[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

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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

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[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\
---------------------------------------------------------------------------

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

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

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

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

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

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

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

    \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

0
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).


0
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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