIR adjudicators to terminate in any
case where a noncitizen asserts they are eligible to naturalize, and to
the extent that the adjudicator determines that such certification is
necessary to render a decision on termination, the adjudicator may
request that the parties produce such a certification.
---------------------------------------------------------------------------
\5\ As acknowledged in Acosta Hidalgo, the Department cannot
compel DHS to produce such a certification, 24 I&N Dec at 107, and
where DHS has not done so, cases have unnecessarily stalled without
progress towards resolution, leaving the parties in a state of
uncertainty and confusion. For example, in Periello, the court
stated that ``nothing seems to compel DHS to make such a
determination [on the noncitizen's prima facie eligibility for
naturalization], let alone to issue such a communication.'' 579 F.3d
at 138. Periello also stated that ``[i]n some cases . . . DHS has
adjudicated naturalization applications while [noncitizens] have
awaited termination of their removal proceedings, notwithstanding
the bar in [INA 318, 8 U.S.C. 1429] . . . . And in yet other cases,
no determination of prima facie eligibility has been made by
anybody, leaving [noncitizens] to pursue writs of mandamus in an
effort to compel DHS to produce `affirmative statement[s]' as to
prima facie eligibility.'' Id. at 140-41. To illustrate the
potentially confusing results, Periello cited an unpublished
district court case where a noncitizen had petitioned for relief
after DHS concluded that it lacked jurisdiction over the
noncitizen's naturalization application, but nonetheless advised
that the noncitizen was not prima facie eligible for naturalization.
Id. In the same case, an immigration judge had previously ruled that
the noncitizen was prima facie eligible for naturalization, but the
BIA reversed, holding that Board precedent prohibited the
immigration judge from making that determination. Id.
---------------------------------------------------------------------------
Moreover, permitting EOIR adjudicators to make an inquiry into a
noncitizen's prima facie eligibility for naturalization, despite not
having jurisdiction to adjudicate naturalization applications, is
consistent with agency practice in analogous contexts. For example,
although USCIS has exclusive jurisdiction over U visa applications, an
EOIR adjudicator is permitted to assess a noncitizen's prima facie
eligibility for U nonimmigrant status. See Matter of Sanchez-Sosa, 25
I&N Dec. 807, 813-14 (BIA 2012) (setting forth the inquiry into prima
facie eligibility for U nonimmigrant status). Given that EOIR
adjudicators lack jurisdiction over naturalization applications, EOIR
adjudicators' determinations as to noncitizens' prima facie eligibility
for naturalization will not be binding on USCIS.
In sum, nothing in the INA or the regulatory text requires an
``affirmative communication'' from USCIS as to a noncitizen's prima
facie eligibility for naturalization, as this rule authorizes EOIR
adjudicators to assess whether a noncitizen is prima facie eligible for
naturalization when termination is sought on that basis. 8 CFR
1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B). Under this rule, immigration
judges would not assess prima facie eligibility for naturalization as a
part of a noncitizen's naturalization application, INA 318, 8 U.S.C.
1429 (``the findings of the Attorney General in terminating removal
proceedings . . . shall not be deemed binding in any way . . . with
respect to the question of whether such person has established []
eligibility for naturalization as required by this subchapter''), but
rather solely for the purpose of assessing whether termination would be
necessary or appropriate to allow the noncitizen to have their
application considered by DHS. Nevertheless, as discussed in more
detail in section IV.F of this preamble, this rule continues to
acknowledge both DHS's unique role as sole administrators over the
process to obtain permanent (with limited exceptions) citizenship in
the United States and Congress's directive that pending removal
proceedings--which are initiated and prosecuted by DHS--should bar
consideration of naturalization applications, by limiting termination
to pursue a naturalization application to those instances where DHS
does not oppose a noncitizen's motion to terminate. 8 CFR
1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B).
Comment: Commenters recommended adding standalone discretionary
[[Page 46762]]
termination grounds for noncitizens with certain pending USCIS
applications, including T visas, U visas, Violence Against Women Act
(``VAWA'') self-petitions, and SIJ petitions. For example, commenters
noted that a standalone discretionary termination ground would be
important for many noncitizens with approved SIJ petitions, but who are
awaiting a visa priority date. Commenters stated that the rulemaking's
existing discretionary termination ground for noncitizens with deferred
action--which would cover SIJ applicants in many circumstances--is not
sufficient. Commenters explained deferred action for SIJ applicants is
purely discretionary and may be removed by a future administration,
thereby foreclosing future discretionary termination for SIJ
applicants.
One commenter also recommended adding a discretionary termination
ground for noncitizens with bona fide determinations from USCIS, but
who are awaiting visa availability. The commenter explained that, in
these circumstances, the noncitizen already has an otherwise approvable
form of relief, and termination would be more efficient than
administrative closure while simply waiting on visa availability.
Response: The Department declines to add specific discretionary
termination grounds for various forms of relief proposed by commenters
because the rule's existing termination grounds already broadly cover
those forms of relief. The rule includes a discretionary termination
ground for a noncitizen who is prima facie eligible for naturalization,
lawful status, or relief from removal that USCIS has jurisdiction to
adjudicate, and the noncitizen has filed the petition, application, or
other action with USCIS, though no filing is required where the
noncitizen is prima facie eligible for adjustment of status or
naturalization. This would broadly include the types of relief noted by
commenters, including T visas, U visas, VAWA self-petitions, and SIJ
petitions. 8 CFR 1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B). More
specifically, the Department declines to add standalone discretionary
termination grounds for SIJ applicants as proposed by commenters, as
speculation of which status categories may receive deferred action
under future administrations is outside the scope of this rule.
Further, as explained in more detail in section IV.H of this
preamble, the Department is modifying this discretionary termination
ground to clarify that EOIR adjudicators may not terminate cases for
the express purpose of allowing a noncitizen--other than a noncitizen
who has filed an asylum application with USCIS pursuant to section
208(b)(3)(C) of the Act, 8 U.S.C. 1158(b)(3)(C), pertaining to
unaccompanied children, as defined in 8 CFR 1001.1(hh)--to pursue an
asylum application before USCIS. This limitation on termination
requires the noncitizen to establish that they warrant termination
based on a form of relief that USCIS may adjudicate, but the noncitizen
may not seek termination for the purpose of pursuing an affirmative
asylum application before USCIS. Id. This limitation would also not
apply to joint or affirmatively unopposed motions to terminate for the
express purpose of permitting a noncitizen to pursue asylum before
USCIS where no other relief is being sought, as such motions would be
covered under termination provisions designed to address joint or
affirmatively unopposed motions. 8 CFR 1003.1(m)(1)(i)(G); 8 CFR
1003.18(d)(1)(i)(G).
Similarly, the Department declines to add a specific discretionary
termination ground for noncitizens with bona fide determinations from
USCIS. However, the Department notes that such evidence would be
relevant to an EOIR adjudicator's determination on any motion to
terminate. For example, such evidence may weigh heavily in favor of the
noncitizen under the factor concerning prima facie eligibility for
relief with USCIS.
Comment: One commenter recommended treating the discretionary
termination ground for T and U visa applicants in which the parties
have filed a motion to terminate under 8 CFR 214.11(d)(1)(i) or
214.14(c)(1)(i) as a mandatory termination ground. The commenter stated
that, because these grounds require a joint motion, it should be
subject to the mandatory ``joint or unopposed'' termination ground.
Response: In response to commenter concerns, the Department has
decided not to finalize the discretionary termination ground related to
T and U visas as proposed in the NPRM. As relevant here, a commenter
noted that in the proposed discretionary termination ground for U and T
visas, the cross-referenced DHS regulatory provisions--8 CFR
214.11(d)(1)(i) and 214.14(c)(1)(i)--discuss joint motions to
terminate. See, e.g., 8 CFR 214.11(d)(1)(i) (``In its discretion, DHS
may agree to the [noncitizen]'s request to file with the immigration
judge or the Board a joint motion to . . . terminate proceedings
without prejudice, . . . while an application for T nonimmigrant status
is adjudicated by USCIS.''). In turn, the proposed rule referenced
these T and U visa regulatory provisions under the discretionary
termination grounds. However, the Department now clarifies that any
jointly filed motions to terminate, including those referenced by these
provisions, should be considered under the mandatory ``joint or
unopposed'' motion termination ground. See 8 CFR 1003.1(m)(1)(i)(G),
1003.18(d)(1)(i)(G). Should any motions described in the DHS regulatory
provisions related to U and T visas be presented before EOIR, those
motions would constitute joint motions and would be governed by 8 CFR
1003.1(m)(1)(i)(G) or 1003.18(d)(1)(i)(G). Thus, the Department has
decided not to finalize the discretionary termination provision cross
referencing DHS's regulations addressing T and U visa applicants
because, as proposed, it was superfluous. Instead, such motions will be
controlled by the joint motions provisions finalized in this rule.
5. Specific Calls for Comments
i. Additional Constraints on Termination
Comment: Commenters recommended modifying the termination
provisions to state that immigration judges and the Board may not
terminate a case if the noncitizen objects to termination, unless
termination is required by law. Commenters stated that this would
ensure that noncitizens are not foreclosed from pursuing relief before
EOIR due to their removal proceeding being terminated.
Another commenter proposed allowing adjudicators to have the
discretion to terminate proceedings based on compelling humanitarian
grounds in rare and exceptional circumstances. In contrast, other
commenters stated that immigration judges should not be allowed to
terminate cases before a noncitizen has applied for relief outside of
EOIR, as such termination would be premature.
One commenter recommended creating an exhaustive list of
circumstances that would authorize an EOIR adjudicator to terminate or
dismiss cases, and further limiting such grounds to those where DHS
cannot sustain the charges of removability or where the noncitizen has
obtained lawful status or U.S. citizenship, or otherwise renders the
noncitizen no longer subject to removal.
Separately, a commenter recommended that, when DHS moves for
termination, the immigration judge should be required to explain the
effect of termination to pro se noncitizens and to solicit their views
before adjudicating the motion.
[[Page 46763]]
Response: First, the Department declines to remove an EOIR
adjudicator's ability to terminate proceedings over a party's
objection, whether that party be the noncitizen or DHS, with the
exception of discretionary motions to terminate for a noncitizen to
seek naturalization. See 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B) (``Where the basis of a noncitizen's motion for
termination is that the noncitizen is prima facie eligible for
naturalization, the [EOIR adjudicator] shall not grant the motion if it
is opposed by DHS.''). This limitation on the EOIR adjudicator's
ability to terminate for a noncitizen to seek naturalization when DHS
opposes is discussed in greater detail in section IV.F of this
preamble.
Notwithstanding the foregoing, as explained in response to a
similar request regarding administrative closure, see supra section
III.B.5.iii of this preamble, the Department believes that the
importance of providing EOIR adjudicators with the authority to take
``necessary or appropriate'' action for the disposition or alternative
resolution of cases weighs in favor of providing adjudicators with the
ability to terminate proceedings over a party's objection. See 8 CFR
1003.1(d)(1)(ii); 8 CFR 1003.10(b). Moreover, precluding an EOIR
adjudicator from terminating proceedings over a noncitizen's
objection--absent a conforming provision for a DHS objection to
termination--would result in a procedural imbalance between the
parties. Thus, for procedural fairness, the Department declines to add
a regulatory provision precluding the EOIR adjudicator from terminating
proceedings over the objection of one party.
Notably, the mandatory termination grounds cover situations in
which: the individual in proceedings is not removable, is a citizen, or
has obtained certain legal status; both parties have jointly requested,
or one party has affirmatively non-opposed, termination; fundamentally
fair proceedings are not possible due to mental incompetency; or
termination is otherwise required by law. See 8 CFR 1003.1(m)(1)(i),
1003.18(d)(1)(i). Thus, mandatory termination is intended for scenarios
where removal proceedings are no longer needed, even despite possible
party objections. Thus, the Department does not anticipate that
noncitizens generally would object to termination of proceedings when
the foregoing termination grounds are implicated; rather, the
Department believes that noncitizens more likely will be requesting
termination or will be joining or affirmatively indicating non-
opposition to a DHS motion in these scenarios.
Similarly, for discretionary termination, the Department notes that
the enumerated discretionary termination grounds are mainly focused on
allowing parties to request termination when a noncitizen may be
eligible for a lawful status outside of removal proceedings. See, e.g.,
8 CFR 1003.1(m)(1)(ii), 1003.18(d)(1)(ii) (discretionary termination
grounds include, for example, noncitizens pursuing relief with DHS or
who are the beneficiaries of certain programs). Therefore, the
Department believes that, in most cases, noncitizens will be requesting
or unopposed to discretionary termination under these provisions.
Moreover, even if a noncitizen were to object to a DHS motion to
terminate, the Department anticipates that termination over a
noncitizen's objection would be rare, particularly where the noncitizen
wishes to continue pursuing a relief application in removal
proceedings.
However, for clarity, and as explained further in section IV of
this preamble, the Department is modifying the rule's discretionary
termination language to explicitly state that an EOIR adjudicator
``shall consider the reason termination is sought and the basis for any
opposition to termination when adjudicating the motion to terminate.''
8 CFR 1003.1(m)(1)(ii), 1003.18(d)(1)(ii). The Department believes that
this addition will help further clarify that arguments related to a
motion for discretionary termination, and particularly any opposition
to such a motion, will be considered by the EOIR adjudicator in the
course of adjudicating the motion, consistent with longstanding motions
practice. See generally Immigration Court Practice Manual, ch. 5; BIA
Practice Manual, ch. 5, https://www.justice.gov/eoir/manuals-and-memoranda.
Further, should either party disagree with the EOIR adjudicator's
decision regarding termination, then filing a motion to reconsider the
decision or an appeal of the decision may be options for redress. See
generally 8 CFR 1003.23 (motions to reconsider), 1003.38 (appeals); see
also Matter of Sanchez-Herbert, 26 I&N Dec. 43 (considering appeal of
immigration judge's decision to terminate proceedings).
Next, the Department declines to expand the termination grounds to
allow EOIR adjudicators to terminate proceedings based on certain
humanitarian grounds, absent DHS consent. As explained in the NPRM, the
Department limited such authority to avoid encroaching on DHS's sole
authority to commence removal proceedings, or to exercise prosecutorial
discretion where relevant. 88 FR at 62264-65; see also 8 CFR 239.1(a)
(providing DHS with sole discretion to commence removal proceedings).
For example, as the Board observed in Matter of M-F-O-, an immigration
judge should not terminate proceedings based on the view that the
respondent is a low enforcement priority. 28 I&N Dec. 408, 415 n.11
(BIA 2021) (``Although the respondent argues on appeal that he is a low
enforcement priority and that his removal proceedings should be
terminated or dismissed without prejudice on this basis, it is within
[DHS]'s prerogative to exercise prosecutorial discretion in that
manner.'' (citing Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. at 170 &
n.3)).
Further, the Department declines to limit discretionary termination
authority to only the specified circumstances listed in the rule, 8 CFR
1003.1(m)(1)(ii)(A) through (E); 8 CFR 1003.18(d)(1)(ii)(A) through
(E), as commenters suggested. The Department included a limited catch-
all ground for circumstances comparable to the enumerated discretionary
termination grounds where such termination is ``necessary or
appropriate for the disposition or alternative resolution of the
case.'' 8 CFR 1003.1(m)(1)(ii)(F), (m)(2)(ii), 1003.18(d)(1)(ii)(F),
(d)(2)(ii). The Department believes that this provision will help
ensure EOIR adjudicators have sufficient authority to terminate
proceedings when necessary or appropriate, particularly in new or
unique circumstances not contemplated by this rule. The Department also
notes that this catch-all ground includes specific limitations to
prevent unfettered termination, such as prohibiting EOIR adjudicators
from terminating a case ``for purely humanitarian reasons, unless DHS
expressly consents to such termination, joins in a motion to terminate,
or affirmatively indicates its non-opposition to a noncitizen's
motion.'' Id.
In the course of this rulemaking, the Department has reevaluated
the discretionary termination ground for cases in which a noncitizen is
pursuing outside relief with USCIS. See 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B). After additional consideration, the Department is
concerned that the language in the proposed rule, absent any additional
limitations, could be read to authorize the termination of a case for
the express purpose of allowing a noncitizen to apply for asylum before
USCIS, other than a noncitizen who has filed an asylum application with
USCIS
[[Page 46764]]
pursuant to section 208(b)(3)(C) of the Act, 8 U.S.C. 1158(b)(3)(C),
pertaining to unaccompanied children, as defined in 8 CFR 1001.1(hh).
The final rule precludes such a result, as consistent with the NPRM.
See 88 FR at 62264 (explaining that ``the Department does not intend
this proposed ground for discretionary termination to authorize a
general practice of terminating proceedings involving prima facie
eligibility for asylum'' and stating that ``the default rule that EOIR
adjudicators continue to exercise authority over asylum applications
filed by noncitizens in removal proceedings would continue to apply'').
These revisions are more consistent with the overall regulatory
structure, as 8 CFR 1208.2(b) provides that immigration judges ``have
exclusive jurisdiction over asylum applications filed by [a noncitizen]
. . . after the charging document has been filed with the Immigration
Court.''
Accordingly, the Department has modified these provisions to
clarify that an EOIR adjudicator shall not terminate a case for a
noncitizen to pursue an asylum application before USCIS, except as
provided for in 8 CFR 1003.1(m)(1)(ii)(A) and 1003.18(d)(1)(ii)(A). 8
CFR 1003.1(m)(1)(ii)(B) (Board), 1003.18(d)(1)(ii)(B) (immigration
judges).
Relatedly, the Department has modified the discretionary
termination ground focusing on petitions, applications, or other
actions that a noncitizen pursues with USCIS to include language
requiring that the noncitizen has filed such application, petition, or
other action before termination may be granted, though no filing is
required where the noncitizen is prima facie eligible for adjustment of
status or naturalization. See 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B). Thus, the Department believes that this change is
responsive to commenter concerns that EOIR adjudicators ``should not be
allowed to terminate cases before a noncitizen has applied for relief
outside of EOIR.'' This change is discussed further at section IV.G of
this preamble.
The Department declines to amend the rule's termination provisions
to include special rules applicable to unrepresented noncitizens, as
commenters suggested. The Department is cognizant of the
``disadvantages faced by uncounseled noncitizens,'' Quintero v.
Garland, 998 F.3d 612, 627 (4th Cir. 2021), and acknowledges that the
immigration judge's ``duty to fully develop the record'' is
``especially crucial in cases involving unrepresented noncitizens,''
id. However, the Department declines to adopt different procedural
rules based on representation status, which present administrability
concerns as representation status can change throughout proceedings.
Rather, the Department believes that immigration judges will adequately
explain the implications of a motion to terminate to an unrepresented
noncitizen, as well as solicit the noncitizen's position on termination
prior to ruling on a motion, as these actions are already part of an
immigration judge's duty to develop the record.
ii. Termination Without Prejudice to DHS
Comment: Commenters stated that terminations should not be
automatically considered ``without prejudice,'' explaining that this
would limit finality for noncitizens in removal proceedings and may
violate the claim preclusion doctrine and the structure of the INA,
which commenters stated should prevent DHS from reinitiating
proceedings based on the same facts. Another commenter suggested that
the Department codify a list of non-exhaustive scenarios in which
termination with prejudice may be warranted, including circumstances
involving: (1) dilatory conduct by DHS, including filing multiple
Notices to Appear and failure to prosecute; (2) DHS counsel repeatedly
appearing for hearings unprepared or failing to disclose evidence; (3)
DHS counsel's failure to attend any hearings; (4) subsequent judicial
decisions; (5) the granting of benefits to respondent by USCIS; and (6)
the violation of settlement agreements or injunctions.
Response: The Department declines to delineate via regulation
whether termination of proceedings should be with or without prejudice.
EOIR adjudicators have the authority to take ``any action consistent
with their authorities . . . as necessary or appropriate for the
disposition or alternate resolution of the case,'' and this authority
includes termination of proceedings, as guided by the individual facts
and circumstances of the case. 8 CFR 1003.1(d)(1)(ii), 1003.10(b); see
id. Sec. Sec. 1003.1(m)(2)(ii), 1003.18(d)(2)(ii). The Department is
of the belief that further delineating the specific scenarios suggested
by commenters where termination of proceedings would be ``with
prejudice'' does not provide EOIR adjudicators the needed flexibility
to consider the individual facts and circumstances of each case.
Relatedly, should a noncitizen's proceedings before EOIR be
terminated, and should DHS place that same noncitizen into new
proceedings before EOIR, then EOIR adjudicators have the ability and
expertise to determine whether DHS's initiation of new proceedings is
impacted in any way by the prior termination order.
In declining to introduce termination prejudice standards by
regulation, the Department notes that, in many circumstances,
termination of removal proceedings is without prejudice. See, e.g.,
B.R. v. Garland, 26 F.4th 827, 840 (9th Cir. 2022) (explaining that the
remedy for certain regulatory violations is termination without
prejudice). The Department further notes that for a ``decision by an
immigration judge [to have] a preclusive effect'' an ``issue must have
been actually litigated,'' and ``the determination of the issue'' must
have been necessary to the judgement. Islam v. Sec., Dep't of Homeland
Security, 997 F.3d 1333, 1341 (11th Cir. 2021) (internal quotation
marks omitted); see Ali v. Barr, 951 F.3d 275, 283 (5th Cir. 2020);
Alvear-Velez v. Mukasey, 540 F.3d 672, 677 (7th Cir. 2008). Moreover,
``a dismissal without prejudice is not a decision on the merits for
purposes of res judicata.'' Abpikar v. Holder, 544 F.App'x 719, 721
(9th Cir. 2013) (quoting Oscar v. Alaska Dep't of Educ. & Early Dev.,
541 F.3d 978, 981 (9th Cir. 2008)).
In sum, the Department is confident that EOIR adjudicators are
equipped to make a determination as to the appropriateness of
termination of proceedings in each individual case, and therefore, the
Department declines to adopt standards governing the issue of
termination ``with prejudice'' in this rulemaking.
iii. Sua Sponte Termination
Comment: Commenters generally opposed inclusion of sua sponte
termination authority. Commenters stated that, if an adjudicator
believes termination is appropriate, the adjudicator should invite both
parties to share their views on termination and treat such views as
oral or written motions. Commenters explained that this would allow the
parties to provide valuable input, particularly noncitizens who may
wish to proceed with their removal proceedings to pursue relief. Other
commenters stated that, if the Department includes sua sponte
termination authority, parties should be provided proper notice,
including a proposed 60-day notice of intent to terminate.
Additionally, commenters stated that any sua sponte termination
authority should not be allowed over a noncitizen's objection.
[[Page 46765]]
Response: After consideration, the Department has decided not to
provide for sua sponte termination authority when termination is not
mandatory. Accordingly, the Department has modified the regulatory text
to make clear that a motion from a party is required before an EOIR
adjudicator may terminate a case in the exercise of discretion. See 8
CFR 1003.1(m)(1)(ii), (m)(2)(ii), 1003.18(d)(1)(ii), (d)(2)(ii). The
Department wishes to ensure that the parties are able to provide
evidence and arguments in support or opposition to discretionary
termination before the EOIR adjudicator makes such a determination. As
explained by commenters, there may be instances, for example, when a
noncitizen may oppose discretionary termination because they wish to
pursue relief before EOIR. However, the Department notes that, in
practice, if the adjudicator believes that termination of proceedings
may be an appropriate disposition of the case, the adjudicator can
raise that issue with the parties. If a party is then interested in
seeking termination, the adjudicator may inquire whether the party
wishes to move for termination. For those cases before the Board, the
adjudicator may request supplemental briefing from the parties to
ensure that the positions of the parties are considered as part of the
decision whether to terminate proceedings. 8 CFR 1003.3(c). This
ensures that the parties can indicate their positions on termination
for the record prior to the adjudicator ruling upon the motion to
terminate.
iv. Evidence Required
Comment: Some commenters stated that noncitizens should not be
required to produce evidence of a filing with USCIS as a prerequisite
for termination, as such filings may take a significant amount of time
to prepare. Commenters noted that such a requirement would, therefore,
keep cases on the immigration judge's docket unnecessarily while such
filings were being completed. Rather, commenters believed that a
finding of prima facie eligibility for relief before USCIS should be
sufficient to terminate proceedings. In contrast, other commenters
stated that proof of filing with USCIS should be required, but that
United States Postal Service (``USPS'') tracking or signature
confirmation, along with a copy of the application, should be
sufficient.
Other commenters recommended that, for purposes of terminating
based on underlying legal status, the rulemaking should explicitly
state that immigration judges may accept any credible evidence of legal
status. Commenters noted that they previously encountered issues with
the availability of specific evidence requested by immigration judges,
which resulted in the denial of their motions to terminate.
Response: After further consideration, the Department is modifying
the relevant discretionary termination ground to require proof of
filing with USCIS as a prerequisite to termination. Specifically, the
Department has modified the discretionary termination ground focusing
on petitions, applications, or other actions that a noncitizen pursues
with USCIS seeking relief from removal or lawful status, to include
language requiring that the noncitizen has filed such application,
petition, or other action. See 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B). In making this change, the Department also
included an exception to this USCIS filing requirement for prima facie-
eligible adjustment of status applications, so as not to preclude USCIS
from accepting adjustment applications because a noncitizen is in
removal proceedings. See id.
The Department believes this change will help ensure that EOIR is
not prematurely terminating proceedings when a relevant application has
not yet been filed with USCIS. This filing requirement will also help
DHS and EOIR efficiently monitor the status of noncitizens by ensuring
that a noncitizen placed into removal proceedings either files an
application with USCIS or remains in removal proceedings until final
adjudication. Moreover, in cases in which the noncitizen is in the
process of preparing their application for filing with USCIS, they may
request continuances or administrative closure before EOIR, as
relevant, in the interim. If their requests are granted, continuances
or administrative closure could significantly reduce the active
resources being devoted to the noncitizen's case while they prepare
their application for filing. Thus, the Department disagrees with
commenter concerns that leaving such cases on the EOIR adjudicator's
calendar or docket while noncitizens prepare their applications for
filing would necessarily be less efficient than terminating
proceedings, even where such filings may take a significant amount of
time to complete. Additionally, there is a possibility that--despite
the party's stated intent--the relevant petition, application, or
action will never successfully be filed with USCIS. To avoid this
scenario after proceedings have already been terminated, the Department
has added a requirement that the party seeking discretionary
termination under this provision must provide proof of filing with
USCIS before the EOIR adjudicator may terminate proceedings, unless the
specific petition, application, or action is excepted from the filing
requirement. 8 CFR 1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B).
Separately, the Department declines to include explicit language
regarding substantive evidentiary standards for motions to terminate.
The rule does not limit the types of evidence that an EOIR adjudicator
may consider in making a termination decision. Rather, the rule
provides EOIR adjudicators with the flexibility to determine whether
any submitted evidence is sufficient to grant termination. See
generally Matter of Interiano-Rosa, 25 I&N Dec. at 265 (``Immigration
[j]udges have broad discretion . . . to admit and consider relevant and
probative evidence.''). Imposing an ``any credible evidence'' standard,
as proposed by commenters, may be too lenient in some circumstances, as
an EOIR adjudicator may determine that certain relevant evidence is
necessary before granting termination in a specific case.
D. Sua Sponte Reopening or Reconsideration and Self-Certification
Comment: Commenters expressed support for restoring the Board's
traditional authority to sua sponte reopen or reconsider a case, as
well as support for restoration of the Board's self-certification
authority, noting that these changes provide important procedural
protections and provide noncitizens with an avenue to pursue newly
available relief.
One commenter recommended providing a non-exhaustive list of
circumstances that would qualify as ``exceptional circumstances'' for
sua sponte reopening or reconsideration. Another commenter recommended
renaming sua sponte reopening to ``reopening in the interests of
justice,'' in order to avoid confusion as parties are often requesting
the immigration judge or the Board to exercise their sua sponte
reopening authority.
In contrast, another commenter raised concerns with this sua sponte
authority, stating that it raised finality concerns for noncitizens
whose cases have been positively resolved. As a result, the commenter
recommended providing for automatic stays if the Board sua sponte
reopened proceedings or, alternatively, guidance on granting
discretionary stays in such circumstances.
Separately, commenters also recommended instituting a ``mailbox
rule'' at the Board as an additional alternative to self-certification
or sua sponte authority. Commenters
[[Page 46766]]
explained that such a rule, which would treat a document as timely once
mailed, would provide another avenue for remedying filings that arrive
late.
Additionally, one commenter proposed an amendment to the
regulations governing motion to reopen time and numerical limitations,
which the AA96 Final Rule had modified to include additional exceptions
as a safety valve when curtailing adjudicators' sua sponte reopening
authority. Specifically, the commenter requested the Department add an
additional exception to the motion to reopen time and numerical
limitations for when DHS affirmatively non-opposes a motion to reopen.
The commenter noted that there is an existing exception to the time and
numerical limitations for joint motions to reopen, and requested the
language be modified to use the ``joint and affirmatively unopposed''
standard from motions to terminate in this rulemaking.
Response: After further consideration, the Department declines to
delineate specific scenarios that would qualify as ``exceptional
circumstances'' for sua sponte purposes. As explained in the NPRM, the
Department believes that the current standard is a workable standard,
see 88 FR at 62266, and if further clarity is needed, specific
scenarios can be addressed through the publication of Board decisions,
as necessary, see id. Further, the Department believes that changing
the terminology of sua sponte authority, which has been consistent in
use for decades, would give rise to greater confusion than its use
engenders and therefore declines to rename sua sponte authority. See,
e.g., Matter of X-G-W-, 22 I&N Dec. 71 (BIA 1998).
The Department also declines to add explicit stay-related language
to cover scenarios when the Board sua sponte reopens or reconsiders
proceedings. Under current regulations, orders of removal are stayed
while an appeal is pending, and any case that is reopened or
reconsidered would return to a pending posture. See 8 CFR 1003.6(a)
(stating that a removal order ``shall not be executed . . . while an
appeal is pending . . . .''). Additionally, in cases where a party
files a motion for sua sponte reopening or reconsideration, the party
may make a request for a discretionary stay while the motion is
pending, and EOIR has published guidance on discretionary stays in its
Practice Manuals. See Immigration Court Practice Manual, ch. 8.3; BIA
Practice Manual, ch. 6.3, https://www.justice.gov/eoir/manuals-and-memoranda.
The Department further declines to retain an AA96 Final Rule
provision that added limited exceptions to the motion to reopen time
and number bars, which the AA96 Final Rule had added only to address
some of the effects of limiting sua sponte authority. See 85 FR at
81654 (excusing time or number bars where ``a three-member panel of the
Board agrees that reopening is warranted'' based upon ``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''). The Department believes that, by recodifying
longstanding sua sponte reopening and reconsideration authority,
Appellate Immigration Judges are able to exercise their discretion to
consider untimely or number-barred motions to reopen or reconsider
cases as appropriate, including scenarios covered by those limited
exceptions. As noted in the NPRM, sua sponte reopening and
reconsideration is a well- established and recognized practice that has
``operated under a workable scheme.'' 88 FR at 62266.
The Department also declines to modify the existing motion to
reopen time and numerical limitation standards to include an exception
for affirmatively unopposed motions. This rulemaking focused, as
relevant, on whether to retain, modify, or rescind the AA96 Final Rule,
which did not make any changes to the joint motion exception for motion
to reopen time and number limitations. The Department notes that
potential modifications to motion to reopen standards are the subject
of a separate future rulemaking under consideration. See Motions to
Reopen and Reconsider; Effect of Departure; Stay of Removal, RIN 1125-
AB01, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202304&RIN=1125-AB01.
Further, and as explained earlier, in section III.A of this
preamble, the Department declines to add a broad ``mailbox rule'' to
this rulemaking, which is focused on the particular provisions of the
AA96 Final Rule, as well as administrative closure and termination
authority.
E. Board Findings of Fact--Voluntary Departure
Comment: Commenters raised concerns about the Board providing
proper notice to noncitizens if allowed to grant voluntary departure in
the first instance. Commenters explained that noncitizens or their
attorneys of record often do not receive timely notice from the Board
and noted that, if the Board granted voluntary departure in the first
instance, the potential delay in receiving the Board's voluntary
departure order would create difficulties for noncitizens who need to
post voluntary departure bond, which, as proposed in the NPRM, would
have been required to be posted within 10 days of issuance of the
Board's voluntary departure order. As a result, commenters suggested
increasing the bond posting timeline to 30 days.
Response: In light of commenter concerns and in recognition of the
fact that Board orders are generally served by mail and received
without advance warning--unlike orders of immigration judges, which are
frequently served in person on the date of the final hearing on the
merits of the voluntary departure request--the Department is further
amending the time period for posting the voluntary departure bond. The
final rule now states that the Board shall advise the noncitizen of the
duty to post the bond with the ICE Field Office Director within 30
business days of the Board's order granting voluntary departure. 8 CFR
1240.26(k)(4). The Department believes this 30-day period will allow
noncitizens adequate time to post a voluntary departure bond when the
Board, rather than the immigration judge, grants voluntary departure in
the first instance.
F. Background Check
Comment: Commenters raised concerns that there is insufficient
recourse for noncitizens whose identity checks are not completed in a
timely manner by DHS. Therefore, commenters suggested adding a process
in which a noncitizen may request the Board to require DHS to meet its
obligations under 8 CFR 1003.47(d) or, alternatively, provide a limit
as to the amount of time a case may remain pending with the Board
solely to complete a background check before it is required to be
remanded to the immigration court.
Another commenter recommended that the background check provision
should permit the Board to remand a case to an immigration judge
without a motion from DHS if the noncitizen fails to complete their
background check, which the commenter believed would best allow the
noncitizen an opportunity to present evidence regarding their failure
to complete their background check to an immigration judge,
safeguarding due process, especially for pro se noncitizens. The
commenter also recommended adding language to 8 CFR 1003.1(d)(6)(iii)
requiring an immigration judge to consider whether the noncitizen had
good cause for failing to comply with
[[Page 46767]]
background check requirements in instances where the case was remanded
to the immigration court.
Alternatively, one commenter stated that the rule should retain the
AA96 Final Rule's background check provision, which deemed a
noncitizen's failure to comply with background check requirements as an
automatic abandonment of their underlying applications, absent a
showing of good cause. The commenter believed this provision would best
promote efficiency, while safeguarding the noncitizen's ability to
explain their failure to comply with background check requirements in
the event of unusual or unpredictable hardships.
Response: The Department declines to incorporate the commenters'
suggested changes to the background check provisions. As explained in
the NPRM, the Department is retaining some changes made by the AA96
Final Rule that were intended to reduce remands to the immigration
court solely for completion of the required background checks. See 88
FR at 62270. The Department continues to believe that remanding cases
solely for the completion of background checks is an unnecessary
procedural step that creates inefficiencies in EOIR's case processing.
Id.
The Department disagrees with commenter concerns that the rule
contains insufficient protections for noncitizens whose identity checks
are not completed in a timely manner. When the Board places a case on
hold for completion of any necessary background checks, the rule
requires DHS to ``report to the Board promptly when'' the required
checks or investigations ``have been completed or updated.'' 8 CFR
1003.1(d)(6)(iii). If DHS fails to report the results of those checks
or investigations to the Board within 180 days of the Board's notice
that the case is being placed on hold, the Board may either continue to
hold the case or remand to the immigration judge for further
proceedings under 8 CFR 1003.47(h). Id. Thus, the Board has discretion
to continue to hold a case pending DHS's completion of background
checks or to remand to the immigration court, depending on the
circumstances of each case. Further, in exercising that discretion, the
Board can request a status update from DHS as needed and determine
whether a remand is necessary based on that update. For example, DHS
may notify the Board that a pending background check will be imminently
completed, which would weigh in favor of holding the case at the Board.
As such, this provision accounts for the Department's efficiency
interests in avoiding unnecessary remands, see 88 FR at 62270, while
still permitting remands based on individual circumstances. Further,
this rule does not affect a party's ability to file a motion to remand
in the event of newly available evidence or eligibility for relief. See
BIA Practice Manual, ch. 5.8 (explaining purpose, standards of, and
limitations on motions to remand and stating that ``[p]arties may, in
appropriate circumstances, move to remand proceedings to the
immigration judge to consider newly available evidence or newly
acquired eligibility for relief'').
The Department also declines to adopt suggested revisions that
would permit the Board to remand a case to the immigration court based
on a noncitizen's failure to comply with background check requirements
absent a motion from DHS. Because DHS is charged with conducting the
relevant background checks, the Department continues to believe that
DHS is in the best position to move for a remand where necessary as a
result of noncompliance with background check requirements. Further,
the Department does not believe it is necessary to impose an explicit
regulatory requirement that, upon remand, immigration judges must
consider whether a noncitizen demonstrated good cause for failing to
comply with background check requirements. Under existing regulatory
authority, when a case is remanded pursuant to 8 CFR 1003.1(d)(6),
immigration judges must consider new information obtained as a result
of background checks and may hold an additional hearing to consider
``any legal or factual issues'' if presented with new information. 8
CFR 1003.47(h). The Department believes that this provision
sufficiently authorizes immigration judges to evaluate relevant
information when the Board remands a case due to noncompliance with
background check requirements.
Finally, as explained in the NPRM, the Department declines to
retain the AA96 Final Rule's provision deeming a noncitizen's failure
to comply with background check requirements at the Board as an
automatic abandonment of the underlying applications for relief absent
a showing of good cause. 88 FR at 62270. Rather, the Department
believes that this rule, by returning to pre-AA96 Final Rule regulatory
language permitting the Board to, upon a motion from DHS, remand a case
to the immigration court to consider a noncitizen's noncompliance in
evaluating whether the underlying relief should be denied, furthers the
Department's efficiency interests while accounting for scenarios where
a remand to the immigration judge may be most appropriate. Id. The
Department is confident that in cases where DHS moves the Board to
remand and the Board does so, immigration judges will appropriately
consider both the fact that a noncitizen failed to comply with
background check requirements and their reasons for doing so when
determining whether underlying applications for relief should be denied
as a matter of law or a matter of discretion. See 8 CFR 1003.47(h)
(stating that in cases remanded from the Board pursuant to 8 CFR
1003.1(d)(6), ``the immigration judge shall consider the results of the
identity, law enforcement, or security investigations or examinations
subject to the provisions of this section'' and, if presented with new
information, ``may hold a further hearing if necessary to consider any
legal or factual issues, including issues relating to credibility, if
relevant'').
G. Adjudication Timelines
Comment: One commenter supported removing the AA96 Final Rule's
adjudication timelines, including the time frames on summary dismissals
at the Board, but recommended that the Department should further limit
the Board's summary dismissal authority. The commenter recommended
limiting summary dismissals of appeals to those that are (1) filed on a
form of relief already granted to the appealing party; (2) facially
improper due to lack of jurisdiction; (3) untimely without a statement
of exceptional circumstances; or (4) specifically prohibited by statute
or regulation. The commenter believed this would help protect pro se
noncitizens from improper summary dismissal.
Another group of commenters raised concerns about returning to the
90-day and 180-day adjudication timelines at the Board and encouraged
flexibility in allowing the Board to set case adjudication deadlines.
Response: The Department declines to make any substantive changes
to the grounds for summary dismissal at the Board, as removing any of
the longstanding regulatory grounds under which the Board may summarily
dismiss an appeal would hinder the Board's ability to resolve appeals
in an efficient, timely manner. Rather, this rule only removes the
enjoined procedural timelines for the adjudication of summary
dismissals instituted by the AA96 Final Rule and reverts to the pre-
AA96 Final Rule framework.
[[Page 46768]]
The Department also reinstates and declines to alter the
longstanding 90-day and 180-day adjudication timelines at the Board.
The Department notes that these timelines do not begin the moment the
appeal is filed. Instead, the 90-day timeline for cases adjudicated by
a single Appellate Immigration Judge begins upon completion of the
record on appeal, and the 180-day timeline for cases adjudicated by a
three-member panel begins once an appeal is assigned to the three-
member panel. See 8 CFR 1003.1(e)(8)(i). The Department believes these
longstanding adjudication timelines ensure that Appellate Immigration
Judges have sufficient time to review and complete appeals and provide
a fair procedure while balancing the need for the efficient resolution
of cases and the administrative finality of decisions. See 88 FR at
62271 (explaining reasoning for calculations of 90-day and 180-day
adjudication timelines). While a group of commenters indicated that the
Board's adjudication timelines should be more flexible, the commenters
provided no data or evidence to support the assertion that these
adjudication time frames are insufficient. In the Department's
experience, both the 90-day adjudication timeline for decisions issued
by a single Appellate Immigration Judge and the 180-day adjudication
timeline for decisions issued by a three-member panel--both of which
are the operative status quo--continue to be workable for the Board's
internal processing of appeals.
H. Definitional Changes and Gender Neutrality
Comment: Commenters expressed support for the proposed definitions
of ``noncitizen'' and ``unaccompanied child'' at 8 CFR 1003.1(gg) and
(hh), respectively. Commenters who supported these added definitions
stated that they aligned with current societal and professional
standards of usage. One commenter agreeing with the changes noted that
the Department could also use ``unaccompanied noncitizen child'' or
``unaccompanied migrant child'' if further definitional clarity was
needed.
Commenters also urged EOIR to utilize gender-neutral terms so as
not to exclude persons identifying as nonbinary. Commenters offered as
example use of the terms ``they,'' ``their,'' ``respondent,'' and
``appellant.'' Alternatively, commenters recommended the use of gender-
neutral language where applicable, such as ``he or she,'' and ``his or
her.''
Response: After further review, the Department has not made any
further changes to the definition of ``unaccompanied child'' proposed
by the NPRM, but has non-substantively modified the ``noncitizen''
definition to more clearly state that it has the same meaning as the
statutory definition of ``alien.'' Separately, the Department has made
changes to use gender-neutral language where applicable. See, e.g., 88
FR at 62283 (proposing to replace the terms ``his or her'' with ``the
noncitizen''). Further, the Department has identified additional
instances of the use of the term ``alien'' in regulatory provisions
being amended by this rulemaking and is updating those provisions to
replace the term ``alien'' with ``noncitizen.'' 8 CFR 1003.2(c)(2),
1003.7, 1003.23(b)(4)(iii)(B).
I. Matter of Thomas & Thompson
1. General Opposition
Comment: Some commenters argued that, for a variety of reasons,
Matter of Thomas & Thompson, 27 I&N Dec. 674 (A.G. 2019), and Matter of
Pickering, 23 I&N Dec. 621 (BIA 2003), rev'd on other grounds,
Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006), should be
withdrawn in their entirety. In particular, commenters stated that the
decision in Matter of Thomas & Thompson--which held that State court
orders altering sentences will be given effect for immigration purposes
only when the orders are based on a procedural or substantive defect in
the underlying criminal proceedings--marked an abrupt shift in agency
law. Commenters stated that, for decades prior, the Department had
given full effect to State sentencing alterations without further
questioning the basis for alteration. Commenters stated that this
deference to State law was in line with 1996 amendments to the INA.
Specifically, commenters stated, according to statute, immigration law
depends on State courts to determine whether a conviction and sentence
exist. INA 101(a)(48)(B), 8 U.S.C. 1101(a)(48)(B). In light of this
statutory scheme, commenters stated, the holdings of Matter of Thomas &
Thompson and Matter of Pickering--the latter of which held that State
court orders vacating convictions will be given effect for immigration
purposes only when the orders are based on a procedural or substantive
defect in the underlying criminal proceedings, much as Matter of Thomas
& Thompson did thereafter with respect to orders altering sentences--
are contrary to statute. Commenters stated that the holdings of Matter
of Thomas & Thompson and Matter of Pickering upset the Federal and
State constitutional balance, disregard State law objectives, and
create additional costs and impacts on the States as they adjust to the
new rules. Commenters stated that many States have been forced to
pursue new legislation to accommodate the holdings of Matter of Thomas
& Thompson and Matter of Pickering, specifically laws making courts
available for individualized constitutional defect litigation that
commenters claim might otherwise be unnecessary.
Some commenters focused on what they believed to be the negative
effects of the application of Matter of Thomas & Thompson and Matter of
Pickering to public programs that offer mental health and substance
abuse treatment. Commenters stated that States sometimes target such
programs at individuals with criminal convictions, and that they
sometimes entice participation by promising to eliminate, upon
successful completion of a program, the legal effects of a conviction.
Commenters argued that Matter of Thomas & Thompson and Matter of
Pickering undermine such programs and discourage community
participation in them.
Some commenters argued that Matter of Thomas & Thompson and Matter
of Pickering frustrate State efforts to resolve criminal justice
matters through streamlined procedures by limiting the effectiveness of
State court vacaturs and sentence alterations. In this regard, one
commenter highlighted Georgia State court practices specifically,
stating that most post-conviction orders in Georgia modifying a
sentence or vacating a conviction are drafted on an ad hoc basis with
reference to the facts of the specific case, and that determining
whether such orders meet the Matter of Pickering and Matter of Thomas &
Thompson standard requires a case-by-case analysis. They speculated
that many States likely have practices similar to Georgia, and they
argued that EOIR adjudicators should not be required to adhere to
Matter of Pickering and Matter of Thomas & Thompson but should rather
be directed to defer to all State court post-conviction orders, without
regard to the rationales behind those orders. Such an approach, they
argued, would be beneficial in that immigration judges would no longer
have to parse orders to ascertain the State court judge's reasoning.
Finally, some commenters focused on Matter of Thomas & Thompson
specifically, arguing that the decision erroneously applied the Matter
of Pickering rule, insofar as it shifted the rule from the context of
conviction, according to section 101(a)(48)(A) of the INA, 8 U.S.C.
1101(a)(48)(A), to the
[[Page 46769]]
context of sentencing at section 101(a)(48)(B) of the INA, 8 U.S.C.
1101(a)(48)(B). In urging the ``withdraw[al]'' of Matter of Thomas &
Thompson, commenters also stated that, in the case of trafficking
victims, post-conviction relief may be an essential remedy in relation
to convictions for crimes forced to be committed as part of the
trafficking.
Response: The Department appreciates these comments but declines to
respond to them as they are outside the scope of this rulemaking as
identified in the NPRM. See 88 FR at 62273 (``Reconsideration of the
approach of Matter of Thomas & Thompson or Pickering is beyond the
scope of this rulemaking, which focuses on the application of those
decisions without reaffirming or reconsidering their approach.'').
2. Retroactive Application
Comment: No commenter argued that Matter of Thomas & Thompson
should be applied retroactively. Commenters opposed the retroactive
application of Matter of Thomas & Thompson, providing various reference
points for the retroactivity analysis. Some commenters asserted that
the most reasonable retroactivity rule would be to apply Matter of
Thomas & Thompson prospectively only to cases of criminal charges filed
after the decision's publication on October 25, 2019. Other commenters
argued that EOIR should adopt a bright-line rule that Matter of Thomas
& Thompson will only apply to convictions finalized after the date of
publication. And others urged that any sentencing alteration issued on
or before the date of publication should be considered under the
previous standard as established in Matter of Cota-Vargas, 23 I&N Dec.
849 (BIA 2005), Matter of Song, 23 I&N Dec. 173 (BIA 2001), and Matter
of Estrada, 26 I&N Dec. 749 (BIA 2016). Regarding that previous
standard, commenters argued that this framework did not cause an
identifiable harm that would justify the unusual decision of
retroactively attaching new consequences to criminal sentence
alterations.
On the general subject of retroactivity, commenters quoted the
Supreme Court's statement that ``[r]etroactivity is not favored in the
law,'' and that ``individuals should have an opportunity to know what
the law is and to conform their conduct accordingly.'' INS v. St. Cyr,
533 U.S. 289, 316 (2001) (quoting Landgraf v. USI Film Prod., 511 U.S.
244, 265 (1994)). Commenters stated that the Eleventh Circuit, in
holding that Matter of Thomas & Thompson should be applied
retroactively, was incorrect in stating that ``the BIA did not
retroactively apply a new law'' to the noncitizen in that case ``but
instead applied the Attorney General's determination of what the law
had always meant.'' Edwards v. U.S. Att'y Gen., 56 F.4th 951, 962 (11th
Cir. 2022) (``Edwards I'') (quoting Yu v. U.S. Atty. Gen., 568 F.3d
1328, 1333 (11th Cir. 2009)), vacated No. 19-15077, 2024 WL 950198, at
*1 (11th Cir. Mar. 6, 2024) (``Edwards II'') (on panel rehearing the
court vacated the original decision and substituted a new decision that
``is in all material respects the same as [the] earlier one, except
that [the court] explain[s] in more detail why [it] must apply the
retroactivity rule from [Yu]''). Commenters asserted that the Board has
recognized State court sentence alterations in immigration proceedings
since 1982, citing the Board's decision of Matter of Martin, 18 I&N
Dec. 226 (BIA 1982). Thus, commenters stated, instead of clarifying
what the law ``had always meant,'' the Attorney General in Matter of
Thomas & Thompson changed the established law. Commenters therefore
argued that EOIR should instead follow the Seventh Circuit's approach.
The Seventh Circuit has applied the factors identified in Retail,
Wholesale & Dep't Store Union v. NLRB (``Retail Union''), 466 F.2d 380,
390 (D.C. Cir. 1972), relying on SEC v. Chenery Corp., 332 U.S. 194
(1947) (``Retail Union test'' or ``Retail Union factors''), and held
that retroactively applying Matter of Thomas & Thompson results in a
``manifest injustice'' as to a noncitizen who had received a sentence
modification before Matter of Thomas & Thompson was decided. Zaragoza
v. Garland, 52 F.4th 1006, 1023 (7th Cir. 2022). Finally, commenters
stated that making Matter of Thomas & Thompson retroactive would be
burdensome to the Federal Government. Specifically, the Government
would have to relitigate the previously settled issue that EOIR
acknowledges sentence alterations for convictions entered on or before
October 25, 2019, and would have to address the circuit split over the
retroactivity of the Matter of Thomas & Thompson rule, which could be
reviewed by the Supreme Court.
Response: For the reasons discussed in more detail in section
IV.K.1 of this preamble, the Department agrees with commenters that
Matter of Thomas & Thompson should not apply to noncitizens who sought
an order vacating, modifying, clarifying, or otherwise altering a
sentence before Matter of Thomas & Thompson and who ultimately obtained
such an order based on that request. Retroactive application of Matter
of Thomas & Thompson to this category of noncitizens would be
manifestly unjust because in seeking such an order they could have
reasonably relied on then-existing law to their detriment, and the
Department does not believe it would be appropriate or workable for
immigration judges to make more specific inquiries into actual reliance
for this category of noncitizens. The Department does not, however,
adopt a bright-line rule prohibiting application of Matter of Thomas &
Thompson to all those charged, convicted, or sentenced before Matter of
Thomas & Thompson: Such a rule would likely cover many noncitizens who
did not reasonably rely on the prior state of the law to their
detriment. Moreover, as to such noncitizens, the Department believes
immigration judges can appropriately and workably identify those
noncitizens who actually relied on the pre-Matter of Thomas & Thompson
state of the law--for whom retroactive application would be manifestly
unjust--and provide relief in the circumstances set forth in 8 CFR
1003.55(a)(2).
Comment: Commenters argued that, under the five-factor Retail Union
test, the retroactive application of Matter of Thomas & Thompson should
be limited. Commenters stated that every U.S. Court of Appeals and the
Board apply the Retail Union test or a variation of it, providing as an
example Matter of Cordero-Garcia, 27 I&N Dec. 652 (BIA 2019), and that
the U.S. Courts of Appeals have frequently applied a framework akin to
the Retail Union test to limit the retroactive application of Board or
Attorney General decisions, providing as examples Matter of Diaz-
Lizarraga, 26 I&N Dec. 847 (BIA 2016), and Matter of Y-L-, A-G-, & R-S-
R-, 23 I&N Dec. 270 (A.G. 2002). Commenters asserted that the Retail
Union factors weighed in favor of limiting retroactive application of
Matter of Thomas & Thompson for several reasons. The first, second, and
fifth Retail Union factors will be discussed in this comment and
response, and the third and fourth factors in subsequent comments and
responses.
Regarding the first Retail Union factor--whether the case is one of
first impression--commenters stated that considering whether to apply
Matter of Thomas & Thompson to individuals who were not party to that
case does not constitute a case of first impression. Commenters
asserted that the case of first impression was Matter of Thomas &
Thompson itself; when the Department considers whether to apply Matter
of Thomas & Thompson to
[[Page 46770]]
subsequent cases, it does so as a matter of second impression.
Commenters stated that Matter of Thomas & Thompson does not present an
issue of first impression for noncitizens in general who obtained State
sentence alteration orders pursuant to the prior rules established
under Matter of Cota-Vargas, Matter of Song, and Matter of Estrada.
The second factor under Retail Union considers whether the new rule
represents an abrupt departure from well-established practice or merely
attempts to fill a void in an unsettled area of law. Commenters stated
that the Attorney General did not merely fill a void in Matter of
Thomas & Thompson, which overruled three published decisions, Matter of
Cota-Vargas, Matter of Song, and Matter of Estrada, but that the
Attorney General's decision was a dramatic departure from EOIR's prior
well-established practice. Commenters stated that, for decades prior to
Matter of Thomas & Thompson, the Board and U.S. Courts of Appeals
honored the full effect of criminal sentencing alterations with regard
to immigration consequences, and that this well-established scheme was
overruled by Matter of Thomas & Thompson.
The fifth Retail Union factor considers the statutory interest in
applying a new rule retroactively despite the reliance of a party on
the old standard. Commenters stated that even if the statutory interest
in applying the new rule leaned in favor of retroactivity due to
uniformity in application, as determined in Zaragoza, 52 F.4th at 1024,
this is not sufficient to outweigh the other four factors, which
commenters assert all weigh against retroactivity. Some commenters also
argued that retroactive application would not further an interest in
uniformity, as retroactive application based on the date of the Matter
of Thomas & Thompson decision would itself create non-uniformity
between a new case and any case in which the agency had acted prior to
Matter of Thomas & Thompson. Instead, those commenters reasoned that
not applying Matter of Thomas & Thompson retroactively would support
uniformity because the prior practice under the overturned Board
decisions would appropriately apply to all matters occurring before
Matter of Thomas & Thompson was issued and further suggested that
immigration is an ever-changing area of law in which uniformity is
difficult to achieve.
Commenters acknowledged that in Edwards I, 56 F.4th at 962, the
Eleventh Circuit concluded that Matter of Thomas & Thompson should be
applied retroactively. See also Edwards II, 2024 WL 950198 *1, *10
(vacating Edwards I but coming to same conclusion). However, commenters
argued that, in Edwards, the Eleventh Circuit neglected to use the
five-factor Retail Union test as required by Chenery, it did not
explain its reasoning in disagreeing with Zaragoza, and its retroactive
application of Matter of Thomas & Thompson acted as a ``manifest
injustice.''
Response: As discussed in section IV.K.1 of this preamble, the
Department agrees with commenters that it is appropriate to apply the
five-factor Retail Union test. As further explained, the Department
believes that the first factor does not favor--and, if anything, weighs
against--retroactive application of Matter of Thomas & Thompson, and
that the second factor also weighs against retroactivity. The
Department believes the fifth factor weighs slightly in favor of
retroactive application but that this factor does not outweigh the
other factors in the circumstances set forth below in section IV.K.1 of
this preamble.
Comment: Turning to the third Retail Union factor, which focuses on
reliance interests, commenters stated that this factor generally
supported refraining from retroactive application of Matter of Thomas &
Thompson. Commenters noted that, prior to Matter of Thomas & Thompson,
EOIR adjudicators would, under Matter of Song, Matter of Martin, and
Matter of Cota-Vargas, generally give effect to State court orders
altering a noncitizen's criminal sentence. As will be discussed in more
detail later in this subsection of the preamble, commenters had
differing views as to the precise point in criminal proceedings at
which reliance on the Board's case law predating Matter of Thomas &
Thompson should be assessed. But commenters agreed with one another
that, prior to Matter of Thomas & Thompson, noncitizens had relied on
the Board's case law in making decisions in their criminal cases; for
example, whether to enter into a plea agreement or seek a sentence
alteration. Commenters argued that such reliance was reasonable and
that, in a regulation limiting the retroactive application of Matter of
Thomas & Thompson, noncitizens should not be required to show reliance
in their particular case.
In general terms, commenters stated that practitioners have, for
decades, been trained on and have relied upon the prior rules.
Commenters stated that, with the Matter of Thomas & Thompson decision
in 2019, individuals who were not removable or who were eligible for
relief under the prior rules suddenly faced very different immigration
consequences because of the new decision. Additionally, commenters
reasoned that applying Matter of Thomas & Thompson retroactively to
pending proceedings is insupportable under the manifest injustice test
and the equitable foundation of retroactivity doctrine, set forth in
Zaragoza, 52 F.4th at 1023, and Landgraf v. USI Film Prods., 511 U.S.
244, 266 (1994).
Commenters discussed that, under the prior framework in effect
until 2019, a post-sentencing sentence alteration was fully recognized
by the Board without the need to establish a procedural or substantive
defect in the proceedings. Commenters explained that many noncitizens
received sentencing alterations that were based on legal or procedural
defects in the underlying preceding, but there was no cause for the
defect to be spelled out explicitly in the alteration, as doing so was
not necessary for the alteration to be given effect in immigration
proceedings. Noncitizens thus negotiated resolutions to criminal
charges with the options and restrictions of this prior framework in
place. For example, a noncitizen may have accepted a plea bargain in
reliance on the expectation, based on Board case law at the time the
plea bargain was entered into, that a sentence could later be altered
and that the alteration would be effective for immigration purposes.
Commenters stated that, regarding aggravated felonies and the attendant
immigration consequences, a noncitizen prior to Matter of Thomas &
Thompson might reasonably have been willing to negotiate a sentence of
one year or more with the expectation that they could later receive a
sentence alteration that would be recognized in immigration
proceedings. Commenters also stated that, prior to Matter of Thomas &
Thompson, noncitizens may reasonably have elected to obtain a
relatively sparse sentence alteration order in lieu of a more
substantive court order in reliance on the expectation that the
alteration would be given effect in immigration proceedings.
Response: As discussed in detail in section IV.K.1 of this
preamble, the Department agrees that the third Retail Union factor
weighs against retroactive application in certain classes of cases, but
declines to adopt a categorical rule that would presume reliance for
anyone who pled guilty, was convicted, or was sentenced prior to Matter
of Thomas & Thompson.
Comment: Regarding the fourth Retail Union factor, focusing on the
burden retroactive application of an agency decision would impose on
parties, commenters stated that this factor also weighed in favor of
limiting retroactive
[[Page 46771]]
application. Specifically, commenters opined that the severe burden of
removal alone satisfies the fourth factor and that, where a noncitizen
agreed to a plea bargain prior to Matter of Thomas & Thompson with the
expectation that a subsequent sentence modification would be given
effect in immigration proceedings, retaining an attorney to seek other
post-conviction relief may well be too expensive. Commenters also
stated that applying the Matter of Thomas & Thompson rule to cases
where criminal charges were filed prior to that decision would create
insurmountable burdens regarding the revisiting of past criminal charge
adjudications because these convictions often occurred many years in
the past and involved privileged and detailed conversations between
noncitizens and their counsel. Additionally, with respect to
noncitizens who obtained sentence modifications before Matter of Thomas
& Thompson, commenters asserted that the notion that such a noncitizen
can return to court to obtain another modification to satisfy the new
rule created by Matter of Thomas & Thompson would be unrealistic, and
that the courts would likely not be amenable to such a request,
especially because many States set time limits on seeking a sentence
alteration or prohibit successive motions.
Commenters stated that the Supreme Court has ruled that immigration
consequences may be one of the considerations a noncitizen, as well as
the sentencing judge, considers in resolving a criminal case. See
Mellouli v. Lynch, 575 U.S. 798, 806-07 (2015). However, commenters
stated, under Matter of Thomas & Thompson, it is not enough to show
that a judge made a lawful modification because some additional defect
must be identified. Commenters stated that some States have streamlined
procedures for remedying defects in criminal proceedings, including
Constitutional defects such as ineffective assistance of counsel. But
commenters stated that Matter of Thomas & Thompson, by requiring
noncitizens to show that a defect was procedural or substantive in
nature, functionally precludes them from using these streamlined
procedures to remedy such defects and instead requires them to pursue
onerous Constitutional-defect post-conviction claims. Commenters stated
that Matter of Thomas & Thompson and Matter of Pickering undermine the
full effectiveness of State criminal system reform laws that are aimed
to rectify race and national origin discrimination in policing and the
criminal justice system and allow relief on a streamlined basis.
According to these commenters, Matter of Thomas & Thompson and Matter
of Pickering functionally preclude noncitizens from using these
streamlined procedures to remedy such defects and instead require them
to pursue onerous individualized relief to establish, for example,
ineffective assistance of counsel.
Response: The Department appreciates commenters' views on the
fourth Retail Union factor and, as discussed in detail in section
IV.K.1 of this preamble, agrees that this factor weighs against
retroactive application but has concluded that this factor does not tip
the balance against retroactive application in all cases.
Comment: Commenters suggested different reference points for
distinguishing between cases where application of Matter of Thomas &
Thompson would be considered impermissibly retroactive and those where
such application would not. Some commenters argued that Matter of
Thomas & Thompson should not be applied to any criminal charge
initiated prior to the decision, pointing out that criminal defendants
often enter into plea negotiations soon after charges are filed. Other
commenters argued that the reference point should be the pleading
itself, and that Matter of Thomas & Thompson should not be applied
where the pleading predated that decision, as the potential
availability of a sentence modification could influence a noncitizen's
willingness to accept a plea offer.
Other commenters focused on the conviction, arguing that Matter of
Thomas & Thompson should not apply to convictions that predate that
decision. Commenters explained that a noncitizen may have accepted a
plea offer in reliance on a possible subsequent sentence modification,
but that, under the Matter of Thomas & Thompson framework, the same
noncitizen may have rejected the plea due to the low likelihood of a
future sentence modification for purposes of immigration proceedings.
Commenters who argued that the conviction was the appropriate reference
point cited Vartelas v. Holder, 566 U.S. 257, 269-70 (2012), where the
Supreme Court determined that the reference point for deciding whether
the application of a new rule is retroactive is at the time of the
conduct targeted by the rule.
Finally, other commenters suggested that the proper reference point
should not be the conviction or earlier events, but rather when the
noncitizen took substantial steps towards seeking a sentence
modification. Thus, Matter of Thomas & Thompson would not apply where
the noncitizen took such substantial steps prior to the decision. In
this regard, commenters argued that noncitizens were likely to rely
upon the case law at the time in preparing a sentence modification
request to benefit their immigration case, keeping in mind that such
requests can take a considerable amount of time to prepare. Some
commenters also suggested that the reference point should be when the
noncitizen sought a sentence modification, so Matter of Thomas &
Thompson would not apply where the noncitizen sought such a
modification prior to the decision.
Response: The Department appreciates the information commenters
provided regarding their views on the proper reference points for the
retroactivity analysis. As discussed in section IV.K.1 of this
preamble, the Department has determined that Matter of Thomas &
Thompson will not apply to noncitizens who obtained sentence
alterations as a result of a request for such alteration made on or
before October 25, 2019--the day Matter of Thomas & Thompson was
published. See 8 CFR 1003.55(a)(1)(A). Recognizing that other
noncitizens likely also made decisions in reliance on the law as it
existed before Matter of Thomas & Thompson, the rule also provides a
process for noncitizens to establish that Matter of Thomas & Thompson
should not be applied to them given their detrimental reliance on the
prior law. See 8 CFR 1003.55(a)(1)(B).
3. Defects Under State Law
Comment: Some commenters identified specific State law provisions
allowing for vacaturs or sentence modifications for grounds those
States viewed as defects under State law. They urged the Department to
recognize State court orders under such statutes, on the ground that
such vacaturs and modifications are based on procedural or substantive
defects recognized by State law and thus meet the standards set out in
Matter of Thomas & Thompson or Matter of Pickering. In particular, two
commenters addressed Cal. Penal Code Sec. 1473.7, which was mentioned
in the request for comment. Both argued that all vacaturs under this
statute should be recognized by the Department as based on procedural
or substantive defects. In addition, two commenters discussed
postconviction orders in Georgia, highlighting the ad hoc nature of
many of these orders and arguing that the Department should take them
at face value and, in determining whether they are based on procedural
or substantive defects and thus given effect
[[Page 46772]]
for immigration purposes, defer to the State court's characterization
of the order.
Response: As explained in detail in section IV.K.2 of this
preamble, the Department has elected to address circumstances in which
an original order contains a genuine ambiguity, mistake, or
typographical error and the State court corrects these issues in order
to give effect to the original order's intent. At this time, the
Department declines to go further in clarifying how Matter of Pickering
and Matter of Thomas & Thompson apply to particular types of orders
under Cal. Penal Code Sec. 1473.7 or any other specific statute. The
Department has considered the arguments of commenters on these issues.
But the Department continues to weigh whether clarification is
warranted and, if so, what type of clarification is most appropriate.
Given the importance of this rule and the interest in issuing the rule
promptly, the Department has concluded that the balance of interests
militates in favor of issuing the rule now rather than delaying the
rule further in order to consider additional clarifications, consistent
with agencies' general authority to ``address a problem one step at a
time.'' Hercules Inc. v. U.S. E.P.A., 938 F.2d 276, 282 (D.C. Cir.
1991).
J. Statutory and Regulatory Requirements
1. Administrative Procedure Act
Comment: Some commenters stated that this rulemaking is arbitrary
and capricious under the Administrative Procedure Act. Commenters
believed that the rule did not examine the full scope of the issue and
failed to address alternative solutions, such as summary judgment and
contempt authority, which commenters stated would provide the
immigration courts with needed efficiencies. Similarly, commenters
stated that the rule violates the APA because there are additional
rulemakings currently being promulgated that amend related processes,
which they contend renders public notice concerning the basis of this
rule insufficient. Specifically, one commenter cited to a 2022 joint
DHS-DOJ rulemaking providing DHS asylum officers with the authority to
adjudicate asylum applications in certain circumstances, as well as a
2023 HHS NPRM proposing to make changes regarding unaccompanied
children. The commenter claimed that, without a full understanding of
these other rulemakings, commenters cannot adequately analyze the
proposed changes in this rule.
Commenters also stated that the Department failed to provide a Booz
Allen Hamilton study cited in the NPRM and, therefore, requested
release of the report and additional time to comment.
Commenters also requested various data relating to removal
proceedings, termination, and administrative closure, including (1)
updated data regarding the number of inactive pending cases; (2) the
average length of time a case has been administratively closed; (3) the
number of terminated or dismissed cases; (4) the number of UCs by year
that have been placed into removal proceedings in recent years; and (5)
the grounds for administratively closing, terminating, or dismissing
cases.
Response: The Department has fully complied with the APA in
promulgating this rulemaking. In proposing and finalizing this
rulemaking, the Department considered various procedural tools for
managing cases in determining the availability and scope of
administrative closure and termination authorities. See, e.g., 88 FR at
62256-58 (considering the availability of continuances and motions to
reopen in the context of providing for administrative closure
authority). The Department ultimately determined that administrative
closure and termination would help promote overall efficiency in the
immigration courts. See 88 FR at 62256 (describing efficiencies created
by administrative closure), 62263 (efficiencies created by
termination).
Importantly, the Department notes that various procedural tools are
not mutually exclusive, and providing standards for administrative
closure or termination does not reduce or affect the availability of
other procedural tools. The Department will continue to review
immigration court procedures to determine whether additional regulatory
changes may further promote adjudicatory efficiencies.
With regard to commenters' staggered rulemaking claim, the
Department does not believe that this rule is affected by any other
recent or immediately forthcoming regulatory efforts, as noted in the
NPRM. See 88 FR at 62273 (``The Department does not anticipate that the
comment period for this proposed rule will overlap or coincide with
other rules, Attorney General decisions, or Board decisions that would
affect the effect of the regulatory changes proposed by this NPRM.'').
For instance, the 2022 joint DHS-DOJ rulemaking cited by commenters,
which allows for DHS asylum officers to adjudicate certain asylum
applications in the first instance, was published over a year and a
half ago, and was effective on May 31, 2022. See Procedures for
Credible Fear Screening and Consideration of Asylum, Withholding of
Removal, and CAT Protection Claims by Asylum Officers, 87 FR 18078
(Mar. 29, 2022) (``Asylum Processing IFR''). Moreover, nothing in the
Asylum Processing IFR is affected by the changes proposed in this rule,
which focus on administrative closure and termination standards, as
well as certain procedures before the Board. Similarly, the HHS
proposed rule cited by commenters, which proposes various standards for
the care of UCs, is not in any way affected by this rule's singular
EOIR discretionary termination ground for UCs wishing to pursue their
statutory right to seek asylum before USCIS. See Unaccompanied Children
Program Foundational Rule, 88 FR 68908 (Oct. 4, 2023). As HHS notes,
their NPRM is ``solely focus[ed] . . . on proposing requirements that
relate specifically to the care and placement of unaccompanied children
in ORR custody.'' Id. at 68977.
With regard to the Booz Allen Hamilton Report cited by commenters,
the Department notes that the report was cited three times in the NPRM
(88 FR at 62246, 62258), is available to the public in EOIR's FOIA
Library, and has been available since before this rule's comment period
began. See EOIR, FOIA Library (last updated Mar. 11, 2024), https://www.justice.gov/eoir/foia-library-0 (item titled ``Legal Case Study:
Summary Report'').
In response to a request for additional statistics, the Department
notes that it posts various adjudication statistics on its website,
including data on overall case adjudications and certain statistics
related to cases involving UCs, for instance. See EOIR, Statistics and
Reports (last updated Oct. 3, 2023), https://www.justice.gov/eoir/statistics-and-reports. For example, the Department maintains
statistics on several of the requests made by the commenter. See
Inactive But Pending Cases by FY of Administrative Closure, https://www.justice.gov/eoir/page/file/1307016/download (inactive pending
cases); Administratively Closed Cases, https://www.justice.gov/eoir/page/file/1061521/download (average length of administrative closure);
FY 2023 Decision Outcomes, https://www.justice.gov/media/1174716/dl?inline (number of terminated and dismissed cases); Pending
Unaccompanied Noncitizen Child (UAC) Cases, https://www.justice.gov/media/1174841/dl?inline (number of UC cases by year).
[[Page 46773]]
The Department endeavors to keep these statistics updated at
regular intervals, such as quarterly or yearly, depending on the
statistic. However, the Department does not maintain underlying data
relevant to certain statistics requested by commenters, such as the
specific grounds for administratively closing, terminating, or
dismissing cases.
2. Executive Orders 12866, 13563, 14094
Comment: One commenter stated that the Department should conduct an
economic impact analysis, including the consideration of any burdens
the rule would have on states, municipalities, and United States
taxpayers. The commenter also stated that the Department should
consider the impact on DHS, which would need to expend additional
resources to track the status of noncitizens who have had their cases
administratively closed or terminated while they pursue relief outside
of EOIR.
Response: As explained in the NPRM, the Department considered the
cost and benefits of this rule in accordance with the principles of
Executive Orders 12866, 13563, and 14094.
Fundamentally, the commenter relies on an unfounded assumption that
this rule will incentivize unlawful migration or otherwise needlessly
delay proceedings, and thus produce costs for the cited groups.
However, as the Department explained in the NPRM, the procedures
contained in this rule have long existed, and the rule largely codifies
the status quo. See 88 FR at 62274-75 (noting that ``the NPRM is
largely either proposing to codify prior longstanding regulatory
provisions (sua sponte authority, Board remand authority) or
longstanding case law (administrative closure)''); see also 62244
(noting, for example, that administrative closure has existed since at
least the 1980s); Matter of Vizcarra-Delgadillo, 13 I&N Dec. 51, 52-53
& n.1, 55 (BIA 1968) (terminating proceedings in the case and noting
that ``[t]he administrative power to terminate deportation
proceedings'' existed prior to the promulgation of the authority in the
regulations). Accordingly, the Department does not anticipate that the
rule could be reasonably expected to change migration behaviors, nor
did the commenter provide any evidence to the contrary. For example,
the rule does not provide any new types of legal status or lawful
methods of entry into the United States. Instead, the procedural tools
raised by the commenter--administrative closure and termination--have
long existed in immigration proceedings, with administrative closure
availability only curtailed for a brief two-month period in early 2021.
See, e.g., Garcia-DeLeon, 999 F.3d 986, 989 (6th Cir. 2021) (``For at
least three decades, immigration judges and the BIA regularly
administratively closed cases.'').
Moreover, the rule addresses certain procedures in EOIR
adjudications, including administrative closure and termination, only
in defined circumstances. The legal standards for administrative
closure and termination codified by this rulemaking do not allow EOIR
adjudicators to unilaterally pause or terminate cases based on any sort
of generalized backlog management concerns, but instead are focused on
specific legal scenarios in which such tools may be relevant to
efficiently managing proceedings. See, e.g., 8 CFR 1003.1(m)(1)(ii)(F),
1003.18(d)(1)(ii)(F) (preventing adjudicators from unilaterally
terminating proceedings ``for purely humanitarian reasons''). For
example, allowing an immigration judge to terminate proceedings where a
prima facie approvable application is filed with USCIS can help
increase efficiencies by ensuring that only one agency is adjudicating
the noncitizen's relief claim at a time. See 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B).
To the extent that the commenter raised concerns about DHS
exercising its prosecutorial discretion authority to move for
administrative closure or termination of proceedings, the Department
notes that such authority is outside the scope of this rulemaking. EOIR
adjudicators do not have the authority to second-guess DHS's decisions
to institute removal proceedings or how DHS prioritizes or pursues such
proceedings. See, e.g., 88 FR at 62264-65 (``The proposed rule would
not change the longstanding principle that immigration judges and
Appellate Immigration Judges have no authority to review or second-
guess DHS's exercise of prosecutorial discretion, including its
decision whether to commence removal proceedings.'').
Further, and contrary to commenter's claims, granting
administrative closure is often more efficient than, for example,
requiring an immigration judge or Appellate Immigration Judge to
adjudicate the case and then later entertain a motion to reopen once
the noncitizen is granted outside relief. As explained in the NPRM,
administrative closure can be the most efficient procedural tool when a
case is not otherwise ready for final adjudication, by conserving
scarce adjudicatory resources to focus on other matters that are ready
for adjudication. See 88 FR at 62256-57.
3. Other Regulatory Requirements
Comment: Commenters stated that the Department must conduct the
appropriate environmental review under the National Environmental
Policy Act (``NEPA'') before finalizing the rule, which could include
an initial environmental assessment or a full environmental impact
statement. Commenters claimed that the proposed rule has the potential
to increase immigration, which could result in environmental
consequences, such that the rule would be subject to NEPA.
Response: The Department is adopting and applying DHS's categorical
exclusion for rulemaking actions under NEPA as discussed in section V.I
of this preamble. As a result, the Department is not required to
prepare an environmental assessment or environmental impact statement
in conjunction with this rulemaking.
K. Outside of the Scope
Commenters raised a number of suggestions and concerns that were
outside of the scope of this specific rulemaking.
Comment: One commenter raised concerns about administrative closure
language contained in the AA96 Final Rule--specifically the provisions
at 8 CFR 1003.1(d)(1)(ii) (2020) and 1003.10(b) (2020)--rather than any
language the Department proposed in the course of this rulemaking. In
referring to the AA96 Final Rule's regulatory text at 8 CFR
1003.1(d)(1)(ii) (2020) and 1003.10(b) (2020), the commenter stated
that the provisions do not clearly define what constitutes a regulation
or court order that authorizes administrative closure.
Response: The referenced provisions added by the AA96 Final Rule--8
CFR 1003.1(d)(1)(ii) (2020) and 1003.10(b) (2020)--are being rescinded
in this rulemaking. In lieu of such language, this rulemaking provides
adjudicators with administrative closure authority subject to the
governing standards provided in 8 CFR 1003.1 and 1003.18.
Comment: Commenters suggested that the rule explicitly acknowledge
and preserve equitable tolling for filing motions to reopen and
reconsider, as equitable tolling is an important safeguard for
noncitizens who may face barriers to accessing legal counsel, evidence,
or other information.
Response: Commenters' concerns regarding the equitable tolling
doctrine are outside the scope of this rulemaking, as this rulemaking
does not address or otherwise modify any existing standards
[[Page 46774]]
for equitable tolling. See also 85 FR at 81629 (noting that the AA96
Final Rule also does not affect pre-existing exceptions to the time and
number limitations on motions to reopen, including equitable tolling).
If the Department proposes to address equitable tolling in a future
rulemaking, commenters are encouraged to provide comments at that time.
Comment: One commenter proposed changes to 8 CFR 1003.23(b)(3),
which currently states that motions to reopen to pursue cancellation of
removal ``may be granted only upon demonstration that the noncitizen
was statutorily eligible for such relief prior to the service of a
Notice to Appear.'' The commenter recommended updating the language
referencing statutory eligibility at the time of NTA service, in light
of the Supreme Court decisions in Pereira v. Sessions, 138 S. Ct. 2105
(2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), to state
that a defective NTA does not preclude statutory eligibility for
cancellation of removal based on the stop-time rule.
Response: Commenters' concerns regarding Notices to Appear and
cancellation of removal are outside the scope of this rulemaking, as
this rulemaking addresses neither subject. If the Department pursues
future rulemakings regarding Notices to Appear or cancellation of
removal, the Department encourages the commenter to provide such
proposed changes at that time.
IV. Final Rule
After considering public comments on the NPRM, and given further
reflection, the Department now adopts the NPRM as published with the
following changes:
A. Administrative Closure and Recalendaring--ICE Detention Status as a
Factor
The Department has added an additional factor to the nonexhaustive
list of factors to be considered when adjudicating administrative
closure and recalendaring, which specifies that EOIR adjudicators must
consider the ``ICE detention status of the noncitizen'' when making a
determination about whether to administratively close or recalendar a
case. See 8 CFR 1003.1(l)(3)(i)(H), 1003.18(c)(3)(i)(H) (administrative
closure factor); 1003.1(l)(3)(ii)(H), 1003.18(c)(3)(ii)(H)
(recalendaring factor).
The Department reiterates that none of the listed factors,
including a noncitizen's detention status in ICE custody, are
dispositive to the determination of whether administrative closure or
recalendaring is necessary or appropriate in a given case. 8 CFR
1003.1(l)(3) (``No single factor is dispositive.''); 8 CFR
1003.18(c)(3) (same). Rather, EOIR adjudicators must consider the
totality of the circumstances in making such determinations. Id.
However, given the potential liberty interests implicated when a
noncitizen is in ICE detention during the pendency of a case before
EOIR, as well as heightened costs to the Government, a noncitizen's
detention status in ICE custody will generally weigh against
administrative closure or, alternatively, in favor of recalendaring if
already administratively closed. Detention heightens the need to
continuously monitor whether a case is ready to proceed to minimize the
risk that an individual is detained any longer than necessary. See,
e.g., Reid v. Donelan, 17 F.4th 1, 7 (1st Cir. 2021) (recognizing the
court's view that ``the Due Process Clause imposes some form of
reasonableness limitation on the duration of detention'' under certain
provisions of the INA) (cleaned up). Therefore, in most circumstances,
a detained case should be kept on, or returned to, the active docket,
with continuances granted as needed.
As stated previously, however, a noncitizen's status in ICE
detention is not a dispositive factor, and it is considered by the EOIR
adjudicator as part of the totality of the circumstances. There may be
some circumstances where, on balance, administrative closure of a case
is necessary or appropriate even when a noncitizen is in ICE detention.
For example, an immigration judge may find that, in certain cases,
administrative closure is the proper procedural tool to allow a
detained noncitizen to pursue available relief with USCIS, such as a
Form I-601A, Provisional Unlawful Presence Waiver. See 8 CFR
212.7(e)(4)(iii). However, due to the potential liberty interests at
stake in detained cases involving potential relief before USCIS, the
noncitizen's detention status may weigh against granting administrative
closure unless relief before USCIS is expected to be adjudicated
expeditiously. Moreover, in many cases, the noncitizen may be detained
due to underlying criminal activity, which may implicate other factors
that would weigh against administrative closure. See, e.g., 8 CFR
1003.1(l)(3)(i)(D), 1003.18(c)(3)(i)(D) (criminal activity may affect
the likelihood of success for relief the noncitizen may wish to
pursue).
Conversely, as the Board recognized in Matter of M-A-M-,
administrative closure may be appropriate in cases involving mental
competency issues, including to allow a noncitizen to seek treatment
for a condition that impacts mental competency. 25 I&N Dec. at 483.
Thus, for example, even if a noncitizen is in ICE detention, it may be
necessary or appropriate to administratively close a case where
competency issues are implicated to allow for evaluations or medical
treatment where an EOIR adjudicator determines that a noncitizen's
competency status might be restored. See id. at 480 (recognizing that
``[m]ental competency is not a static condition'').
The Department recognizes that there also may be other particularly
compelling circumstances where a noncitizen is in ICE detention but, on
balance, administrative closure may be necessary or appropriate in that
case given the totality of the circumstances. The Department is
confident that EOIR adjudicators will appropriately exercise their
independent judgment and discretion in each individual case involving a
request for administrative closure or recalendaring, including in those
cases where a noncitizen is in ICE detention.
When applying this factor, the Department clarifies that the
relevant consideration is whether the noncitizen is in ICE detention;
that is, in the custody of DHS, given the aforementioned concerns. The
same concerns do not apply to noncitizens in other carceral settings,
such as local, State, or Federal custody. Administrative closure may be
an appropriate docket management tool in such cases because the
noncitizen's incarceration is not dependent upon the outcome of the
proceedings before EOIR. Additionally, there may be a less immediate
need to divert EOIR resources to expeditiously resolve the case. For
example, a noncitizen may be in Federal, State, or local custody during
the pendency of criminal proceedings, the resolution of which may
directly impact the noncitizen's removability or eligibility for relief
or protection from removal in EOIR proceedings. Thus, it may be more
efficient to administratively close such cases and then recalendar them
when the collateral criminal proceedings have been resolved. In such
cases, it would be comparably less efficient to carry out proceedings
before EOIR when the outcome of the concurrently pending collateral
criminal proceedings would materially affect the outcome of EOIR
proceedings.
Additionally, if a noncitizen in Federal, State, or local custody
is serving out a lengthy criminal sentence,
[[Page 46775]]
there may be a less immediate need to resolve that noncitizen's case
before EOIR because any potential removal order would not be executed
until the noncitizen had completed their sentence. Thus, in such
instances, it may be more efficient to administratively close the
noncitizen's case and then to recalendar it closer in time to the
noncitizen's eligibility for release. Accordingly, the Department
believes a noncitizen's status in ICE detention, specifically, as
opposed to other carceral settings, is a unique factor relevant to the
determination whether to administratively close or recalendar a case.
B. Discretionary Termination--Consideration of Arguments in Favor and
in Opposition
The Department has modified the standards for discretionary
termination to explicitly require that EOIR adjudicators consider the
reason termination is sought and the basis for any opposition to
termination when adjudicating a motion to terminate. See 8 CFR
1003.1(m)(1)(ii), 1003.18(d)(1)(ii). For consistency and clarity, the
Department is using the same phrasing as the parallel administrative
closure provisions. See 8 CFR 1003.1(l)(3)(i)(A) and (B),
1003.18(c)(3)(i)(A) and (B).
To be clear, the inclusion of these factors in the regulations
governing termination and administrative closure is not intended to and
does not alter the general motions practice, which as a matter of
course requires an EOIR adjudicator to consider the reason for the
motion or the basis for any opposition to the motion. See, e.g.,
Immigration Court Practice Manual ch. 5.12 (general standards for
responses to motions). Further, as previously proposed in the NPRM, the
Department had no intention of altering existing EOIR motions practice
relating to termination. See 88 FR at 62264 (noting that ``the
adjudicator may consider any basis for opposition to termination in
making their determination''). However, after considering comments
raising concerns about terminating proceedings when a party objects to
such termination, the Department believes it would be particularly
helpful to clearly state that EOIR adjudicators will consider such
objections when adjudicating a motion to terminate. For example, the
Department believes that this clarification is responsive to concerns
about the use of termination where a noncitizen objects to termination
based on a desire to pursue relief in proceedings before EOIR where
termination would otherwise foreclose the ability to pursue such
relief. Relatedly, the rule responds to concerns that terminating
proceedings would override DHS's prosecutorial discretion by requiring
EOIR adjudicators to consider and weigh DHS's objection to termination.
This modification to the final rule is intended to clarify that
discretionary termination cannot be granted without considering and
weighing all arguments for and against discretionary termination. The
Department believes that this requirement will help ensure that EOIR
adjudicators consider the positions of both parties, including either
party's interest in having proceedings go forward, prior to ruling on a
motion to terminate.
The new provision states: ``The [EOIR adjudicator] shall consider
the reason termination is sought and the basis for any opposition to
termination when adjudicating the motion to terminate.'' 8 CFR
1003.1(m)(1)(ii), 1003.18(d)(1)(ii).
C. Discretionary Termination--UC Asylum Jurisdiction
The Department has made two modifications to the NPRM's
discretionary termination ground relating to cases implicating USCIS's
exercise of initial asylum jurisdiction under INA 208(b)(3)(C), 8
U.S.C. 1158(b)(3)(C). See 8 CFR 1003.1(m)(1)(ii)(A),
1003.18(d)(1)(ii)(A). First, the Department modified this ground to
apply not only to cases involving noncitizens determined by EOIR to be
unaccompanied children, as defined by 1001.1(hh), but also to cases in
which USCIS would consider their asylum application as one filed by an
unaccompanied child such that USCIS may exercise its initial
jurisdiction under INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C) to
adjudicate the asylum application. Thus, this category could include
those noncitizens whom DHS previously determined to be UCs and whose
asylum applications are amenable to USCIS's initial jurisdiction under
INA 208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C). The Department believes that
EOIR adjudicators should have discretion to terminate removal
proceedings in all potential circumstances where USCIS may exercise its
initial jurisdiction over an asylum application pursuant to INA
208(b)(3)(C), 8 U.S.C. 1158(b)(3)(C), such as where USCIS considers the
application as one filed by a UC through USCIS policy or by court
order. See, e.g., J.O.P. v. U.S. Dep't of Homeland Sec., 409 F. Supp.
3d 367, 376 (D. Md. 2019) (issuing a preliminary injunction in a class
action involving USCIS policy changes regarding determinations about
whether an application is considered as one filed by a UC).
Accordingly, the Department has amended 8 CFR 1003.1(m)(1)(ii)(A) and
1003.18(d)(1)(ii)(A) to provide that an EOIR adjudicator may terminate
proceedings when the noncitizen has filed an asylum application with
USCIS pursuant to section 208(b)(3)(C) of the Act, 8 U.S.C.
1158(b)(3)(C), pertaining to unaccompanied children, as defined in 8
CFR 1001.1(hh).
Further, expanding the applicability of this discretionary
termination ground to capture all potentially qualifying noncitizens
will help ensure that EOIR and USCIS are not duplicating adjudicatory
efforts, and that the Departments are giving full effect to Congress's
intent that qualifying asylum applications should be adjudicated by
USCIS. In making this change, the Department notes that it is not
taking a position in this rulemaking on how, when, or by whom a UC
determination is made.
Second, the Department also modified this ground to require the
filing of an asylum application with USCIS before an EOIR adjudicator
may grant discretionary termination, to ensure that relevant
noncitizens in removal proceedings have a pending application on file
with USCIS before any EOIR proceedings are terminated. See 8 CFR
1003.1(m)(1)(ii)(A), 1003.18(d)(1)(ii)(A). The change replaces the
phrase ``states an intent in writing or on the record at a hearing to
seek asylum with USCIS'' with ``has filed an asylum application with
USCIS.'' Id. This change will ensure that the Department and DHS can
most efficiently monitor the noncitizen's ongoing proceedings and
relief applications in order to take any necessary actions as such
proceedings or applications are completed or adjudicated.
Taken together, the new provisions now read: ``The noncitizen has
filed an asylum application with USCIS pursuant to section 208(b)(3)(C)
of the Act pertaining to unaccompanied children, as defined in 8 CFR
1001.1(hh).'' Id.
D. Discretionary Termination--Cross-Reference to DHS Regulations
Related to T and U Visas
The Department has decided not to finalize the discretionary
termination ground that cross-references DHS provisions related to T
and U visas as proposed in the NPRM. 88 FR at 62278, 62281. As relevant
here, commenters noted that in the proposed discretionary termination
ground that cross-referenced DHS regulations related to T and U visas,
the cross-referenced DHS regulatory provisions--8 CFR
[[Page 46776]]
214.11(d)(1)(i) and 214.14(c)(1)(i)--discuss joint motions to
terminate. See, e.g., 8 CFR 214.11(d)(1)(i) (``In its discretion, DHS
may agree to the [noncitizen]'s request to file with the immigration
judge or the Board a joint motion to . . . terminate proceedings
without prejudice, . . . while an application for T nonimmigrant status
is adjudicated by USCIS.''). In turn, the proposed rule referenced
these T and U visa regulatory provisions under the discretionary
termination grounds. 88 FR at 62278, 62281.
However, the Department clarifies that any jointly filed motions to
terminate, including those filed pursuant to the cross-referenced DHS
provisions, should be considered under the mandatory ``joint or
unopposed'' motion termination ground. See 8 CFR 1003.1(m)(1)(i)(G),
1003.18(d)(1)(i)(G). Thus, should any motions described in the DHS
regulatory provisions related to T and U visas be presented before
EOIR, those motions would constitute joint motions and would be
governed by 8 CFR 1003.1(m)(1)(i)(G) or 1003.18(d)(1)(i)(G).
Accordingly, the Department has decided not to finalize the
discretionary termination provision for T and U visa applicants
because, as proposed, it was superfluous and risked confusion over the
proper standard to apply for such joint motions.
E. Discretionary Termination--Motion Required
The Department has modified the discretionary termination
provisions to make clear that a motion from a party is required before
an EOIR adjudicator may terminate a case in the exercise of discretion.
See 8 CFR 1003.1(m)(1)(ii) and (m)(2)(ii), 1003.18(d)(1)(ii) and
(d)(2)(ii). This change is consistent with regulatory provisions
requiring a motion from a party before an EOIR adjudicator may grant
administrative closure, see 8 CFR 1003.1(l)(1), 1003.18(c)(1), and
reflects the Department's desire to ensure that parties have an
opportunity to present any relevant evidence to EOIR adjudicators
before they issue a decision on requests to terminate a case.
Accordingly, in relevant part, the discretionary termination
provisions read that ``[i]n removal, deportation, or exclusion
proceedings, the [EOIR adjudicator] may, in the exercise of discretion,
terminate the case upon the motion of a party where at least one of the
requirements listed in . . . this section is met.'' 8 CFR
1003.1(m)(1)(ii) (Board), 1003.18(d)(1)(ii) (immigration judges).
Similarly, in the interest of consistency, the provisions governing
discretionary termination in other proceedings now read, in relevant
part, ``[i]n proceedings other than removal, deportation, or exclusion
proceedings, the [EOIR adjudicator] may, in the exercise of discretion,
terminate the case upon the motion of a party where terminating the
case is necessary or appropriate for the disposition or alternative
resolution of the case.'' 8 CFR 1003.1(m)(2)(ii) (Board),
1003.18(d)(2)(ii) (immigration judges).
F. Discretionary Termination--Naturalization Eligibility
Based on existing statutory and regulatory structures, the
Department has revised the provisions on discretionary termination on
the basis of prima facie eligibility to naturalize. Under INA 318, 8
U.S.C. 1429, ``no person shall be naturalized against whom there is
outstanding a final finding of deportability,'' and ``no application
for naturalization shall be considered by [USCIS] if there is pending
against the applicant a removal proceeding.'' This provision has been
interpreted to mean that `` `removal proceedings and final removal
orders are to take precedence over naturalization applications.' '' De
Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 1045 (9th Cir. 2004)
(quoting Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 970 (9th Cir.
2003)). To better align with the statutory provision precluding
consideration of a naturalization application where a removal
proceeding is pending, the Department believes it is appropriate, with
respect to this narrow category of motions for discretionary
termination, to preclude EOIR adjudicators from granting the motion if
DHS--which brings removal proceedings--assesses that the noncitizen
should remain in EOIR proceedings given the circumstances of the
particular case, and if DHS then communicates that assessment to the
adjudicator by opposing a motion to terminate. Additionally, as stated
in section III.C.4 of this preamble, the Department declines to adopt
Acosta Hidalgo's limitation on an EOIR adjudicator's authority to make
a prima facie determination regarding a noncitizen's eligibility for
naturalization without certification from DHS when determining whether
to terminate under former 8 CFR 1239.2(f) (2023). The Department has
done so for efficiency reasons, and in light of operational
frustrations, as well as inconsistencies and confusion over the
framework established by Acosta Hidalgo with respect to former 8 CFR
1239.2(f) (2023). Under this rule, where a party moves to terminate,
the EOIR adjudicator can make their assessment and, absent an express
DHS opposition, can terminate without a need to wait for, or require
the parties to obtain or produce, DHS's certification in every case.
However, the Department continues to recognize DHS's unique role in
adjudicating naturalization applications, and Congress's directive that
pending removal proceedings--which DHS serves as the prosecutor in
initiating--should bar consideration of naturalization applications,
and therefore will not terminate cases over DHS's opposition. Where DHS
does oppose, the EOIR adjudicator may proceed to assess best next steps
for disposition or alternative resolution of the case without the
uncertainty of when or whether DHS will ultimately provide
certification as to the noncitizen's prima facie eligibility. On
balance, this creates efficiencies for the Department and the parties
while also acknowledging DHS's unique role in adjudicating
naturalization.
Under this rule, immigration judges would not assess prima facie
eligibility for naturalization as a part of a noncitizen's
naturalization application, INA 318, 8 U.S.C. 1429 (``the findings of
the Attorney General in terminating removal proceedings . . . shall not
be deemed binding in any way . . . with respect to the question of
whether such person has established [] eligibility for naturalization
as required by this subchapter''), but rather solely for the purpose of
assessing whether termination would be necessary or appropriate to
allow the noncitizen to have their application considered by DHS.
Nevertheless, this rule continues to acknowledge both DHS's unique role
as sole administrators over the process to obtain permanent (with
limited exceptions) citizenship in the United States and its authority
to initiate and prosecute removal proceedings, by limiting termination
to pursue a naturalization application to those instances where DHS
does not oppose a noncitizen's motion to terminate. 8 CFR
1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B).
This provision only applies to motions for discretionary
termination based on prima facie eligibility to naturalize under 8 CFR
1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B). It does not limit, for
example, an EOIR adjudicator's ability to apply the mandatory
termination grounds at 8 CFR 1003.1(m)(1)(i) and 1003.18(d)(1)(i) to a
noncitizen who may be prima facie eligible to naturalize, nor an EOIR
adjudicator's ability to grant immigration relief or protection to such
a noncitizen.
Where a noncitizen makes a motion for discretionary termination
based on eligibility to naturalize, DHS may,
[[Page 46777]]
depending on the circumstances of the case and in line with customary
EOIR practice, indicate its opposition either by filing a timely
written opposition or by announcing its opposition in court, orally and
on the record. The regulation does not require DHS to state its
rationale for opposing the motion. As long as DHS affirmatively opposes
the motion, either orally or through a timely written submission, the
EOIR adjudicator must deny the motion. However, the preclusion on
granting the motion is only triggered when DHS affirmatively opposes
the motion. Should DHS fail to respond to the motion in one of the two
ways set out previously, the preclusion on granting the motion is not
triggered, and the EOIR adjudicator is authorized to grant the motion
in the exercise of their discretion.
This final rule's provisions governing discretionary termination
based on prima facie eligibility to naturalize replace the current
regulatory provision governing discretionary termination on this
ground, previously located at former 8 CFR 1239.2(f) (2023). Under that
regulatory provision, as interpreted by the Board, termination required
an affirmative statement from DHS that the noncitizen is prima facie
eligible to naturalize. See Matter of Acosta Hidalgo, 24 I&N Dec. at
107-08. Courts have found that this regulatory scheme is consistent
with the Act and comports with due process. See Shewchun v. Holder, 658
F.3d 557, 563 (6th Cir. 2011) (rejecting a challenge to Matter of
Acosta Hidalgo and stating that ``Congress has specifically accorded
priority to removal proceedings over naturalization proceedings,'' and
that ``[a]llowing DHS to have such a high level of control over an
alien's removal proceedings is thus consistent with the current
statutory framework of immigration law'' (internal citations and
quotations omitted)); Hernandez de Anderson v. Gonzales, 497 F.3d 927,
935 (9th Cir. 2007) (stating that due process is not violated by the
requirement that DHS ``provide an affirmative statement that an alien
is prima facie eligible for naturalization in order to permit
termination of the removal proceedings''). Given the former provision
at 8 CFR 1239.2(f), this final rule's provisions governing
discretionary termination based on prima facie eligibility to
naturalize do not increase DHS's ability to prevent an EOIR adjudicator
from terminating proceedings. To the contrary, the final rule's
provisions require that, in order to prevent termination, DHS must
affirmatively oppose a noncitizen's motion, whereas under former
1239.2(f) (2023), silence from DHS effectively precluded an EOIR
adjudicator from granting a noncitizen's motion to terminate.
Specifically, the Department has amended the regulatory text to
provide that, ``[w]here the basis of a noncitizen's motion for
termination is that the noncitizen is prima facie eligible for
naturalization, the [adjudicator] shall not grant the motion if it is
opposed by DHS.'' 8 CFR 1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B). The
Department has done so in light of the statutory scheme governing
naturalization and, relatedly, to recognize DHS's unique role in
adjudicating naturalization applications, its authority to initiate
removal proceedings, and its role as the prosecutor of removal cases.
G. Discretionary Termination--USCIS Filing Required
The Department has modified the discretionary termination ground
focusing on petitions, applications, or other actions that a noncitizen
pursues with USCIS seeking relief from removal or lawful status, to
include language requiring that the noncitizen has filed such
application, petition, or other action before termination may be
granted. See 8 CFR 1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B).
This change will help ensure that EOIR is not prematurely
terminating proceedings when a relevant application has not yet been
filed with USCIS. By doing so, it will allow DHS and EOIR to
efficiently monitor a noncitizens' status and ensure that a noncitizen
placed into removal proceedings either files an application with USCIS
or remains in removal proceedings until final adjudication. Moreover,
in cases where the noncitizen is in the process of preparing their
application for filing with USCIS, they may request continuances or
administrative closure before EOIR, as relevant, in the interim. See 8
CFR 1003.1(l) and 1003.18(c) (administrative closure); 1003.29
(continuances).
There are two exceptions to this USCIS filing requirement. First,
where the motion is based on prima facie eligibility for adjustment of
status, the noncitizen is not required to file such an application with
USCIS when termination of removal proceedings is a prerequisite to the
USCIS filing. See 8 CFR 1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B).
Second, there is no filing requirement where the motion is based on
prima facie eligibility to naturalize. See id. The Department does not
wish to require the filing of a naturalization application with USCIS
as a prerequisite to discretionary termination based on eligibility to
naturalize given that, by statute, the application cannot be
``considered'' if the applicant is in removal proceedings, and that
such a motion for termination cannot be granted if opposed by DHS. See
INA 318, 8 U.S.C. 1429; 8 CFR 1003.1(m)(1)(ii)(B),
1003.18(d)(1)(ii)(B).
The new provisions read: ``The noncitizen is prima facie eligible
for naturalization, relief from removal, or a lawful status; USCIS has
jurisdiction to adjudicate the associated petition, application, or
other action if the noncitizen were not in proceedings; and the
noncitizen has filed the petition, application, or other action with
USCIS. However, no filing is required where the noncitizen is prima
facie eligible for adjustment of status or naturalization.'' 8 CFR
1003.1(m)(1)(ii)(B), 1003.18(d)(1)(ii)(B).
H. Discretionary Termination--Clarification on Granting To Pursue
Asylum Before USCIS
The Department has modified the grounds for discretionary
termination in removal, deportation, and exclusion proceedings to
clarify that EOIR adjudicators may not terminate a case in the exercise
of discretion for a noncitizen to pursue an asylum application before
USCIS, unless the noncitizen has filed an asylum application with USCIS
pursuant to section 208(b)(3)(C) of the Act, 8 U.S.C. 1158(b)(3)(C),
pertaining to unaccompanied children, as defined in 8 CFR 1001.1(hh).
See id. The Department has also added similar clarifying regulatory
text in the regulatory provisions covering termination in proceedings
other than removal, deportation, and exclusion proceedings. See 8 CFR
1003.1(m)(2)(iii), 1003.18(d)(2)(iii).
Upon reconsideration, the Department is concerned that the
discretionary termination ground based on pursuing relief or a lawful
status with USCIS as drafted in the proposed rule, see 88 FR at 62264,
could have been read to authorize the termination of a case for the
express purpose of allowing a noncitizen--other than a noncitizen who
has filed an asylum application with USCIS pursuant to section
208(b)(3)(C) of the Act, 8 U.S.C. 1158(b)(3)(C), pertaining to
unaccompanied children--to apply for asylum with USCIS. This was never
the Department's intent. See 88 FR at 62264 (explaining that ``the
Department does not intend this proposed ground for discretionary
termination to authorize a general practice of terminating proceedings
involving prima facie
[[Page 46778]]
eligibility for asylum'' and stating that ``the default rule that EOIR
adjudicators continue to exercise authority over asylum applications
filed by noncitizens in removal proceedings would continue to apply'').
And as explained in the NPRM, this would be in some tension with 8 CFR
1208.2(b), which grants exclusive jurisdiction to immigration judges
over any asylum applications filed ``after the charging document has
been filed with the Immigration Court.'' See id. As a matter of policy,
the retention of exclusive jurisdiction over asylum applications by
immigration judges, once the charging document has been filed,
maintains efficiency of the immigration system by preventing further
delay in the overall adjudication of an application that could occur if
the noncitizen attempted to terminate removal proceedings so that they
could restart the process with USCIS.
Accordingly, the Department has added clarifying language to this
discretionary termination ground to provide that an EOIR adjudicator
``shall not terminate a case for the noncitizen to pursue an asylum
application before USCIS, except as provided for'' in 8 CFR
1003.1(m)(1)(ii)(A) and 1003.18(d)(1)(ii)(A). 8 CFR 1003.1(m)(1)(ii)(B)
(Board), 1003.18(d)(1)(ii)(B) (immigration judges). Under this
provision, EOIR adjudicators may not consider a noncitizen's desire to
pursue asylum before USCIS as a basis for discretionary termination,
except when related to UC asylum applications.
However, this provision does not affect the ability of the parties
to pursue joint or affirmatively non-opposed motions to terminate
removal, deportation, or exclusion proceedings--regardless of the basis
for such motions--which are adjudicated pursuant to the standards
governing mandatory termination. 8 CFR 1003.1(m)(1)(i)(G),
1003.18(d)(1)(i)(G) (directing EOIR adjudicators to grant motions that
are jointly filed or where one party affirmatively indicates its non-
opposition unless articulating ``unusual, clearly identified, and
supported reasons for denying the motion'').
Finally, given the foregoing amendment in the provisions governing
removal, deportation, and exclusion proceedings, the Department deemed
it necessary to include a conforming provision in the regulatory text
governing termination of proceedings other than removal, deportation,
and exclusion proceedings. Thus, the Department has added regulatory
text to the provisions limiting termination in proceedings other than
removal, deportation, and exclusion proceedings to make clear that
neither the Board nor the immigration judge is authorized to terminate
a case for the noncitizen to pursue an asylum application before USCIS,
unless the noncitizen has filed an asylum application with USCIS
pursuant to section 208(b)(3)(C) of the Act, 8 U.S.C. 1158(b)(3)(C),
pertaining to unaccompanied children, as defined in 8 CFR 1001.1(hh).
See 8 CFR 1003.1(m)(2)(iii) (Board), 1003.18(d)(2)(iii) (immigration
judges).
I. Voluntary Departure Bond Posting Deadline
The Department has modified 8 CFR 1240.26(k)(4) to state that the
Board shall advise the noncitizen of the duty to post any voluntary
departure bond with the ICE Field Office Director within 30 business
days of the Board's order granting voluntary departure. In recognition
of the fact that Board orders are generally served by mail and received
without advance warning, the Department believes this 30-day period
will allow noncitizens adequate time to post a voluntary departure bond
when the Board, rather than the immigration judge, grants voluntary
departure in the first instance.
J. Additional Terminology Updates and Non-Substantive Changes
The Department is non-substantively updating the ``noncitizen''
definition as proposed in the NPRM to better clarify that
``noncitizen'' is synonymous with the statutory term ``alien.'' In the
NPRM, the proposed ``noncitizen'' definition stated only that the term
meant ``any person not a citizen or national of the United States.''
See 88 FR at 62275. In this final rule, the Department has updated the
definition to state that the ``term noncitizen means `alien,' as
defined in section 101(a)(3) of the Act.'' See 8 CFR 1001.1(gg). This
maintains the same substantive underlying definition as the NPRM, but
also provides better clarity that the terms ``noncitizen'' and
``alien'' are defined to be synonymous.\6\
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\6\ In defining the term ``noncitizen'' this way, the Department
intends this term to be interchangeable with the term ``alien'' as
used throughout chapter V of title 8 of the Code of Federal
Regulations.
---------------------------------------------------------------------------
Relatedly, in addition to the changes the Department proposed in
the NPRM regarding replacing the term ``alien'' with ``noncitizen,''
the Department has identified other instances of the use of the term
``alien'' in regulatory provisions the Department is amending in this
rulemaking. Accordingly, the Department is also amending 8 CFR 1003.2,
1003.7, and 1003.23(b)(4)(iii)(B) to replace the term ``alien'' with
``noncitizen'' in those provisions.
The Department is also making clarifying edits regarding the
authorities of the Chief Appellate Immigration Judge and Chief
Immigration Judge. The Department is amending 8 CFR 1003.1(a)(2)(i)(E)
by adding a cross-reference to 8 CFR 1003.1(d)(1)(ii) and is similarly
amending 8 CFR 1003.9(b)(5) to include a cross-reference to 8 CFR
1003.10(b), rather than adding an explicit reference to administrative
closure authority to each provision as proposed in the NPRM. See 88 FR
at 62275, 62280. These amendments clarify that the Chief Appellate
Immigration Judge and Chief Immigration Judge, respectively, may
exercise each of the authorities described in the cross-referenced
provisions, including administrative closure authority. See 8 CFR
1003.1(a)(2)(i)(E), 1003.9(b)(5).
Additionally, the Department would like to clarify a change made in
8 CFR 1003.1(e)(7) (request for oral argument). Notably, the Department
intended to remove gendered language in this provision, and in doing
so, inadvertently proposed language identifying the Attorney General in
place of the Deputy Attorney General. Specifically, the proposed
language stated that ``[o]ral argument shall be held at the offices of
the Board unless the Deputy Attorney General or the Attorney General's
designee authorizes oral argument to be held elsewhere.'' See 88 FR at
62277 (emphasis added). This was a drafter's error. To preserve the
meaning of the preexisting regulatory language, while removing gendered
language--as was the intent in the NPRM--the Department is correcting
its drafter's error and updating this provision to replace the
incorrect reference to the ``Attorney General'' with a correct
reference to the ``Deputy Attorney General.'' 8 CFR 1003.1(e)(7).
Finally, the Department identified an erroneous cross-reference in
8 CFR 1003.1(l)(1) and 1003.18(c)(1) and is amending those provisions
to correct the intended cross-reference, by changing the erroneous
reference to 8 CFR 214.15(p)(4) to the correct reference to 8 CFR
245.15(p)(4). The Department also is amending a reference to ``this
chapter,'' and replacing it with a reference to ``this title'' in those
same provisions. See 8 CFR 1003.1(l)(1), 1003.18(c)(1).
K. Application of Matter of Pickering and Matter of Thomas & Thompson
In the NPRM, the Department requested comment on whether--and, if
[[Page 46779]]
so, to what extent--Matter of Thomas & Thompson, 27 I&N Dec. 674 (A.G.
2019), should be given retroactive effect and how that decision and
Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), should apply to
particular types of State court orders. 88 FR at 62273. After
considering the comments received, the Department has determined to
adopt a provision at 8 CFR 1003.55 clarifying the application of Matter
of Thomas & Thompson and instructing adjudicators to recognize certain
types of defects. First, paragraph (a)(1) provides that Matter of
Thomas & Thompson does not apply where: (A) a court at any time granted
a request to modify, clarify, vacate, or otherwise alter the sentence
and the request was filed on or before October 25, 2019; or (B) the
noncitizen demonstrates that the noncitizen reasonably and
detrimentally relied on the availability of an order modifying,
clarifying, vacating, or otherwise altering the sentence entered in
connection with a guilty plea, conviction, or sentence on or before
October 25, 2019. Paragraph (a)(2) states that, for such cases, the
adjudicator shall assess the relevant order under Matter of Cota-
Vargas, 23 I&N Dec. 849 (BIA 2005), Matter of Song, 23 I&N Dec. 173
(BIA 2001), and Matter of Estrada, 26 I&N Dec. 749 (BIA 2016), as
applicable. Second, paragraph (b) instructs adjudicators to give effect
to an order that corrects a genuine ambiguity, mistake, or
typographical error on the face of the original conviction or
sentencing order and that was entered to give effect to the intent of
the original order. These provisions are described in detail in
sections IV.K.1 and IV.K.2 of this preamble.
1. Applicability of Matter of Thomas & Thompson
In Matter of Pickering, the Board held that if a State court
vacates a noncitizen's conviction for reasons solely related to
rehabilitation or immigration hardships, rather than on the basis of a
procedural or substantive defect in the underlying criminal
proceedings, the conviction is not eliminated for immigration purposes.
23 I&N Dec. at 624. In Matter of Thomas & Thompson, Attorney General
Barr overruled three prior Board decisions--Matter of Cota-Vargas, 37
I&N Dec. 849, which held that an order modifying a sentence is given
``full . . . faith and credit'' for immigration purposes regardless of
the reason for the modification; Matter of Song, 23 I&N Dec. 173, which
held the same for a sentence that was vacated and revised; and Matter
of Estrada, 26 I&N Dec. 749, which Matter of Thomas & Thompson
understood to establish a ``highly general multifactor test[],'' I&N
Dec. at 684, governing whether an order clarifying a sentence is
effective for immigration purposes--and held that State court orders
that modify, clarify, or otherwise alter a noncitizen's criminal
sentence will similarly be given effect for immigration purposes only
when they are based on a substantive or procedural defect in the
underlying criminal proceeding, and not when based on reasons unrelated
to the merits, such as rehabilitation or avoiding immigration
consequences. 27 I&N Dec. at 675.
Recently, a circuit split has emerged on whether Matter of Thomas &
Thompson may be applied in immigration proceedings to orders altering
sentences or to criminal proceedings that predated the Attorney
General's decision. Compare Zaragoza, 52 F.4th at 1010 (holding that
applying Matter of Thomas & Thompson to a preexisting sentence
alteration order ``is an impermissibly retroactive application of a new
rule''), with Edwards II, 2024 WL 950198, at *10 (following prior
precedent to hold that Matter of Thomas & Thompson does not ``announce[
] new law'' and instead ``correctly states what the law always was and
how it always should have been applied'').\7\ Having considered the
reasoning of these decisions, precedent on the retroactive application
of agency rules adopted through adjudication, and the comments
received, the Department has decided to adopt a provision that limits
the retroactive application of Matter of Thomas & Thompson.
---------------------------------------------------------------------------
\7\ But see Edwards II, 2024 WL 950198, at *15, *19 (Jordan, J.,
concurring) (concurrence stating that the prior precedent
``incorrectly relied on precedent related to the retroactivity
standard of judicial rather than agency decisionmaking'' and
concluding that the court should ``convene en banc and hold that
Chenery provides the framework for determining the retroactive
effect of the Attorney General's ruling in Thomas'').
---------------------------------------------------------------------------
The first and threshold question is whether applying Matter of
Thomas & Thompson to State court orders altering sentences or to
criminal proceedings predating that decision would have a retroactive
effect. A new rule operates retroactively when it ``takes away or
impairs vested rights acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new disability, in
respect to transactions or considerations already past.'' Vartelas, 566
U.S. at 266 (quoting Soc'y for the Propagation of the Gospel v.
Wheeler, 22 F. Cas. 756, 767 (C.C.D.N.H. 1814) (Story, J.)). Here,
applying Matter of Thomas & Thompson can have such an effect in
substantial classes of cases. Under Matter of Thomas & Thompson,
individuals who sought relief that would have been recognized under
Matter of Cota-Vargas, and individuals who had a criminal disposition
when Matter of Cota-Vargas was effective, lose the pathway to address
immigration consequences that Matter of Cota-Vargas previously
provided. The loss of that pathway thereby ``attache[d] a new
disability, in respect of'' those prior applications or criminal
dispositions. Vartelas, 566 U.S. at 266 (quoting Wheeler, 22 F. Cas. at
767). That remains true, moreover, even where noncitizens had not
already received relief under Matter of Cota-Vargas and could not be
sure that they would receive such relief. In St. Cyr, the Supreme Court
found that the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Public Law 104-208, 110 Stat. 3009 (1996), imposed a
retroactive effect to the extent it eliminated discretionary relief
from removal, even though noncitizens might or might not have received
such relief. 533 U.S. at 321, 325. The same is true here.
When courts consider the retroactivity of statutes, as in Vartelas
and St. Cyr, and determine that the statutes would have a retroactive
effect, that determination often yields a categorical conclusion that
the statute does not apply retroactively. To be sure, ``[t]he
Legislature's unmatched powers allow it to sweep away settled
expectations suddenly and without individualized consideration.'' St.
Cyr, 533 U.S. at 315 (quoting Landgraf, 511 U.S. at 266). Given the
concerns that retroactivity can yield, however, ``congressional
enactments . . . will not be construed to have retroactive effect
unless their language requires this result.'' Id. (quoting Bowen, 488
U.S. at 208). Courts sometimes undertake that inquiry on a categorical
basis and determine that a statute is not retroactive without regard to
individualized circumstances. Id.; see Vartelas, 566 U.S. at 266.
But when agencies adopt new rules in adjudications, as Matter of
Thomas & Thompson did, they may engage in ``individualized
consideration,'' St. Cyr, 533 U.S. at 315, and can weigh whether a new
rule should apply retroactively in particular circumstances or whether
doing so would work a manifest injustice. Although the Supreme Court
has long recognized that agencies may adopt new rules through
adjudication, it has emphasized that the retroactive application of
those rules ``must be balanced against the mischief of producing a
result which is contrary to a statutory design or to legal and
[[Page 46780]]
equitable principles.'' SEC v. Chenery Corp., 332 U.S. 194, 203 (1947).
Moreover, it is for ``the agency to decide in the first instance
whether giving the change retrospective effect will best effectuate the
policies underlying the agency's governing act.'' NLRB v. Food Store
Emps. Union, Loc. 347, 417 U.S. 1, 10 n.10 (1974).
The prevailing test for analyzing that second question and
determining whether a new rule adopted via adjudication should apply
retroactively weighs five factors: ``(1) whether the particular case is
one of first impression, (2) whether the new rule represents an abrupt
departure from well-established practice or merely attempts to fill a
void in an unsettled area of law, (3) the extent to which the party
against whom the new rule is applied relied on the former rule, (4) the
degree of the burden which a retroactive order imposes on a party, and
(5) the statutory interest in applying a new rule despite the reliance
of a party on the old standard.'' Retail Union, 466 F.2d at 390; see
Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th Cir. 1982). The
Board itself has applied this test. See Matter of Cordero-Garcia, 27
I&N Dec. at 657 (applying the Retail Union factors to determine
retroactivity ``[i]n light of the courts' overwhelming adoption of the
test and'' ``the desirability of applying the immigration laws with
nationwide uniformity''). So have other agencies, as well as courts.\8\
See, e.g., Sne Enters., Inc. & United Steelworkers of Am., AFL-CIO, 344
NLRB 673 (2005) (NLRB); Nat'l Fuel Gas Supply Corp., 96 FERC ] 61,195,
61,852 (2001) (FERC); Zaragoza, 52 F.4th at 1010; Marquez v. Garland,
13 F.4th 108, 112 (2d Cir. 2021); Francisco-Lopez v. Att'y Gen. U.S.,
970 F.3d 431, 437 (3d Cir. 2020); Acosta-Olivarria v. Lynch, 799 F.3d
1271, 1275 (9th Cir. 2015). Notably, several U.S. Courts of Appeals
have applied this test to limit the retroactive application of Board
and Attorney General decisions to crimes committed before the
publication of those decisions, such as Matter of Diaz-Lizarraga, 26
I&N Dec. 847,\9\ and Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec.
270.\10\ And in the Department's view, this test reasonably captures
the ``legal and equitable'' principles that the Supreme Court has
directed agencies to consider. See Chenery, 332 U.S. at 203.\11\
---------------------------------------------------------------------------
\8\ The majority in Edwards II pointed to some cases following
the approach set forth in Yu in the immigration context, see 2024 WL
950198, at *12, but one of those cases addressed an order in which
the Attorney General considered the statute to be unambiguous, see
Shou Wei Jin v. Holder, 572 F.3d 392, 397-98 (7th Cir. 2009), two
others do not grapple with their decision not to analyze the Retail
Union factors, see Espinal-Andrades v. Holder, 777 F.3d 163, 170
(4th Cir. 2015); Torres v. Holder, 764 F.3d 152, 158 (2d Cir. 2014),
and two of the relevant circuits have also issued decisions that do
in fact consider the Retail Union factors in this context, see
Edwards II, 2024 WL 950198, at *12 (acknowledging authority going
both ways). In all events, the Department has concluded that in this
context applying the Retail Union factors is consistent with Supreme
Court precedent and identifies the relevant considerations.
\9\ See Monteon-Camargo v. Barr, 918 F.3d 423, 431 (5th Cir.
2019); Obeya v. Sessions, 884 F.3d 442, 449 (2d Cir. 2018); Garcia-
Martinez v. Sessions, 886 F.3d 1291, 1296 (9th Cir. 2019); Lucio-
Rayos v. Sessions, 875 F.3d 573, 578 (10th Cir. 2017).
\10\ See Miguel-Miguel v. Gonzales, 500 F.3d 941, 951-52 (9th
Cir. 2007).
\11\ The Eleventh Circuit in Edwards II noted that it was bound
by Yu's holding that the Attorney General's authority to issue
``controlling'' rulings on ``all questions of law,'' INA 103(a)(1),
8 U.S.C. 1103(a)(1), ``may mean that when the Attorney General
announces a new decision that is a reasonable interpretation of the
INA and is entitled to deference, that decision applies
retroactively because it is `the Attorney General's determination of
what the law `ha[s] always meant.'''' 2024 WL 950198, at *9 (quoting
Yu, 568 F.3d at 1333 (quoting Rivers v. Roadway Exp., Inc., 511 U.S.
298, 313, n.12 (1994))). But whether or not the Attorney General
could rely on that authority to deem a decision fully retroactive,
the Department does not believe that this provision precludes it
from applying the Retail Union test. Doing so falls within the
Attorney General's broad authority to ``establish such regulations,
prescribe such forms of bond, reports, entries, and other papers,
issue such instructions, review such administrative determinations
in immigration proceedings, delegate such authority, and perform
such other acts as the Attorney General determines to be necessary
for carrying out this section.'' INA 103(g)(2), 8 U.S.C. 1103(g)(2).
Moreover, as explained below, Matter of Thomas & Thompson did not
state that the statute was unambiguous, and the courts that have
addressed the issue have found the statute ambiguous and deferred to
the Attorney General's interpretation of it in Matter of Thomas &
Thompson. That further militates against regarding Matter of Thomas
& Thompson as simply identifying what the law has always been.
---------------------------------------------------------------------------
Applying this test, the Department concludes that Matter of Thomas
& Thompson should not apply retroactively to noncitizens who took
certain actions before Matter of Thomas & Thompson was issued. The
Department accordingly adopts a rule that gives effect to that
conclusion and that the Department believes best balances the competing
interests.\12\
---------------------------------------------------------------------------
\12\ The Department will apply the approach set forth in this
rule in all circuits, including the Eleventh Circuit. Although the
Eleventh Circuit in Edwards II determined that it was permissible
for the BIA to apply Matter of Thomas & Thompson retroactively,
Edwards II did not have the benefit of a rule by the Department
addressing retroactivity and did not say that the Department could
not apply a different approach to retroactivity than the Eleventh
Circuit adopted. See 2024 WL 950198, at *10 (``We cannot hold that
it was impermissible for the BIA to apply the Attorney General's
Matter of Thomas decision.''). The Department therefore views
Edwards II as not inconsistent with applying the approach set forth
in this rule nationwide.
---------------------------------------------------------------------------
The first Retail Union factor asks ``whether the particular case is
one of first impression.'' Retail Union, 466 F.2d at 390. Where the
case is of first impression, a court is ``compelled to either apply the
new rule retrospectively'' to that case ``or to reject it, as the
prohibition against advisory opinions . . . assures that `every case of
first impression has retroactive effect.' '' Laborers' Int'l Union of
N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 392 (3d
Cir. 1994) (quoting Chenery, 332 U.S. at 203). Where the case is not
one of first impression, the first factor may weigh against
retroactivity. See Matter of Cordero-Garcia, 27 I&N Dec. at 658 (noting
that the Ninth Circuit has recognized that this factor favors the
noncitizen where the agency has ``confronted the problem before, ha[s]
established an explicit standard of conduct, and now attempts to punish
conformity to that standard under a new standard subsequently
adopted.'' (quoting Miguel-Miguel v. Gonzales, 500 F.3d 941, 951 (9th
Cir. 2007) (alterations in the original))). It is unclear how much
weight this factor should receive when an agency itself assesses
retroactivity: This factor relies in part on ``the prohibition against
advisory opinions,'' which binds Article III courts but not agencies.
Laborers' Int'l Union, 26 F.3d at 392. In all events, the Department is
not considering a case of first impression: Before Matter of Thomas &
Thompson addressed the issue it considered, Matter of Cota-Vargas and
other decisions had already done so. Accordingly, the first factor does
not favor, and if anything weighs against, retroactive application.
The second Retail Union factor, which is intertwined with the third
factor, asks ``whether the new rule represents an abrupt departure from
well-established practice or merely attempts to fill a void in an
unsettled area of law.'' Retail Union, 466 F.2d at 390. Where the new
rule represents ``an abrupt departure from well-established
practice''--rather than ``merely attempting to fill a void in unsettled
law''--the second Retail Union factor will weigh against retroactive
application of the rule, in part because a party's reliance on the old
rule is more likely to be reasonable. See Garfias-Rodriguez v. Holder,
702 F.3d 504, 521 (9th Cir. 2012). But where the new rule merely
clarifies an area of unsettled law and therefore the ``party could
reasonably have anticipated the change in the law,'' the second factor
will favor retroactivity. Id.
Matter of Thomas & Thompson departed from a rule set forth almost
fifteen years earlier in Matter of Cota-Vargas, 23 I&N Dec. at 852, and
that originates as far back as 1982 when in
[[Page 46781]]
Matter of Martin, 18 I&N Dec. 226, the Board terminated deportation
proceedings because the noncitizen's sentence was modified to less than
one year, rendering her not deportable. Matter of Thomas & Thompson
justified the departure from Matter of Cota-Vargas and Matter of Martin
as an effort to clarify the law and adopt the Matter of Pickering
standard for sentence alterations. But even so, Matter of Thomas &
Thompson expressly departed from the established law that formerly
governed sentence alterations--Matter of Cota-Vargas--and was more than
a mere attempt to fill a void in an unsettled area of law. Accordingly,
the second factor weighs against retroactive application.
The third Retail Union factor looks to ``the extent to which the
party against whom the new rule is applied relied on the former rule.''
Retail Union, 466 F.2d at 390. Here, Matter of Cota-Vargas reasonably
induced reliance, across at least two classes of cases.
First, as commenters noted, noncitizens brought motions for and
received State court orders before Matter of Thomas & Thompson that,
under Matter of Cota-Vargas, Federal immigration law would have
recognized. As commenters emphasized, these noncitizens often would
have sought such sentence alteration orders via whatever avenue was
most straightforward, including under rehabilitative statutes or based
on motions expressly invoking the immigration consequences of their
existing sentences. With those orders in hand, Matter of Cota-Vargas
gave them ``a complete defense to removal.'' Zaragoza, 52 F.4th at
1022. And some such noncitizens would have passed up the chance to
pursue relief based on a substantive or procedural defect in their
original sentences. For example, it may have been easier to persuade a
court to reduce a sentence from one year to 364 days based on
immigration consequences than to prove that a lawyer failed to
adequately advise on immigration consequences in violation of Padilla
v. Kentucky, 559 U.S. 356, 359 (2010), even if the latter ground would
have been a meritorious basis for a sentence alteration order. And as
commenters identified, many States prohibit successive motions, meaning
that a noncitizen who could have obtained an order altering a sentence
due to a substantive or procedural defect, but chose a simpler motion
relying on Matter of Cota-Vargas, would be unable to bring a subsequent
motion based on such a defect after Matter of Thomas & Thompson. See,
e.g., Ala. R. Crim. P. 32.2(b) (no successive motions except in narrow
circumstances), (d) (``In no event can relief be granted on a claim of
ineffective assistance of trial or appellate counsel raised in a
successive petition.''); Alaska R. Crim. P. 35(b)(2) (prohibiting
``second or successive motion for similar relief''); Del. R. Crim. P.
Super. Ct. 35(b) (``The court will not consider repetitive requests for
reduction of sentence.''); Idaho Crim. R. 35(b) (``A defendant may only
file one motion seeking a reduction of sentence.'').
Second, commenters identified other ways in which noncitizens may
have relied on Matter of Cota-Vargas, such as by relying on the advice
of counsel to accept a plea deal with a sentence that would subject
them to immigration consequences because courts in the jurisdiction
routinely granted sentence alterations based on rehabilitation or
immigration consequences, which immigration courts would have
recognized under Matter of Cota-Vargas. Commenters submitted
educational materials showing that immigration and criminal defense
counsel were made aware of Matter of Cota-Vargas, and some
organizations stated in their comments that they trained attorneys to
consider that sentence alterations were categorically given effect for
immigration purposes when advising noncitizens. These comments
demonstrate that some criminal defendants likely detrimentally relied
on the availability of such relief in making decisions during their
criminal cases, including accepting pleas, declining pleas and deciding
to go to trial, or litigating sentences. Had they known about the rule
Matter of Thomas & Thompson would eventually adopt, they might
reasonably have made different choices. Given the clarity of Matter of
Cota-Vargas, the evidence that counsel advised noncitizens on the
availability and effect of sentence alteration orders, and the import
of the possibility of removal in decision-making by criminal
defendants, such reliance would have been reasonable. See Padilla, 559
U.S. at 364 (``[D]eportation is an integral part--indeed, sometimes the
most important part--of the penalty that may be imposed on noncitizen
defendants who plead guilty to specified crimes.''). And to the extent
that noncitizens had a likelihood of reasonable reliance, the
Department concludes that the third factor weighs against retroactive
application.
The fourth Retail Union factor requires consideration of ``the
degree of the burden which a retroactive order imposes on a party.''
Retail Union, 466 F.2d at 390. For noncitizens who cannot obtain a
subsequent order altering their sentence, the burden here would
generally be removal. Although ``not, in a strict sense, a criminal
sanction,'' Padilla, 559 U.S. at 365, removal ``is always `a
particularly severe penalty,' '' Lee v. United States, 582 U.S. 357,
370 (2017) (quoting Padilla, 559 U.S. at 365). The Department views
that burden to be of a high degree that weighs against retroactive
application. Even to the extent a noncitizen who already obtained an
order altering their sentence that would have qualified under Matter of
Cota-Vargas could return to State court and seek another order that
would satisfy Matter of Thomas & Thompson, the need to pursue that
relief would impose a substantial burden on noncitizens, many of whom
are unrepresented or of limited means--particularly when that relief
may ultimately prove impossible to obtain for the reasons provided
previously. That burden again weighs against retroactive
application.\13\
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\13\ The Department has considered additional alleged burdens
commenters raised, specifically that applying Matter of Thomas &
Thompson to noncitizens whose criminal charges were filed before the
decision would create insurmountable burdens regarding the
revisiting of past criminal charge adjudications because these
convictions often occurred many years in the past and involved
privileged and detailed conversations between noncitizens and their
counsel. The approach the Department adopts mitigates the concerns
regarding dated convictions, and the Department does not believe the
privilege concerns militate against the approach it adopts.
Specifically, noncitizens whose convictions resulted from charges
filed before Matter of Thomas & Thompson and who sought an order
modifying, clarifying, vacating, or otherwise altering their
sentence on or before the day Matter of Thomas & Thompson issued and
received such an order will benefit from pre-Matter of Thomas &
Thompson case law. See 8 CFR 1003.55(a)(1)(A). For those who did
not, the Department believes the approach adopted--that is, applying
pre-Matter of Thomas & Thompson case law where the noncitizen
demonstrates they reasonably and detrimentally relied on the
availability of such an order on or before October 25, 2019, 8 CFR
1003.55(a)(1)(B)--is reasonable. The noncitizen alleging detrimental
reliance is likely to have the key information required to establish
such reliance, and to the extent they may need to disclose attorney-
client communications, they are the holders of the attorney-client
privilege and are able to waive it. See Commodity Futures Trading
Comm'n v. Weintraub, 471 U.S. 343, 348 (1985) (discussing waiver of
attorney-client privilege in the context of corporations).
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The fifth, and final, Retail Union factor looks at ``the statutory
interest in applying a new rule despite the reliance of a party on the
old standard.'' Retail Union, 466 F.2d at 390. This factor will often
``point[ ] in favor of [retroactivity] because non-retroactivity
impairs the uniformity of a statutory scheme, and the importance of
uniformity in immigration law is well established.'' Garfias-Rodriguez
v. Holder, 702 F.3d at 523. But courts also have deemed
[[Page 46782]]
decisions nonretroactive despite this factor, particularly where
reliance interests are strong. E.g., Zaragoza, 52 F.4th at 1024. And
here, where there is a sufficient likelihood of reliance on Matter of
Cota-Vargas, the Department does not believe that the fifth factor
standing alone suffices to require retroactivity.
The Department recognizes that ``[t]he government's interest in
applying the new rule retroactively may be heightened if the new rule
follows from the `plain language of the statute.' '' Garfias-Rodriguez,
702 F.3d at 523 (quoting Great W. Bank v. Off. of Thrift Supervision,
916 F.2d 1421, 1432 (9th Cir. 1990)). Matter of Thomas & Thompson did
not regard the statute as unambiguous, and the courts that have
addressed the issue have found the statute ambiguous and deferred to
the Attorney General's interpretation of it in Matter of Thomas &
Thompson. See Zaragoza, 52 F.4th at 1019; Edwards II, 2024 WL 950198,
*12. Regardless, the Department believes the fifth factor would not
outweigh the other four factors in the context of (1) those who sought
orders altering their sentence before Matter of Thomas & Thompson or
(2) those who otherwise show detrimental reliance on Matter of Cota-
Vargas.\14\
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\14\ The Department has considered some commenters' arguments
that the fifth factor favors nonretroactivity because determining
retroactive application based, in part, on the date Matter of Thomas
& Thompson was issued would create discordance between cases that
pre-date and post-date that decision. The Department believes these
comments misunderstand the uniformity factor, which weighs the
interest in applying the new rule--what the law is currently
understood to mean--and applying that view of the law uniformly.
See, e.g., Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th
Cir. 2004) (stressing ``the strong interest in national uniformity
in the administration of immigration laws''). But even assuming
these commenters are right that this factor could favor
nonretroactivity, that would not change the ultimate rule the
Department is adopting here. For individuals who sought an order
modifying, clarifying, vacating, or otherwise altering a criminal
sentence where the request was filed on or before the day Matter of
Thomas & Thompson issued, the ``non-uniformity'' of the variety
these commenters raise would not be implicated; the Department has
determined that the decision should not apply retroactively to this
category of individuals. And for individuals who did not seek such
an order, the Department has determined that this purported ``non-
uniformity'' is not sufficient to warrant a categorical approach to
nonretroactivity, given the ability to identify cases in which such
individuals actually relied on the pre-Matter of Thomas & Thompson
law, as discussed elsewhere in this rule.
---------------------------------------------------------------------------
Taken together, the Department has determined that the Retail Union
factors militate against retroactive application in certain
circumstances where there is a substantial likelihood of reliance. In
order to implement that determination, the Department has decided to
adopt a two-pronged approach that tailors the retroactivity of Matter
of Thomas & Thompson based on (1) circumstances where there is the
greatest likelihood of reliance and (2) the Department's assessment of
the feasibility and appropriateness of adjudicating case-specific
reliance questions. The Department assesses that this approach best
balances the relevant considerations.
First, the Department will recognize as effective for immigration
purposes any order modifying, clarifying, vacating, or otherwise
altering a criminal sentence where the request was filed on or before
October 25, 2019, the day Matter of Thomas & Thompson issued. As stated
previously, noncitizens seeking to alter their sentence before Matter
of Thomas & Thompson reasonably could have sought any available type of
sentence altering order, including under rehabilitative statutes or
based on motions expressly invoking the immigration consequences of
their existing sentences. And some noncitizens would have passed up the
chance to pursue relief based on a substantive or procedural defect in
their original sentences, which may have been more difficult and costly
to establish. Furthermore, as commenters identified, many states
prohibit successive sentence-altering motions, meaning that such
noncitizens are now likely unable to obtain a conforming alteration
order.
To be sure, not all noncitizens who received a sentence-altering
order before Matter of Thomas & Thompson may be able to show reliance
in this way. But for an adjudicator to assess whether such reliance
exists in an individual case, they would likely have to consider
complicated State law questions outside those they commonly consider,
and which are likely to be outside their expertise. Specifically, the
adjudicator would likely have to consider two questions: (1) whether
the noncitizen's original sentence suffered from a substantive or
procedural defect; and (2) whether under State law the noncitizen would
be unable to obtain a second sentence alteration, including whether
such a request would have been timely after Matter of Thomas &
Thompson. EOIR's adjudicators do not have experience analyzing whether
a sentence was marred by a defect that could have been addressed by a
State court or whether under State law a noncitizen could seek a second
sentence alteration. And requiring adjudicators to determine whether a
State court erred when issuing a sentence--in some cases years or
decades earlier--would involve immigration courts in burdensome and
time-consuming litigation, often involving factual materials and State
court records not easily accessible to immigration courts, on matters
entirely collateral to the Federal immigration proceeding. Matter of
Thomas & Thompson itself emphasized that its rule would not require
courts to engage in such an inquiry. 27 I&N Dec. at 686
(``[I]mmigration judges should not need to wade into the intricacies of
state criminal law in applying this opinion's rule.'').
For similar reasons, immigration judges and the Board need not--and
should not--consider whether noncitizens who received relief that would
suffice under Matter of Cota-Vargas could, after Matter of Thomas &
Thompson, return to State court and seek relief that would qualify
under Matter of Thomas & Thompson. The Department has considered the
argument that, if noncitizens have an unfettered ability to return to
State court, their reliance interests are weaker. But the Department
does not agree that this argument supports a broader retroactivity
rule. As commenters identified, many noncitizens will face barriers to
seeking further relief from State courts--due to statutes of
limitations, procedural bars on successive motions, or State courts'
perception that prior relief granted on other grounds moots
noncitizens' new requests. Additionally, doing so may require
noncitizens to incur significant legal expense, including in cases
where it is all but certain that the request will be denied. Moreover,
such a requirement could substantially burden State courts.
Accounting for the interests of the immigration system as a whole,
the Department assesses that it is preferable to adopt a categorical
rule of nonretroactivity when a noncitizen sought a sentence alteration
prior to Matter of Thomas & Thompson. This approach finds support in
the general retroactivity principles that apply to agency
adjudications. The Department's ultimate charge from the Supreme Court
is to strike a ``balance'' that accounts for ``statutory design'' and
``legal and equitable principles,'' Chenery, 332 U.S. at 203, and
``best effectuate[s] the policies underlying the . . . governing act.''
Food Store, 417 U.S. at 10 n.10. Moreover, the D.C. Circuit has
recognized that the permissibility of a retroactivity decision under
the Retail Union factors is ``ultimately . . . founded upon the
requirement of the [APA] that agency action not be `arbitrary,
capricious, an abuse of discretion, or otherwise not in
[[Page 46783]]
accordance with law.' '' Cassell v. FCC, 154 F.3d 478, 483 n.4 (D.C.
Cir. 1998) (quoting 5 U.S.C. 706(2)(A)); see Yakima Valley Cablevision,
Inc. v. FCC, 794 F.2d 737, 746 (D.C. Cir. 1986) (``Obviously, in many
instances, a retroactive change in policy is perfectly appropriate;
however, the law requires that an agency explain why it has decided to
take this rather extraordinary step. The agency must explain how it
determined that the balancing of the harms and benefits favors giving a
change in policy retroactive application.''). By adopting a rule that
accounts for systemic considerations in its balancing of harms and
benefits, the Department does just what the Supreme Court and the D.C.
Circuit have directed. Cf. Nat'l Cable & Telecomm. Ass'n v. FCC, 567
F.3d 659, 670-71 (D.C. Cir. 2009) (noting that FCC's decision to apply
a new rule to existing contracts was permissible because agency's
``extensive discussion'' of ``the relative benefits and burdens of
applying its rule to existing contracts . . . easily satisfies the
Commission's obligation under our deferential standard of review,''
where FCC found retroactive application ``strongly in the public
interest''); N. Carolina Utilities Comm'n v. FERC, 741 F.3d 439, 450
(4th Cir. 2014) (holding that ``FERC . . . appropriately considered
doctrinal stability when determining whether to grant rehearing'' to
apply new policy enacted while case was pending, as ``[a]gencies are
certainly entitled to consider the broader regulatory implications of
their decisions'').
Second, the rule instructs adjudicators to apply the pre-Matter of
Thomas & Thompson law to those who establish actual reliance on that
law. The Department recognizes that other noncitizens besides those who
sought State court sentence alterations likely reasonably relied on
Matter of Cota-Vargas to their detriment. For example, and as
commenters emphasized, there are likely noncitizens who pleaded guilty
to an offense without knowing the likely sentence or agreed to a higher
sentence than they otherwise would have in the belief that they could
easily obtain an order altering their sentence in the future that would
be given effect for immigration purposes under Matter of Cota-Vargas.
That said, the Department does not agree with commenters that the
possibility of such reliance requires declining to apply Matter of
Thomas & Thompson on a categorical basis to all those who were charged,
convicted, or sentenced before the decision was issued. Unlike for
those who obtained a non-complying sentence alteration in reliance on
Matter of Cota-Vargas and now face obstacles to obtaining a complying
order, the Department has identified an administrable way to inquire
into reliance for this category of cases without requiring adjudicators
to wade into complicated State law issues. Specifically, the rule
requires noncitizens claiming reliance to demonstrate that the
noncitizen reasonably and detrimentally relied on the availability of a
sentence alteration in connection with a guilty plea, conviction, or
sentence on or before October 25, 2019. 8 CFR 1003.55(a)(1)(B).
Immigration judges are well positioned to evaluate the credibility of
the noncitizen's claims and the factual questions of reasonable and
detrimental reliance. Given the availability of this approach, the
Retail Union factors weigh differently: Matter of Thomas & Thompson
will not apply retroactively where there is actual reliance (thus
vindicating reliance and fairness interests) but will apply when such
reliance is absent (thus vindicating the interest in applying what
Matter of Thomas & Thompson has determined the law should provide).\15\
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\15\ The Department has considered how this requirement
interacts with the burdens set forth in section 240(c)(2), (3)(A),
and (4)(A) of the INA, 8 U.S.C. 1229a(c)(2), (3)(A), and (4)(A).
Where the noncitizen is charged as inadmissible, they bear the
burden to establish that they are not, INA 240(c)(2), 8 U.S.C.
1229a(c)(2), and where a noncitizen seeks relief or protection from
removal, they bear the burden of proof to establish that they are
eligible and, where the form of relief is discretionary, that they
merit a favorable exercise of discretion, INA 240(c)(4)(A), 8 U.S.C.
1229a(c)(4)(A). In those circumstances, it will always be the
noncitizen's burden to prove that they have not been convicted of
the crime specified in the charge, and requiring that they establish
actual reliance to benefit from the pre-Matter of Thomas & Thompson
law is consistent with that burden.
Where a noncitizen is charged as removable, ICE bears the burden
of establishing by clear and convincing evidence that the noncitizen
is removable as charged. INA 240(c)(3)(A), 8 U.S.C. 1229a(c)(3)(A).
Courts have generally concluded that in such circumstances the
burden is on the Government to establish that a vacated conviction
remains valid for removability purposes. See, e.g., Barakat v.
Holder, 621 F.3d 398, 403-05 (6th Cir. 2010) (where a noncitizen is
charged as removable, ``the government bears the burden of proving
that a vacated conviction remains valid for immigration purposes''
(quoting Pickering, 465 F.3d at 269 n.4)). But Matter of Thomas &
Thompson did not answer this question for sentence modifications.
See 27 I&N Dec. at 689-90 (declining to specifically address the
burden for establishing the reason for a sentence modification). Nor
need the Department address here the general question that Matter of
Thomas & Thompson reserved. This rule instead addresses only a
narrow situation when (1) ICE establishes that a noncitizen has been
convicted; (2) the sentence ordered has been modified after Matter
of Thomas & Thompson; and (3) the immigration judge determines that
this modification was not based on a substantive or procedural
defect (regardless of who bears the burden of proof on that issue).
In that situation, the noncitizen's original sentence remains valid
for immigration purposes under Matter of Thomas & Thompson's
statement of current law, and the noncitizen is arguing, based on
principles of retroactivity, that the sentence should nonetheless be
assessed under the pre-Matter of Thomas & Thompson scheme. Placing
the burden on the noncitizen in that narrow situation does not
conflict with the statutory burden of proof. And doing so is
reasonable, because the noncitizen is the party likely to have
information relevant to the question at issue.
---------------------------------------------------------------------------
In advocating for a rule categorically declining to apply Matter of
Thomas & Thompson to any noncitizen who was charged, convicted,
sentenced, or otherwise engaged in sentencing advocacy before that
decision, commenters invoked the Seventh Circuit's statement that ``the
critical question is not whether a party actually relied on the old
law, but whether such reliance would have been reasonable.'' Zaragoza,
52 F.4th at 1023 (quoting Velasquez-Garcia v. Holder, 760 F.3d 571, 582
(7th Cir. 2014) (in turn citing Vartelas, 566 U.S. at 273-77)). The
Department agrees with these commenters that actual reliance is not
essential and that ``the likelihood of reliance on prior law
strengthens the case for reading a new[ ] [rule] prospectively.'' Id.
But the Department disagrees that actual reliance is irrelevant or that
the Supreme Court's retroactivity case law requires the Department to
adopt a rule that does not consider actual reliance. The statement on
which these commenters rely derives from the Supreme Court's holding
that, as applied to statutes, the presumption against retroactivity
does not require ``actual reliance.'' Vartelas, 566 U.S. at 273. But
that issue differs from the one the Department now addresses, for the
reason explained previously: When the Department decides whether to
apply a rule adopted in adjudication retroactively, it can engage in
individualized consideration of reliance in a manner that courts
generally do not do when weighing the retroactivity of statutes. When
the Department does so, actual reliance is relevant to striking the
``balance'' Chenery directs. Chenery, 332 U.S. at 203. And here, the
Department has determined that it can more easily assess actual
reliance as to the relevant category of individuals. As a result, the
Department believes that considering actual reliance for this category
of noncitizens as part of the Retail Union analysis reflects an
appropriate balance among equity, administrability, and application of
the rule announced in Matter of Thomas & Thompson.
2. Procedural or Substantive Defects
The Department also sought comment on whether it should clarify how
Matter of Thomas & Thompson and Matter of Pickering apply to particular
types of
[[Page 46784]]
orders. See Matter of Sotelo, 2019 WL 8197756, at *2 (BIA Dec. 23,
2019) (giving effect to a vacatur order issued under Cal. Penal Code
Sec. 1473.7); Khatkarh v. Becerra, 442 F. Supp. 3d 1277, 1285-86 (E.D.
Cal. 2020) (discussing Board decision denying effect to a vacatur order
issued under Cal. Penal Code Sec. 1473.7); Talamantes-Enriquez v. U.S.
Att'y Gen., 12 F.4th 1340, 1354-55 (11th Cir. 2021) (denying effect to
a clarification order where the original sentence was not ambiguous,
but distinguishing a ``sentence order [that] was ambiguous and needed
clarification''). Having considered those comments, the Department has
concluded that it should answer one question through this rule: whether
to recognize State court alteration or other orders that correct
genuine ambiguities, mistakes, and typographical errors on the face of
the original order. In paragraph (b) of 8 CFR 1003.55, the Department
provides guidance on that question.
Specifically, the rule clarifies that adjudicators shall give
effect to an order that corrects a genuine ambiguity, mistake, or
typographical error on the face of the original conviction or
sentencing order and that was entered to give effect to the intent of
the original order. 8 CFR 1003.55(b). Consistent with Matter of
Pickering and Matter of Thomas & Thompson, the focus of the
``procedural or substantive defect'' inquiry is whether the subsequent
order addresses a defect in the underlying proceedings or order. Where
there is a genuine ambiguity, mistake, or typographical error on the
face of the original order that a subsequent order merely corrects, the
adjudicator must give effect to such corrective order. For example, if
the original conviction document lists ``30 years'' as the sentence
imposed for a first-time non-violent petty theft conviction, but a
subsequent order corrects the sentence to ``30 days,'' as reflected in
other documents in the conviction record, the subsequent order would
merely have corrected a mistake or typographical error in the original
order, and an adjudicator would be required to give effect to the
subsequent order.
This approach is consistent with the approach of Matter of Thomas &
Thompson and the Department's statement that ``[r]econsideration of the
approach of Matter of Thomas & Thompson . . . is beyond the scope of
this rulemaking.'' 88 FR at 62273. Matter of Thomas & Thompson
``overruled'' Matter of Estrada, 26 I&N Dec. 749 (BIA 2016)--a case in
which the Board had given effect to a State court order correcting a
sentence the Board deemed ambiguous--and stated that ``[t]he test[ ]
described in th[at] case[ ] will no longer govern.'' 27 I&N Dec. at
690. The Department understands Matter of Thomas & Thompson to have
disapproved of Matter of Estrada's use of a ``highly general
multifactor test[ ],'' id. at 685, based on concerns that this test
would give effect to State court orders that did not correct a genuine
ambiguity, mistake, or typographical error in a noncitizen's ``original
sentence'' and instead sought to ``avoid immigration consequences,''
id. But these concerns are absent when the original order contains a
genuine ambiguity, mistake, or typographical error and the State court
corrects these issues in order to give effect to the original order's
intent. The Department does not understand Matter of Thomas & Thompson
to preclude giving effect to such orders. To the contrary, doing so is
fully consistent with the approach of Matter of Thomas & Thompson and
with the INA: That order simply identifies what the sentence always
should have been and is not ``based on reasons unrelated to the merits
of the underlying criminal proceeding, such as rehabilitation or
immigration hardship.'' Id. at 674. For example, to the extent that the
use of ``[s]tandard sentencing forms'' like those the Eleventh Circuit
considered in Talamantes-Enriquez v. U.S. Att'y Gen., 12 F.4th 1340,
1346 (11th Cir. 2021), yielded a genuine ambiguity, mistake, or
typographical error that a subsequent order then corrected so as to
accurately reflect the intent of the original order, adjudicators
should give effect to those orders.
V. Regulatory Requirements
A. Administrative Procedure Act
This final rule is consistent with the notice-and-comment
rulemaking requirements described at 5 U.S.C. 553(b) and (c). Further,
this final rule is being published with a 60-day effective date,
meeting the general requirements of 5 U.S.C. 553(d).
B. Regulatory Flexibility Act
The Department has reviewed this rule in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)) and the Attorney General
certifies 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).
Primarily, this rule reverses the amendments made by the AA96 Final
Rule and restores and expands on previously existing authorities
exercised by EOIR adjudicators and processes governing appeals filed
with the Board. Accordingly, this rule regulates the conduct of
immigration proceedings before EOIR and therefore may have a direct
impact on noncitizens in such proceedings. The rule may indirectly
affect resources or business operations for legal providers
representing noncitizens in proceedings before EOIR, but the rule
imposes no mandates or requirements on such entities; therefore, the
rule will not have a significant economic impact on a substantial
number of small entities.
Moreover, the AA96 Final Rule was enjoined soon after becoming
effective, and the pre-AA96 Final Rule status quo has been in effect
since the injunction. As a result, it is unlikely that small entities,
including legal service providers, have changed their practices since
the AA96 Final Rule was enjoined, thus further minimizing this rule's
economic impact on small entities. Given that this rule generally
adopts the pre-AA96 Final Rule status quo--the framework that is
currently in place--with only a few alterations, the changes in this
rule are unlikely to have a significant economic impact on any small
entities, as it is unlikely to require any significant change in
operations to accommodate the changes herein.
C. 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. See 2 U.S.C. 1532(a).
D. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 14094 (Modernizing Regulatory Review)
The Department certifies that this rule has been drafted in
accordance with the principles of Executive Order 12866, Executive
Order 13563, and Executive Order 14094. Those Executive Orders 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
[[Page 46785]]
emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. Further,
the Office of Information and Regulatory Affairs of OMB reviewed this
rule as a significant regulatory action under Executive Order 12866, as
amended.
Overall, the Department expects that this rule will provide
significant benefits to adjudicators, the parties, and the broader
public that outweigh the potential costs.
This rule's expected benefits include providing clear guidance to
adjudicators and regulated parties while maintaining adjudicator
discretion and eliminating inefficiencies that likely would have
resulted from the AA96 Final Rule.
For example, this rule's provisions for the exercise of
administrative closure, termination, and dismissal authority strike a
balance between providing sufficient guidance for adjudicators and
regulated parties while, at the same time, preserving flexibility that
will promote fairer, more efficient, and more uniform case processing
and adjudication. Likewise, by eliminating projected inefficiencies
that could have resulted from implementation of the AA96 standards,
this rule codifies additional flexibility for adjudicators, which could
provide significant benefits to noncitizens in certain cases with
exceptional circumstances, as discussed in the NPRM. 88 FR at 62266.
Further, reinstating Board remand authority will also codify
similar flexibility for adjudicators and is expected to have efficiency
benefits as noted in the NPRM. 88 FR at 62268-70. The Department
believes that the costs of these provisions mainly relate to any
necessary familiarization with the rule, but such costs should be de
minimis, given that the AA96 Final Rule has never been implemented and
this rule is codifying the operative status quo. Further, this rule is
largely codifying either prior longstanding regulatory provisions (sua
sponte authority, Board remand authority) or longstanding case law
(administrative closure). And, by codifying the operative status quo,
this rule will help ensure that parties are relying on, and citing to,
active regulatory provisions, rather than potentially relying on
currently-enjoined language. On balance, overall, the Department
believes that the fairness and efficiency benefits gained by the
changes in this rule outweigh the potential de minimis costs.
Similarly, many of the other changes, including to briefing
schedules, background check procedures, Board adjudication timelines,
quality assurance certification, forwarding of the record on appeal,
and the EOIR Director's case adjudication authority are largely
internal case-processing measures with no measurable costs to the
public. Moreover, many of these provisions are being reverted in large
part to longstanding pre-AA96 Final Rule regulatory language, with
which adjudicators and the parties should already be familiar.
Additionally, to the extent provisions of the AA96 Final Rule have been
retained, such as the background check procedures allowing a case to be
held at the Board pending a background check, rather than to be
remanded to the immigration court, the Department believes that such
provisions will provide efficiencies to the immigration system, which
will in turn benefit adjudicators and the parties. The Department
believes that more efficient case processing and adjudication will
benefit the public as well by reducing strain on limited resources.
In sum, any changes made by the rule would not impact the public in
a way that would render the rule in conflict with the principles of
Executive Orders 12866, 13563, and 14094.
E. Executive Order 13132--Federalism
This rule would not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this 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 include new or revisions to existing
``collection[s] of information'' as that term is defined under the
Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163, 44
U.S.C. chapter 35), and its implementing regulations, 5 CFR part 1320.
H. Congressional Review Act
This rule does not meet the criteria in 5 U.S.C. 804(2).
I. National Environmental Policy Act
The National Environmental Policy Act (``NEPA''), codified as
amended at 42 U.S.C. 4321-4347, requires all Federal agencies to assess
the environmental impact of their actions. Congress enacted NEPA in
order to encourage productive and enjoyable harmony between humans and
the environment, recognizing the profound impact of human activity and
the critical importance of restoring and maintaining environmental
quality to the overall welfare of humankind. 42 U.S.C. 4321, 4331.
NEPA's twin aims are to ensure agencies consider the environmental
effects of their proposed actions in their decision-making processes
and inform and involve the public in that process. Id. 4331. NEPA
created the Council on Environmental Quality (``CEQ''), which
promulgated NEPA implementing regulations, 40 CFR parts 1500 through
1508 (``CEQ regulations'').
To comply with NEPA, agencies determine the appropriate level of
review of the environmental effect of their proposed actions--an
environmental impact statement (``EIS''), environmental assessment
(``EA''), or use of a categorical exclusion (``CE''). 42 U.S.C. 4336.
If a proposed action is likely to have significant environmental
effects, the agency must prepare an EIS and document its decision in a
record of decision. Id. 4336(b)(1). If the proposed action is not
likely to have significant environmental effects or the effects are
unknown, the agency may instead prepare an EA, which involves a more
concise analysis and process than an EIS. Id. 4336(b)(2). Following the
EA, the agency may conclude the process with a finding of no
significant impact if the analysis shows that the action will have no
significant effects. Id. If the analysis in the EA finds that the
action is likely to have significant effects, however, then an EIS is
required.
Alternatively, under NEPA and the CEQ regulations, a Federal agency
also can establish CEs--categories of actions that the agency has
determined normally do not significantly affect the quality of the
human environment--in their agency NEPA procedures. Id. 4336e(1); 40
CFR 1501.4, 1507.3(e)(2)(ii), 1508.1(d). If an agency determines that a
CE covers a proposed action, it then evaluates the proposed action for
extraordinary circumstances in which a normally excluded action may
have a significant effect. 40 CFR 1501.4(b). If no extraordinary
circumstances are present or if further analysis determines that the
extraordinary circumstances do not involve the potential for
significant environmental impacts, the agency may apply the CE to the
proposed action
[[Page 46786]]
without preparing an EA or EIS. 42 U.S.C. 4336(a)(2), 40 CFR 1501.4. If
the extraordinary circumstances have the potential to result in
significant effects, the agency is required to prepare an EA or EIS. 40
CFR 1501.4(b)(2).
Section 109 of NEPA, enacted as part of the Fiscal Responsibility
Act of 2023, allows a Federal agency to ``adopt'' another agency's CEs
for a category of proposed agency actions. 42 U.S.C. 4336c. To use
another agency's CEs under section 109, an agency must identify the
relevant CEs listed in another agency's (``establishing agency'') NEPA
procedures that cover its category of proposed actions or related
actions; consult with the establishing agency to ensure that the
proposed adoption of the CE to a category of actions is appropriate;
identify to the public the CE that the agency plans to use for its
proposed actions; and document adoption of the CE. Id.
This notification documents the Department's adoption under section
109 of NEPA of DHS's CE A3 for rulemakings under section 109 of NEPA to
apply to this rulemaking action. DHS established a CE in the DHS NEPA
Instruction Manual that covers regulatory actions as follows:
A3 Promulgation of rules, issuance of rulings or interpretations,
and the development and publication of policies, orders, directives,
notices, procedures, manuals, advisory circulars, and other guidance
documents of the following nature:
(a) Those of a strictly administrative or procedural nature;
(b) Those that implement, without substantive change, statutory or
regulatory requirements;
(c) Those that implement, without substantive change, procedures,
manuals, and other guidance documents;
(d) Those that interpret or amend an existing regulation without
changing its environmental effect;
(e) Technical guidance on safety and security matters; or
(f) Guidance for the preparation of security plans.\16\
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\16\ See NEPA Instruction Manual 023-01-001-01 Rev. 01, Appendix
A (``Table 1--DHS List of Categorical Exclusions'') A-1--A-2 (Nov.
6, 2014) (``DHS NEPA Instruction Manual''), https://www.dhs.gov/sites/default/files/publications/DHS_Instruction%20Manual%20023-01-001-01%20Rev%2001_508%20Admin%20Rev.pdf.
---------------------------------------------------------------------------
The Department and DHS consulted on the appropriateness of the
Department's adoption of the CE for application to this rulemaking. The
Department and DHS's consultation included a review of DHS's experience
developing and applying this CE. The Department also took into account
that it has worked on joint rulemakings with DHS on immigration issues
and has relied on DHS's CE in the past. See, e.g., Implementation of
the 2022 Additional Protocol to the 2002 U.S.-Canada Agreement for
Cooperation in the Examination of Refugee Status Claims From Nationals
of Third Countries, 88 FR 18227, 18238-39 (Mar. 28, 2023) (joint DOJ-
DHS rulemaking relying upon DHS's CE); 87 FR at 18193 (same).
After review, the Department determined that this rule is very
similar to the type of DHS rulemaking actions that qualify for this CE
and, therefore, the impacts of this rule will be very similar to the
impacts of DHS rulemakings for which this CE applies. The Department
similarly found that this rule clearly fits into the categories
described in the DHS CE--specifically paragraphs (a) and (d)--and is
not part of a larger action. See DHS NEPA Instruction Manual at sec.
V.B.2 (steps for determining applicability of DHS categorical
exclusion).
Substantively, this rule largely codifies longstanding practices
already in place before the issuance of the AA96 Final Rule and mainly
represents the currently operative status quo due to the injunction of
the AA96 Final Rule shortly after its effective date. Primarily, the
rule affects adjudicatory docket management tools of an administrative
and procedural nature, including administrative closure, termination,
and dismissal of proceedings, as well as various Board processes for
adjudicating appeals. The provisions regarding Matter of Thomas &
Thompson are similarly strictly procedural as they merely instruct
adjudicators which law to apply to avoid retroactivity concerns without
changing any legal requirements. As such, the rule is covered by DHS's
CE as administrative and procedural in nature, as well as largely
serving only to amend existing regulations without changing their
environmental effect.
Additionally, the Department examined whether there were any
extraordinary circumstances in which a normally excluded action could
have a significant effect requiring preparation of an EA or EIS. The
DHS NEPA Instruction Manual lists relevant extraordinary circumstances,
including, for example, ``potentially significant effect[s] on public
health or safety.'' See DHS NEPA Instruction Manual at sec. V.B.2.c.i.
After review of DHS's extraordinary circumstances, the Department has
determined that no extraordinary circumstances are present that would
prevent the use of DHS's CE for this rule. As explained previously,
this rule focuses on immigration court procedural tools and Board
processes, many of which are merely codifying the operative status quo.
As a result, the processes being regulated in this rule do not result
in any of the listed extraordinary circumstances.
Therefore, the Department applies DHS CE A3 to this final rule to
comply with NEPA.
J. Severability
To the extent that any portion of this rule is stayed, enjoined,
not implemented, or otherwise held invalid by a court, the Department
intends for all other parts of the rule that are capable of operating
in the absence of the specific portion that has been invalidated to
remain in effect. For example, administrative closure and termination
are two separate procedural tools that operate independently of each
other. If one of these tools was enjoined, for instance, the other tool
is fully capable of separate operation. Likewise, the rule's Board-
related procedural changes--such as to briefing schedules, background
checks, sua sponte reopening and reconsideration, and adjudication
timelines, among others--are distinct from the rule's codification of
standards for administrative closure and termination; therefore, the
Board-related provisions would not be affected if those procedural
tools were enjoined or otherwise invalidated. Similarly, the rule's
clarification of the applicability of Matter of Thomas & Thompson may
also operate independently of the remaining provisions of the rule and
would be unaffected if any other portion of the rule were enjoined or
invalidated.
List of Subjects
8 CFR Part 1001 and 1003
Administrative practice and procedure, Immigration.
8 CFR Part 1239
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 1240
Administrative practice and procedure, Aliens.
Accordingly, for the reasons set forth in the preamble, the
Department amends 8 CFR parts 1001, 1003, 1239, and 1240 as follows:
PART 1001--DEFINITIONS
0
1. The authority citation for part 1001 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107-296,
116 Stat. 2135; Title VII of Pub. L. 110-229.
[[Page 46787]]
0
2. Amend Sec. 1001.1 by adding paragraphs (gg) and (hh) to read as
follows:
Sec. 1001.1 Definitions.
* * * * *
(gg) The term noncitizen means ``alien,'' as defined in section
101(a)(3) of the Act.
(hh) The term unaccompanied child means ``unaccompanied alien
child,'' as defined in 6 U.S.C. 279(g)(2).
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
3. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
0
4. Amend Sec. 1003.0 by revising paragraph (b)(2)(ii) to read as
follows:
Sec. 1003.0 Executive Office for Immigration Review.
* * * * *
(b) * * *
(2) * * *
(ii) The Director may not delegate the authority assigned to the
Director in Sec. 1292.18 of this chapter and may not delegate any
other authority to adjudicate cases arising under the Act or
regulations of this chapter unless expressly authorized to do so.
* * * * *
0
5. Amend Sec. 1003.1 by:
0
a. Revising paragraphs (a)(2)(i)(E), (c), (d)(1) introductory text,
(d)(1)(ii), (d)(3)(iii) and (iv);
0
b. Removing paragraph (d)(3)(v);
0
c. Revising paragraphs (d)(6)(ii) and (iii), (d)(6)(v), (d)(7), (e)
introductory text, (e)(1) through (3), (e)(4)(i) introductory text,
(e)(4)(ii), (e)(7), (e)(8) introductory text, (e)(8)(i) through (iii),
and (v), and (f);
0
d. Removing and reserving paragraph (k); and
0
e. Adding paragraphs (l) and (m).
The revisions and additions read as follows:
Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.
(a) * * *
(2) * * *
(i) * * *
(E) Adjudicate cases as a Board member, including the authorities
described in paragraph (d)(1)(ii) of this section; and
* * * * *
(c) Jurisdiction by certification. The Secretary, or any other duly
authorized officer of DHS, an immigration judge, or the Board may in
any case arising under paragraph (b) of this section certify such case
to the Board for adjudication. The Board, in its discretion, may review
any such case by certification without regard to the provisions of
Sec. 1003.7 if it determines that the parties have already been given
a fair opportunity to make representations before the Board regarding
the case, including the opportunity to request oral argument and to
submit a brief.
(d) * * *
(1) Generally. The Board shall function as an appellate body
charged with the review of those administrative adjudications under the
Act that the Attorney General may by regulation assign to it. The Board
shall resolve the questions before it in a manner that is timely,
impartial, and consistent with the Act and regulations. In addition,
the Board, through precedent decisions, shall provide clear and uniform
guidance to DHS, the immigration judges, and the general public on the
proper interpretation and administration of the Act and its
implementing regulations.
* * * * *
(ii) Subject to the governing standards set forth in paragraph
(d)(1)(i) of this section, Board members shall exercise their
independent judgment and discretion in considering and determining the
cases coming before the Board, and a panel or Board member to whom a
case is assigned may take any action consistent with their authorities
under the Act and the regulations as necessary or appropriate for the
disposition or alternative resolution of the case. Such actions include
administrative closure, termination of proceedings, and dismissal of
proceedings. The standards for the administrative closure, dismissal,
and termination of cases are set forth in paragraph (l) of this
section, 8 CFR 1239.2(c), and paragraph (m) of this section,
respectively.
* * * * *
(3) * * *
(iii) The Board may review de novo all questions arising in appeals
from decisions issued by DHS officers.
(iv) Except for taking administrative notice of commonly known
facts such as current events or the contents of official documents, the
Board will not engage in factfinding in the course of deciding cases. A
party asserting that the Board cannot properly resolve an appeal
without further factfinding must file a motion for remand. If new
evidence is submitted on appeal, that submission may be deemed a motion
to remand and considered accordingly. If further factfinding is needed
in a particular case, the Board may remand the proceeding to the
immigration judge or, as appropriate, to DHS.
* * * * *
(6) * * *
(ii) Except as provided in paragraph (d)(6)(iv) of this section, if
identity, law enforcement, or security investigations or examinations
are necessary in order to adjudicate the appeal or motion, the Board
will provide notice to both parties that the case is being placed on
hold until such time as all identity, law enforcement, or security
investigations or examinations are completed or updated and the results
have been reported to the Board. The Board's notice will notify the
noncitizen that DHS will contact the noncitizen with instructions,
consistent with Sec. 1003.47(d), to take any additional steps
necessary to complete or update the identity, law enforcement, or
security investigations or examinations only if DHS is unable to
independently update the necessary identity, law enforcement, or
security investigations or examinations. The Board's notice will also
advise the noncitizen of the consequences for failing to comply with
the requirements of this section. DHS is responsible for obtaining
biometrics and other biographical information to complete or update the
identity, law enforcement, or security investigations or examinations
with respect to any noncitizen in detention.
(iii) In any case placed on hold under paragraph (d)(6)(ii) of this
section, DHS shall report to the Board promptly when the identity, law
enforcement, or security investigations or examinations have been
completed or updated. If DHS obtains relevant information as a result
of the identity, law enforcement, or security investigations or
examinations, or if the noncitizen fails to comply with the necessary
procedures for collecting biometrics or other biographical information
after receiving instructions from DHS under paragraph (d)(6)(ii) of
this section, DHS may move the Board to remand the record to the
immigration judge for consideration of whether, in view of the new
information, or the noncitizen's failure to comply with the necessary
procedures for collecting biometrics or other biographical information
after receiving instructions from DHS under paragraph (d)(6)(ii) of
this section, immigration relief or
[[Page 46788]]
protection should be denied, either on grounds of ineligibility as a
matter of law or as a matter of discretion. If DHS fails to report the
results of timely completed or updated identity, law enforcement or
security investigations or examinations within 180 days from the date
of the Board's notice under paragraph (d)(6)(ii) of this section, the
Board may continue to hold the case under paragraph (d)(6)(ii) of this
section, as needed, or remand the case to the immigration judge for
further proceedings under Sec. 1003.47(h).
* * * * *
(v) The immigration relief or protection described in Sec.
1003.47(b) and granted by the Board shall take effect as provided in
Sec. 1003.47(i).
(7) Finality of decision. (i) The decision of the Board shall be
final except in those cases reviewed by the Attorney General in
accordance with paragraph (h) of this section. The Board may return a
case to DHS or an immigration judge for such further action as may be
appropriate without entering a final decision on the merits of the
case.
(ii) In cases involving voluntary departure, the Board may issue an
order of voluntary departure under section 240B of the Act, with an
alternate order of removal, if the noncitizen requested voluntary
departure before an immigration judge, the noncitizen's notice of
appeal specified that the noncitizen is appealing the immigration
judge's denial of voluntary departure and identified the specific
factual and legal findings that the noncitizen is challenging, and the
Board finds that the noncitizen is otherwise eligible for voluntary
departure, as provided in 8 CFR 1240.26(k). In order to grant voluntary
departure, the Board must find that all applicable statutory and
regulatory criteria have been met, based on the record and within the
scope of its review authority on appeal, and that the noncitizen merits
voluntary departure as a matter of discretion. If the record does not
contain sufficient factual findings regarding eligibility for voluntary
departure, the Board may remand the decision to the immigration judge
for further factfinding.
(e) Case management system. The Chairman shall establish a case
management system to screen all cases and to manage the Board's
caseload. Unless a case meets the standards for assignment to a three-
member panel under paragraph (e)(6) of this section, all cases shall be
assigned to a single Board member for disposition. The Chairman, under
the supervision of the Director, shall be responsible for the success
of the case management system. The Chairman shall designate, from time
to time, a screening panel comprising a sufficient number of Board
members who are authorized, acting alone, to adjudicate appeals as
provided in this paragraph (e). The provisions of this paragraph (e)
shall apply to all cases before the Board, regardless of whether they
were initiated by filing a Notice of Appeal, filing a motion, or
receipt of a remand from Federal court or the Attorney General.
(1) Initial screening. All cases shall be referred to the screening
panel for review. Appeals subject to summary dismissal as provided in
paragraph (d)(2) of this section should be promptly dismissed.
(2) Miscellaneous dispositions. A single Board member may grant an
unopposed motion or a motion to withdraw an appeal pending before the
Board. In addition, a single Board member may adjudicate a DHS motion
to remand any appeal from the decision of a DHS officer where DHS
requests that the matter be remanded to DHS for further consideration
of the appellant's arguments or evidence raised on appeal; a case where
remand is required because of a defective or missing transcript; and
other procedural or ministerial issues as provided by the case
management plan.
(3) Merits review. In any case that has not been summarily
dismissed, the case management system shall arrange for the prompt
completion of the record of proceeding and transcript, and the issuance
of a briefing schedule, as appropriate. A single Board member assigned
under the case management system shall determine the appeal on the
merits as provided in paragraph (e)(4) or (5) of this section, unless
the Board member determines that the case is appropriate for review and
decision by a three-member panel under the standards of paragraph
(e)(6) of this section. The Board member may summarily dismiss an
appeal after completion of the record of proceeding.
(4) * * *
(i) The Board member to whom a case is assigned shall affirm the
decision of the DHS officer or the immigration judge without opinion if
the Board member determines that the result reached in the decision
under review was correct; that any errors in the decision under review
were harmless or nonmaterial; and that
* * * * *
(ii) If the Board member determines that the decision should be
affirmed without opinion, the Board shall issue an order that reads as
follows: ``The Board affirms, without opinion, the result of the
decision below. The decision below is, therefore, the final agency
determination. See 8 CFR 1003.1(e)(4).'' An order affirming without
opinion issued under authority of this provision shall not include
further explanation or reasoning. Such an order approves the result
reached in the decision below; it does not necessarily imply approval
of all of the reasoning of that decision but does signify the Board's
conclusion that any errors in the decision of the immigration judge or
DHS were harmless or nonmaterial.
* * * * *
(7) Oral argument. When an appeal has been taken, a request for
oral argument if desired shall be included in the Notice of Appeal. A
three-member panel or the Board en banc may hear oral argument, as a
matter of discretion, at such date and time as is established under the
Board's case management plan. Oral argument shall be held at the
offices of the Board unless the Deputy Attorney General or the Deputy
Attorney General's designee authorizes oral argument to be held
elsewhere. DHS may be represented before the Board by an officer or
counsel of DHS designated by DHS. No oral argument will be allowed in a
case that is assigned for disposition by a single Board member.
(8) Timeliness. As provided under the case management system, the
Board shall promptly enter orders of summary dismissal, or other
miscellaneous dispositions, in appropriate cases consistent with
paragraph (e)(1) of this section. In all other cases, after completion
of the record on appeal, including any briefs, motions, or other
submissions on appeal, the Board member or panel to which the case is
assigned shall issue a decision on the merits as soon as practicable,
with a priority for cases or custody appeals involving detained
noncitizens.
(i) Except in exigent circumstances as determined by the Chairman,
or as provided in paragraph (d)(6) of this section, the Board shall
dispose of all cases assigned to a single Board member within 90 days
of completion of the record, or within 180 days after a case is
assigned to a three-member panel (including any additional opinion by a
member of the panel).
(ii) In exigent circumstances, the Chairman may grant an extension
in particular cases of up to 60 days as a matter of discretion. Except
as provided in paragraph (e)(8)(iii) or (iv) of this section, in those
cases where the panel is unable to issue a decision within the
[[Page 46789]]
established time limits, as extended, the Chairman shall either self-
assign the case or assign the case to a Vice Chairman for final
decision within 14 days or shall refer the case to the Attorney General
for decision. If a dissenting or concurring panel member fails to
complete the member's opinion by the end of the extension period, the
decision of the majority will be issued without the separate opinion.
(iii) In rare circumstances, such as when an impending decision by
the United States Supreme Court or a United States Court of Appeals, or
impending Department regulatory amendments, or an impending en banc
Board decision may substantially determine the outcome of a case or
group of cases pending before the Board, the Chairman may hold the case
or cases until such decision is rendered, temporarily suspending the
time limits described in this paragraph (e)(8).
* * * * *
(v) The Chairman shall notify the Director of EOIR and the Attorney
General if a Board member consistently fails to meet the assigned
deadlines for the disposition of appeals, or otherwise fails to adhere
to the standards of the case management system. The Chairman shall also
prepare a report assessing the timeliness of the disposition of cases
by each Board member on an annual basis.
* * * * *
(f) Service of Board decisions. The decision of the Board shall be
in writing. The Board shall transmit a copy to DHS and serve a copy
upon the noncitizen or the noncitizen's representative, as provided in
8 CFR part 1292.
* * * * *
(l) Administrative closure and recalendaring. Administrative
closure is the temporary suspension of a case. Administrative closure
removes a case from the Board's docket until the case is recalendared.
Recalendaring places a case back on the Board's docket.
(1) Administrative closure before the Board. Board Members may, in
the exercise of discretion, administratively close a case upon the
motion of a party, after applying the standard set forth at paragraph
(l)(3) of this section. The administrative closure authority described
in this section is not limited by the authority provided in any other
provisions in this title that separately authorize or require
administrative closure in certain circumstances, including 8 CFR
214.15(l), 245.15(p)(4), 1214.2(a), 1214.3, 1240.62(b), 1240.70(f)
through (h), 1245.13, 1245.15(p)(4)(i), and 1245.21(c).
(2) Recalendaring before the Board. At any time after a case has
been administratively closed under paragraph (l)(1) of this section,
the Board may, in the exercise of discretion, recalendar the case
pursuant to a party's motion to recalendar. In deciding whether to
grant such a motion, the Board shall apply the standard set forth at
paragraph (l)(3) of this section.
(3) Standard for administrative closure and recalendaring. The
Board shall grant a motion to administratively close or recalendar
filed jointly by both parties, or filed by one party where the other
party has affirmatively indicated its non-opposition, unless the Board
articulates unusual, clearly identified, and supported reasons for
denying the motion. In all other cases, in deciding whether to
administratively close or to recalendar a case, the Board shall
consider the totality of the circumstances, including as many of the
factors listed under paragraphs (l)(3)(i) and (ii) of this section as
are relevant to the particular case. The Board may also consider other
factors where appropriate. No single factor is dispositive. The Board,
having considered the totality of the circumstances, may grant a motion
to administratively close or to recalendar a particular case over the
objection of a party. Although administrative closure may be
appropriate where a petition, application, or other action is pending
outside of proceedings before the Board, such a pending petition,
application, or other action is not required for a case to be
administratively closed.
(i) As the circumstances of the case warrant, the factors relevant
to a decision to administratively close a case include:
(A) The reason administrative closure is sought;
(B) The basis for any opposition to administrative closure;
(C) Any requirement that a case be administratively closed in order
for a petition, application, or other action to be filed with, or
granted by, DHS;
(D) The likelihood the noncitizen will succeed on any petition,
application, or other action that the noncitizen is pursuing, or that
the noncitizen states in writing or on the record at a hearing that
they plan to pursue, outside of proceedings before the Board;
(E) The anticipated duration of the administrative closure;
(F) The responsibility of either party, if any, in contributing to
any current or anticipated delay;
(G) The ultimate anticipated outcome of the case pending before the
Board; and
(H) The ICE detention status of the noncitizen.
(ii) As the circumstances of the case warrant, the factors relevant
to a decision to recalendar a case include:
(A) The reason recalendaring is sought;
(B) The basis for any opposition to recalendaring;
(C) The length of time elapsed since the case was administratively
closed;
(D) If the case was administratively closed to allow the noncitizen
to file a petition, application, or other action outside of proceedings
before the Board, whether the noncitizen filed the petition,
application, or other action and, if so, the length of time that
elapsed between when the case was administratively closed and when the
noncitizen filed the petition, application, or other action;
(E) If a petition, application, or other action that was pending
outside of proceedings before the Board has been adjudicated, the
result of that adjudication;
(F) If a petition, application, or other action remains pending
outside of proceedings before the Board, the likelihood the noncitizen
will succeed on that petition, application, or other action;
(G) The ultimate anticipated outcome if the case is recalendared;
and
(H) The ICE detention status of the noncitizen.
(m) Termination. The Board shall have the authority to terminate
cases before it as set forth in paragraphs (m)(1) and (2) of this
section. A motion to dismiss a case in removal proceedings before the
Board for a reason other than authorized by 8 CFR 1239.2(c) shall be
deemed a motion to terminate under paragraph (m)(1) of this section.
(1) Removal, deportation, and exclusion proceedings--(i) Mandatory
termination. In removal, deportation, and exclusion proceedings, the
Board shall terminate the case where at least one of the requirements
in paragraphs (m)(1)(i)(A) through (G) of this section is met.
(A) No charge of deportability, inadmissibility, or excludability
can be sustained.
(B) Fundamentally fair proceedings are not possible because the
noncitizen is mentally incompetent and adequate safeguards are
unavailable.
(C) The noncitizen has, since the initiation of proceedings,
obtained United States citizenship.
(D) The noncitizen has, since the initiation of proceedings,
obtained at least one status listed in paragraphs (m)(1)(i)(D)(1)
through (4) of this section, provided that the status has not
[[Page 46790]]
been revoked or terminated, and the noncitizen would not have been
deportable, inadmissible, or excludable as charged if the noncitizen
had obtained such status before the initiation of proceedings.
(1) Lawful permanent resident status.
(2) Refugee status.
(3) Asylee status.
(4) Nonimmigrant status as defined in section 101(a)(15)(S), (T),
or (U) of the Act.
(E) Termination is required under 8 CFR 1245.13(l).
(F) Termination is otherwise required by law.
(G) The parties jointly filed a motion to terminate, or one party
filed a motion to terminate and the other party affirmatively indicated
its non-opposition, unless the Board articulates unusual, clearly
identified, and supported reasons for denying the motion.
(ii) Discretionary termination. In removal, deportation, or
exclusion proceedings, the Board may, in the exercise of discretion,
terminate the case upon the motion of a party where at least one of the
requirements listed in paragraphs (m)(1)(ii)(A) through (F) of this
section is met. The Board shall consider the reason termination is
sought and the basis for any opposition to termination when
adjudicating the motion to terminate.
(A) The noncitizen has filed an asylum application with USCIS
pursuant to section 208(b)(3)(C) of the Act pertaining to unaccompanied
children, as defined in 8 CFR 1001.1(hh).
(B) The noncitizen is prima facie eligible for naturalization,
relief from removal, or a lawful status; USCIS has jurisdiction to
adjudicate the associated petition, application, or other action if the
noncitizen were not in proceedings; and the noncitizen has filed the
petition, application, or other action with USCIS. However, no filing
is required where the noncitizen is prima facie eligible for adjustment
of status or naturalization. Where the basis of a noncitizen's motion
for termination is that the noncitizen is prima facie eligible for
naturalization, the Board shall not grant the motion if it is opposed
by DHS. The Board shall not terminate a case for the noncitizen to
pursue an asylum application before USCIS, except as provided for in
paragraph (m)(1)(ii)(A) of this section.
(C) The noncitizen is a beneficiary of Temporary Protected Status,
deferred action, or Deferred Enforced Departure.
(D) USCIS has granted the noncitizen's application for a
provisional unlawful presence waiver pursuant to 8 CFR 212.7(e).
(E) Termination is authorized by 8 CFR 1216.4(a)(6) or 1238.1(e).
(F) Due to circumstances comparable to those described in
paragraphs (m)(1)(ii)(A) through (E) of this section, termination is
similarly necessary or appropriate for the disposition or alternative
resolution of the case. However, the Board may not terminate a case for
purely humanitarian reasons, unless DHS expressly consents to such
termination, joins in a motion to terminate, or affirmatively indicates
its non-opposition to a noncitizen's motion.
(2) Other proceedings--(i) Mandatory termination. In proceedings
other than removal, deportation, or exclusion proceedings, the Board
shall terminate the case where the parties have jointly filed a motion
to terminate, or one party has filed a motion to terminate and the
other party has affirmatively indicated its non-opposition, unless the
Board articulates unusual, clearly identified, and supported reasons
for denying the motion. In addition, the Board shall terminate such a
case where required by law.
(ii) Discretionary termination. In proceedings other than removal,
deportation, or exclusion proceedings, the Board may, in the exercise
of discretion, terminate the case upon the motion of a party where
terminating the case is necessary or appropriate for the disposition or
alternative resolution of the case. However, the Board may not
terminate a case for purely humanitarian reasons, unless DHS expressly
consents to such termination, joins in a motion to terminate, or
affirmatively indicates its non-opposition to a noncitizen's motion.
(iii) Limitation on termination. Nothing in paragraphs (m)(2)(i)
and (ii) of this section authorizes the Board to terminate a case where
prohibited by another regulatory provision. Further, nothing in
paragraphs (m)(2)(i) and (ii) of this section authorizes the Board to
terminate a case for the noncitizen to pursue an asylum application
before USCIS, unless the noncitizen has filed an asylum application
with USCIS pursuant to section 208(b)(3)(C) of the Act pertaining to
unaccompanied children, as defined in 8 CFR 1001.1(hh).
0
6. Amend Sec. 1003.2 by:
0
a. As shown in the following table, removing the words in the left
column and adding in their place the words in the right column wherever
they appear:
an alien.................................. a noncitizen.
the alien................................. the noncitizen.
alien's................................... noncitizen's.
0
b. Revising paragraphs (a) and (b)(1);
0
c. Removing the words ``Immigration Judge'' and adding in their place
``immigration judge'' in paragraph (c)(2) wherever they appear;
0
d. Revising paragraphs (c)(3)(iii) and (iv);
0
e. Removing paragraphs (c)(3)(v) through (vii);
0
f. Adding paragraph (c)(4); and
0
g. Revising paragraphs (f), (g)(3), and (i).
The revisions and addition read as follows:
Sec. 1003.2 Reopening or reconsideration before the Board of
Immigration Appeals.
(a) General. The Board may at any time reopen or reconsider on its
own motion any case in which it has rendered a decision. A request by
DHS or by the party affected by the decision to reopen or reconsider a
case the Board has decided must be in the form of a written motion to
the Board. The decision to grant or deny a motion to reopen or
reconsider is within the discretion of the Board, subject to the
restrictions of this section. The Board has discretion to deny a motion
to reopen even if the moving party has made out a prima facie case for
relief.
(b) * * *
(1) A motion to reconsider shall state the reasons for the motion
by specifying the errors of fact or law in the prior Board decision and
shall be supported by pertinent authority. When a motion to reconsider
the decision of an immigration judge or of a DHS officer is pending at
the time an appeal is filed with the Board, or when such motion is
filed subsequent to the filing with the Board of an appeal from the
decision sought to be reconsidered, the motion may be deemed a motion
to remand the decision for further proceedings before the immigration
judge or the DHS officer from whose decision the appeal was taken. Such
motion may be consolidated with and considered by the Board in
connection with the appeal to the Board.
* * * * *
(c) * * *
(3) * * *
(iii) Agreed upon by all parties and jointly filed. Notwithstanding
such agreement, the parties may contest the issues in a reopened
proceeding; or
(iv) Filed by DHS in exclusion or deportation proceedings when the
basis of the motion is fraud in the original proceeding or a crime that
would support termination of asylum in accordance with 8 CFR 1208.24.
(4) A motion to reopen a decision rendered by an immigration judge
or
[[Page 46791]]
DHS officer that is pending when an appeal is filed, or that is filed
while an appeal is pending before the Board, may be deemed a motion to
remand for further proceedings before the immigration judge or the DHS
officer from whose decision the appeal was taken. Such motion may be
consolidated with, and considered by the Board in connection with, the
appeal to the Board.
* * * * *
(f) Stay of deportation. Except where a motion is filed pursuant to
the provisions of Sec. 1003.23(b)(4)(ii) and (b)(4)(iii)(A), the
filing of a motion to reopen or a motion to reconsider shall not stay
the execution of any decision made in the case. Execution of such
decision shall proceed unless a stay of execution is specifically
granted by the Board, the immigration judge, or an authorized DHS
officer.
(g) * * *
(3) Briefs and response. The moving party may file a brief if it is
included with the motion. If the motion is filed directly with the
Board pursuant to paragraph (g)(2)(i) of this section, the opposing
party shall have 21 days from the date of service of the motion to file
a brief in opposition to the motion directly with the Board. If the
motion is filed with a DHS office pursuant to paragraph (g)(2)(ii) of
this section, the opposing party shall have 21 days from the date of
filing of the motion to file a brief in opposition to the motion
directly with DHS. In all cases, briefs and any other filings made in
conjunction with a motion shall include proof of service on the
opposing party. The Board, in its discretion, may extend the time
within which such brief is to be submitted and may authorize the filing
of a brief directly with the Board. A motion shall be deemed unopposed
unless a timely response is made. The Board may, in its discretion,
consider a brief filed out of time.
* * * * *
(i) Ruling on motion. Rulings upon motions to reopen or motions to
reconsider shall be by written order. Any motion for reconsideration or
reopening of a decision issued by a single Board member will be
referred to the screening panel for disposition by a single Board
member, unless the screening panel member determines, in the exercise
of judgment, that the motion for reconsideration or reopening should be
assigned to a three-member panel under the standards of Sec.
1003.1(e)(6). If the order directs a reopening and further proceedings
are necessary, the record shall be returned to the immigration court or
the DHS officer having administrative control over the place where the
reopened proceedings are to be conducted. If the motion to reconsider
is granted, the decision upon such reconsideration shall affirm,
modify, or reverse the original decision made in the case.
0
7. Amend Sec. 1003.3 by revising paragraphs (c)(1) and (2) to read as
follows:
Sec. 1003.3 Notice of appeal.
* * * * *
(c) * * *
(1) Appeal from decision of an immigration judge. Briefs in support
of or in opposition to an appeal from a decision of an immigration
judge shall be filed directly with the Board. In those cases that are
transcribed, the briefing schedule shall be set by the Board after the
transcript is available. In cases involving noncitizens in custody, the
parties shall be provided 21 days in which to file simultaneous briefs
unless a shorter period is specified by the Board. Reply briefs shall
be permitted only by leave of the Board and only if filed within 21
days of the deadline for the initial briefs. In cases involving
noncitizens who are not in custody, the appellant shall be provided 21
days in which to file a brief, unless a shorter period is specified by
the Board. The appellee shall have the same period of time in which to
file a reply brief that was initially granted to the appellant to file
their brief. The time to file a reply brief commences from the date
upon which the appellant's brief was due, as originally set or extended
by the Board. The Board, upon written motion, may extend the period for
filing a brief or a reply brief for up to 90 days for good cause shown.
In its discretion, the Board may consider a brief that has been filed
out of time. In its discretion, the Board may request supplemental
briefing from the parties after the expiration of the briefing
deadline. All briefs, filings, and motions filed in conjunction with an
appeal shall include proof of service on the opposing party.
(2) Appeal from decision of a DHS officer. Briefs in support of or
in opposition to an appeal from a decision of a DHS officer shall be
filed directly with DHS in accordance with the instructions in the
decision of the DHS officer. The applicant or petitioner and DHS shall
be provided 21 days in which to file a brief, unless a shorter period
is specified by the DHS officer from whose decision the appeal is
taken, and reply briefs shall be permitted only by leave of the Board.
Upon written request of the noncitizen, the DHS officer from whose
decision the appeal is taken or the Board may extend the period for
filing a brief for good cause shown. The Board may authorize the filing
of briefs directly with the Board. In its discretion, the Board may
consider a brief that has been filed out of time. All briefs and other
documents filed in conjunction with an appeal, unless filed by a
noncitizen directly with a DHS office, shall include proof of service
on the opposing party.
* * * * *
0
8. 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. Where transcription of an oral decision is required, the
immigration judge shall review the transcript and approve the decision
within 14 days of receipt, or within 7 days after the immigration judge
returns to their duty station if the immigration judge was on leave or
detailed to another location. The Chairman and the Chief Immigration
Judge shall determine the most effective and expeditious way to
transcribe proceedings before the immigration judges, and shall take
such steps as necessary to reduce the time required to produce
transcripts of those proceedings and to ensure their quality.
(b) Appeal from decision of a DHS officer. If an appeal is taken
from a decision of a DHS officer, the record of proceeding shall be
forwarded to the Board by the DHS officer promptly upon receipt of the
briefs of the parties, or upon expiration of the time allowed for the
submission of such briefs. A DHS officer need not forward such an
appeal to the Board, but may reopen and reconsider any decision made by
the officer if the new decision will grant the benefit that has been
requested in the appeal. The new decision must be served on the
appealing party within 45 days of receipt of any briefs or upon
expiration of the time allowed for the submission of any briefs. If the
new decision is not served within these time limits or the appealing
party does not agree that the new decision disposes of the matter, the
record of proceeding shall be immediately forwarded to the Board.
Sec. 1003.7 [Amended]
0
9. Amend Sec. 1003.7 by:
0
a. Removing the words ``Immigration Judge'' and adding in their place
the words ``immigration judge'' wherever they appear;
[[Page 46792]]
0
b. Removing the word ``alien'' and adding in its place the word
``noncitizen''; and
0
c. Removing the word ``Service'' and the words ``the Service'' and
adding in their place the word ``DHS'' wherever they appear.
0
10. Amend Sec. 1003.9 by revising paragraph (b)(5) to read as follows:
Sec. 1003.9 Office of the Chief Immigration Judge.
* * * * *
(b) * * *
(5) Adjudicate cases as an immigration judge, including the
authorities described in Sec. 1003.10(b); and
* * * * *
0
11. Amend Sec. 1003.10 in paragraph (b) by:
0
a. Revising the second sentence;
0
b. Adding two sentences following the second sentence;
0
c. Revising the fifth sentence; and
0
d. Removing eighth and ninth sentences.
The revisions and additions read as follows:
Sec. 1003.10 Immigration judges.
* * * * *
(b) * * * In deciding the individual cases before them, and subject
to the applicable governing standards set forth in paragraph (d) of
this section, immigration judges shall exercise their independent
judgment and discretion and may take any action consistent with their
authorities under the Act and regulations that is necessary or
appropriate for the disposition or alternative resolution of such
cases. Such actions include administrative closure, termination of
proceedings, and dismissal of proceedings. The standards for the
administrative closure, dismissal, and termination of cases are set
forth in Sec. 1003.18(c), 8 CFR 1239.2(c), and Sec. 1003.18(d),
respectively. Immigration judges shall administer oaths, receive
evidence, and interrogate, examine, and cross-examine noncitizens and
any witnesses. * * *
* * * * *
0
12. Amend Sec. 1003.18 by revising the section heading, adding
paragraph headings to paragraphs (a) and (b), and adding paragraphs (c)
and (d) to read as follows:
Sec. 1003.18 Docket management.
(a) Scheduling. * * *
(b) Notice. * * *
(c) Administrative closure and recalendaring. Administrative
closure is the temporary suspension of a case. Administrative closure
removes a case from the immigration court's active calendar until the
case is recalendared. Recalendaring places a case back on the
immigration court's active calendar.
(1) Administrative closure before immigration judges. An
immigration judge may, in the exercise of discretion, administratively
close a case upon the motion of a party, after applying the standard
set forth at paragraph (c)(3) of this section. The administrative
closure authority described in this section is not limited by the
authority provided in any other provisions in this title that
separately authorize or require administrative closure in certain
circumstances, including 8 CFR 214.15(l), 245.15(p)(4), 1214.2(a),
1214.3, 1240.62(b), 1240.70(f) through (h), 1245.13, 1245.15(p)(4)(i),
and 1245.21(c).
(2) Recalendaring before immigration judges. At any time after a
case has been administratively closed under paragraph (c)(1) of this
section, an immigration judge may, in the exercise of discretion,
recalendar the case pursuant to a party's motion to recalendar. In
deciding whether to grant such a motion, the immigration judge shall
apply the standard set forth at paragraph (c)(3) of this section.
(3) Standard for administrative closure and recalendaring. An
immigration judge shall grant a motion to administratively close or
recalendar filed jointly by both parties, or filed by one party where
the other party has affirmatively indicated its non-opposition, unless
the immigration judge articulates unusual, clearly identified, and
supported reasons for denying the motion. In all other cases, in
deciding whether to administratively close or to recalendar a case, an
immigration judge shall consider the totality of the circumstances,
including as many of the factors listed under paragraphs (c)(3)(i) and
(ii) of this section as are relevant to the particular case. The
immigration judge may also consider other factors where appropriate. No
single factor is dispositive. The immigration judge, having considered
the totality of the circumstances, may grant a motion to
administratively close or to recalendar a particular case over the
objection of a party. Although administrative closure may be
appropriate where a petition, application, or other action is pending
outside of proceedings before the immigration judge, such a pending
petition, application, or other action is not required for a case to be
administratively closed.
(i) As the circumstances of the case warrant, the factors relevant
to a decision to administratively close a case include:
(A) The reason administrative closure is sought;
(B) The basis for any opposition to administrative closure;
(C) Any requirement that a case be administratively closed in order
for a petition, application, or other action to be filed with, or
granted by, DHS;
(D) The likelihood the noncitizen will succeed on any petition,
application, or other action that the noncitizen is pursuing, or that
the noncitizen states in writing or on the record at a hearing that
they plan to pursue, outside of proceedings before the immigration
judge;
(E) The anticipated duration of the administrative closure;
(F) The responsibility of either party, if any, in contributing to
any current or anticipated delay;
(G) The ultimate anticipated outcome of the case pending before the
immigration judge; and
(H) The ICE detention status of the noncitizen.
(ii) As the circumstances of the case warrant, the factors relevant
to a decision to recalendar a case include:
(A) The reason recalendaring is sought;
(B) The basis for any opposition to recalendaring;
(C) The length of time elapsed since the case was administratively
closed;
(D) If the case was administratively closed to allow the noncitizen
to file a petition, application, or other action outside of proceedings
before the immigration judge, whether the noncitizen filed the
petition, application, or other action and, if so, the length of time
that elapsed between when the case was administratively closed and when
the noncitizen filed the petition, application, or other action;
(E) If a petition, application, or other action that was pending
outside of proceedings before the immigration judge has been
adjudicated, the result of that adjudication;
(F) If a petition, application, or other action remains pending
outside of proceedings before the immigration judge, the likelihood the
noncitizen will succeed on that petition, application, or other action;
(G) The ultimate anticipated outcome if the case is recalendared;
and
(H) The ICE detention status of the noncitizen.
(d) Termination. Immigration judges shall have the authority to
terminate cases before them as set forth in paragraphs (d)(1) and (2)
of this section. A motion to dismiss a case in removal proceedings
before an immigration
[[Page 46793]]
judge for a reason other than authorized by 8 CFR 1239.2(c) shall be
deemed a motion to terminate under paragraph (d)(1) of this section.
(1) Removal, deportation, and exclusion proceedings--(i) Mandatory
termination. In removal, deportation, and exclusion proceedings,
immigration judges shall terminate the case where at least one of the
requirements in paragraphs (d)(1)(i)(A) through (G) of this section is
met.
(A) No charge of deportability, inadmissibility, or excludability
can be sustained.
(B) Fundamentally fair proceedings are not possible because the
noncitizen is mentally incompetent and adequate safeguards are
unavailable.
(C) The noncitizen has, since the initiation of proceedings,
obtained United States citizenship.
(D) The noncitizen has, since the initiation of proceedings,
obtained at least one status listed in paragraphs (d)(1)(i)(D)(1)
through (4) of this section, provided that the status has not been
revoked or terminated, and the noncitizen would not have been
deportable, inadmissible, or excludable as charged if the noncitizen
had obtained such status before the initiation of proceedings.
(1) Lawful permanent resident status.
(2) Refugee status.
(3) Asylee status.
(4) Nonimmigrant status as defined in section 101(a)(15)(S), (T),
or (U) of the Act.
(E) Termination is required under 8 CFR 1245.13(l).
(F) Termination is otherwise required by law.
(G) The parties jointly filed a motion to terminate, or one party
filed a motion to terminate and the other party affirmatively indicated
its non-opposition, unless the immigration judge articulates unusual,
clearly identified, and supported reasons for denying the motion.
(ii) Discretionary termination. In removal, deportation, or
exclusion proceedings, immigration judges may, in the exercise of
discretion, terminate the case upon the motion of a party where at
least one of the requirements listed in paragraphs (d)(1)(ii)(A)
through (F) of this section is met. The immigration judge shall
consider the reason termination is sought and the basis for any
opposition to termination when adjudicating the motion to terminate.
(A) The noncitizen has filed an asylum application with USCIS
pursuant to section 208(b)(3)(C) of the Act pertaining to unaccompanied
children, as defined in 8 CFR 1001.1(hh).
(B) The noncitizen is prima facie eligible for naturalization,
relief from removal, or lawful status; USCIS has jurisdiction to
adjudicate the associated petition, application, or other action if the
noncitizen were not in proceedings; and the noncitizen has filed the
petition, application, or other action with USCIS. However, no filing
is required where the noncitizen is prima facie eligible for adjustment
of status or naturalization. Where the basis of a noncitizen's motion
for termination is that the noncitizen is prima facie eligible for
naturalization, the immigration judge shall not grant the motion if it
is opposed by DHS. Immigration judges shall not terminate a case for
the noncitizen to pursue an asylum application before USCIS, except as
provided for in paragraph (d)(1)(ii)(A) of this section.
(C) The noncitizen is a beneficiary of Temporary Protected Status,
deferred action, or Deferred Enforced Departure.
(D) USCIS has granted the noncitizen's application for a
provisional unlawful presence waiver pursuant to 8 CFR 212.7(e).
(E) Termination is authorized by 8 CFR 1216.4(a)(6) or 1238.1(e).
(F) Due to circumstances comparable to those described in
paragraphs (d)(1)(ii)(A) through (E) of this section, termination is
similarly necessary or appropriate for the disposition or alternative
resolution of the case. However, immigration judges may not terminate a
case for purely humanitarian reasons, unless DHS expressly consents to
such termination, joins in a motion to terminate, or affirmatively
indicates its non-opposition to a noncitizen's motion.
(2) Other proceedings--(i) Mandatory termination. In proceedings
other than removal, deportation, or exclusion proceedings, immigration
judges shall terminate the case where the parties have jointly filed a
motion to terminate, or one party has filed a motion to terminate and
the other party has affirmatively indicated its non-opposition, unless
the immigration judge articulates unusual, clearly identified, and
supported reasons for denying the motion. In addition, immigration
judges shall terminate such a case where required by law.
(ii) Discretionary termination. In proceedings other than removal,
deportation, or exclusion proceedings, immigration judges may, in the
exercise of discretion, terminate the case upon the motion of a party
where terminating the case is necessary or appropriate for the
disposition or alternative resolution of the case. However, immigration
judges may not terminate a case for purely humanitarian reasons, unless
DHS expressly consents to such termination, joins in a motion to
terminate, or affirmatively indicates its non-opposition to a
noncitizen's motion.
(iii) Limitation on termination. Nothing in paragraphs (d)(2)(i)
and (ii) of this section authorizes immigration judges to terminate a
case where prohibited by another regulatory provision. Further, nothing
in paragraphs (d)(2)(i) and (ii) of this section authorizes the
immigration judge to terminate a case for the noncitizen to pursue an
asylum application before USCIS, unless the noncitizen has filed an
asylum application with USCIS pursuant to section 208(b)(3)(C) of the
Act pertaining to unaccompanied children, as defined in 8 CFR
1001.1(hh).
0
13. Amend Sec. 1003.23 by:
0
a. In the section heading, removing the words ``Immigration Court'' and
add in their place the words ``immigration court'';
0
b. Revising paragraph (a);
0
c. Revising the first sentence and removing the second sentence of
paragraph (b)(1) introductory text;
0
d. In paragraph (b)(1), removing the words ``the Service'' and adding
in their place the word ``DHS'', wherever they appear;
0
e. Revising paragraphs (b)(1)(iii) through (v), (b)(2) and (3), and
(b)(4)(i) and (ii);
0
f. In paragraph (b)(4)(iii)(B), removing the words ``Immigration
Judge'' and adding in their place the words ``immigration judge'' and
removing the word ``alien'' and adding in its place the word
``noncitizen''; and
0
g. Removing paragraphs (b)(4)(v) and (vi).
The revisions read as follows:
Sec. 1003.23 Reopening or reconsideration before the immigration
court.
(a) Pre-decision motions. Unless otherwise permitted by the
immigration judge, motions submitted prior to the final order of an
immigration judge shall be in writing and shall state, with
particularity the grounds therefor, the relief sought, and the
jurisdiction. The immigration judge may set and extend time limits for
the making and replying to of motions and replies thereto. A motion
shall be deemed unopposed unless timely response is made.
(b) * * *
(1) In general. An immigration judge may upon the immigration
judge's own motion at any time, or upon motion of DHS or the
noncitizen, reopen or
[[Page 46794]]
reconsider any case in which the judge has rendered a decision, unless
jurisdiction is vested with the Board of Immigration Appeals. * * *
* * * * *
(iii) Assignment to an immigration judge. If the immigration judge
is unavailable or unable to adjudicate the motion to reopen or
reconsider, the Chief Immigration Judge or a delegate of the Chief
Immigration Judge shall reassign such motion to another immigration
judge.
(iv) Replies to motions; decision. The immigration judge may set
and extend time limits for replies to motions to reopen or reconsider.
A motion shall be deemed unopposed unless timely response is made. The
decision to grant or deny a motion to reopen or a motion to reconsider
is within the discretion of the immigration judge.
(v) Stays. Except in cases involving in absentia orders, the filing
of a motion to reopen or a motion to reconsider shall not stay the
execution of any decision made in the case. Execution of such decision
shall proceed unless a stay of execution is specifically granted by the
immigration judge, the Board, or an authorized DHS officer.
(2) Motion to reconsider. A motion to reconsider shall state the
reasons for the motion by specifying the errors of fact or law in the
immigration judge's prior decision and shall be supported by pertinent
authority. Such motion may not seek reconsideration of a decision
denying a previous motion to reconsider.
(3) Motion to reopen. A motion to reopen proceedings shall state
the new facts that will be proven at a hearing to be held if the motion
is granted and shall be supported by affidavits and other evidentiary
material. Any motion to reopen for the purpose of acting on an
application for relief must be accompanied by the appropriate
application for relief and all supporting documents. A motion to reopen
will not be granted unless the immigration judge is satisfied that
evidence sought to be offered is material and was not available and
could not have been discovered or presented at the former hearing. A
motion to reopen for the purpose of providing the noncitizen an
opportunity to apply for any form of discretionary relief will not be
granted if it appears that the noncitizen's right to apply for such
relief was fully explained to them by the immigration judge and an
opportunity to apply therefor was afforded at the hearing, unless the
relief is sought on the basis of circumstances that have arisen
subsequent to the hearing. Pursuant to section 240A(d)(1) of the Act, a
motion to reopen proceedings for consideration or further consideration
of an application for relief under section 240A(a) of the Act
(cancellation of removal for certain permanent residents) or 240A(b) of
the Act (cancellation of removal and adjustment of status for certain
nonpermanent residents) may be granted only upon demonstration that the
noncitizen was statutorily eligible for such relief prior to the
service of a Notice to Appear, or prior to the commission of an offense
referred to in section 212(a)(2) of the Act that renders the noncitizen
inadmissible or removable under sections 237(a)(2) or (a)(4) of the
Act, whichever is earliest. The immigration judge has discretion to
deny a motion to reopen even if the moving party has established a
prima facie case for relief.
(4) * * *
(i) Asylum and withholding of removal. The time and numerical
limitations set forth in paragraph (b)(1) of this section shall not
apply if the basis of the motion is to apply for asylum under section
208 of the Act or withholding of removal under section 241(b)(3) of the
Act or withholding of removal under the Convention Against Torture, and
is based on changed country conditions arising in the country of
nationality or the country to which removal has been ordered, if such
evidence is material and was not available and could not have been
discovered or presented at the previous proceeding. The filing of a
motion to reopen under this section shall not automatically stay the
removal of the noncitizen. However, the noncitizen may request a stay
and, if granted by the immigration judge, the noncitizen shall not be
removed pending disposition of the motion by the immigration judge. If
the original asylum application was denied based upon a finding that it
was frivolous, then the noncitizen is ineligible to file either a
motion to reopen or reconsider, or for a stay of removal.
(ii) Order entered in absentia or in removal proceedings. An order
of removal entered in absentia or in removal proceedings pursuant to
section 240(b)(5) of the Act may be rescinded only upon a motion to
reopen filed within 180 days after the date of the order of removal, if
the noncitizen demonstrates that the failure to appear was because of
exceptional circumstances as defined in section 240(e)(1) of the Act.
An order entered in absentia pursuant to section 240(b)(5) may be
rescinded upon a motion to reopen filed at any time upon the
noncitizen's demonstration of lack of notice in accordance with section
239(a)(1) or (2) of the Act, or upon the noncitizen's demonstration of
the noncitizen's Federal or State custody and the failure to appear was
through no fault of the noncitizen. However, in accordance with section
240(b)(5)(B) of the Act, no written notice of a change in time or place
of proceeding shall be required if the noncitizen has failed to provide
the address required under section 239(a)(1)(F) of the Act. The filing
of a motion under this paragraph (b)(4)(ii) shall stay the removal of
the noncitizen pending disposition of the motion by the immigration
judge. A noncitizen may file only one motion pursuant to this paragraph
(b)(4)(ii).
* * * * *
0
14. Add subpart D, consisting of Sec. 1003.55, to read as follows:
Subpart D--Special Provisions
Sec. 1003.55 Treatment of post-conviction orders.
(a) Applicability of Matter of Thomas & Thompson, 27 I&N Dec. 674
(A.G. 2019). (1) Matter of Thomas & Thompson shall not apply to a
criminal sentence:
(i) Where a court at any time granted a request to modify, clarify,
vacate, or otherwise alter the sentence and the request was filed on or
before October 25, 2019; or
(ii) Where the noncitizen demonstrates that the noncitizen
reasonably and detrimentally relied on the availability of an order
modifying, clarifying, vacating, or otherwise altering the sentence
entered in connection with a guilty plea, conviction, or sentence on or
before October 25, 2019.
(2) Where paragraph (a)(1) of this section applies, the adjudicator
shall assess the relevant order under Matter of Cota-Vargas, 23 I&N
Dec. 849 (BIA 2005), Matter of Song, 23 I&N Dec. 173 (BIA 2001), and
Matter of Estrada, 26 I&N Dec. 749 (BIA 2016), as applicable.
(b) Post-conviction orders correcting errors. Adjudicators shall
give effect to an order that corrects a genuine ambiguity, mistake, or
typographical error on the face of the original conviction or
sentencing order and that was entered to give effect to the intent of
the original order.
PART 1239--INITIATION OF REMOVAL PROCEEDINGS
0
15. The authority citation for part 1239 continues to read as follows:
Authority: 8 U.S.C. 1103, 1221, 1229.
0
16. Amend Sec. 1239.2 by:
[[Page 46795]]
0
a. Adding paragraph (b); and
0
b. Removing and reserving paragraph (f).
The addition reads as follows:
Sec. 1239.2 Cancellation of notice to appear.
* * * * *
(b) Ordering termination or dismissal. After commencement of
proceedings, an immigration judge or Board member shall have authority
to resolve or dispose of a case through an order of dismissal or an
order of termination. An immigration judge or Board member may enter an
order of dismissal in cases where DHS moves for dismissal pursuant to
paragraph (c) of this section. A motion to dismiss removal proceedings
for a reason other than those authorized by paragraph (c) of this
section shall be deemed a motion to terminate and adjudicated pursuant
to 8 CFR 1003.1(m), pertaining to cases before the Board, or 8 CFR
1003.18(d), pertaining to cases before the immigration court, as
applicable.
* * * * *
PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF NONCITIZENS IN
THE UNITED STATES
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17. 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).
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18. The heading for part 1240 is revised to read as set forth above.
0
19. Amend Sec. 1240.26 by:
0
a. As shown in the following table, removing the words in the left
column and adding in their place the words in the right column wherever
they appear:
An alien.................................. A noncitizen.
an alien.................................. a noncitizen.
the alien................................. the noncitizen.
alien's................................... noncitizen's.
0
b. Removing the words ``his or her'' and adding in their place the
words ``the noncitizen's'' in paragraphs (b)(3)(i) introductory text,
(b)(3)(i)(A);
0
c. Removing the words ``his or her'' and adding in their place the
words ``the ICE Field Office Director's'' in paragraph (c)(4);
0
d. Removing the words ``his or her'' and adding in their place the
words ``the noncitizen's'' in paragraphs (c)(4)(ii), and (i); and
0
e. Revising paragraphs (k)(1), (k)(2) introductory text, (k)(3)
introductory text, (k)(4), and (l).
The revisions read as follows:
Sec. 1240.26 Voluntary departure--authority of the Executive Office
for Immigration Review.
* * * * *
(k) * * *
(1) If the Board finds that an immigration judge incorrectly denied
a noncitizen's request for voluntary departure or failed to provide
appropriate advisals, the Board may consider the noncitizen's request
for voluntary departure de novo and, if warranted, may enter its own
order of voluntary departure with an alternate order of removal.
(2) In cases in which a noncitizen has appealed an immigration
judge's decision or in which DHS and the noncitizen have both appealed
an immigration judge's decision, the Board shall not grant voluntary
departure under section 240B(a) of the Act unless:
* * * * *
(3) In cases in which DHS has appealed an immigration judge's
decision, the Board shall not grant voluntary departure under section
240B(b) of the Act unless:
* * * * *
(4) The Board may impose such conditions as it deems necessary to
ensure the noncitizen's timely departure from the United States, if
supported by the record on appeal and within the scope of the Board's
authority on appeal. Unless otherwise indicated in this section, the
Board shall advise the noncitizen in writing of the conditions set by
the Board, consistent with the conditions set forth in paragraphs (b)
through (e), (h), and (i) of this section (other than paragraph
(c)(3)(ii) of this section), except that the Board shall advise the
noncitizen of the duty to post the bond with the ICE Field Office
Director within 30 business days of the Board's order granting
voluntary departure. If documentation sufficient to assure lawful entry
into the country to which the noncitizen is departing is not contained
in the record, but the noncitizen continues to assert a request for
voluntary departure under section 240B of the Act and the Board finds
that the noncitizen is otherwise eligible for voluntary departure under
the Act, the Board may grant voluntary departure for a period not to
exceed 120 days, subject to the condition that the noncitizen within 60
days must secure such documentation and present it to DHS and the
Board. If the Board imposes conditions beyond those specifically
enumerated, the Board shall advise the noncitizen in writing of such
conditions. The noncitizen may accept or decline the grant of voluntary
departure and may manifest a declination either by written notice to
the Board, by failing to timely post any required bond, or by otherwise
failing to comply with the Board's order. The grant of voluntary
departure shall automatically terminate upon a filing by the noncitizen
of a motion to reopen or reconsider the Board's decision, or by filing
a timely petition for review of the Board's decision. The noncitizen
may decline voluntary departure when unwilling to accept the amount of
the bond or other conditions.
(l) Penalty for failure to depart. There shall be a rebuttable
presumption that the civil penalty for failure to depart, pursuant to
section 240B(d)(1)(A) of the Act, shall be set at $3,000 unless the
immigration judge or the Board specifically orders a higher or lower
amount at the time of granting voluntary departure within the
permissible range allowed by law. The immigration judge or the Board
shall advise the noncitizen of the amount of this civil penalty at the
time of granting voluntary departure.
Dated: May 15, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-11121 Filed 5-28-24; 8:45 am]
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