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DEPARTMENT OF JUSTICE parts 1003 and 1240 to ensure that cases 2. Simultaneous Briefing heard at the BIA are adjudicated in a The rule adopts simultaneous briefing Executive Office for Immigration consistent and timely manner. schedules instead of consecutive Review B. Authority briefing schedules for all cases. 8 CFR 1003.3(c). Previously, the BIA used The Department issued this final rule 8 CFR Parts 1003 and 1240 consecutive briefing for cases involving pursuant to section 1103(g) of the aliens who are not in custody. The rule [Docket No. EOIR 19–0022; Dir. Order No. Immigration and Nationality Act (‘‘INA’’ does not affect the BIA’s ability to 05–2021] or ‘‘the Act,’’), 8 U.S.C. 1103(g). permit reply briefs in certain cases, but RIN 1125–AA96 C. Final Rule it does establish a 14-day deadline for Appellate Procedures and Decisional Following careful consideration of the their submission. Finality in Immigration Proceedings; public comments received, which are 3. BIA Remands for Identity, Law Administrative Closure discussed in detail below in section II, Enforcement, or Security Investigations the Department has determined to or Examinations AGENCY: Executive Office for publish the provisions of the proposed The rule revises 8 CFR 1003.1(d)(6)(ii) Immigration Review, Department of rule as final with the following changes to provide that, when a case before the Justice. as noted below in sections I.C.3, I.C.4, BIA requires completing or updating ACTION: Final rule. I.C.5, I.C.8, I.C.9, and I.C.11 below. The Department is also clarifying the identity, law enforcement, or security SUMMARY: On August 26, 2020, the generally prospective temporal investigations or examinations in order Department of Justice (‘‘Department’’) application of the rule.1 The provisions to complete adjudication of the appeal, published a notice of proposed of the rule applicable to appellate the exclusive course of action would be rulemaking (‘‘NPRM’’ or ‘‘proposed procedures and internal case processing for the BIA to place the case on hold rule’’) that would amend the regulations at the BIA apply only to appeals filed, while identity, law enforcement, or of the Executive Office for Immigration motions to reopen or reconsider filed, or security investigations or examinations Review (‘‘EOIR’’) regarding the handling cases remanded to the Board by a are being completed or updated, unless of appeals to the Board of Immigration Federal court on or after the effective DHS reports that identity, law Appeals (‘‘BIA’’ or ‘‘Board’’). date of the final rule. The provisions of enforcement, or security investigations The Department proposed multiple the rule related to the restrictions on sua or examinations are no longer necessary changes to the processing of appeals to sponte reopening authority are effective or until DHS does not timely report the ensure the consistency, efficiency, and for all cases, regardless of posture, on results of completed or updated quality of its adjudications. the effective date. The provisions of the identity, law enforcement, or security The Department also proposed to rule related to restrictions on the BIA’s investigations or examinations. Additionally, the rule authorizes the amend the regulations to make clear that certification authority are effective for BIA to deem an application abandoned there is no freestanding authority of line all cases in which an immigration judge when the applicant fails, after being immigration judges or BIA members to issues a decision on or after the effective notified by DHS, to comply with the administratively close cases. Finally, the date. The provisions of the rule requisite procedures for DHS to Department proposed to delete regarding administrative closure are complete the identity, law enforcement, inapplicable or unnecessary provisions applicable to all cases initiated by a or security investigations or regarding the forwarding of the record of charging document, reopened, or examinations within 90 days of the proceedings on appeal. This final rule recalendared after the effective date. BIA’s notice that the case is being responds to comments received in The rationale provided in the placed on hold for the completion of the response to the NPRM and adopts the background of the proposed rule identity, law enforcement, or security NPRM with minor changes as described remains valid. Accordingly, the major investigations or examinations. The rule below. provisions of the final rule are as follows: also retains from the NPRM the DATES: This rule is effective on January exception to abandonment when the 15, 2021. 1. Briefing Extensions immigration judge determines that the FOR FURTHER INFORMATION CONTACT: The final rule will reduce the alien demonstrates good cause for Lauren Alder Reid, Assistant Director, maximum allowable time for an exceeding the 90-day allowance. Upon Office of Policy, Executive Office for extension of the briefing schedule for such a good cause finding, the Immigration Review, 5107 Leesburg good cause shown from 90 days to 14 immigration judge may grant the alien Pike, Suite 2600, Falls Church, VA days. 8 CFR 1003.3(c). Consistent with no more than 30 days to comply with 22041, telephone (703) 305–0289. current BIA policy ‘‘not to grant second the requisite procedures. SUPPLEMENTARY INFORMATION: briefing extension requests,’’ the rule Following the review of public 2 expressly limits the parties to one comments received, the final rule I. Background possible extension. EOIR, Board of makes two changes from the proposed A. Proposed Rule Immigration Appeals Practice Manual, rule on this point. First, this rule contains an additional requirement that, On August 26, 2020, the Department Ch. 4.7(c) (hereinafter BIA Practice Manual) (last updated Oct. 5, 2020). if DHS is unable to independently published an NPRM that would amend update any required identity, law EOIR’s regulations regarding the BIA’s 1 The Department notes that the NPRM enforcement, or security investigations, handling of appeals. Appellate confusingly indicated that some changes would DHS shall provide a notice to the alien Procedures and Decisional Finality in apply ‘‘on or after the effective date of publication,’’ with appropriate instructions, as DHS Immigration Proceedings; 85 FR at 52498 even though the effective date is 30 does before the immigration courts Administrative Closure, 85 FR 52491 days after the date of publication. To correct any confusion from that statement and to provide under 8 CFR 1003.47(d), and (Aug. 26, 2020). Through the NPRM, the additional clarity, the Department offers a more Department proposed a number of delineated explanation of the temporal application 2 See section II.C.3.e for a summary and response changes to EOIR’s regulations in 8 CFR of this rule herein. to the comments received on this topic.

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simultaneously serve a copy of the voluntary departure based on the record evidence of travel documentation notice with the BIA. Second, while the of proceedings. Additionally, the rule sufficient to assure lawful entry into the NPRM would have begun the alien’s 90- directly states that the BIA may not country to which the alien is day timeline for compliance with the remand a case to the immigration court departing—and the alien otherwise has biometrics update procedures began at solely to consider a request for both asserted a request for voluntary the time the Board provided notice to voluntary departure under section 240B departure and established eligibility the alien, the final rule aligns the 90-day of the Act, 8 U.S.C. 1229c. under the other requirements—the time period to begin running at the time The final rule makes three additional Board may nevertheless grant voluntary DHS submits the instructions notice to changes from the NPRM in response to for a period not to exceed 120 days, the alien, if such notice is applicable. public comments. First, in recognition subject to the condition that the alien The Department agrees with the of the fact that Board orders are within 60 days must secure such commenters’ concerns that without generally served by mail—unlike orders documentation. This additional these changes, the provisions of the of immigration judges which are provision is consistent with similar proposed rule could have resulted in frequently served in person—the final authority already contained in 8 CFR situations where the alien may be rule states that aliens will have 10 1240.26(b)(3)(ii).4 unable to effectively comply with the business days to post a voluntary 5. Prohibition on Consideration of New biometrics requirements due to possible departure bond if the Board’s order of Evidence, Limitations on Motions To delays by DHS or lack of sufficient voluntary departure was served by mail. Remand, Factfinding by the BIA, and notice. Further, as the Board is currently transitioning to an electronic filing the Standard of Review 4. Finality of BIA Decisions and system and expects to fully deploy that The rules make several changes to Voluntary Departure Authority system within the next year, the final clarify the BIA’s ability to take certain In addition, the rule amends 8 CFR rule retains a period of five business actions in adjudicating an appeal to 1003.1(d)(7) to provide further guidance days to post a voluntary departure bond ensure that appeals are adjudicated in a regarding the finality of BIA decisions. if the Board’s order is served timely fashion without undue remands To begin with, the rule adds a new electronically. and consistent with the applicable law. paragraph (d)(7)(i) to clarify that the BIA Second, in response to commenters’ First, the rule limits the scope of has authority to issue final orders when concerns about cases in which DHS motions to remand that the BIA may adjudicating an appeal, including final appeals a separate grant of relief or consider. Under new paragraph (d)(7)(v) orders of removal when a finding of protection, the Department is making to 8 CFR 1003.1, the BIA is prohibited removability has been made by an edits from the NPRM to clarify the from receiving new evidence on appeal, immigration judge and an application Board’s procedure in that situation. remanding a case for the immigration for protection or relief from removal has Although cases in which an alien made judge to consider new evidence in the been denied; grants of relief or multiple applications for relief or course of adjudicating an appeal, or protection from removal; and, orders to protection (including voluntary considering a motion to remand based terminate or dismiss proceedings. departure), an immigration judge on new evidence. Parties who wish to The rule further adds new granted at least one application but did have new evidence considered in other § 1003.1(d)(7)(ii) to provide instructions not address the request for voluntary circumstances may file a motion to for the BIA regarding when the BIA may departure, DHS appealed the reopen in accordance with the standard order a remand, rather than issuing a immigration judge’s decision, the BIA procedures for such motions, i.e., final order, after applying the determined that the immigration judge’s compliance with the substantive appropriate standard of review to an decision was in error and that the requirements for such a motion at 8 CFR immigration judge’s decision. For alien’s application(s) should be denied, 1003.2(c). These prohibitions have three example, the rule requires the BIA to and the BIA found a basis to deny all exceptions for new evidence: (1) The first identify the standard of review that other applications submitted by the result of identity, law enforcement, or was applied and the specific error made respondent without needing to remand security investigations or examinations, by the immigration judge before the case, leaving only the request for including civil or criminal remanding the proceeding. 8 CFR voluntary departure unadjudicated, investigations of immigration fraud; (2) 1003.1(d)(7)(ii)(A). The final rule has should be uncommon, the Department pertaining to a respondent’s one update from the same paragraph in nevertheless makes clarifying edits to 8 removability under the provisions of the proposed rule to include a cross- CFR 1240.26(k)(2) and (3) 3 to indicate sections 212 and 237 of the Act, 8 U.S.C. reference to 8 CFR 1003.1(d)(6)(iii), that the BIA may grant voluntary 1182 and 1227; and (3) that calls into which allows for BIA remands regarding departure in cases in which DHS question an aspect of the jurisdiction of information obtained as a result of the appeals provided that the alien the immigration courts, such as identity, law enforcement, or security requested voluntary departure from the evidence pertaining to alienage 5 or investigations or examinations. The immigration judge and is otherwise Department has included this cross- eligible. 4 This provision was, arguably, already reference to prevent any unintended Third, in response to at least one incorporated by reference in the NPRM through 8 CFR 1240.26(k)(4) which adopts the provisions of confusion that the remand procedures commenter’s concern regarding the 8 CFR 1240.26(c), (d), (e), (h), and (i) (with one and options under 8 CFR 1003.1(d)(7)(ii) expiration of an alien’s travel exception) regarding voluntary departure requests are the sole ones for the BIA. documents, the Department is making before an immigration judge and makes them Next, the rule adds new paragraph changes to the final rule to make clear applicable to requests before the Board. Nevertheless, the Department is specifically (d)(7)(iii) to 8 CFR 1003.1 to delegate that if the record does not contain incorporating it into the text of the final rule to be clear authority to the BIA to consider applicable to a grant of voluntary departure under issues relating to the immigration 3 The Department also notes that 8 CFR either section 240B(a) or 240B(b) of the Act, 8 judge’s decision on voluntary departure 1240.26(k)(2) and (3) were duplicative in the NPRM U.S.C. 1229c(a) or 1229c(b). and has further edited the provisions to remove the 5 For example, EOIR has no jurisdiction over de novo and, within the scope of the duplication since they apply to both types of United States citizens with respect to removal BIA’s review authority on appeal, to voluntary departure under section 240B of the Act, proceedings; thus, evidence submitted on appeal issue final decisions on requests for 8 U.S.C 1229c. Continued

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EOIR’s authority vis-a`-vis DHS error of law, the final rule clarifies that, other immigration law or statute, any regarding an application for subject to other requirements, the Board applicable regulation, or a published, immigration benefits.6 may remand a case for additional binding precedent; (3) failing to resolve Second, the rule clearly delineates the factfinding in cases in which the the basis for appeal, including being circumstances in which the BIA may immigration judge committed an error vague, ambiguous, internally engage in factfinding on appeal. 8 CFR of law and that error requires additional inconsistent; or, (4) clearly not 1003.1(d)(3)(iv)(A) and (B). Although factfinding on remand. For example, the considering a material factor pertinent the rule maintains the general Board may order additional factfinding to the issue(s) before the immigration prohibition on factfinding by the BIA, on remand if it determines an judge. Id. § 1003.1(k)(1)(i)–(iv). In the rule allows the BIA to take immigration judge erred as a matter of addition, in order to certify a BIA administrative notice of facts that are law by not sufficiently developing the decision for review, the immigration not reasonably subject to dispute, such factual record for an alien proceeding judge must: (1) Issue the certification as current events, the contents of official without representation. order, (a) within 30 days of the BIA documents outside the record, or facts The rule also directly allows the BIA decision if the alien is not detained, and that can be accurately and readily to affirm the decision of the immigration (b) within 15 days of the BIA decision determined from official government judge or DHS on any basis supported by if the alien is detained; (2) specify in the sources and whose accuracy is not the record, including a basis supported order the regulatory basis for the disputed. If the BIA intends to by facts that are not disputed. Id. certification and summarize the administratively notice any such fact § 1003.1(d)(3)(v). underlying procedural, factual, or legal outside the record that would be the Finally, the rule makes clear that the basis; and (3) provide notice of the basis for overturning a grant of relief or BIA cannot remand a case based solely certification to both parties. Id. protection issued by an immigration on the ‘‘totality of the circumstances’’ as § 1003.1(k)(2)(i)–(iii). judge, the BIA must give notice to the such a standard of review has never To ensure a neutral arbiter between parties and an opportunity for them to been contemplated by either the Act or the immigration judge and the BIA, the respond. the regulations. Id. § 1003.1(d)(7)(ii)(B). Director will review any such Third, the rule more clearly delineates Nonetheless, in light of the confusion certification orders. Id. § 1003.1(k)(3). In the situations in which it is appropriate evidenced by commenters regarding that reviewing such orders, the Director’s for the BIA to remand a case for further point, the Department in the final rule delegated authority from the Attorney factfinding. 8 CFR 1003.1(d)(3)(iv)(C) is making clear that the Board cannot General permits him to dismiss the and (D). Specifically, the BIA may not remand a case following a totality of the certification and return the case to the sua sponte remand a case for further circumstances standard of review, immigration judge or remand the case factfinding unless doing is necessary to though an immigration judge’s back to the BIA for further proceedings. determine whether the immigration consideration of the totality of the The Director may not, however, issue an judge had jurisdiction. Id. circumstances may be a relevant subject order of removal, grant a request for § 1003.1(d)(3)(iv)(C). Further, the BIA for review under an appropriate voluntary departure, or grant or deny an may not grant a motion to remand for standard. application for relief or protection from further factfinding unless the party removal. Id. In response to a concern 6. Scope of a BIA Remand seeking the remand preserved the issue raised by at least one commenter, the and previously attempted to provide The rule provides that the BIA may final rule will allow the Director, in his such information to the immigration limit the scope of a remand while or her discretion, to request briefs or judge, the factfinding would alter the simultaneously divesting itself of filings from the parties when case’s outcome and would not be jurisdiction on remand. Id. considering a case under this quality- cumulative of other evidence already in § 1003.1(d)(7)(iii). Thus, a remand for a control certification process. the record, and either the immigration limited purpose—e.g., the completion of This quality assurance certification judge’s factual findings were clearly identity, law enforcement, or security process is a mechanism to ensure that erroneous or remand to DHS is investigations or examinations—would BIA decisions are accurate and warranted. Id. § 1003.1(d)(3)(iv)(D). be limited solely to that purpose precise—not a mechanism solely to Nothing in the rule, however, prohibits consistent with the BIA’s intent, and the express disagreements with BIA the BIA from remanding a case based on immigration judge may not consider any decisions or to lodge objections to new evidence or information obtained issues beyond the scope of the remand. particular legal interpretations. Id. § 1003.1(k)(4). after the date of the immigration judge’s 7. Immigration Judge Quality Assurance decision as a result of identity, law Certification of a BIA Decision 8. Administrative Closure Authority enforcement, or security investigations or examinations, including Additionally, to ensure the quality of The rule amends 8 CFR investigations occurring separate from BIA decision-making, the rule 1003.1(d)(1)(ii) and 1003.10(b) to make those required by 8 CFR 1003.47. establishes a procedure for an clear that those provisions—and similar Following review of public comments immigration judge to certify BIA provisions in 8 CFR part 1240—provide and in recognition of possible confusion decisions reopening or remanding no freestanding authority for regarding a situation in which proceedings for further review by the immigration judges or Board members additional factfinding would be a Director in situations in which the to administratively close immigration necessary adjunct of a remand due to an immigration judge alleges that the BIA cases absent an express regulatory or made an error. Id. § 1003.1(k). judicially approved settlement basis to regarding whether a respondent is a United States The certification process is limited do so. For example, the rule amends 8 citizen may be a basis for a remand in appropriate only to cases in which the immigration CFR 1003.1(d)(1)(ii) and 1003.10(b) to cases. See Matter of Fuentes-Martinez, 21 I&N Dec. judge believes the BIA erred in the provide explicitly, for clarity, that the 893, 898 (BIA 1997). decision by: (1) A typographical or existing references in those paragraphs 6 As the NPRM noted, there are multiple to ‘‘governing standards’’ refer to the situations in which a question of EOIR or DHS clerical error affecting the outcome of jurisdiction over an application may arise. See 85 the case; (2) a holding that is clearly applicable governing standards as set FR at 52500. contrary to a provision of the INA, any forth in the existing provisions of

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§§ 1003.1(d)(1)(i) and 1003.10(d), exercised diligence in pursuing his or processing of transcripts, issuance of respectively and do not refer to some her motion.9 Id. §§ 1003.2(c)(3)(v), briefing schedules, and review by a more general, free-floating 1003.23(b)(4)(v). Similarly, the rule single BIA member to determine administrative closure authority. amends the regulations to allow the whether a single member or a three- The final rule makes non-substantive filing of a motion to reopen, member panel should adjudicate the change to 8 CFR 1003.1(d)(1)(ii) and notwithstanding the time and number appeal, none of which were previously 1003.10(b) from the proposed rule by bars, when an individual claims that he considered via regulation or tracked inserting the word ‘‘defer’’ in place of or she is a United States citizen or effectively to prevent delays. Id. the word ‘‘suspend’’ in both paragraphs national in recognition that the law § 1003.1(e)(1), (8). It also adds tracking and by making conforming stylistic provides jurisdiction only in removal and accountability requirements for the changes to ensure that the language is proceedings for aliens. See INA Board Chairman, also known as the clear that an administrative closure of a 240(a)(1), 8 U.S.C. 1229a(a)(1); see also Chief Appellate Immigration Judge, in case is a type of deferral of adjudication 8 CFR 1003.2(c)(3)(vi), 1003.23(b)(4)(v). cases where the adjudication of appeals of that case. The Department has made Finally, to address the effects of must be delayed to ensure that no this change to prevent any unintended removal of sua sponte reopening appeals are overlooked or lost in the confusion regarding whether there is a authority on DHS, the rule clarifies that process. Id. § 1003.1(e)(8)(v). Similarly, distinction between cases whose the filing of a motion to reopen with the the rule establishes specific time frames adjudication is deferred and those BIA by DHS in removal proceedings or for the adjudication of summary whose adjudication is suspended and to in proceedings initiated pursuant to 8 dismissals, providing substance to the make clear that an administrative CFR 1208.2(c) is not subject to the time current requirement at 8 CFR closure is not the only type of deferral and numerical limits applicable to such 1003.1(d)(2)(ii) that such cases be of adjudication.7 The Department motions. 8 CFR 1003.2(c)(3)(vii). identified ‘‘promptly’’ by the screening intended no distinctions and is 10. Certification Authority panel, and for the adjudication of clarifying that point by ensuring that the interlocutory appeals, which are not description of administrative closure as The rule also withdraws the BIA’s currently addressed in the regulations, a type of deferral of adjudication is delegated authority to review cases by except insofar as they may be referred consistent throughout the rule. self-certification, id. § 1003.1(c), due to to a three-member panel for review. Id. concerns over the lack of standards for § 1003.1(e)(1). 9. Sua Sponte Authority such certifications, the lack of a Additionally, with two exceptions for The rule removes the Attorney consistent application of the cases subject to an extension under 8 General’s previous general delegation of ‘‘exceptional’’ situations criteria for CFR 1003.1(e)(8)(ii) or a hold under 8 sua sponte authority to the BIA and purposes of utilizing self-certification, CFR 1003.1(e)(8)(iii), the rule instructs immigration judges to reopen or the potential for lack of notice of the the Board Chairman to refer appeals reconsider cases and instead limit such BIA’s use of certification authority, the pending beyond 335 days to the Director sua sponte reopenings only to correct overall potential for inconsistent for adjudication. Id. § 1003.1(e)(8)(v). minor mistakes, such as typographical application and abuse of this authority, Following the review of public errors or defects in service. 8 CFR and the strong interest in finality, comments received, including 8 comments about the potential volume of 1003.2(a), 1003.23(b)(1). These changes 11. Timeliness of Adjudication of BIA cases subject to referral and the impact do not preclude parties from filing joint Appeals motions, including in situations in of other provisions of the rule, the final which there has been a relevant change The rule makes a variety of changes rule makes two changes from the NPRM. in facts or law. Moreover, nothing in the to ensure the timely adjudication of First, it adds four further exceptions rule precludes the ability of a appeals. For example, the rule amends to 8 CFR 1003.1(e)(8)(v). Cases on hold respondent to argue, in an appropriate 8 CFR 1003.1(e)(8)(i) to harmonize the pursuant to 8 CFR 1003.1(d)(6)(ii) to case, that a time limit is inapplicable time limits for adjudicating cases so that await the results of identity, law due to equitable tolling. both the 90- and 180-day deadlines are enforcement, or security investigations In addition, to ensure that aliens set from the same starting point—when or examinations will not be subject to whose removability is vitiated in toto the record is complete.10 In addition, referral if the hold causes the appeal to prior to the execution of the removal the rule established specific time frames remain pending beyond 335 days. Cases order retain a mechanism for reopening for review by the screening panel, whose adjudication has been deferred their proceedings, the rule amends the by the Director pursuant to 8 CFR regulations to allow the filing of a 9 This provision would apply only when the 1003.0(b)(1)(ii) will not be subject to intervening change vitiated the alien’s removability referral if the deferral causes the appeal motion to reopen, notwithstanding the completely—an alien charged with multiple time and number bars, when an alien removability grounds would remain subject to the to remain pending beyond 335 days. claims that an intervening change in law time and number bars unless the intervening Cases remanded by the Director under 8 or fact renders the alien no longer change vitiated each removability ground. CFR 1003.1(k) will not be subject to removable at all and the alien has Additionally, this provision would apply only to referral if the case remains pending grounds of removability. Aliens arguing that an beyond 335 days after the referral. Cases intervening change in law or fact affected their 7 Administrative closure is not the only eligibility for relief or protection from removal that have been administratively closed procedural mechanism for deferring adjudication of would remain subject to existing regulatory pursuant to a regulation promulgated by cases. For instance, EOIR deferred all non-detained provisions on such motions. the Department of Justice or a previous removal hearings between March 17, 2020, and June 10 For appeals, the record is complete upon the judicially approved settlement that 12, 2020, due to the outbreak of COVID–19 but did earlier of the filing of briefs by both parties or the not administratively close the cases. expiration of the briefing schedule. For motions, the expressly authorizes such an action will 8 The text of 8 CFR 1003.2(a) in the NPRM record is complete upon the filing of a response to not be subject to referral if the inadvertently removed the phrase ‘‘or reconsider’’ the motion or the expiration of the response period. administrative closure occurred prior to from the first sentence of that paragraph. This final For remands, the record is complete upon either the the elapse of 335 days and causes the rule reinserts that phrase to ensure that parties and date the remand is received by the BIA or, if the the BIA are clear that the Board can reconsider a BIA elects to order briefing following the remand, appeal to remain pending beyond 335 decision sua sponte in order to correct a the earlier of the filing of briefs by both parties or days. These changes, which are typographical error or defect in service. the expiration of the briefing schedule. incorporated through a stylistic

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restructuring of 8 CFR 1003.1(e)(8)(v) for does not need to forward the record of unfair, arbitrary and capricious, biased, clarity, recognize additional situations the proceedings to the BIA if the BIA a violation of due process, or otherwise in which a case may appropriately already has access to the record inappropriate, regardless of the remain pending beyond 335 days electronically and removes the process Department’s justification for the change without adjudication or when referral for immigration judge review of the or the relevant law. Such a results- back to the Director would be transcript. Id. § 1003.5(a). oriented view both misapprehended the incongruous because the Director had In addition, the rule removes language procedural nature of the changes and remanded the case in the first instance. in 8 CFR 1003.5(b), which describes appeared to have been based on a tacit Second, the final rule makes edits to procedures regarding appeals from DHS belief that aliens were entitled to eliminate confusion over the scope of 8 decisions that are within the BIA’s specific outcomes in specific cases, CFR 1003.1(e). As both the title of that appellate jurisdiction, that is not notwithstanding the relevant evidence paragraph (‘‘Case management system’’) applicable to EOIR’s adjudicators and or law applicable to a case, and that the and its general introductory language replaces outdated references to the rule inappropriately required (‘‘The Chairman shall establish a case former Immigration and Naturalization adjudicators to maintain partiality in management system to screen all cases Service. These changes do not adjudicating cases rather than and to manage the Board’s caseload.’’) substantively affect the BIA’s continuing to provide what commenters make clear, the provisions of the adjudication of any appeals from DHS viewed as favorable treatment toward paragraph apply to ‘‘cases.’’ Id. officers that are within the BIA’s aliens. § 1003.1(e) (emphasis added). In turn, jurisdiction. To the extent that commenters simply ‘‘the term case means any proceeding disagree as a policy matter that Board arising under any immigration or II. Public Comments on the Proposed cases should be completed in a timely naturalization law.’’ Id. § 1001.1(g). At Rule manner, see id. 1003.1(d); cf. INS v. the Board, cases may be initiated in one A. Summary of Public Comments Doherty, 502 U.S. 314, 323 (1992) (‘‘[A]s of three ways: (1) The filing of a Notice a general matter, every delay works to of Appeal, (2) the filing of a motion The comment period for the NPRM the advantage of the deportable alien directly with the Board (e.g., a motion ended on September 25, 2020, with who wishes merely to remain in the to reconsider or a motion to reopen), or 1,284 comments received. The majority United States.’’), or that the Department (3) the receipt of a remand from a of comments were from individual and should take measures, consistent with Federal court, the Attorney General, anonymous commenters, including due process, to ensure the timely or—under this rule—the Director. In coordinated campaigns. Other completion of such cases, the other words, the Board adjudicates commenters included non-profit Department finds such policy multiple types of cases, not just appeals. organizations, law firms, and members disagreements unpersuasive for the Although the existing language of 8 CFR of Congress. While some commenters reasons given in the NPRM and 1003.1(e) is clear that it applies to all supported the NPRM, the majority of throughout this final rule. types of cases at the Board, regardless of commenters expressed opposition to the Similarly, the Department also how they are initiated, the inconsistent, rule, either in whole or part. categorically rejects any comments subsequent use of ‘‘appeals’’ throughout Many, if not most, comments suggesting that adjudicators should that paragraph creates confusion as to opposing the NPRM either provide favorable treatment to one party its scope since appeals are not the only misunderstood what it actually over another, e.g., by granting a sua type of case the Board considers. See, provides, proceed from erroneous legal sponte motion to reopen contrary to e.g., id. § 1003.1(e)(3) (in describing the or factual premises—e.g., that the rule well-established law. The Department Board’s merits review process, using applies only to aliens and not DHS or expects all of its adjudicators to treat ‘‘case’’ in the first sentence, ‘‘case’’ and that its changes apply more heavily to both parties fairly and to maintain ‘‘appeal’’ in the second sentence, and aliens than to DHS—are founded in impartiality when adjudicating cases. 8 ‘‘appeal’’ in the third sentence, all is policy disagreements, or simply repeat CFR 1003.1(d)(1) (‘‘The Board shall describing a unitary process). To avoid tendentious or spurious claims about resolve the questions before it in a continued confusion and to ensure that the Department’s motivations in issuing manner that is timely, impartial, and the scope of the other changes in the the rule. Further, many commenters consistent with the Act and final rule regarding the Board’s case opposing the rule failed to engage with regulations.’’ (emphasis added)); 8 CFR management process are clear, the final the specific reasons and language put 1003.10(b) (‘‘In all cases, immigration rule makes edits to 8 CFR 1003.1(e) to forth by the Department in lieu of broad judges shall seek to resolve the ensure that it is clearly applicable to all generalizations or hyperbolic, questions before them in a timely and cases before the Board, not solely cases unsupported presumptions. impartial manner consistent with the arising through appeals.11 Additionally, many comments appeared Act and regulations.’’) (emphasis rooted in a belief that EOIR’s added)); 5 CFR 2635.101(b)(8) 12. Forwarding the Record on Appeal adjudicators are incompetent or (‘‘Employees [of the Federal The rule revises 8 CFR 1003.5(a) unethical and are either incapable or Government] shall act impartially and regarding the forwarding of the record of unwilling to adhere to applicable law. not give preferential treatment to any proceedings in an appeal to ensure that Finally, most, if not all, commenters in private organization or individual.’’); the transcription process and the opposition to the rule viewed its EOIR, Ethics and Professionalism Guide forwarding of records do not cause any procedural changes wholly through a for Members of the Board of unwarranted delays. Specifically, the results-oriented lens such that a Immigration Appeals sec. V (May 4, rule clarifies that the immigration judge proposal that commenters speculatively 2011) [hereinafter BIA Ethics and believed would cause aliens to ‘‘win’’ Professionalism Guide] (‘‘A Board 11 For similar reasons, the final rule also makes fewer cases was deemed objectionable, Member shall act impartially and shall changes to 8 CFR 1003.1(d)(3)(iv) to clarify that 8 even without evidence that such a result not give preferential treatment to any CFR 1003.1(d)(3)(iv)(A) applies to all cases at the Board, whereas 8 CFR 1003.1(d)(3)(iv)(D) applies would follow. In other words, any organization or individual when only to direct appeals of immigration judge change perceived to lead to aliens adjudicating the merits of a particular decisions. ‘‘winning’’ fewer cases was deemed case.’’), available at https://

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www.justice.gov/eoir/page/file/992726/ them unavailing. See Home Box Office, over appeals.’’ Similarly, several download; EOIR, Ethics and Inc. v. FCC, 567 F.2d 9, 35 n.58 (D.C. commenters voiced concern that the Professionalism Guide for Immigration Cir. 1977) (per curiam) (‘‘In determining rule would turn the BIA into a ‘‘political Judges sec. V (Jan. 26, 2011) [hereinafter what points are significant, the tool’’ or that the changes would turn the IJ Ethics and Professionalism Guide] ‘arbitrary and capricious’ standard of BIA into a rubber stamp for deportation (‘‘An Immigration Judge shall act review must be kept in mind. Thus only orders. Others were concerned that the impartially and shall not give comments which, if true, raise points rule would put increased pressure on preferential treatment to any relevant to the agency’s decision and immigration judges to decide cases organization or individual when which, if adopted, would require a quickly. adjudicating the merits of a particular change in an agency’s proposed rule Some commenters expressed concerns case.’’), available at https:// cast doubt on the reasonableness of a that the rule was an attempt to end legal www.justice.gov/sites/default/files/eoir/ position taken by the agency. Moreover, immigration. Other commenters alleged legacy/2013/05/23/Ethicsand comments which themselves are purely that the rule was motivated by an ProfessionalismGuideforIJs.pdf. Further, speculative and do not disclose the attempt to foreclose respondents’ access the Department also rejects unsupported factual or policy basis on which they to relief from removal. and almost ad hominem comments rest require no response. There must be Many commenters were concerned based on a belief that its adjudicators some basis for thinking a position taken that the rule would eliminate a robust are incompetent or unethical, that they in opposition to the agency is true.’’). and meaningful appeal process. For will fail to follow the law, or that they Further, to the extent that commenters example, one commenter stated that have some results-oriented view that provided substantive analysis and ‘‘[a]ny individual facing judicial will cause them to adjudicate cases in raised important issues, the Department decision making deserves to have a full an inappropriate manner. See United has considered all of them; however, on and fair right to appeal.’’ The States v. Chem. Found., Inc., 272 U.S. 1, balance, except for changes noted commenter went on to claim that the 14–15 (1926) (‘‘The presumption of below, it has determined that the policy rule seeks ‘‘to erode that right by making regularity supports the official acts of and operational benefits of the rule it more difficult for individuals to public officers, and, in the absence of expressed above—including actualize the right to appeal to the BIA.’’ clear evidence to the contrary, courts consistency, impartiality, and Another commenter was concerned that presume that they have properly efficiency—outweigh all of the issues the rule would completely strip discharged their official duties.’’). raised by commenters. Accordingly, respondents of ‘‘their right to In sum, the Department issued the although the Department has reviewed meaningfully contest a poorly reasoned NPRM for the reasons given in order to all comments received, the vast majority or legally invalided decision.’’ bring needed clarity to certain areas of of them fall into the groupings outlined Several commenters expressed law, improve efficiency at the BIA, above, and few of them are persuasive concern about the rule’s impact on ensure authority is appropriately for reasons explained in more detail in respondents’ safety and security. One exercised, reduce the risk of Part II.C below. commenter claimed that the rule gamesmanship by parties, and promote ‘‘would greatly reduce the rights of impartial and timely adjudications B. Comments Expressing Support for the noncitizens appearing before EOIR and consistent with the law. It did not do so Proposed Rule would result in . . . the potential death for any nefarious purpose, nor did it Comment: Commenters expressed of asylum seekers who are removed to intend for its procedural changes to general support for the rule and their home countries to be killed.’’ have any substantive bearing on the immigration reform. These commenters Another commenter noted that taking outcomes of additional cases, which supported all aspects of the rule, which away a respondent’s ability to appeal flow from the evidence and the law, not they stated would ‘‘streamline’’ BIA their case ‘‘exposes them to more the Department’s process. As discussed processes to help reduce the backlog violence and risk of death if they are herein, nothing in the NPRM singles out and the number of frivolous appeals. deported.’’ Other commenters were specific populations of aliens, including One commenter stated that the rule concerned that the rule would lead to unrepresented aliens,12 nor do any of its ‘‘will have a positive impact on permanent family separations. changes fall disproportionately upon immigration, especially limiting the A number of commenters also made such groups in an inappropriate burden placed on the system by pro se the generalized claim that the rule manner. To the extent that commenters immigrants.’’ would entirely reshape the immigration did not engage with the NPRM itself, Response: The Department system. Others stated that the rule provided unsupported assertions of fact appreciates the commenters’ support for would create significant administrative or law, attacked—tacitly or explicitly— the rule. burdens. Several other commenters alleged that the rule would lead to an the motivations of the Department’s C. Comments Expressing Opposition to adjudicators, or otherwise put forward increased case backlog and make EOIR the Proposed Rule suggestions based on their preferred less efficient. Multiple commenters results rather than an impartial process, 1. General Opposition raised concerns regarding the impact of the Department has nevertheless Comment: Many Commenters the intersection of the rule with other considered those comments but finds expressed general opposition to the rules recently promulgated by the rule.13 Several commenters asserted that Department and by DHS, particularly 12 The Department has fully considered the the rule was motivated by politics and the Department’s proposed rule to possible impacts of this rule on the relatively small would ‘‘enable politicized and biased increase fees for motions to reopen and pro se population of aliens with cases before the appeals. Board. As discussed below, however, the rule decision-making.’’ Various commenters Response: Commenters are incorrect neither singles such aliens out for particular raised concerns that the rule would give treatment under the Board’s procedures, nor does that the rule is the product of political the EOIR Director ‘‘consolidated power it restrict or alter any of the many procedural or biased decision-making or that the avenues such aliens already have available to them rule would turn the BIA into a ‘‘political in advancing their cases. Further, nothing in the 13 Commenters’ specific concerns regarding rule inhibits the availability of pro bono counsel to different provisions of the rule are discussed tool.’’ As noted in the NPRM, the BIA assist such aliens as appropriate. separately below in section II.C.3. has seen recent significant increases in

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its pending caseload. 85 FR at 52492. benefit aliens, and meritless claims purpose. Each of the Department’s rules The number of appeals pending is adjudicated more quickly, which will stands on its own, includes currently at a record high, with 84,673 benefit the public and the government. explanations of their basis and purpose, case appeals pending as of the end of FY Commenters’ statements regarding and allows for public comment, as 2020. EOIR, Adjudication Statistics: possible effects on aliens who are required by the APA. See Little Sisters Case Appeals Filed, Completed, and denied relief or who may be subject to of the Poor Saints Peter & Paul Home v. Pending, Oct. 13, 2020, available at removal are purely speculative. Pennsylvania, 140 S. Ct. 2367, 2385 https://www.justice.gov/eoir/page/file/ Moreover, such speculative effects exist (2020) (explaining that the APA 1248501/download. Accordingly, the currently and independently of the rule, provides the ‘‘maximum procedural Department has reviewed EOIR’s as alien appeals may be denied or requirements’’ that an agency must regulations regarding the procedures for dismissed under current procedures. follow in order to promulgate a rule). BIA appeals to determine what changes Further, nothing in the rule prevents or Further, the interplay and impact of all can be implemented to promote inhibits case-by-case adjudication by the of these rules is speculative at the increased efficiencies and taken steps to Board in accordance with the evidence present time due to both ongoing and address the BIA’s growing caseload. In and applicable law for each such case. expected future litigation—which may this manner, this rule builds on prior Accordingly, the Department finds allow all, some, or none of the rules to similar procedural reviews and commenters’ concerns on this point ultimately take effect—and the amendments to the BIA’s regulations. unpersuasive. availability of fee waivers, 8 CFR See, e.g., Board of Immigration Appeals: Finally, the Department acknowledges 1103.7(c), which may offset the impact Procedural Reforms To Improve Case that it has published multiple proposed of some of the increases. Nevertheless, Management, 67 FR 54878 (Aug. 26, rules in 2020, including one that would to the extent commenters noted some 2002) (final rule that revised the increase the fee for an appeal to the BIA potential overlap or joint impacts, the structure and procedures of the BIA, and for certain motions to reopen for the Department regularly considers the provided for an enhanced case first time in over 30 years. See Executive existing and potential legal framework management procedure, and expanded Office for Immigration Review; Fee when a specific rule is proposed or the number of cases referred to a single Review, 85 FR 11866 (Feb. 28, 2020). implemented. Moreover, even if all Board member for disposition).14 The Department also acknowledges that rules were in effect, the Department has Similarly, commenters are incorrect DHS has imposed a $50 fee for asylum concluded that the benefits of the that the rule is intended to have an applications, U.S. Citizenship and instant rule discussed in the NPRM, e.g., effect on immigration rates or an alien’s Immigration Services Fee Schedule and 85 FR at 52509 and herein—as well as opportunity to be heard. As part of the Changes to Certain Other Immigration the benefits discussed in the other rules, Department of Justice, EOIR’s mission Benefit Request Requirements, 85 FR e.g., 85 FR at 11870 17—ultimately remains to ‘‘to adjudicate immigration 46788, 46791 (Aug. 3, 2020),15 that outweigh any combined impact the cases by fairly, expeditiously, and would also be applicable in EOIR rules may have on aliens, particularly uniformly interpreting and proceedings, 8 CFR 1103.7(b)(4)(ii), vis-a`-vis fee increases for appeals and administering the Nation’s immigration though that rule has been motions to reopen.18 laws.’’ EOIR, About the Office, Aug. 14, enjoined.16 Immigrant Legal Resource 2018, available at https:// Ctr. v. Wolf, —F.Supp.3d—, 2020 WL 17 In issuing its proposed rule regarding fees for www.justice.gov/eoir/about-office. 5798269 (N.D. Cal. 2020); Nw. applications administered by EOIR, the Department Instead, as part of the Department’s Immigrants Rights Proj. v. U.S. acknowledged the balance between the costs of Citizenship & Immigration Servs., No. increased fees and the public benefit associated intention to increase efficiencies, the with such fees, in addition to the need to comply Department believes that the rule will 19–3283 (RDM), 2020 WL 5995206 with applicable law and policy in conducting more have the effect of reducing the time (D.D.C. Oct. 8, 2020). regular fee reviews. 85 FR at 11870 (‘‘Although required for the adjudication of appeals The Department rejects any EOIR is an appropriated agency, EOIR has by DHS in cases where the immigration assertions, however, that it is proposing determined that it is necessary to update the fees charged for these EOIR forms and motions to more judge or the BIA has found the alien multiple rules for any sort of nefarious accurately reflect the costs for EOIR’s adjudications merits relief or protection from removal. of these matters. At the same time, however, EOIR In short, the changes to the rule should 15 The DHS rule did not impose a fee for an recognizes that these applications for relief, help both meritorious claims be asylum application filed by a genuine UAC who is appeals, and motions represent statutorily provided in removal proceedings conducted by EOIR. 85 FR relief and important procedural tools that serve the adjudicated more quickly, which will 46788 at 46809 (‘‘Notably, unaccompanied alien public interest and provide value to those who are children in removal proceedings who file an parties to the proceedings by ensuring accurate 14 In addition, the Department notes that it and application for asylum with USCIS are exempt from administrative proceedings.... As DHS is the EOIR have taken numerous steps, both regulatory the Form I–589 fee.’’). Thus, contrary to some party opposite the alien in these proceedings, and sub-regulatory, to increase EOIR’s efficiencies commenters’ concerns, a genuine UAC who files a EOIR’s hearings provide value to both aliens and address the pending caseload. See, e.g., motion to reopen based exclusively on an asylum seeking relief and the Federal interests that DHS Expanding the Size of the Board of Immigration application is not subject to a fee for that motion. represents. Given that EOIR’s cost assessment did Appeals, 85 FR 18105 (Apr. 1, 2020) (interim final 8 CFR 1003.8(a)(2)(ii), 1003.24(b)(2)(i), (ii). not include overhead costs or costs of non-salary rule expanding the size of the BIA from 21 to 23 16 While the injunction of DHS’s rule assessing a benefits (e.g., insurance), recovery of the processing members); EOIR, Policy Memorandum 20–01: Case $50 fee for asylum applications is in effect, EOIR costs reported herein is appropriate to serve the Processing at the Board of Immigration Appeals cannot charge a fee for asylum applications in its objectives of the IOAA and the public interest. The [hereinafter PM 20–01] (Oct. 1, 2019), available at proceedings. Relatedly, while that injunction is in proposed fees would help the Government recoup https://www.justice.gov/eoir/page/file/1206316/ effect, it cannot charge a fee for a motion to reopen some of its costs when possible and would also download (explaining various agency initiatives, based exclusively on an asylum application. 8 CFR protect the public policy interests involved. EOIR’s including an improved BIA case management 1003.8(a)(2)(ii), 1003.24(b)(2)(i), (ii). Because the calculation of fees accordingly factors in both the system, issuance of performance reports, and a ultimate resolution of that litigation is unknown— public interest in ensuring that the immigration reiteration of EOIR’s responsibility to timely and and, thus, there is a possibility that DHS’s rule may courts are accessible to aliens seeking relief and the efficiently decide cases in serving the national never take effect—commenters’ concerns about the public interest in ensuring that U.S. taxpayers do interest); EOIR, Policy Memorandum 19–11: No potential relationship between that rule and this not bear a disproportionate burden in funding the Dark Courtrooms (Mar. 29, 2019), available at final rule are even more speculative. Nevertheless, immigration system.’’). https://www.justice.gov/eoir/file/1149286/ as discussed, even if all of the relevant rules were 18 The Department also reiterates that the download (memorializing policies to reduce and in effect, the Department has concluded that the availability of fee waivers for appeals and motions minimize the impact of unused courtrooms and benefits of the final rule outweigh any substantiated to reopen, 8 CFR 1003.8(a)(3) and 8 CFR 1003.24(d), docket time). costs identified by commenters. addresses the principal concern raised by

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Comment: At least one commenter a more efficient production system for U.S. 262, 266 (1998) (‘‘The core of due stated that the rule is pretext for the rapid removal of litigants.’’ Another process is the right to notice and a restrictions on aliens’ access to asylum commenter claimed that, under the rule, meaningful opportunity to be heard.’’). or related relief. In support, the the BIA would put efficiency above its The Department does not evaluate due commenter argued that the rule duties as an appellate body, which process based on outcomes for either provides preferential treatment to DHS would thereby violate respondents’ due party, and it accordingly declines to versus aliens in proceedings and that process rights. adopt comments premised on the the Department selectively compares the Furthermore, commenters voiced intimation that due process occurs only BIA at times to either Federal courts or concern that the rule was attempting to when the outcome of a case is favorable other administrative tribunals, inappropriately speed up and to an alien. Cf. Pugel v. Bd. of Trs. of whichever best supports the restriction streamline procedures in a way that Univ. of Ill., 378 F.3d 659, 666 (7th Cir. at issue. In addition, the commenter would negatively affect due process 2004) (‘‘Due process did not entitle highlighted comments disparaging of protections. One commenter stated that [appellant] to a favorable result . . . immigrants or the immigration system the streamlining of procedures ‘‘will only to a meaningful opportunity to by President Trump and the Attorney foster further inequities and affect due present [a case].’’). General. process for all people involved.’’ A As noted above, EOIR’s mission is ‘‘to Response: The rule is not a pretext for number of commenters pointed out that adjudicate immigration cases by fairly, any nefarious motive targeting aliens for cases should not be decided quickly and expeditiously, and uniformly any reason, and it is appropriately that due process requires that attorneys interpreting and administering the supported by applicable law and be given a sufficient amount of time to Nation’s immigration laws.’’ These examples. As discussed, supra, the rule prepare their clients’ cases. Several objectives are generally complementary; generally applies to aliens and DHS other commenters raised concerns that for example, unnecessary delays in the equally and does not provide the rule was an attempt by the receipt of relief for meritorious aliens is preferential treatment to either party. To Administration to prioritize itself a fairness concern. Moreover, there the extent that commenters simply deportations over due process is nothing inherently unfair in ensuring disagree with either the law or the protections. that a case is adjudicated by the Board examples provided, commenters did not Numerous commenters were also within approximately 11 months—i.e., provide a persuasive justification for concerned with the possible 335 days—of its filing. To the contrary, why their particular policy preferences consequences stemming from what they excessive delay in adjudication, are superior to those adopted by the view as a potential erosion of due especially when issues of human Department in the rule. Moreover, as process protections. Commenters noted welfare are at stake, may raise concerns explained in the NPRM and herein, this that the level of due process in themselves and increase the risk of 20 rule is just one example of the immigration court proceedings can litigation. See, e.g., Telecomms. Rsch. Department’s actions, both recently and mean the difference between a respondent living safely in the United courts are not constitutionally entitled to multiple in the past, to increase efficiencies layers of review. The Attorney General could before the BIA and address the record States and being returned to danger in dispense with the Board and delegate her powers pending caseload. The Department another country. to the immigration judges, or could give the Board reiterates the reasoning set out in the Response: To the extent that discretion to choose which cases to review (a la the Appeals Council of the Social Security proposed rule for the changes, and the commenters equate ‘‘due process’’ with Administration, or the Supreme Court exercising its discussion further below regarding an outcome favorable to the alien and an certiorari power).’’); cf. Provisional Unlawful commenters’ concerns with particular ‘‘erosion’’ of due process with an Presence Waivers of Inadmissibility for Certain provisions of the rule. outcome adverse to the alien—and base Immediate Relatives, 78 FR 536, 554–55 (Jan. 3, their comments accordingly on that 2013) (‘‘In upholding the BIA’s practice of 2. Violates Due Process ‘affirmance without opinion’ of immigration judge view—the Department declines to decisions, for example, several courts of appeals Comment: Many commenters accept both that view of due process have recognized that Due Process does not require expressed broad concerns that the rule and the comments based on it. The an agency to provide for administrative appeal of foundation of due process is notice and its decisions.’’). Thus, the Department’s would erode aliens’ due process rights administrative appellate process involving the BIA in immigration court or BIA an opportunity to be heard, and nothing already provides more due process to aliens in proceedings. Specifically, several in the rule eliminates either an alien’s removal proceedings than is required by either the commenters claimed that the rule right to notice or an alien’s opportunity INA or the Constitution, and the alteration of the to be heard on a case before the BIA’s procedures through regulations promulgated favored efficiency over fairness. by the Attorney General is fully consonant with the 19 Commenters stated that the rule claimed Board. See LaChance v. Erickson, 522 provision of due process. See Barradas v. Holder, to promote efficiency, but that its 582 F.3d 754, 765 (7th Cir. 2009) (stating that proposed changes ‘‘would sacrifice 19 The Department notes that although the INA immigration proceedings that meet the statutory fairness and due process for this statutorily requires proceedings over which an and regulatory standards governing the conduct of immigration judge must preside to determine an such proceedings generally comport with due increased efficiency.’’ Several alien’s removability in many situations, under process). commenters noted that due process sections 240(a)(1) and (3) of the Act, 8 U.S.C. 20 The Department recognizes and agrees with the should be more highly valued than 1229a(a)(1) and (3), and acknolwedges that an Supreme Court’s observation that ‘‘as a general efficiency in removal proceedings. For administrative appeal may be permitted, e.g., INA matter, every delay works to the advantage of the 101(a)(47)(B) and 208(d)(5)(A)(iv), 8 U.S.C. deportable alien who wishes merely to remain in example, one commenter asserted that 1101(a)(47)(B) and 1158(d)(5)(A)(iv), there is no the United States.’’ Doherty, 502 U.S. at 323. Thus, the rule ‘‘has everything to do with constitutional or statutory right to an administrative it is aware that many aliens likely prefer substantial efficiency and nothing to do with due appeal to the BIA. See Albathani v. INS, 318 F.3d delays in the adjudications of their appeals by the process.’’ A commenter also stated that 365, 376 (1st Cir. 2003) (‘‘An alien has no BIA and, accordingly, oppose any efforts to increase constitutional right to any administrative appeal at the efficiency of such adjudications. Nevertheless, that rule’s ‘‘goal should not be to create all. Such administrative appeal rights as exist are the Department finds any rationale for encouraging created by regulations promulgated by the Attorney or supporting the dilatory adjudication of cases commenters regarding the instant rule’s asserted General.’’ (citations omitted)); Guentchev v. INS, 77 both inherently unpersuasive and wholly impact on filing motions to reopen and the F.3d 1036, 1037–38 (7th Cir. 1996) (‘‘The outweighed by the importance of timeliness and Department’s proposed fee increase for motions to Constitution does not entitle aliens to fairness—especially to aliens with meritorious reopen. administrative appeals. Even litigants in the federal claims—in BIA adjudications.

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and Action Ctr. v. FCC, 750 F.2d 70, 80 disproportionately impact pro se aliens any question regarding our jurisdiction (D.C. Cir. 1984) (outlining several because they are ‘‘the parties least likely over this appeal, we take jurisdiction factors for deciding unreasonable delay to have a sophisticated notion of when over this matter by certification claims under the Administrative an appeal to the BIA is worth taking.’’ pursuant to 8 CFR 1003.1(c).’’). Procedures Act, including Another commenter noted that removal Commenters’ own suggestions that acknowledging ‘‘delays that might be of the self-certification authority would removing this authority would harm reasonable in the sphere of economic prevent the BIA from addressing defects alien appellants because the BIA often regulation are less tolerable when in an alien’s Notice of Appeal, which uses its self-certification authority human health and welfare are at stake’’). may be the result of factors outside the inappropriately and contrary to existing Commenters are incorrect that the alien’s control, such as mail delays, case law to avoid finding appeals provisions of this rule impede aliens’ illness, or language ability. untimely or correct filing defects due process rights in the manner One commenter characterized the provide further support for the alleged. Although the rule refines timing change as removing an important check Department’s decision. See Matter of and other procedural requirements, the on immigration judge misconduct. Jean, 23 I&N Dec. 373, 380 n.9 (A.G. rule does not affect any party’s Taking issue with the Department’s 2002) (the Board’s certification fundamental rights to notice or an supposed analogy to Federal courts, authority, like its sua sponte authority, opportunity to be heard by the BIA. another commenter claimed that Federal ‘‘is not meant to be used as a general Moreover, the rule does not make courts were distinct from immigration cure for filing defects or to otherwise proceedings before the BIA ‘‘so courts because the ‘‘process of filing a circumvent the regulations, where fundamentally unfair that the alien was notice of appeal in federal court is enforcing them might result in prevented from reasonably presenting straightforward, [ ] the Federal Rules of hardship’’ (internal citation and his case.’’ Gutierrez v. Holder, 662 F.3d Civil Procedure provide ample quotation marks omitted)). Further, 1083, 1091 (9th Cir. 2011) (citations and protection for pro se parties who make commenters did not explain how the quotation marks omitted). None of the mistakes, [and] the stakes in most civil Board could exercise jurisdiction changes in the rule limit aliens in suits arising in federal district court are, through certification without immigration proceedings before EOIR unlike the stakes in most immigration determining its jurisdiction in the first from filing appeals, briefs, or other court cases, not a matter of life and instance. See 85 FR at 52506. Finally, evidence such that it prevents aliens death.’’ most commenters did not acknowledge Response: As an initial point, the from reasonably presenting their appeal. that the withdrawal of certification Department notes that many Further, many commenters assessed the authority would also impact cases in commenters objected to the limitation of rule through only a one-sided lens which it may have been used contrary the Board’s certification authority solely related to aliens and did not to precedent to accept appeals in favor because they perceived that authority to acknowledge that (1) most of the of DHS. In other words, as the be beneficial only to respondents. Those changes apply equally to DHS and (2) Department has noted, the impact of comments, however, support the some of the changes—e.g., the this provision is equally applicable to Department’s concern about the elimination of simultaneous briefing for both parties and is not directed at one inappropriate and inconsistent usage of non-detained cases—fall much more over the other. that authority and its decision to limit The Department finds that the same heavily on DHS than on aliens. In short, that authority because it may be applied risks would continue should the as the Department explained in the in a manner that benefits one party over Department provide further definition of NPRM and reiterates in the final rule, the other. ‘‘exceptional circumstances’’ rather than the changes are designed for the benefit As the Department discussed in the remove the certification authority, as of all parties and the adjudicators and NPRM, the BIA’s use of its self- suggested by commenters. Indeed, the do not affect either party’s entitlement certification authority has been subject existence of a standard for ‘‘exceptional to due process in immigration to inconsistent usage, if not abuse, by circumstances’’ applicable to BIA self- proceedings. the BIA in the past. For example, certification since at least 2002, see 3. Specific Concerns With the NPRM despite clear language that required the Matter of Jean, 23 I&N Dec. at 380 n.9, BIA to have jurisdiction in order to has not precluded the Board members a. BIA Jurisdiction by Certification (8 exercise its self-certification authority, from disregarding that standard as both CFR 1003.1(c)) BIA members often inverted that the NPRM, 85 FR at 52506, and Comment: Numerous commenters principle and used the self-certification commenters recognize. Accordingly, the expressed concern over the authority to establish jurisdiction. See, Department finds that further attempts Department’s removal of the BIA’s self- e.g., Matter of Carlos Daniel Jarquin- to refine that standard would likely be certification authority at 8 CFR Burgos, 2019 WL 5067262, at *1 n.1 unhelpful, if not futile, especially 1003.1(c). (BIA Aug. 5, 2019) (‘‘On March 29, because there is no effective check on its At least one commenter expressed 2019, we accepted the respondent’s usage to ensure consistency. Moreover, dismay as to why the Department would untimely appeal. To further settle any creating an additional definitional retract the BIA’s self-certification issues of jurisdiction, we accept this standard for ‘‘exceptional authority rather than retaining the matter on appeal pursuant to 8 CFR circumstances’’ would also create authority but defining ‘‘exceptional 1003.1(c).’’), Matter of Daniel additional adjudicatory delays and circumstances,’’ which the commenter Tipantasig-Matzaquiza, 2016 WL arguments surrounding whether a case believed would be less costly and more 4976725, at *1 (BIA Jul. 22, 2016) (‘‘To genuinely met that standard. beneficial. settle any issues regarding jurisdiction, Regarding the possible impact of the Commenters were concerned that the we will exercise our discretionary rule on pro se aliens, the Department removal of the BIA’s self-certification authority to accept this appeal on first notes that most aliens—i.e., 86 authority will negatively impact aliens certification. See 8 CFR 1003.1(c).’’), percent, EOIR, Current Representation in proceedings, particularly pro se and Matter of Rafael Antonio Hanze Rates, Oct. 13, 2020 [hereinafter respondents. For example, a commenter Fuentes, 2011 WL 7071021, at *1 n.1 Representation Rates], available at explained that the changes would (BIA Dec. 29, 2011) (‘‘In order to avoid https://www.justice.gov/eoir/page/file/

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1062991/download—whose cases are Moreover, immigration judges have a As to removing a necessary considered by the Board have duty to develop the record in cases procedural check on immigration representation. For those who do not, involving pro se aliens which will assist judges, the Department notes that the there are multiple avenues they may such aliens in pursuing appeals if regular appeals process to the BIA is pursue to obtain representation.21 For needed. See Mendoza-Garcia v. Barr, unchanged, and parties that believe an example, the Department maintains a 918 F.3d 498, 504 (6th Cir. 2019) immigration judge erred in his or her BIA Pro Bono Project in which ‘‘EOIR (collecting cases). The Department has decision should seek an appeal at the assists in identifying potentially fully considered the possible impacts of BIA consistent with those procedures. meritorious cases based upon criteria this rule on the relatively small pro se Commenters did not provide an determined by the partnering volunteer population of aliens with cases before explanation as to why the certification groups.’’ EOIR, BIA Pro Bono Project, the Board. However, the rule neither process would provide a check that the Oct. 16, 2020, available at https:// singles such aliens out for particular regular appeal process would not, nor www.justice.gov/eoir/bia-pro-bono- treatment under the Board’s procedures, did they explain why EOIR’s well- project.22 Additionally, certain nor does it restrict or alter any of the established complaint process for procedural doctrines, such as equitable avenues noted above that may assist pro immigration judge misconduct would tolling, may excuse noncompliance with se aliens. also not be a sufficient check on filing deadlines for pro se aliens.23 immigration judge behavior. See EOIR, Ultimately, however, unless a Summary of EOIR Procedures for doctrine such as equitable tolling is 21 In an appeal to the Board in removal Handling Complaints Concerning EOIR proceedings, ‘‘the person concerned shall have the applicable, BIA procedures are not Adjudicators, Oct. 15, 2018, available at privilege of being represented (at no expense to the excused for pro se respondents, just as https://www.justice.gov/eoir/page/file/ Government) by such counsel, authorized to they are not excused generally for pro se practice in such proceedings, as he shall choose.’’ 1100946/download (last visited Nov. 24, INA 292, 8 U.S.C. 1362. Despite this statutory right civil litigants. See, e.g., McNeil v. 2020). In short, commenters did not to counsel at no expense to the Government in United States, 508 U.S. 106, 113 (1993) persuasively explain why the BIA self- appeals to the BIA in removal proceedings, the (‘‘[W]e have never suggested that certification process, which is subject to Department recognizes that some aliens do not procedural rules in ordinary civil obtain representation before the BIA. The inconsistent application and potential Department understands that some aliens do not litigation should be interpreted so as to abuse, is superior to the normal secure representation because they do not wish to excuse mistakes by those who proceed appellate process and EOIR’s pay the fee charged by a potential representative. without counsel.’’); Edwards v. INS, 59 immigration judge misconduct The Department also understands that many F.3d 5, 8–9 (2d Cir. 1995) (rejecting a representatives, due to ethical or professional complaint process for monitoring responsibility obligations, will not take cases of pro se alien litigant’s arguments for immigration judge behavior; aliens who are ineligible for any relief or protection being excused from Federal court accordingly, the Department declines to from removal (e.g., an alien with an aggravated procedural requirements due to his pro accept the commenters’ suggestions on felony drug trafficking conviction who has no fear se status). Although the Department of persecution or torture in his or her home that issue. country) because they do not wish to charge money appreciates the challenges faced by pro for representation when representation will not se litigants and recommends that all b. Administrative Closure (8 CFR affect the outcome of the proceeding. These aliens obtain representation, but see 1003.1(d)(1)(ii), 1003.10) situations illustrate only that some aliens may not ultimately secure counsel for reasons common to note 21, supra (explaining why aliens Comment: Commenters raised issues of representation in all civil cases—i.e., the may not obtain representation), it concerns with the rule’s general cost of the representation and the strength of the declines to establish two separate prohibition on administrative closure, case—not that aliens are limited or prohibited from procedural tracks for appeals depending explaining that the prohibition would obtaining representation. See United States v. Torres-Sanchez, 68 F.3d 227, 231 (8th Cir. 1995) on whether an alien has representation. prevent adjudicators from efficiently (‘‘Although Torres-Sanchez expressed some Further, weighing the possibility of organizing and prioritizing cases on frustration over his attempt to obtain counsel, that abuses of the certification process their dockets, resulting in increased frustration, in our view of the record, stemmed from described above and in the NPRM, 85 backlogs. For example, commenters his realization that he faced the inevitable consequence of deportation, not from a lack of FR at 52506–07, the size of the pro se stated that immigration judges would opportunity to retain counsel. In any event, the population with cases before the BIA, not be able to prioritize terrorism mere inability to obtain counsel does not constitute and the well-established avenues of suspects over persons who overstayed a violation of due process.’’). As the Department is assistance for pro se aliens, the visas and have apparent eligibility for not involved in discussions between respondents and potential representatives, it cannot definitively Department disagrees that it is necessary relief. state every reason that an alien who seeks or appropriate to keep the certification Commenters further explained that representation may not obtain it. Nevertheless, it process simply due to the possibility of eliminating administrative closure can state that this rule does not limit or restrict any its use as a means of relieving a party would result in unfairly harsh alien’s ability to obtain representation in accordance with section 292 of the Act, 8 U.S.C. of his or her compliance with particular consequences for persons who have 1362. procedural requirements. pending applications with the United 22 States Citizenship and Immigration In addition, as discussed elsewhere in this rule, The Department is unsure why a the Department emphasizes that EOIR provides Services (‘‘USCIS’’), such as U visas and commenter claimed the Department’s numerous resources to assist pro se individuals applications for Special Immigrant with self-representation and participation in their underlying logic on this issue relied on Juvenile Status. Instead of allowing for proceedings. For example, EOIR’s Office of Policy an analogy to Federal court, as the entire administrative closure of their removal seeks to increase access to information and raise the section describing the changes is silent level of representation for individuals in hearings proceedings while those applications as to Federal appellate courts. Id. at before immigration courts and the BIA. See EOIR, are being processed by USCIS, the Office of Legal Access Programs (Feb. 19, 2020), 52506–07. Accordingly, the Department commenters explained that persons available at https://www.justice.gov/eoir/office-of- cannot provide an informed response to would likely be required to appeal a legal-access-programs. In addition, EOIR has that comment. developed a thorough electronic resource for removal order or file a motion to reopen individuals in proceedings. EOIR, Immigration once USCIS approves their application, Court Online Resource, available at https:// filings liberally. At least one court of appeals has icor.eoir.justice.gov/en/. held that the Board is legally required to liberally potentially while the person is outside 23 Although the Board has not formally adopted construe pro se filings. See Higgs v. Att’y Gen. of the United States. Moreover, such a rule, by practice, it also construes pro se the U.S., 655 F.3d 333, 339–40 (3d Cir. 2011). commenters noted that this would

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create inefficiencies due to closure changes were insufficient and calendar and, more often than not, never simultaneous adjudications by EOIR incapable of justifying the changes come back. Thus the reality is that, in and USCIS. Similarly, commenters under the APA, including claiming that hundreds of thousands of cases, noted that the rule would also prejudice EOIR relied on flawed and misleading administrative closure has amounted to persons with pending matters in State or statistics and that the Department’s a decision not to apply the Nation’s Federal courts as well, such as direct reliance on Matter of Castro-Tum, 27 immigration laws at all.’’). Therefore, appeals of criminal convictions or other I&N Dec. 271 (A.G. 2018) is misplaced the Department does not believe that post-conviction relief. because Castro-Tum was wrongly administrative closure is a proper tool 24 Commenters raised multiple concerns decided. Commenters alleged that the for efficiently adjudicating proceedings about the rule’s effects on persons Department’s statements that and, as a result, is using its authority to applying for provisional unlawful prohibiting administrative closure will clarify its own regulations to preclude presence waivers with DHS. improve efficiency is not supported in immigration judges and the BIA from Commenters alleged that the rule the proposed rule and that granting administrative closure, with conflicts with section 212(a)(9)(B)(v) of administrative closure actually limited exceptions. See INA 103(g)(2), 8 the Act, 8 U.S.C. 1182(a)(9)(B)(v), which contributes to shrinking the backlog by U.S.C. 1103(g)(2) (granting the Attorney provides for an unlawful presence allowing respondent to pursue ancillary General the authority to issue hardship waiver. Commenters explained relief. Moreover, commenters stated that regulations as necessary for carrying out that the Secretary of Homeland Security the Department should have consulted his authority as it relates to EOIR). implemented regulations at 8 CFR with DHS to ensure that adjudications Additionally, the Department finds it 212.7(e)(4)(iii) interpreting the waiver between the two agencies are consistent. necessary to provide this clarification to statute as allowing persons in removal At least one commenter also raised resolve competing interpretations of 8 proceedings to apply for a provisional constitutional concerns with the rule’s CFR 1003.1(d)(1)(ii) and 1003.10(b) that waiver if their removal proceeding is administrative closure changes. The have resulted in the inconsistent administratively closed. In commenter alleged that the rule violates nationwide application of implementing this rule, the commenter due process by depriving persons in administrative closure authority. alleges that the Department is implicitly removal proceedings of the right to Compare Matter of Castro-Tum, 27 I&N amending the DHS regulation by submit applications for provisional Dec. at 271 (holding that neither rendering DHS’s administrative closure unlawful presence waivers and by immigration judges nor the BIA have a language superfluous. As a result, depriving United States citizens of the general authority to indefinitely commenters believe that the rule opportunity to live with their non- suspend immigration proceedings infringes on the Secretary’s authority to citizen spouse while the spouse’s through administrative closure), and interpret section 212(a)(9)(B)(v) of the provisional unlawful presence waiver is Hernandez-Serrano, 2020 WL 6883420 Act, 8 U.S.C. 1182(a)(9)(B)(v). being adjudicated by USCIS. The at *4 (‘‘Indeed no one—neither Moreover, commenters also stated commenter similarly alleged that the Hernandez-Serrano, nor the two circuit that, as a practical matter, the rule rule violates the Equal Protection Clause courts that have rejected the Attorney would act as a bar to persons in removal because persons in removal proceedings General’s decision in Castro-Tum—has proceedings from obtaining provisional will be prevented from applying for a explained how a general authority to unlawful presence waivers from DHS in provisional unlawful presence waiver close cases administratively can itself be order to consular process because the simply because they are in removal lawful while leading to such facially waiver applicants would no longer be proceedings when persons who have unlawful results.’’), with Meza Morales able to receive administrative closure, as been ordered removed are allowed to v. Barr, 973 F.3d 656 (7th Cir. 2020) required by DHS regulations. One apply for a waiver. (rejecting Castro-Tum and holding that commenter noted that, instead of Response: EOIR is tasked with the immigration judges are not precluded administrative closure, immigration efficient adjudication of immigration from administratively closing cases), courts have been recently using status proceedings. See, e.g., 8 CFR 1003.10(b) and Romero v. Barr, 937 F.3d 282 (4th dockets to handle cases that have (explaining that ‘‘immigration judges Cir. 2019) (same). These conflicting applications pending with USCIS. shall seek to resolve the questions decisions, and the possibility of However, the commenter noted that before them in a timely and impartial additional such decisions, create status dockets do not allow persons to manner’’). As such, indefinitely uncertainty for immigration judges and apply for provisional unlawful presence delaying immigration court proceedings the BIA, which this rule seeks to remedy waivers because their removal cases in order to allow aliens to pursue through a consistent nationwide policy. remain pending. speculative relief that may take years to Cf. Meza Morales, 973 F.3d at 667 Relatedly, at least one commenter resolve does not comport with EOIR’s (noting that the Attorney General may stated that the administrative closure mission to expeditiously adjudicate amend the regulations through the prohibition will push more aliens into cases before it. See, e.g., Matter of L-A- proper procedures to remove any filing applications for cancellation of B-R-, 27 I&N Dec. 405, 416 (A.G. 2018) perceived administrative closure removal, since they will be unable to (denying a continuance in part because authority). administratively close their removal an indefinite request would undermine The Department disagrees with proceedings in order to apply for a administrative efficiency). With EOIR’s commenters that the agency did not provisional unlawful presence waiver. pending caseload reaching record highs, provide sufficient reasons for the change The commenter stated this would raise EOIR simply cannot allow indefinite in the NPRM, or that the given reasons costs for EOIR since adjudicating delays that prolong adjudication any were false, erroneous, or relied on cancellation of removal applications longer than necessary for immigration incorrect or misleading statistics. costs more than administratively closing judges to decide the issues squarely proceedings in order for DHS to before them. See Hernandez-Serrano v. 24 The Department notes that there are other adjudicate the waiver applications. Barr, —F.3d—, 2020 WL 6883420, *3 potential tools available to respondents with pending relief or actions outside of EOIR, including As a general matter, commenters (6th Cir. Nov. 24, 2020) (‘‘The result of requesting a continuance or working with DHS alleged that the Department’s administrative closure, . . . is that counsel to file a motion to dismiss. See 8 CFR explanation for the administrative immigration cases leave an IJ’s active 1003.29, 1239.2(c).

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Rather, the Department explained that However, in practice, unlike Commenters did not identify an the general authority to administratively continuances, administrative closure explicit conflict between the language of close cases ‘‘failed as a policy matter has at times been used to effectively INA 212(a)(9)(B)(v), 8 U.S.C. and is unsupported by the law.’’ See 85 terminate cases through indefinite 1182(a)(9)(B)(v), and the Department is FR at 52504. In the NPRM, the delay. Thus, the Department believes unaware of any. That statutory Department noted that, following the that such authority is improper as a provision refers to a waiver of expansion of administrative closure in policy matter unless expressly provided inadmissibility based on an alien’s Matter of Avetisyan, 25 I&N Dec. 688 for by regulation or judicially approved unlawful presence in the United States, (BIA 2012), the backlog of immigration settlement. and this final rule does not purport to court cases has grown significantly. See Lastly, the Department also explained interpret, alter, or even address that also Adjudication Statistics: Pending in the NPRM that existing regulations provision. Rather, commenters assert Cases, New Cases, and Total make clear that authority to defer the that this rule’s restriction on the use of Completions, Oct. 13, 2020, available at adjudication of cases lies with EOIR administrative closure presents an https://www.justice.gov/eoir/page/file/ leadership and not with individual undesirable policy choice to the extent 1242166/download. While the use of members of the BIA or immigration that it may limit eligibility for that administrative closure is not solely judges. See 8 CFR 1003.0(b)(1)(ii), waiver based on DHS’s current responsible for this growth, the need for 1003.1(a)(2)(i)(C), 1003.9(b)(3). regulatory language. The Department prompt adjudication of pending cases The Department also disagrees with acknowledges commenters’ policy has only increased. Administrative commenters that this rule conflicts with disagreement and has considered it. closure merely delays a decision until section 212(a)(9)(B)(v) of the Act, 8 Nevertheless, the benefits of the final an unknown future date, thus allowing U.S.C. 1182(a)(9)(B)(v), as interpreted by rule far outweigh its alleged costs, even the total number of cases at the DHS in 8 CFR 212.7(e)(4)(iii), which crediting commenters’ speculative immigration courts to grow, rather than makes a person in removal proceedings assertions.25 Moreover, regardless of requiring the immigration judge to ineligible for a provisional unlawful policy preferences, the Attorney General adjudicate the issues before them in presence hardship waiver unless the has determined that the expansive order to promptly move cases to proceedings are administratively closed. version of administrative closure completion. Regulations solely promulgated by and preferred by commenters is The Department also explained in the binding on DHS do not confer incompatible with existing law and does NPRM that the agency believes the independent authority on immigration not warrant a delegation of such Attorney General’s holding in Matter of judges or the Board, and DHS does not authority. Matter of Castro-Tum, 27 I&N Castro-Tum is correct that 8 CFR have the power to provide immigration Dec. at 292 (‘‘The current practice of 1003.1(d)(1)(ii) and 1003.10(b) do not judges with the general authority to administrative closure lacks a valid provide for general administrative grant administrative closure or to legal foundation, and I do not believe it closure authority, citing the Attorney prohibit EOIR from interpreting its own would be appropriate to delegate such General’s explanations that general regulations, so any interpretation of authority.’’); cf. Hernandez-Serrano, administrative closure authority § 212.7(e)(4)(iii) attempting to do 2020 WL 6883420 at *4 (‘‘Those conflicts with the regulatory ‘‘timely’’ sowould be erroneous. See INA concessions imply that the permanent requirements, 27 I&N Dec. at 284; that 103(a)(1), 8 U.S.C. 1103(a)(1) (providing closure of some 350,000 immigration the regulations do not ordinarily the Attorney General with the authority cases was largely contrary to law. include the authority to suspend cases to make ‘‘controlling’’ determinations of Indeed no one—neither Hernandez- indefinitely, id. at 285; and that specific the immigration laws); see also Castro- Serrano, nor the two circuit courts that delegations that prior Attorneys General Tum, 27 I&N Dec. at 287 n.9 (‘‘Because have rejected the Attorney General’s have made would be rendered only the Attorney General may expand decision in Castro-Tum—has explained superfluous, id. at 287–88, among the authority of immigration judges or how a general authority to close cases others. See also Hernandez-Serrano, the Board, that regulation [8 CFR administratively can itself be lawful 2020 WL 6883420 at *1, *4 (stating that 212.7(e)(4)(iii)] cannot be an while leading to such facially unlawful ‘‘[a]s of October 2018, more than independent source of authority for results.’’). In short, the Department finds 350,000 of those [administratively administrative closure.’’). The no basis to contradict the Attorney closed] cases had not been reopened. An Department has considered the General and adopt commenters’ policy adjudicatory default on that scale strikes interplay of EOIR and DHS’s regulations preferences. directly at the rule of law’’ and that regarding provisional unlawful presence The Department believes that any ‘‘[t]he result of administrative closure, waivers and has decided to continue increase in cancellation of removal . . . is that immigration cases leave an with a general prohibition on applications in response to this IJ’s active calendar and, more often than administrative closure in immigration unrelated rule is purely speculative. not, never come back. Thus the reality proceedings before EOIR. DHS chose to Further, even if commenters’ is that, in hundreds of thousands of limit the eligibility for provisional predictions turn out to be accurate, the cases, administrative closure has unlawful presence waivers as a matter Department is well-equipped to handle amounted to a decision not to apply the of policy. See 78 FR at 544 (explaining an increase in such applications as its Nation’s immigration laws at all.’’). that DHS chose to limit eligibility to adjudicators have considered them for Further, the Department also aliens with administratively closed decade and the relevant law is well- explained in the NPRM that the agency removal proceedings in order to be established. Additionally, commenters’ believes general administrative closure ‘‘consistent with [DHS’s] established speculation on this point implies that authority improperly allows enforcement priorities’’). DHS may the majority of such applications would immigration judges to determine which choose to update their regulations as a immigration cases should be result of the Department’s amendments 25 The final rule does not prohibit administrative adjudicated and which ones should not. regarding administrative closure closure altogether, and commenters did not See 85 FR at 52503. Similar to authority, but any concerns with DHS’s generally acknowledge or account for those aliens who may still benefit from administrative closure continuances, administrative closure is policy decisions are outside the scope of under the rule in their assertions about the rule’s a tool to delay cases in certain instances. this rule. impact.

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be meritless; otherwise, the aliens Charlotte, and Chicago 26—currently administratively—meaning the case was would have already filed such follow either Matter of Castro-Tum itself removed from the IJ’s docket without applications because an approved or an applicable Federal court further proceedings absent some application for cancellation of removal decisioning affirming it, e.g., persuasive reason to reopen it. As of for non-permanent residents provides Hernandez-Serrano, 2020 WL 6883420 October 2018, more than 350,000 of lawful permanent residence which is a at *5 (‘‘In summary, therefore, we agree those cases had not been reopened. An preferable outcome to the limbo-like with the Attorney General that adjudicatory default on that scale strikes nature of adnministrative closure. The §§ 1003.10 and 1003.1(d) do not directly at the rule of law.’’). Department finds that a potential delegate to IJs or the Board ‘the general Further, for those courts that are not increase in meritless applications for authority to suspend indefinitely bound by Matter of Castro-Tum, the relief is not a persuasive reason for immigration proceedings by Department disagrees that the change altering this final rule, and any administrative closure.’’’ (quoting will result in unnecessary removal adjudicatory costs associated with such Matter of Castro-Tum, 27 I&N Dec. at orders, as immigration judges are an increase are outweighed by the 272)). Therefore, the effect of this rule already tasked with resolving the benefits of the rule. simply codifies the existing limitations proceedings before them, including on immigration judges’ general The Departments disagree that the determining removability and issuing authority to grant administrative removal orders if required. See, e.g., 8 administrative closure provisions raise closure.27 Moreover, to the extent that any constitutional concerns. There is no CFR 1003.10(b) (‘‘In all cases, commenters simply disagree with the immigration judges shall seek to resolve cognizable due process interest in decision in Matter of Castro-Tum as a access to or eligibility for a the questions before them in a timely policy matter, the Department has and impartial manner consistent with discretionary, provisional unlawful explained that the legal and policy the Act and regulations.’’). The presence waiver of inadmissibility. See, issues implicated by the free-floating Department declines to adopt e.g., Champion v. Holder, 626 F.3d 952, use of administrative closure and the commenters’ speculation as to the 957 (7th Cir. 2010) (‘‘To articulate a due efficiency that would follow from counter-factual outcomes of cases that process claim, [the individual] must clearly delineating the circumstances of have been administratively closed, and demonstrate that she has a protected its usage outweigh the policy arguments commenters did not support their liberty or property interest under the advanced by commenters. See also assertion that only cases in which an Fifth Amendment. Aliens have a Fifth Hernandez-Serrano, 2020 WL 6883420 alien will be ordered removed are Amendment right to due process in at *1 (‘‘A regulation delegating to administratively closed.28 To the some immigration proceedings, but not immigration judges authority to take contrary, aliens have sought in those that are discretionary.’’) certain actions ‘[i]n deciding the recalendaring of their proceedings in (citations omitted). Moreover, this rule’s individual cases before them’ does not order to apply for relief from removal administrative closure changes do not delegate to them general authority not to for which they believe they are eligible, violate the concept of equal protection— decide those cases at all. Yet in more suggesting that in many cases, aliens in either the Equal Protection Clause of than 400,000 cases in which an alien themselves do not believe that a case the Fourteenth Amendment or as a was charged with being subject to that has been administratively closed component of the Fifth Amendment’s deportation or (after April 1, 1997) would necessarily have otherwise Due Process Clause—as they do not removal, immigration judges or the resulted in a removal order. See, e.g., impose any classifications that would Board of Immigration Appeals have Matter of W-Y-U-, 27 I&N Dec. 17 (BIA invoke the doctrine. To the extent the invoked such a regulation to close cases 2017) (‘‘[The respondent] filed a timely administrative closure changes would application for asylum and related relief 26 The Department notes that Matter of Castro- have a disparate impact on persons in and protection, which he seeks to have removal proceedings as compared to Tum did not incorporate all of the legal arguments presented in the NPRM regarding whether the Immigration Judge review in persons not in proceedings, the immigration judges and Board members have free- removal proceedings. The respondent Departments note that the changes are floating authority to defer adjudication of cases. argues that the administrative closure of E.g., 85 FR at 52503 (discussing tension created by rationally related to the Department’s his case prevents him from pursuing interest in efficiently allocating EOIR’s interpreting 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to allow free-floating authority to administratively that relief.’’), overruled by Matter of limited adjudicatory capacity in order to close cases with references in those provisions to Castro-Tum, 27 I&N Dec. at 272. decide cases in a timely manner. Cf. the ‘‘disposition’’ of cases and with the provisions of 8 CFR 1003.1(a)(2)(i)(C) and 8 CFR 1003.9(b)(3) As the Department asserted, free- DeSousa v. Reno, 190 F.3d 175, 184 (3d floating authority to unilaterally Cir. 1995) (‘‘[D]isparate treatment of which assign authority to defer case adjudications to the Board Chairman and the Chief Immigration administratively close cases is in different groups of aliens triggers only Judge rather than to all Board members and all significant tension with existing law, rational basis review under equal immigration judges); accord Hernandez-Serrano, 2020 WL 6883420 at *4 (‘‘To the contrary, the including regulations and longstanding protection doctrine. Under this minimal Board case law. 85 FR at 52503–05. To standard of review, a classification is regulations expressly limit their delegation to actions ‘necessary for the disposition’ of the case. the extent that commenters suggested accorded ‘a strong presumption of And that more restricted delegation cannot support the Department should retain the status validity’. . . .’’ (internal citations a decision not to decide the case for reasons of quo and its problematic tension with omitted)). administrative ‘convenience’ or the ‘efficient management of the resources of the immigration Overall, as discussed in more detail, courts and the BIA.’ ’’ (emphases in original). Thus, 28 The Department notes that simply delaying an infra, the Department has weighed the circuit court decisions abrogating Matter of Castro- alien’s removal is not a compelling policy basis for relevant equities of the rule’s Tum did not necessarily address all arguments declining to promulgate this rule. See Nken v. surrounding administrative closure. Accordingly, Holder, 556 U.S. 418, 436 (2009) (‘‘There is always administrative closure provision. The independent of Matter of Castro-Tum, immigration a public interest in prompt execution of removal Department does not believe that the judges and Board members may still come to the orders: The continued presence of an alien lawfully administrative closure provision will conclusion that they generally lack free-floating deemed removable undermines the streamlined have a significant impact on the public, authority to administratively close cases. removal proceedings IIRIRA established, and 27 Although this rule codifies the result of Matter permits and prolongs a continuing violation of as most immigration courts—63 out of of Castro-Tum, its bases are broader than just that United States law.’’ (internal citations and 67, all but those in Arlington, Baltimore, decision. See supra text accompanying note 26. quotation marks omitted)).

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existing law, the Department simply administratively closed. Second, and the Department first reiterates that disagrees. relatedly, all changes in the law may situation is already the status quo in all The question of unlawful presence impact matters of attorney strategy in but four immigration courts and has waivers was already addressed by interactions with clients, but that is an been so since 2018. As Matter of Castro- Matter of Castro-Tum, 27 I&N Dec. at insufficient basis to decline to change Tum was issued in 2018, aliens and 278 n.3, 287 n.9, and this final rule does the law.29 To find otherwise would their representatives in jurisdictions not impact such waivers accordingly. effectively preclude any law from ever following Castro-Tum should not be Moreover, the regulation identified by being changed. Third, nothing in the currently relying on the expectation of commenters, 8 CFR 212.7(e)(4)(iii) has rule prohibits a practitioner from administrative closure to pursue no analogue in chapter V of title 8, and seeking administrative closure; rather, it provisional unlawful presence waivers. that regulation is not binding on the more clearly delineates the situations in Consequently, this final rule does not Department. Additionally, such a which administrative closure is legally change the status quo regarding the waiver is both ‘‘provisional’’ and authorized. Fourth, a representative may availability of a provisional unlawful ‘‘discretionary,’’ 8 CFR 212.7(e)(2)(i); not ethically guarantee any result in a presence waiver for the overwhelming like administrative closure itself, an particular case; thus, to the extent majority of aliens currently in removal alien has no right to such a waiver; and, commenters suggest that the final rule proceedings, and commenters generally a provisional and discretionary waiver restricts or interferes with an attorney’s did not distinguish the reality of the to which an alien lacks any entitlement ability to guarantee an alien both a grant status quo in making their speculative cannot be seen as necessary to the of administrative closure and the projections. Further, the Department disposition of the alien’s case in approval of a provisional waiver, the believes that the strong interest in the immigration proceedings. See Gutierrez- Department finds such a suggestion efficient adjudication of cases and the Morales v. Homan, 461 F.3d 605, 610 unavailing. See Model Rules of Prof’l legal and policy issues identified in the (5th Cir. 2006) (‘‘We have squarely held Conduct R. 7.1 cmt. 3 (2020) (‘‘A NPRM outweigh the potential inability that ‘neither relief from removal under communication that truthfully reports a of aliens at 4 out of 67 immigration discretionary waiver nor eligibility for lawyer’s achievements on behalf of courts to obtain provisional unlawful such discretionary relief is entitled to clients or former clients may be presence waivers, something to which due process protection.’ Stated misleading if presented so as to lead a they are not entitled to in the first differently, an alien has no due process reasonable person to form an unjustified instance. The Department notes that right to a hearing to determine his expectation that the same results could these persons may still apply for an eligibility for relief that is purely be obtained for other clients in similar unlawful presence waiver from outside discretionary.’’ (footnotes omitted, matters without reference to the specific the United States, and that DHS may emphasis in original)). factual and legal circumstances of each choose, as a matter of policy, to amend Further, although aliens in removal client’s case.’’); id. cmt. 4 (‘‘It is their regulations to remove the proceedings (unless administratively professional misconduct for a lawyer to administrative closure requirement for closed) and aliens with administratively engage in conduct involving dishonesty, persons in removal proceedings final orders of removal are barred from fraud, deceit or misrepresentation.’’) applying for a provisional waiver. obtaining the waiver, 8 CFR (quoting R. 8.4(c)); id. R. 8.4(e) (‘‘It is 212.7(e)(4)(iii) and (iv), an alien with an professional misconduct for a lawyer to The Department also disagrees that administratively final order of voluntary . . . state or imply an ability to the general prohibition on departure is not, and by definition, influence improperly a government administrative closure does not aliens must voluntarily depart the agency or official or to achieve results harmonize with DHS regulations United States in order to receive the by means that violate the Rules of regarding provisional unlawful presence benefit of such a waiver. Thus, the Professional Conduct or other law.’’). waivers. As a Federal circuit court availability of administrative closure In short, the Department recently noted, the presence of has no bearing on an alien’s ability to appropriately considered potential references to administrative closure in receive and effectuate an order of alternatives as well as the relevant existing regulations ‘‘presuppose only voluntary departure, which is a interests and alleged costs in issuing the the existence of a general practice of practical prerequisite for obtaining the final rule regarding administrative administrative closure, not its legality.’’ benefit of the waiver, and commenters closure. On balance, however, Hernandez-Serrano, 2020 WL 6883420 did not explain why the restriction on commenters’ suggestions would not at *4. Thus, assuming counter- administrative closure would have any resolve the issues identified by the factually—but as commenters asserted— impact at all on an alien’s ability to Department, and the concerns raised by that 8 CFR 212.7(e)(4)(iii) controlled the obtain an order of voluntary departure commenters are far outweighed by both Department and that no aliens would be and then a provisional waiver before the significant legal and policy issues eligible to have their cases departing to receive the final waiver raised by the Department in the NPRM administratively closed after this final abroad. Although the Department has regarding administrative closure and the rule—and, thus, no aliens in considered the link between such increased efficiency that a formal immigration proceedings were eligible waivers and administrative closure— clarification of its use will provide. for a provisional waiver under 8 CFR just as the Attorney General did in With regards to the alleged costs to 212.7(e)(4)(iii)—those factors, even if Matter of Castro-Tum—that link is too persons in removal proceedings who factually accurate, would not provide a attenuated to outweigh the significant allegedly may no longer be eligible to strong policy basis to overrule the legal and policy concerns raised by the obtain a provisional unlawful presence Attorney General’s decision in Matter of Department regarding administrative waiver without administrative closure, Castro-Tum for all of the reasons given closure. by the Department in the NPRM and Similarly, concerns about putative 29 Furthermore, as reiterated herein, because this final rule. See also Hernandez- reliance interests are misplaced. First, as Matter of Castro-Tum was issued in 2018, aliens Serrano, 2020 WL 6883420 at *4 and their representatives in jurisdictions following discussed, infra, the rule applies, in Castro-Tum should not be currently relying on the (‘‘neither the IJs nor the Board [nor general, only prospectively, so it does expectation of administrative closure to pursue parties] enjoy a right of adverse not disturb cases that have already been provisional unlawful presence waivers. possession as to the Attorney General’s

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regulations.’’). The Department government sources was unclear, certain facts is already well-established considered the interplay of EOIR and despite it being limited to ‘‘facts that in both existing regulations, e.g., 8 CFR DHS’s regulations and, due to the strong can be accurately and reliably 1003.1(d)(3)(iv) (2019) (allowing the equities in favor of limiting determined,’’ 8 CFR Board to take administrative notice of administrative closure, decided to 1003.1(d)(3)(iv)(A)(3), because DHS current events and the contents of continue with a general prohibition on records are unreliable. In addition, at official documents), and case law, e.g., administrative closure in immigration least one commenter stated that the rule Sankoh v. Mukasey, 539 F.3d 456, 465 proceedings before EOIR. DHS chose to did not explain why facts that can be (7th Cir. 2008) (‘‘The Board has the limit the eligibility for provisional administratively noticed by the BIA may authority to take administrative notice unlawful presence waivers as a matter only be sourced from official or of uncontroverted facts, meaning facts of policy, and DHS may choose to universally acclaimed documents. that can be characterized as commonly update their more specific regulations At least one commenter alleged that acknowledged.’’ (internal citation and accordingly as a result of this rule. the administrative notice provisions quotation marks omitted)). Thus, to the would allow the BIA to consider and act extent that commenters assert the Board c. Enhanced BIA Factfinding (8 CFR upon facts not raised by either party, should not be able to take 1003.1(d)(3)(iv)) thereby considering ‘‘facts that did not administrative notice of facts not i. Administrative Notice constitute part of the immigration reasonably subject to dispute, they did judge’s decision-making.’’ The Comment: As a general matter, many not explain why the Department should commenter alleged that this would commenters asserted that the provisions reverse the Board’s longstanding allow the BIA to act as prosecutor authority to do so. regarding administrative notice were instead of a neutral arbiter. The Similarly, commenters did not biased in favor of DHS, thereby commenter explained that because DHS persuasively explain why Federal Rule demonstrating the allegedly partisan rarely submits a brief on appeal, the of Evidence 201(b), which is well- nature of the BIA and, more broadly, the administrative notice changes would established in Federal jurisprudence Department. Similarly, one commenter disproportionately affect pro se and governs judicial notice by appellate explained that the administrative notice individuals. courts, In re Omnicare, Inc. Securities provisions were ‘‘problematic’’ because, Several commenters stated that the Litigation, 769 F.3d 455, 466 (6th Cir. as the commenter alleged, DHS could provisions regarding notice and an 2014) (‘‘[Federal Rule of Evidence submit new evidence but the alien was opportunity to respond were 201(b)] applies to appellate courts not permitted to submit counter insufficient because a response may taking judicial notice of facts supported evidence under the new rules. require witnesses and additional by documents not included in the Commenters expressed concern about clarifying evidence. Commenters record on appeal.’’ (quoting United the types of items the rule would allow explained that witnesses and additional States v. Ferguson, 681 F.3d 826, 834 the BIA to administratively notice items evidence were more appropriately (6th Cir. 2012)), was not an appropriate ‘‘not reasonably subject to dispute.’’ 8 introduced at the immigration court model for the Board to follow. Without CFR 1003.1(d)(3)(iv)(A). Overall, level, given the immigration judge’s such explanations as to why the commenters predicted disputes at both unique position to assess facts and Department should overturn these the BIA and the Federal courts over determine credibility and the general longstanding and well-established whether particular facts fit any of the prohibition against factfinding by the principles, the Department finds listed exemplary categories of such BIA. Commenters also emphasized that commenters’ unsupported policy evidence or otherwise constitute such the rule failed to consider that the BIA preferences on this point unpersuasive. items. 8 CFR 1003.1(d)(3)(iv)(A)(1)–(4). would need to give notice to the parties Additionally, commenters’ Such disputes, commenters alleged, and an opportunity to respond if the suggestions about the allegedly ‘‘one- would undermine the efficiency goals of BIA intended to administratively notice sided’’ nature of this change belie both the rule. One commenter explained that a fact that was outside the record and a misunderstanding of the rule and an ‘‘[m]ost of this information—especially would serve as the basis for overturning acknowledgement of its importance to that contained within government a removal order or denial of relief. The ensure that only meritorious claims are documents—will be adverse to commenter explained that the BIA does granted. First, contrary to the assertions respondents. The rule thus creates a not appear to be neutral when it must of many commenters, the rule applies one-sided system in which information only administratively notice facts that equally to DHS and to respondents. favorable to DHS may be considered by could be used to deny relief that was Thus, the Board may take administrative the BIA, but information favorable to previously granted. notice of facts both favorable and respondents may not be.’’ Commenters One commenter explained that the adverse to either party, as long as those claimed that the rule’s inclusion of all rule’s changes to administrative notice facts are not reasonably subject to of these facts was arbitrary and would affect the standard of review for dispute. Second, the broad, hyperbolic, capricious. factual findings on appeal at the and unsupported assertion that official Further, commenters specifically appellate court level. The commenter government documents should not be alleged that the ‘‘the contents of official explained that the current use of the administratively noticed because they documents outside the record,’’ 8 CFR ‘‘substantial evidence’’ standard would contain only information adverse to 1003.1(d)(3)(iv)(A)(2), are subject to not be justified, given that some factual respondents is both inaccurate factually, reasonable dispute because DHS findings would have been made only by e.g., Dahal v. Barr, 931 F.3d 15, 19 (1st records, including records from CBP the BIA in the first instance. Thus, the Cir. 2019) (‘‘Thus, far from undercutting and ICE, ‘‘routinely contain [ ] egregious commenter suggested that the ‘‘clearly Dahal’s fears, the [Department of State] errors and coerced statements.’’ erroneous’’ standard replace the Country Report on the elections Commenters also stated that current ‘‘substantial evidence’’ standard in these recognizes a remaining threat of Maoist events, 8 CFR 1003.1(d)(3)(iv)(A)(1), cases. persecution.’’), and in tension with could similarly be subject to reasonable Response: As an initial point, the well-established Federal practice in dispute. Commenters stated that the Department notes that the Board’s which courts may take judicial notice of contours of the category of facts from ability to take administrative notice of official government documents, e.g.,

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Wells Fargo Bank, N.A. v. Wrights Mill also Matter of J-Y-C-, 24 I&N Dec. 260, undisputed, but factual disputes are Holdings, LLC, 127 F. Supp. 3d 156, 166 261 n.1 (BIA 2007) (providing that already a common feature of (S.D.N.Y. 2015) (‘‘Under Federal Rule of issues not raised before an immigration immigration proceedings and can be Evidence 201, a court may take judicial judge are waived). The BIA must take resolved under existing law. Moreover, notice, at ‘any stage of the proceeding,’ administrative notice of those facts. 8 respondents will have at least 14 days of any fact ‘that is not subject to CFR 1003.1(d)(3)(iv)(A). Further, if the to argue otherwise if the Board intends reasonable dispute because’ it ‘can be BIA were to reverse a grant of relief or to rely on a fact ‘‘not reasonably subject accurately and readily determined from protection from removal based on such to dispute’’ outside the record in order sources whose accuracy cannot facts, the BIA must give the parties to reverse a rant of relief or protection. reasonably be questioned.’ Fed. R. Evid. notice and not less than 14 days to 8 CFR 1003.1(d)(3)(iv)(B). 201(b)(2), (d).... Pursuant to Rule respond. 8 CFR 1003.1(d)(3)(iv)(B). Further, the Department rejects any 201, courts have considered newspaper Accordingly, contrary to commenters’ allegation that official documents or articles, documents publicly filed with assertions, an alien whose grant of relief government documents contain the SEC or FINRA, documents filed with or protection may be subject to reversal ‘‘egregious errors’’ and ‘‘coerced a Secretary of State, documents filed will have an opportunity to respond, statements,’’ or are ‘‘unreliable,’’ as with governmental entities and including by submitting additional commenters claimed. Government available on their official websites, and arguments and evidence such as documents, broadly speaking, provide information publicly announced on affidavits or declarations. reliable data and cite to reliable sources certain non-governmental websites, Furthermore, the administrative in support of the ideas presented and such as a party’s official website.’’); notice provisions are not the product of are meant to inform the public. Second, Kramer v. Time Warner Inc., 937 F.2d partisanship or favoritism toward DHS, the Department disagrees with the 767, 774 (2d Cir.1991) (‘‘[A] . . . court and contrary to an implicit assertion commenters’ concerns that all but may take judicial notice of the contents made by most commenters, they apply paragraph (d)(3)(iv)(A)(4) could be of relevant public disclosure documents equally to both parties. The BIA has disputable. The Department disagrees . . . as facts ‘capable of accurate and long been able to take administrative that administrative notice of any of ready determination by resort to sources notice of commonly known facts and those facts creates a biased system. whose accuracy cannot reasonably be official government records, and these Inclusion of these facts is not arbitrary questioned.’ ’’ (quoting Fed. R. Evid. changes build on this prior practice. or capricious; both ‘‘current events’’ and 201(b)(2)). Moreover, contrary to the assertion of at ‘‘official documents’’ were carried over Moreover, this suggestion least one commenter, the Department from existing regulations. The ‘‘official misapprehends the nature of the rule intends to ensure that an alien receives government sources’’ category provides and—perhaps unintentionally by the notice and an opportunity to respond if further clarification and distinction commenter—offers further support for the BIA were to rely on a fact outside from the ‘‘official documents’’ category. maintaining it. The rule allows the the record to reverse a grant of relief or In providing this list, the Department Board to take administrative notice of protection from removal. If anything, sought to delineate clear categories of ‘‘[f]acts that can be accurately and the provision treats respondents more facts that were indisputable, and the readily determined from official favorably than DHS because it does not rule concurrently included the government sources and whose require the BIA to provide notice to provision requiring notice and an accuracy is not disputed.’’ 8 CFR DHS if it intends to rely on facts outside opportunity to respond to ensure that 1003.1(d)(3)(iv)(A)(3). Commenters did the record to reverse an immigration both sides may address administratively not explain why facts whose accuracy is judge’s denial of relief or protection, yet noticed facts. Commenters’ concerns not disputed and that are unfavorable to many commenters failed to regarding prolonged disputes at the BIA an alien should not be considered by acknowledge this discrepancy or to and the Federal courts are speculative, individuals adjudicating claims made explain why the Department should not as are commenters’ concerns regarding by aliens—except that ignoring such adopt such a provision. efficiency that stem from those facts would potentially increase the The Department emphasizes that litigation-related concerns. More likelihood that non-meritorious claims regulations, not statute, determine specifically, all disputes at the BIA may would be granted, which is an outcome appellate procedures at the BIA. See potentially result in Federal litigation, preference tacitly supported by many generally 8 CFR part 1003, subpart A; including disputes over the commenters. The Department finds it see also 85 FR at 52492. Accordingly, appropriateness of the Board taking vitally important that all undisputed, the Department properly exercised its administrative notice of undisputed accurate facts bearing on a claim should rulemaking authority under section facts. The near-certainty of litigation, be considered in order to reduce 103(g)(2) of the Act, 8 U.S.C. 1103(g)(2), which has grown considerably in the adjudication errors and to ensure that to promulgate the administrative notice immigration field well before the NPRM meritorious claims are granted in a provisions to clarify appellate was published, is an insufficient basis, timely manner while unmeritorious procedures at the BIA, with the however, to decline to adopt the rule. ones are efficiently addressed. In short, overarching goal of increasing In regard to administratively noticed the Department disagrees with the efficiencies and consistency in cases documents, those listed at 8 CFR implicit suggestion of commenters that before the BIA. 1003.1(d)(3)(iv)(A)(1)–(4) are examples the Board should intentionally turn a The Department disagrees with of documents, as indicated by the words blind eye to relevant, undisputed facts, commenters’ suggestions that the ‘‘such as’’ preceding the list provided at regardless of which party those facts regulation’s list of facts that may be paragraphs (d)(3)(iv)(A)(1)–(4), that allegedly favor. administratively noticed include would generally raise facts not The rule does not authorize the BIA disputable facts, as whether any given reasonably subject to dispute. The rule to rely on facts that did not constitute fact is ‘‘disputable’’ will depend on the did not require that sources be ‘‘official’’ part of the immigration judge’s decision- putative fact at issue and the overall or ‘‘universally acclaimed,’’ as making, except when such ‘‘facts [ ] are circumstances of the case. The commenters claimed. Rather, the rule not reasonably subject to dispute.’’ 8 Department recognizes that parties may required that administratively noticed CFR 1003.1(d)(3)(iv)(A) (proposed); see disagree over whether a fact is truly facts, regardless of their sources, be ‘‘not

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reasonably subject to dispute.’’ ineligible to apply for or be granted before the immigration judge because, Although official or universally asylum’’). For further discussion on the commenters explained, the acclaimed documents typically raise issues related to identity, law respondent would be unaware of what facts that are not in dispute, those are enforcement, or security investigations factfinding the immigration judge had not the exclusive sources from which or examinations, see section II.C.3.e. conducted until the decision is issued. the BIA may administratively notice Commenters’ concerns regarding use Accordingly, commenters alleged that facts. of the clearly erroneous standard in the respondent would have to ‘‘interrupt Because facts that may place of the substantial evidence the IJ as the IJ is dictating her ruling. Or, administratively noticed are not standard is outside the scope of this even worse, the [r]espondent wouldn’t reasonably subject to dispute, the BIA rulemaking, as this rule does not even have the opportunity to object does not act as a ‘‘prosecutor’’ when it propose or affect standards of review for because he received his decision by takes administrative notice of such facts. factual findings at the appellate court postal mail.’’ Citing the performance Further, the regulation requires the BIA level. The Department does not have the metrics for immigration judges, to provide parties at least 14 days to authority to issue a rule that would alter commenters were concerned that respond if it takes administrative notice the standard of review employed by a immigration judges would have ‘‘little of facts. 8 CFR 1003.1(d)(3)(iv)(B). Thus, Federal circuit court. This rule does not incentive’’ to take the time to develop regardless of whether DHS files a brief affect the commenters’ ability to lobby the record in cases ‘‘where there is no on appeal and regardless of whether an Congress or advise other attorneys in possibility that the case could be alien is represented, the alien is regard to this concern. remanded for failure to do so.’’ afforded an opportunity to respond to ii. BIA Factfinding Remands Commenters also disagreed with administratively-noticed facts outside proposed 8 CFR 1003.1(d)(3)(iv)(D)(3), the record if those facts will be used to Comment: Commenters opposed the which requires the BIA to first overturn a grant or relief or protection. rule’s prohibition on the BIA to remand determine whether additional This rule also does not impose any a case for further factfinding, explaining factfinding would ‘‘alter the outcome of specific limits on such a response, that oftentimes combining excluded the case.’’ Commenters alleged that though the Board’s ordinary rules for evidence with evidence in the record making such determination constituted service and filing would still apply. could determine the outcome of a case. factfinding on the part of the BIA, Although the Department agrees that Overall, one commenter explained that contradicting the general opposition to immigration courts are generally best- the rule ‘‘defied logic’’ by categorically factfinding by the BIA. positioned to engage in factfinding, see restricting the BIA from exercising Commenters disagreed with the generally 85 FR at 52500–01, there are discretion to determine whether clearly erroneous standard in proposed circumstances—similar to those additional facts must be adduced. The 8 CFR 1003.1(d)(3)(iv)(D)(5). recognized by Federal courts—in which commenter stated that the Department Commenters explained that it should procedural efficiency counsels in favor provided no data to support the rule’s not make a difference whether an of being noticed on appeal in order to changes to the BIA’s long-standing immigration judge’s findings were avoid remanding a case to address a fact factfinding efforts, nor did the rule erroneous if an alien should have been that is undisputed. Thus, the explain how restricting the BIA’s granted asylum in the first instance. Department has determined that certain factfinding capabilities would increase Other commenters voiced general facts described in 8 CFR efficiency and consistency. support for the current system, which 1003.1(d)(3)(iv)(A)(1)–(4) may Commenters voiced general concern they explained required the BIA to appropriately be raised before the BIA. for pro se individuals, alleging that the determine whether an immigration See id. at 52501. rule’s removal of the BIA’s ability to judge made a clearly erroneous factual Some commenters alleged that the remand a case sua sponte for further finding that prejudiced the alien. One rule permits DHS to submit new factfinding ‘‘appears designed to commenter alleged that, under the rule, evidence and prevents the alien from quickly, and with finality, remove those the BIA would be forced to issue ‘‘poor submitting new evidence to counter without representation who would be decisions based on incomplete facts and DHS’s new evidence. However, the rule least likely to understand that they have conjecture.’’ does not permit either party to submit the ability to seek remand and would Response: Again, as an initial point, new evidence in this regard. To the therefore most heavily rely on EOIR to the Department notes that the assertions extent that commenters framed this protect their rights.’’ More specifically, of many commenters reflect either an concern as one regarding exceptions especially in the case of pro se unsubstantiated, tendentious related to factual issues raised by individuals, commenters were interpretation of the rule or a identity, law enforcement, or security concerned that respondents who were fundamental misunderstanding of the investigations or examinations, or other unaware of what was necessary to meet procedures of adversarial civil investigations noted in 85 FR at 52500 their burden would also similarly not proceedings, including immigration n.21, that issue is distinct from the issue have attempted to ‘‘adduce the proceedings. Except for issues related to of administratively noticed facts and, for additional facts before the immigration identity, law enforcement, or security asylum applications, has a statutory judge,’’ as required by proposed 8 CFR investigations or examinations, which foundation, INA 208(d)(5)(A)(i), 8 U.S.C. 1003.1(d)(3)(iv)(D)(2) for the BIA to are required by other regulations or 1158(d)(5)(A)(i) (‘‘[A]sylum cannot be remand a case. One commenter further statutes,30 the changes in the rule granted until the identity of the explained that this provision would regarding factfinding apply to both applicant has been checked against all ‘‘require respondents to predict a future appropriate records or databases that will be created by actors beyond 30 Most applications cannot be granted in maintained by the Attorney General and their control in order to obtain the immigration proceedings—at the BIA or by the Secretary of State, including the lawful status that is otherwise otherwise—without the completion and clearance Automated Visa Lookout System, to statutorily available to them.’’ of identity, law enforcement, or security investigations or examinations. 8 CFR 1003.47. A determine any grounds on which the Similarly, commenters opposed similar statutory restriction applies specifically to alien may be inadmissible to or proposed 8 CFR 1003.1(d)(3)(iv)(D)(1) asylum applications. INA 208(d)(5)(A)(i), 8 U.S.C. deportable from the United States, or requiring that an issue be ‘‘preserved’’ 1158(d)(5)(A)(i).

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parties equally. Thus, both DHS and an it is both inefficient and inconsistent bring out additional facts. Such a alien must comply with the rule’s with existing case law to remand a case decision would effectively convert the provisions in order to seek a remand for for further factfinding on issue that has Board into an advocate for the party factfinding. already been waived on appeal. seeking a remand, and in that case, the Because the parties themselves are Commenters did not explain why EOIR Board would be abdicating its role as an responsible for meeting any applicable should allow the Board to remand cases impartial or neutral arbiter. See id. burdens of proof before the immigration for further factfinding on issues that 1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA judge, 8 CFR 1240.8, and because the have already been waived, and the Ethics and Professionalism Guide at sec. Board acts a neutral arbiter between the Department is unaware of any logical or V. Commenters did not offer persuasive parties—rather than as an advocate for persuasive basis to do so. reasons for the Board to abandon its one party over the other—there is Second, the rule requires the party generally no reason for the Board to seeking remand, if it bore the burden of need for impartiality, and to the extent remand a case on its own for further proof below, to have attempted to that commenters alleged multiple factfinding unless a question of adduce the additional facts before the reasons for not adopting the rule, the jurisdiction has arisen that requires immigration judge. There is no logical Department finds that the need for the such factfinding. To do otherwise, the reason for a party to choose not to Board to remain an impartial body is Board would, in essence, be acting on attempt to adduce facts sufficient to more compelling than those reasons. behalf of a party in order to advance that meet its burden of proof before an Alternatively, additional factfinding party’s arguments, which is immigration judge, and this requirement in cases in which an immigration inappropriate. 8 CFR 1003.1(d)(1) (‘‘The merely recognizes both the inefficiency judge’s factual findings are not clearly Board shall resolve the questions before and the gamesmanship that would erroneous could mean that the it in a manner that is timely, impartial, follow if parties were relieved of an immigration judge made an error of law and consistent with the Act and obligation to attempt to bring out facts which will necessitate additional regulations.’’ (emphasis added)); 5 CFR to meet a burden of proof before an factfinding on remand. For example, an 2635.101(b)(8) (‘‘Employees [of the immigration judge. Again, commenters immigration judge may err as a matter federal government] shall act did not explain why parties—including impartially and not give preferential both aliens and DHS—should be of law in failing to sufficiently develop treatment to any private organization or relieved of that burden, particularly the record for a pro se respondent, individual.’’); BIA Ethics and since they, presumably, should already which would inherently require further Professionalism Guide at sec. V (‘‘A have attempted to meet it. 8 CFR 1240.8. factfinding. Although that interpretation Board Member shall act impartially and Third, the rule requires that the would be based on a legal determination shall not give preferential treatment to additional factfinding alter the outcome and the rule does not restrict the Board’s any organization or individual when or disposition of the case. To do ability to remand a case due to a legal adjudicating the merits of a particular otherwise would be to remand a case for error, the Department recognizes that case.’’). In other words, it is not the no purpose since the remand would not some cases of legal error may require Board’s role to correct deficiencies in a affect the outcome or disposition of the additional factfinding on remand. The party’s case or to provide a second or case. In short, it would be a remand for Department did not intend the rule to additional opportunity for a party to do no reason. The Department is unaware prohibit factfinding on remand when so. It is the Board’s role to ‘‘review . . . of any need to remand a case for no the remand is based on a legal error— administrative adjudications under the reason, and commenters did not provide subject to other requirements—and the Act .... [R]esolve the questions before one. final rule clarifies that point to avoid Fourth, and relatedly, the rule it in a manner that is timely, impartial, confusion. 8 CFR 1003.1(d)(3)(iv)(D)(5). and consistent with the Act and requires that the additional factfinding regulations .... [And] provide clear would not be cumulative of the Contrary to commenters’ contentions, and uniform guidance to the [DHS], the evidence already presented or contained the rule did not ‘‘categorically restrict’’ immigration judges, and the general in the record. Again, to do otherwise the BIA from exercising discretion to public on the proper interpretation and would largely be purposeless. The determine whether additional facts may administration of the Act and its Department is unaware of any reason to be adduced. For example, the BIA may implementing regulations.’’ 8 CFR remand a case for factfinding that is exercise discretion to determine that 1003.1(d)(1). The final rule recognizes cumulative or already present in the additional facts not reasonably subject the Board’s appropriate role, and to the record, and commenters did not to dispute may be administratively extent that commenters suggest the advance one. noticed. The rule did, however, clarify Board should employ procedures in Fifth, the rule requires, inter alia, that the extent to which the BIA may engage resolving appeals that favor one party the immigration judge’s factual findings in factfinding on appeal and the over the other, the Department declines were clearly erroneous. The Board circumstances in which the BIA may already reviews immigration judge to adopt such a suggestion to avoid remand for further factfinding, factual findings under a clearly compromising the Board’s impartiality. consistent with applicable law and erroneous standard, and the rule does The rule reflects several well- regulations. 85 FR at 52500–01. established principles that commenters not change that standard. Id. did not persuasively challenge or § 1003.1(d)(3)(i). Rather, the rule The rule cited various data, see id. at address. First, it requires that the party recognizes that additional factfinding in 52492, to demonstrate the significant seeking remand for factfinding on an cases in which an immigration judge’s increase in cases and related challenges, issue to have preserved that issue factual findings are not clearly which the Department believes would below. Issues not preserved in front of erroneous could mean only one of two be unsustainable under the BIA system an immigration judge are generally possibilities. It could mean that a party pre-dating this rule and thus prompted waived. See Matter of Edwards, 20 I&N failed to meet its burden of proof but the the Department’s decision to review the Dec. 191, 196 n.4 (BIA 1990) (noting Board believes—for some unknown or BIA’s regulations in order to address that an issue not preserved in front of unstated reason—that the party warrants and reduce unwarranted delays in the the immigration judge is waived). Thus, another chance to meet that burden to

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appeals process and ensure efficient use EOIR Launches Resources to Increase se pleadings are held to a less stringent of resources.31 Information and Representation, Oct. 1, standard than pleadings drafted by Contrary to commenters’ claims, the 2020, https://www.justice.gov/eoir/pr/ attorneys and will, therefore, be Department maintains that it explained eoir-launches-resources-increase- liberally construed. But, issues not in the NPRM how proposed changes to information-and-representation. In raised below are normally deemed the BIA’s factfinding abilities would short, EOIR’s OP, the private bar, and waived.’’ (internal citations omitted)). increase efficiency and consistency. For other non-governmental organizations However, those standards have existed example, in support of the all may assist individuals with their for years and exist independently of the administrative notice provisions, the immigration proceedings,32 which rule, and nothing in the rule alters or Department explained that there was no include providing information which affects their applicability. operational or legal reason to remand a may assist individuals in preserving The Department has fully considered case for factfinding if the record already issues or attempting to adduce the possible impacts of this rule on the contained evidence of undisputed facts. additional facts before the immigration relatively small pro se population of Id. at 52501. Thus, the Department judge. aliens with cases before the Board. clarified that the BIA could rely on such Regarding the possible impact of the However, the rule neither singles such facts without remanding the case, rule on pro se aliens, as noted aliens out for particular treatment under thereby reducing an unwarranted delay. previously, the Department first the Board’s procedures, nor does it Overall, the proposed changes were reiterates that most aliens—i.e., 86 restrict or alter any of the avenues noted made ‘‘to more clearly delineate the percent, Representation Rates, supra— above that may assist pro se aliens. circumstances in which the BIA may whose cases are considered by the Further, commenters’ concerns related engage in factfinding on appeal.’’ Id. Board have representation. For those to pro se aliens and these provisions are Clarifying such circumstances who do not, there are multiple avenues based almost entirely on a speculative, inherently facilitates a more efficient they may pursue to obtain unfounded belief that immigration and consistent process because representation. For example, the judges will disregard their duty to adjudicators need not spend time Department maintains a BIA Pro Bono develop the record in pro se cases. The determining, for example, whether Project in which ‘‘EOIR assists in Department declines to accept such a factfinding is appropriate or whether identifying potentially meritorious cases view of immigration judges as either previous adjudicators otherwise based upon criteria determined by the incompetent or unethical and declines engaged in factfinding in similar partnering volunteer groups.’’ BIA Pro to accept commenters’ suggestions on circumstances. Bono Project, supra. Further, that basis. Chem. Found., Inc., 272 U.S. The Department promulgated this rule immigration judges have a duty to at 14–15 (‘‘The presumption of to reduce unwarranted delays and develop the record in cases involving regularity supports the official acts of ensure efficient use of resources, given pro se aliens, which will ensure that public officers, and, in the absence of the significant increase in pending cases such aliens attempt to adduce relevant clear evidence to the contrary, courts in the immigration courts that has led to facts to meet their burdens of proof and presume that they have properly an increase in appeals. See id. at 52492. reduce the likelihood that aliens discharged their official duties.’’). In no way are these changes intended inadvertently waive an issue.33 See Finally, weighing the complete lack of for the purpose of harming or quickly Mendoza-Garcia, 918 F.3d at 504. necessity—and corresponding removing pro se individuals. To the inefficiency—of factfinding remands To be sure, BIA procedures are not contrary, EOIR’s Office of Policy (OP) where the facts are either irrelevant to excused for pro se respondents, just as seeks to increase access to information the disposition of the case or cumulative they are not excused generally for pro se and raise the level of representation for to facts already in the record, the civil litigants. See, e.g., McNeil, 508 U.S. individuals in hearings before importance of maintaining the Board’s at 113 (‘‘[W]e have never suggested that immigration courts and the BIA. In impartiality, the duty of immigration procedural rules in ordinary civil addition, EOIR has developed a judges to develop the record in cases of litigation should be interpreted so as to thorough electronic resource for pro se aliens, the size of the pro se excuse mistakes by those who proceed individuals in proceedings. EOIR, population with cases before the BIA, without counsel.’’); Edwards, 59 F.3d at Immigration Court Online Resource, and the well-established avenues of 8–9 (rejecting a pro se alien litigant’s available at https://icor.eoir.justice.gov/ assistance for pro se aliens, the arguments for being excused from en/ (last visited Nov. 27, 2020); see also Department finds, as a matter of policy, Federal court procedural requirements that the clarity and efficiency added by due to his pro se status). Moreover, 31 To the extent that commenters asserted that the factfinding provisions in the rule far Department provided no data regarding the BIA’s issues not raised below may be deemed outweigh the speculative and factfinding procedures, the Department notes that waived even for pro se individuals. See, granular data on how many BIA remands for unfounded concerns raised by e.g., Tannenbaum v. United States, 148 commenters, particularly since many factfinding that do not affect the outcome of cases F.3d 1262, 1263 (11th Cir. 1998) (‘‘Pro and that are for factfinding that is cumulative to commenters misapprehended that the facts already found in the record is not available rule applies to both DHS and 32 and is likely untraceable due to the inherently fact- The Department notes that individuals in respondents. specific nature of each case and the somewhat removal proceedings before an immigration judge counter-factual of such data. Moreover, commenters and the BIA have the ‘‘privilege of being Although commenters provided did not suggest that such data was available or represented (at no expense to the Government) by examples of challenges individuals could be obtained, nor did they even suggest how such counsel, authorized to practice in such would face in complying with the to calculate or measure the ‘‘inappropriateness’’ or proceedings, as [the alien] shall choose.’’ INA 292, regulatory provisions at proposed 8 CFR ‘‘incorrectness’’ of a remand that would be 8 U.S.C. 1362; see also INA 240(b)(4)(A), 8 U.S.C. necessary to track such data. As discussed, the 1229a(b)(4)(A); 8 CFR 1240.10(a)(1). 1003.1(d)(3)(iv)(D)(1) and (2), the remaining parts of the rule follow from well- 33 Whether a pro se alien knowingly waived an Department finds the examples established legal principles (e.g., waiver, burden of issue may also be a relevant consideration in unpersuasive or inapposite. The proof, and standard of review for factfinding) and appropriate cases. See Matter of Samai, 17 I&N Dec. commenters’ examples do not are not intended to turn on data. Overall, the 242 (BIA 1980) (objection to improper notice raised Department reiterates that the rule explained how for the first time on appeal by a previously demonstrate a bar to preserving issues restricting the BIA’s factfinding capabilities would unrepresented respondent could still be considered or adducing additional facts for use on increase efficiency and consistency. by the Board). appeal. Indeed, some commenters’

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examples assume that issues can only be explained in the NPRM, the INA that are not reasonably subject to preserved or additional facts be adduced contains few details in regard to the dispute’’ or ‘‘undisputed facts.’’ for use on appeal during an immigration appeals process; thus, EOIR’s Commenters argued that this change judge’s issuance of a decision, which is regulations govern specific procedural creates inefficiencies instead of inaccurate. Throughout the course of requirements for appeals. 85 FR at efficiencies for a variety of reasons. For proceedings, individuals may raise 52493. Consequently, in accordance example, commenters expressed a belief evidentiary or factfinding issues as the with its statutory authority under that this provision will inevitably record is developed. See generally 8 section 103(g)(2) of the Act, 8 U.S.C. require respondents before the BIA to CFR 1240.10 (explaining the course of 1103(g)(2), to promulgate regulations, litigate every possible issue that could the hearing, during which an alien may, the Department determined that it be raised by the record in order to for example, examine and make would condition remand on a preserve their arguments for future objections to evidence against him and determination that either the appeals, regardless of the particular present evidence on his behalf); see also immigration judge’s factual findings rulings by the IJ. Commenters noted that 8 CFR 1240.9 (detailing the contents of were clearly erroneous or that remand is this in turn creates inefficiencies as the record, including ‘‘testimony, warranted following de novo review. opposed to efficiencies in BIA exhibits, applications, proffers, and As the Department explained in the procedures. In addition, commenters requests, the immigration judge’s NPRM, the current system for stated that this provision will in effect decision, and all written orders, adjudicating appeals does not always lead to a full second adjudication of motions, appeals, briefs, and other operate in an effective and efficient every case by the BIA instead of the BIA papers filed in the proceedings’’). manner. As explained in the NPRM, the only analyzing the specific issues posed Moreover, if a party objects to an Department believed it was necessary to by the parties. Citing SEC v. Chenery immigration judge’s exclusion of reevaluate its regulations governing the Corp., 318 U.S. 80 (1943), commenters evidence from the record, the BIA, as it routinely does, see id. at argued that respondents should not regulations provide that an affected 52494. As a result, the Department have to guess at what bases the BIA party may submit a brief. Id. 1240.9. determined that the current system might have for its decisions. Commenters disputed the Accordingly, numerous avenues exist could be amended in various ways to Department’s citation to Helvering v. through which individuals may comply reduce unwarranted delays and ensure Gowran, 302 U.S. 238, 245 (1937) in with the proposed provisions at 8 CFR efficient use of resources, given the support of the change, explaining that 1003.1(d)(3)(iv)(D)(1) and (2). significant increase in pending cases in The Department reiterates that the Supreme Court in that case provided the immigration courts that has led to an immigration judges and the BIA will the parties with an opportunity to increase in appeals. See id. Moreover, continue to exercise independent establish additional facts that would changes made by this rulemaking will judgment and discretion to adjudicate affect the result under the new theory best position the Department to address cases before them in accordance with first presented at the Court of Appeals. the growing caseload and related applicable law and regulations. See Id. Commenters expressed concern that challenges. Id. at 52492–93. § 1003.1(d)(1)(ii), 1003.10(b), 1240.1(a). this provision will inevitably lead to the Circuit courts have held that under The Department strongly disagrees BIA engaging in impermissible fact- section 240(b)(1) of the Act, 8 U.S.C. with commenters that the rule would finding and that the rule is 1229a(b)(1), immigration judges have an force the BIA to issue ‘‘poor decisions insufficiently clear as to what is a obligation to develop the record. See, based on incomplete facts and ‘‘disputed’’ or undisputed fact. e.g., Yang v. McElroy, 277 F.3d 158, 162 conjecture.’’ Again, this comment Commenters stated that this change is (2d Cir. 2002); Mekhoukh v. Ashcroft, suggests that Board members are internally inconsistent with other 358 F.3d 118, 130 (1st Cir. 2004); incompetent and cannot perform their provisions of the rule because it allows Mendoza-Garcia, 918 F.3d at 504. The functions fairly and efficiently, a the BIA to affirm a decision based on Department rejects any speculative suggestion the Department categorically arguments not raised in the proceedings contention—rooted in a tacit assertion rejects. The Department is confident below but prohibits the BIA from that immigration judges are either that the BIA will continue to similarly remanding based on unethical or incompetent—that competently resolve issues in a manner arguments not raised below. immigration judges would simply shirk that is timely, impartial, and consistent Response: As an initial point, few their obligation, including developing with applicable law and regulations. See commenters acknowledged that this the record, in favor of completing more 8 CFR 1003.1(d)(1). BIA members standard is analogous to the one cases. exercise independent judgment and employed by Federal appellate courts The Department disagrees that the discretion and ‘‘may take any action reviewing Federal trial court decisions BIA’s determination in accordance with consistent with their authorities under and is, thus, a well-established principle proposed 8 CFR 1003.1(d)(3)(iv)(D)(3), the Act and the regulations as is of appellate review. See, e.g., Keyes v. constitutes factfinding on the part of the appropriate and necessary for the School Dist. No. 1, 521 F.2d 465, 472– BIA. Whether ‘‘additional factfinding disposition of the case.’’ Id. 73 (10th Cir. 1975) (‘‘An appellate court would alter the outcome or disposition § 1003.1(d)(1)(ii). will affirm the rulings of the lower court on any ground that finds support in the of the case’’ is well within the BIA’s d. BIA Affirmance on Any Basis record, even where the lower court proper scope of review under 8 CFR Supported by the Record (8 CFR reached its conclusions from a different 1003.1(d)(3) and inherent in the BIA’s 1003.1(d)(3)(v)) responsibility to decide appeals. or even erroneous course of Because the BIA generally cannot Comment: Commenters expressed reasoning.’’). Relatedly, few, if any, consider new evidence on appeal or concerns about new paragraph 8 CFR commenters offered an explanation or engage in further factfinding, 8 CFR 1003.1(d)(3)(v) that would enable the rationale for why that appellate 1003.1(d)(3)(iv), subject to some BIA to affirm the underlying decision of principle would be inappropriate to exceptions, the rule sought to clearly the immigration judge or DHS on ‘‘any apply to Board review of immigration establish limitations on the BIA’s ability basis’’ supported by the record, judge decisions, particularly since to remand for further factfinding. As including a ‘‘basis supported by facts Federal appellate courts handle cases of

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pro se litigants and complex records take the place of the jury.’’). Because the another basis, the alien will not be from trial courts below just as the Board BIA’s review is limited to the record in deemed to have failed to exhaust the does. Further, few, if any, commenters this manner, the Department disagrees issue even if the alien did not include acknowledged that the Board already with the commenters’ speculation that the issue in the Notice of Appeal. See, possesses the authority to base its the BIA review will be less efficient e.g., Abebe v. Gonzales, 432 F.3d 1037, decision on a review of the record as a because it would become an alleged 1040–41 (9th Cir. 2005) (stating that whole even if a party has not raised an second complete adjudication. Instead— when the BIA reviews the entire record, issue. See, e.g., Ghassan v. INS, 972 just as in Federal appellate courts—this considers issues argued before an F.2d 631, 635 (5th Cir. 1992) (‘‘First, he provision only creates efficiencies by immigration judge but not raised by an argues that the BIA should not have making it clear that the BIA does not alien in a Notice of Appeal, and issues disregarded the IJ’s finding, because the have to turn a blind eye to undisputed its decision based on such issues after INS did not challenge that finding in its facts that are clear from the record that reviewing the entire record, alien is not brief. We disagree.... In the instant relate to the correctness of the barred from raising the issue in a case, the BIA based its decision upon underlying decision. petition for review due to exhaustion). the administrative record as a whole. In addition, the Department finds In short, commenters’ concerns are There was no procedural impropriety.’’). unpersuasive commenters’ concerns unfounded, and the Department To the extent that commenters failed to that aliens must address all possible declines to credit them accordingly. engage with a principal foundation for issues in their briefing or other e. Changes to BIA Procedures for this provision of the rule, the arguments or else risk ceding a future Identity, Law Enforcement, or Security Department finds their comments argument on appeal to Federal court due Investigations or Examinations (8 CFR unpersuasive. See Home Box Office, 567 to failure to exhaust the issue. The 1003.1(d)(6)) F.2d at 35 n.58 (‘‘Moreover, comments Department already expects an which themselves are purely appealing party to address all relevant Comment: Commenters expressed speculative and do not disclose the issues on appeal; otherwise, the party concern regarding the rule’s proposed factual or policy basis on which they risks summary dismissal of the appeal, changes to the BIA procedures for rest require no response. There must be 8 CFR 1003.1(d)(2)(i)(A) (authorizing identity, law enforcement, or security some basis for thinking a position taken summary dismissal when a party does investigations or examinations. See 8 in opposition to the agency is true.’’). not specify the reasons for appeal on the CFR 1003.1(d)(6)(ii) and (iii); see also 82 As the Department also explained in Notice of Appeal), waiver of the issue FR at 52499. the proposed rule, 85 FR at 52501 n.23, before the Board, see Matter of At least one commenter stated that the clarifying that the BIA may affirm the Cervantes, 22 I&N Dec. 560, 561 n.1 changes conflict with the Department’s decision of the immigration judge or (BIA 1999) (expressly declining to reasoning for the rule’s amendments DHS on any basis supported by the address an issue not raised by party on regarding administrative closure.34 For record is consistent with long standing appeal), and potentially dismissal of a example, the commenter stated that the principles of judicial review. See, e.g., petition for review due to a failure to BIA does not have the regulatory Chenery Corp., 318 U.S. at 88 exhaust an issue before the Board, see, authority to place a case on hold (describing the principle that a e.g., Sola v. Holder, 720 F.3d 1134, 1135 indefinitely. reviewing court must affirm the result of (9th Cir. 2013) (‘‘A petitioner’s failure to Other commenters expressed due- the lower court if the result is correct, raise an issue before the BIA generally process related and other concerns even if the lower court relied upon a constitutes a failure to exhaust, thus about the rule’s procedures for wrong ground or wrong reason as depriving this court of jurisdiction to communications between the BIA and ‘‘settled rule’’) (citing Helvering, 302 consider the issue.’’). The rule imposes DHS and the alien regarding the status U.S. at 245)). Indeed, as the Supreme no additional consequences for a party of background checks and to allow the Court explained, it would be wasteful who fails to raise issues on appeal to the BIA to deem an application abandoned for an appellate body to have to return BIA beyond those that already exist, and if DHS alleges that an alien failed to a case to the lower court based on a party choosing to address some issues comply with its biometrics instructions. grounds already in the record and but not others on appeal does so at its See 8 CFR 1003.1(d)(6)(ii) and (iii). within the power of the BIA to own risk. Consequently, the Department Specifically, one commenter stated the formulate. Id. does not see why a party would choose procedures fail to protect respondents’ The Department emphasizes, not to raise an issue on appeal, even due process rights because they require however, that the BIA may only affirm under the current regulations, and the BIA to deem an application a decision on a basis that is supported rejects the assertion that the rule abandoned and accordingly deny relief by the record as developed by the imposes a new requirement in this if DHS states that the respondent failed immigration judge or any facts not regard. to comply with its instructions but do reasonably subject to dispute and of As a practical matter, the Department not provide adequate opportunity for which the BIA takes administrative is also unaware of how such a scenario the alien to contest that they did not notice. 8 CFR 1003.1(d)(3)(iv). posited by commenters would occur. receive notice from DHS about the Accordingly, despite commenters’ For example, an alien appealing an requirements or to otherwise establish unsupported predictions, the rule adverse decision by an immigration good cause for failing to comply. To would not enable the BIA to engage in judge regarding an application for relief illustrate this risk, the commenter cited de novo factfinding as a way to affirm or protection will have necessarily a hypothetical that ‘‘the BIA could deem the underlying immigration judge or argued to the immigration judge all of an otherwise approvable application DHS decision. Cf. Chenery Corp., 318 the elements required to grant such an abandoned because DHS reports to the U.S. at 88 (‘‘[I]t is also familiar appellate application; otherwise, the alien will BIA that the applicant failed to timely procedure that where the correctness of have waived issues not argued anyway. comply with biometrics, but where DHS the lower court’s decision depends Further, even if the immigration judge had inadvertently sent the biometrics upon a determination of fact which only denied the application on one basis— a jury could make but which has not and did not address others—and even if 34 For further discussion of administrative been made, the appellate court cannot the Board affirmed the denial on closure, see section II.C.3.b above.

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instructions to the wrong address.’’ The K– and H–A–H– 24 I&N Dec. 464, 466 is clear when the alien was served with commenter also noted that due to recent (BIA 2008) (order sustaining appeal and the notice. changes by DHS to the biometrics remanding the case to the immigration Nevertheless, the Department has procedures,35 new individuals, judge for DHS to complete or update included two changes from the including children under the age of 14, background checks). Because this proposed rule in this section to account will be subject to biometrics practice creates unnecessary delays in for the commenters’ concerns. First, this requirements for the first time, the resolution of cases given the rule contains an additional requirement increasing the likelihood of removal overburdened resources and size of the that, if DHS is unable to independently orders for respondents who otherwise caseload at the immigration court level, update any required identity, law would qualify for relief from removal. the Department proposed to remove the enforcement, or security investigations, Another commenter expressed concern option at 8 CFR 1003.1(d)(6)(ii)(A) for DHS shall provide a notice to the alien that although the alien’s deadline to the BIA to remand cases for the with appropriate instructions, as DHS comply begins to run from the date the completion or update of the checks and does before the immigration courts BIA sends out a notice to the alien that investigations and proposed procedural under 8 CFR 1003.47(d), and DHS will be providing further changes in those cases that remain simultaneously serve a copy of the information, DHS in turn has no subject to BIA holds under the amended notice with the BIA. Second, while the deadline to contact the alien. 8 CFR 1003.1(d)(6)(ii). NPRM would have begun the alien’s 90- Another commenter also raised issues This procedure, which has existed day timeline for compliance with the of disparate treatment, stating that, since 2005, does not conflict with the biometrics update procedures at the while respondents would be barred rule’s changes regarding administrative time the Board provided notice to the from submitting new evidence on closure. First, when the BIA places a alien, the final rule aligns the 90-day appeal that would likely change the case on hold for the completion of or time period to begin running at the time result of the case, the Department would updates to the required identity, law DHS submits the notice to the alien in be expressly permitted to submit new enforcement, or security investigations situations in which DHS is unable to evidence that is the result of ‘‘identity, or examinations, the hold is not independently update any required law enforcement, or security ‘‘indefinite.’’ Instead, the hold is at most checks. The Department agrees with the investigations.’’ See 8 CFR 180 days. See 8 CFR 1003.1(d)(6)(iii) commenters’ concerns that without 1003.1(d)(6)(ii). (instructing the BIA to remand the case these changes, the provisions of the Response: Neither the BIA nor an to the immigration judge for further proposed rule could have resulted in immigration judge may grant an alien proceedings under 8 CFR 1003.47(h) if situations where the alien is unable to most forms of relief or protection unless DHS fails to report the result of the effectively comply with the biometrics DHS has certified that the alien’s investigations or examinations within requirements due to possible delays by identity, law enforcement, or security 180 days). Second, even to the extent DHS or lack of sufficient notice. investigations have been completed and that the BIA hold process may be Finally, commenters’ concerns about are current. See 8 CFR 1003.1(d)(6)(i), erroneously compared to an alleged disparate treatment between 1003.47(g); see also INA 208(d)(5)(A)(i), administrative closure, such practice DHS and aliens are unpersuasive. The 8 U.S.C. 1158(d)(5)(A)(i). When the would be an example of an rule does not generally allow any party Department first implemented the administrative closure that is authorized to file a motion to remand based on new background check procedures in 2005,36 by a regulation promulgated by the evidence pertaining to an issue that was the Department provided the BIA with Department of Justice. See 8 CFR not raised below. Rather, DHS may two options in cases where the identity, 1003.1(d)(1)(ii); see also Matter of submit limited evidence solely with law enforcement, or security Castro-Tum, 27 I&N Dec. at 283 (holding respect to information yielded from investigations or examinations have not that immigration judges only have the completed identity, law enforcement, or been completed or are no longer current: authority to grant administrative closure security investigations or based on the remand to the immigration judge with if a regulation or settlement agreement alien’s failure to comply with biometrics instructions or place the case on hold has expressly conferred such authority). requirements, 8 CFR 1003.1(d)(6)(iii), at until the investigations or examinations In addition, the Department disagrees which time the alien would also have are completed or updated. 8 CFR that the instructions in the proposed the opportunity to file evidence in 1003.1(d)(6)(ii)(A) and (B). rule for the BIA regarding when to deem response. Accordingly, the alien would At the time, the Department explained an application abandoned for failure to not be prejudiced by remands for such that the expectation was that the BIA comply with biometrics requirements issues. and DHS would be able to make greater violate due process. As the commenter Further, such a requirement is fully use of the procedure for holding noted, during the respondent’s initial consistent with existing law, e.g., 8 CFR pending appeals without the need to hearing, the immigration judge must 1003.47 and INA 208(d)(5)(A)(i), 8 resort to a remand. 70 FR at 4748. ‘‘specify for the record when the U.S.C. 1158(d)(5)(A)(i). To the extent Contrary to this prediction, however, it respondent receives the biometrics that commenters disagree with those has become common practice for the notice and instructions and the longstanding and well-established BIA to remand cases to the immigration consequences for failing to comply with provisions, those concerns are beyond judge rather than holding the case for the requirements.’’ 8 CFR 1003.47(d). the scope of this rule. the completion of or updates to the Accordingly, respondents before the f. BIA Authority To Issue Final Orders required investigations and BIA have already been generally (8 CFR 1003.1(d)(7)(i)) examinations. See, e.g., Matter of S–A– informed about the biometrics process and have fulfilled the requirements at Comment: One commenter stated that 35 Collection and Use of Biometrics by U.S. least once and understand how to the rule’s focus on the BIA’s ability to Citizenship and Immigration Services, 85 FR 56338 comply with the requirements for any issue orders of removal in the first (Sept. 11, 2020). needed identity, law enforcement, or instance without a similar focus on the 36 Background and Security Investigations in Proceedings Before Immigration Judges and the security investigations or examinations. BIA’s ability to grant relief in the first Board of Immigration Appeals, 70 FR 4743 (Jan. 31, Moreover, the Board’s notice to the alien instance would result in an unfair 2005). will also be part of the record so that it process that favors DHS over aliens in

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proceedings. Another commenter that prohibiting motions to remand respondents and not to DHS, they are speculated that allowing the BIA to would prejudice respondents with cases mistaken. Further, to the extent that issue orders of removal without a that were delayed through no fault of commenters assert the BIA should be remand to the immigration judge would their own. allowed unfettered discretion to remand impede respondents’ ability to Commenters objected to the rule on cases for any purpose, such a suggestion ultimately seek a petition for review in the basis that it would not allow the BIA is inconsistent with the Board’s limited, Federal court. to remand cases where there has been a and regulatorily defined, authority. Response: First, the commenter who change in the law. At least one Additionally, as discussed, supra, the stated that the rule is focused on commenter specifically objected to the rule does not preclude the Board from enabling the BIA to issue a removal BIA’s limited remand authority in remanding a case in which the order misconstrues the Department’s asylum cases, where, the commenter immigration judge committed an error amendment regarding the BIA’s stated, eligibility rules are in a constant of law by insufficiently developing the authority to issue final orders. The rule state of flux, and individuals should be record. To the extent that commenters amends 8 CFR 1003.1(d)(7)(i) to clarify permitted to seek remand for cases that misconstrue the rule or suggest changes that the BIA has the authority to issue, were denied based on rules that are to the rule that are inconsistent with the inter alia, both final orders of removal under litigation. The commenter further Board’s authority, the Department and orders granting relief from removal. specified that the UNHCR has declines to accept those suggestions. Accordingly, the commenter is incorrect recommended that appellate bodies look Commenters are incorrect that this that these amendments favor either to both facts and law using updated rule has no basis in the law, departs party to proceedings before the BIA. information and take any such new and from agency practice, violates the right Second, without further explanation, relevant information into consideration. to present evidence on one’s own the Department is unable to further The commenter listed, as an example, behalf, and could result in orders of respond to the commenter’s speculation asylum seekers who were denied removal that were issued that the BIA issuing a removal order asylum under the third-country transit notwithstanding meritorious defenses would impede a respondent’s ability to bar, which was later vacated by a and dispositive collateral challenges in seek a petition for review in Federal Federal court, and alleged that such criminal matters. As noted in the court. An alien who receives an order of individuals may now be eligible for NPRM, the Supreme Court has removal, whether from the BIA or the asylum. See CAIR Coal. et al. v. Trump, recognized that ‘‘the BIA is simply a immigration judge, may file a petition No. 19–2117, 2020 WL 3542481 (D.D.C. regulatory creature of the Attorney for review subject to the requirements of June 30, 2020). The commenter stated General, to which he has delegated section 242 of the Act, 8 U.S.C. 1252, that, in this case, the immigration judge much of his authority under the and nothing in this rule affects that may not have fully developed the record applicable statutes.’’ 85 FR at 52492 n.1 statutory provision. below because the third-country bar (quoting Doherty, 502 U.S. at 327). analysis would not require evaluation of Although there is a reference to the BIA g. BIA Remands Changes all bases for asylum. The commenter in section 101(a)(47)(B) of the Act, 8 (1003.1(d)(7)(ii) and (iii)) asserted that such records should be U.S.C. 1101(a)(47)(B), that reference i. Issues With Respect to Limitations on remanded to the immigration judge for occurs only in the context of BIA’s Authority To Remand further fact finding. establishing the finality of an order of At least one commenter stated that the deportation or removal after the BIA has Comment: Numerous commenters rule does not account for legal issues affirmed the order or the time allowed expressed concern about limiting the that arise during the hearing itself, such for appeal to the BIA has expired. It BIA’s authority to remand cases. For as the immigration judge conducting the does not address the scope of the BIA’s example, commenters were concerned hearing in an unfair manner, which the authority or its procedures. that the rule would shift more authority commenter states, would necessarily not Accordingly, the Department is well to the immigration judge, while tying be included in briefing that had been within its authority to limit the scope of the hands of BIA members who drafted before the hearing. remands to the immigration courts, as it observed errors and that the rule would Commenters alleged that the rule doing now in order to improve provide the BIA with no choice but to would unfairly disadvantage efficiency. affirm an immigration judge’s denial individuals who are unrepresented, At the same time, the Department despite concerns that the record was not unfamiliar with the law, and non- recognizes the BIA’s expertise in sufficiently developed. Another English speaking. appellate immigration adjudications. commenter stated that the BIA is the One commenter objected to the Indeed, one purpose for this rulemaking consummate authority on immigration NPRM’s statement that a party seeking is to better empower the BIA to make law and that they have enough expertise to introduce new evidence in final decisions where possible, as the and experience to make determinations proceedings should file a motion to Department recognizes it is capable of on their own without being limited by reopen. 85 FR at 52500. The commenter doing. To that end, the Department the rule. Some commenters suggested stated that a motion to reopen while an agrees with commenters who noted the that the BIA should be permitted to appeal is pending at the BIA does not Board’s expertise and experience, and it remand cases to the immigration court make sense because an order is not final notes that this provision fully for any purpose. until the BIA resolves the appeal under effectuates that expertise and experience Commenters stated that the proposed 8 CFR 1241.1(a). by allowing the Board to render final changes have no basis in the law, depart One commenter suggested that it decisions in certain circumstances. from agency practice, violate the right to would be unfair for EOIR to require that Further, nothing in the rule precludes present evidence on one’s own behalf, the respondent’s counsel fully brief a respondent from submitting evidence and in many cases, would result in every issue before the hearing and not on his or her own behalf during the orders of removal that were issued to require the same of DHS’s counsel. course of removal proceedings before notwithstanding meritorious defenses Response: As noted elsewhere, to the the immigration judge, although the rule and dispositive collateral challenges in extent that commenters erroneously does, within its authority, limit the criminal matters. One commenter stated believe this rule applies only to BIA’s authority to remand a decision

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back to the immigration judge on the motion to reconsider. 8 CFR 1003.2(b). change in law should form the basis for basis of new evidence at the In short, the rule does not alter the a remand. To the extent that administrative-appeals stage. 8 CFR availability of established mechanisms commenters focus solely on changes in 1003.1(d)(3)(iv)(D), (d)(3)(7)(ii). The for addressing new evidence or new law related to applications for relief or Department notes that motions to issues; instead, it simply eliminates an protection, the Department believes that remand are an administrative, inconsistently applied and confusing the majority of superseding intervening adjudicatorily-created concept, not procedural avenue that is redundant law would be relevant to legal rooted in statute, which was later given those clearer, established arguments that had already been codified by the regulations. Further, as mechanisms. presented below, thus mooting the NPRM explained, the BIA has For reasons stated, supra, the commenter concerns for the vast treated new evidence submitted on Department rejects the assertion that the majority of cases.38 In the rare case in appeal inconsistently, despite both case rule would have a singular effect on which intervening law categorically law and regulations addressing such aliens who are unrepresented, established an alien’s eligibility for situations. 85 FR at 52500–01. The unfamiliar with the law, and non- relief on a basis that the alien did not concerns raised by commenters do not English speaking. These concerns are address below and the intervening law outweigh the need for uniform and speculative, unsupported by evidence, did not state how it should be applied consistent treatment to ensure that all and contrary to decades of experience to pending cases,39 an alien remains aliens who obtain allegedly new adjudicating appeals in immigration eligible to file a motion to reopen to evidence and wish to submit it after an cases. Such aliens already participate in have that claim considered. See INA immigration judge has rendered a BIA procedures under existing 240(c)(7), 8 U.S.C. 1229a(c)(7). decision are treated in a similar fashion. regulations—and have done so for many The Department disagrees that Moreover, the INA explicitly provides years—including through the requiring the alien to utilize statutory- a statutory avenue to address new submission of motions to reopen, and based methods for presenting new evidence: A motion to reopen. See INA nothing in the rule treats them in a evidence after an immigration judge has 240(c)(7), 8 U.S.C. 1229a(c)(7).37 While categorically different manner. Further, rendered a decision, rather than motions the changes require that a party comply commenters did not explain why such to remand, would lead to delays or with the statutory requirements for a aliens would be able to file a motion to conflict with the purpose of the rule. As motion to reopen in order to submit remand but not a motion to reopen nor discussed in the NPRM, the BIA’s such evidence, the rule does not impact how such aliens would be able to treatment of new evidence on appeal is motions to reopen. To the contrary, the comprehend the BIA’s confusing and confusing and inconsistently applied. rule recognizes that motions to remand inconsistent standards for new 85 FR at 52500–01. An additional are generally considered analogous to evidence, 85 FR at 52500–01, if they principal concern of the rule is to motions to reopen or reconsider and were retained. To the extent that reduce unnecessary remands and ensure that due to the inconsistent treatment of commenters’ concerns are, thus, the BIA is able to move forward allegedly new evidence on appeal unfounded or internally inconsistent, independently with adjudicating as through the lens of a motion to remand, the Department declines to incorporate many appeals as possible. As noted in it is both more efficient and more likely them into this final rule. the NPRM, id. at 52501, motions to to promote uniformity and With respect to commenter concerns remand created confusion, inconsistent consistency—and also more likely to that the BIA would be unable to remand results, gamesmanship, and an reduce gamesmanship on appeal—to a decision even where presented with operational burden on the immigration simply rely on the established motion to superseding or intervening case law, judge, who has already used significant reopen procedure. Thus, because the including litigation surrounding judicial resources during the underlying sole statutorily created process to regulations or precedential decisions consider new evidence is still available, that were the basis for denying relief, 38 The Department also notes that in the asylum the Department finds that aliens’ rights the Department rejects such comments context, which appears to the principal area of because they are based on either a concern for commenters, superseding or intervening regarding the submission of new law that indisputably affects an alien’s claim will evidence, including evidence of deliberately obtuse or wholly incorrect likely be rare because each asylum application is criminal-related issues, remain intact. reading of the rule. Nothing in the rule adjudicated based on its own facts and evidentiary Cf. Sankoh, 539 F.3d at 466 (‘‘As we prohibits the BIA from remanding a case support. In the asylum context, case law does not when an immigration judge has made an establish categorical bases for granting or denying have held many times, however, asylum claims. See, e.g., SER.L. v. Att’y Gen., 894 administrative notice does not violate error of law, a legal question of F.3d 535, 556 (3d Cir. 2018) (‘‘Consequently, it does the alien’s due process rights because an jurisdiction has arisen, or an alien is no not follow that because the BIA has accepted that alien can challenge any factual finding longer removable, subject to other one society recognizes a particular group as distinct requirements. 8 CFR 1003.1(d)(7)(ii). that all societies must be seen as recognizing such through a motion to reopen.’’ (citing a group.... Thus, as a matter of logic, it is invalid Kaczmarczyk v. INS, 933 F.2d 588, 594 Thus, to the extent that superseding or to assert that proof in one context is proof in all (7th Cir. 1991))). Additionally, to the intervening law caused the immigration contexts.’’). Consequently, intervening case law that extent that the Board makes an error of judge to make an error of law, raised a categorically renders an alien eligible for relief in question of jurisdiction, or caused an the asylum context—but does not affect the alien’s law or fact in its decision, the rule does removability—will be rare. not affect the ability of a party to file a alien to no longer be removable, the 39 The Department notes that statutory changes Board can still remand on those bases providing opportunities for relief typically include 37 The Department notes that at least one under this final rule. provisions regarding application of the changes to commenter appears to have misunderstood the If the superseding or intervening legal existing cases, and those changes would be procedural posture at which a respondent would development did not raise a question of applicable on their own terms. See, e.g., EOIR, file a motion to reopen, expressing concern that it Policy Memorandum 20–06: Section 7611 of the would not be sensible for the alien to file a motion jurisdiction, cause the immigration National Defense Authorization Act of 2020, Public to reopen while removal proceedings were still judge’s decision to be an error of law, Law 116–92 (Jan. 13, 2020), available at https:// pending. The Department clarifies that, as or affect an alien’s removability, then www.justice.gov/eoir/page/file/1234156/download contemplated by the statute, an alien would file a the BIA may not remand the case on (explaining the application of the availability of a motion to reopen to submit new evidence after new statutory form of relief for certain Liberian proceedings have concluded. Otherwise, there is no that basis; however, commenters did not nationals to cases before EOIR, including cases at removal order or proceeding to, in fact, reopen. persuasively argue why an irrelevant the BIA).

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proceeding. After reviewing remanding a case, and the Department CFR 1003.1(d)(7)(ii)(E), (d)(7)(iv). The commenters’ concerns, weighing is unaware of any such reason. Such Department further discusses this alternatives, including retaining the specification assists the parties, the provision, infra. status quo, and assessing the immigration judge, and potentially a Sixth, the BIA may generally not significance of the operational burdens Federal court, and commenters did not remand the case for further factfinding imposed by motions to remand, the persuasively explain why it should not unless the following criteria are met: the availability of more uniform treatment be a part of a BIA remand decision. party seeking remand preserved the of new evidence than currently exists, The second limitation provides that issue below; the party seeking remand, and the importance of encouraging the the BIA cannot remand based upon a if it bore the initial burden of proof, presentation of all available and ‘‘totality of the circumstances’’ standard, attempted to adduce the additional facts probative evidence at the trial level, the which, as noted in the NPRM, is not a below, additional factfinding would Department has determined that the standard authorized by the governing alter the outcome or disposition of the burden of potential motions to reopen law and regulations. See 8 CFR case, the additional factfinding would based on new evidence—which are also 1003.1(d)(7)(ii)(B). The Department not be cumulative of the evidence already routinely filed independently of discusses comments on this provision in already presented or contained in the the rule and have generally increased in more detail, infra. record; and either the immigration recent years, EOIR, Adjudication Third, the BIA may not remand a judge’s factual findings were clearly Statistics: Motions, Oct. 13, 2020, decision based upon a legal argument erroneous or remand to DHS is available at https://www.justice.gov/ that was not presented below, unless it warranted following de novo review. 8 eoir/page/file/1060896/download—is pertains to jurisdiction or a material CFR 1003.1(d)(3)(iv)(D). The ultimately less than the burden of change in fact or law underlying a Department addresses commenters’ addressing motions to remand through removability ground that arose after the concerns on this provision in more unclear and inconsistent practices, date of the immigration judge’s decision detail, supra. including practices that create and where substantial evidence The Department disagrees with downstream burdens on immigration indicates that change vitiated all commenters’ concerns that limiting the judges due to improper remands or grounds of removability applicable to BIA’s authority to order remands to gamesmanship by aliens who have the alien. See 8 CFR 1003.1(d)(7)(ii)(C). exclude issues that were not raised received unfavorable decisions from Such a limitation is consistent with below, with specified exceptions, would immigration judges and merely seek a long-standing requirements that not permit parties to request a remand second bite at the apple with the appealing parties must have preserved based on legal issues that arose during concomitant delay in the resolution of the issue for appeal below. Matter of J– a hearing, such as the immigration judge proceedings that such a request entails. Y–C–, 24 I&N Dec. at 261 n.1 (‘‘Because conducting the hearing in an unfair Commenters are incorrect that BIA the respondent failed to raise this claim manner. Commenters did not explain members would not have the authority below, it is not appropriate for us to why such an example would not be to remand in instances where they consider it for the first time on raised on appeal in the normal course, observe unjust or incorrect immigration appeal.’’); Matter of Edwards, 20 I&N and existing waiver principles judge decisions. The rule generally Dec. at 196 n.4 (‘‘We note in passing, independent of this rule would authorizes the BIA to remand a case however, that because the respondent currently preclude its consideration if it where, applying the appropriate did not object to the entry of this were not raised on appeal. In short, if a standard of review, it has identified an document into evidence at the hearing party believes that the immigration error of law or fact. 8 CFR below, it is not appropriate for him to judge’s decision should be vacated on 1003.1(d)(7)(ii). The regulation specifies object on appeal.’’). This is also the basis that the immigration judge some limitations to this general consistent with other appellate court conducted the hearing in an unfair authority in order to ensure that standards, which are instructive. See manner, it is unclear why the party remands are only ordered where legally Arsdi v. Holder, 659 F.3d 925, 928 (9th would not be able to raise that issue appropriate to ensure the fair Cir. 2011) (‘‘As we have often reiterated, when filing his or her appeal, as the disposition of the case, but none of it is a well-known axiom of facts upon which the party based his or these exceptions would prevent the BIA administrative law that if a petitioner her decision would have clearly been from ordering a remand, in an wishes to preserve an issue for appeal, available to the party at that time. See appropriate case, where the immigration he must first raise it in the proper 8 CFR 1003.3(b) (‘‘The party taking the judge has committed reversible error on administrative forum.’’) (internal appeal must identify the reasons for the a dispositive issue in the case. quotations omitted). Again, commenters appeal in the Notice of Appeal (Form The first limitation states that the BIA did not explain why the Department EOIR–26 or Form EOIR–29) or in any cannot remand a case where it has not should abandoned these well- attachments thereto, in order to avoid first specified the standard of review established principles, and the summary dismissal pursuant to that it applied and identified the Department is unaware of any § 1003.1(d)(2)(i). The statement must specific error or errors made by the persuasive reason for doing so. specifically identify the findings of fact, adjudicator below in order to ensure Fourth, the BIA may not remand a the conclusions of law, or both, that are that the BIA’s order to remand is based decision through an exercise of sua being challenged.’’). upon the correct legal standards and sponte authority, for reasons discussed Comment: Commenters were opposed provides the immigration judge below below at Part II.C.3.k. See 8 CFR to the rule’s prohibition on the BIA and the parties with clarity over the 1003.1(d)(7)(ii)(D). remanding cases based on the ‘‘totality basis for a finding of reversible error. Fifth, the BIA may not remand a of the circumstances.’’ 8 CFR See 8 CFR 1003.1(d)(7)(ii)(A). To the decision solely to consider a request for 1003.1(d)(7)(ii)(B). extent commenters objected to this voluntary departure or failure to issue One commenter noted that the provision, they did not persuasively advisals following a grant of voluntary ‘‘totality of the circumstances’’ standard explain why it is inappropriate to departure where other parts of this inherently includes clearly erroneous require an appellate body to specify the rulemaking authorize the BIA to issue findings of fact or prejudicial errors of standard of review it employed when final decisions in such matters. See 8 law. Specifically, the commenter stated,

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that on a record where no findings of change where it did not allege that the the totality of the circumstances fact were clearly erroneous, and if no ‘‘totality of the circumstances’’ standard standard, the Department notes again errors of law occurred, then a totality of had resulted in incorrect or unfair case that the commenter misapprehends a the circumstances review would never outcomes. Another commenter stated distinction between the legal standard permit remand. that the ‘‘totality of the circumstances’’ that an adjudicator should apply in Commenters asserted that the standard should be maintained because making determinations about whether Department did not consider relevant decisions should not be permitted on a an individual has been properly ordered precedential case law from the Supreme single factor or on some factors, without removed in absentia and the standard Court and Federal courts of appeals taking into account the totality of the for review of an appeal. Although the which, the commenter claims, impose a circumstances because it would allow question of whether ‘‘exceptional ‘‘totality of the circumstances’’ standard adjudicators to pick the facts that they circumstances’’ have been established in a variety of circumstances, many of wish to use to make a decision that for purposes of considering a motion to which are applicable to immigration could be based upon pre-existing reopen an in absentia removal order removal proceedings. For example, one prejudices, which would violate fairness may involve a consideration of the commenter cites Jobe v. INS, which and justice. A commenter stated that, totality of the circumstances, that stated that legislative history of that without the totality of the circumstances question is distinct from the standard of provision of the Act reflected Congress’s standard, parties could not provide review employed by the BIA in concern with fairness and required the details that were not apparent in the reviewing the immigration judge’s Attorney General to ‘‘look at the totality initial case, either through resolution of such a question on appeal. of circumstances to determine whether misinterpretation or misunderstanding, In other words, the BIA should evaluate the alien could not reasonably have or through recently obtained the immigration judge’s decision under expected to appear’’ 212 F.3d 674 (1st documents. the appropriate standard of review, but Cir. 2000) (quoting H.R. Conf. Rep. 101– Response: As an initial point, the that standard is not one of ‘‘totality of 955 (1990)) (withdrawn at request of Department notes that many, if not all, the circumstances.’’ More specifically, court). The commenter noted that the commenters confused an appellate assuming arguendo that an individual BIA has previously recognized that the standard of review with a trial-level seeking remand on the basis that the statute’s legislative history requires an determination of ‘‘totality of the immigration judge wrongly applied a adjudicator to evaluate the totality of the circumstances.’’ Neither the INA nor totality of the circumstances standard, circumstances to resolve this issue, applicable regulations has ever the motion to remand would not be, citing Matter of W–F–, 21 I&N Dec. 503, authorized a ‘‘totality of the itself, based on a totality of the 509 (BIA 1996). The commenter also circumstances’’ standard of review by circumstances standard, but rather stated that the rule was contrary to the BIA. Prior to 2002, the BIA reviewed based on the immigration judge’s decades of past precedent, citing, inter all aspects of immigration judge alleged error of law in applying that alia, Matter of Miranda-Cordiero, 27 decisions de novo. Regulatory changes standard.40 I&N Dec. 551, 554 (BIA 2019); Matter of in 2002 authorized the Board to review Although the Department recognizes W–F–, 21 I&N Dec. at 509; Jobe, 212 F.3d immigration judge factual findings for that the BIA may have suggested or 674; and Alrefae v. Chertoff, 471 F.3d clear error and all other aspects of such intimated that it was using such a 353, 360–61 (2d Cir. 2006) (Sotomayor, decisions de novo. 8 CFR 1003.1(d)(3); standard of review in individual cases J.). Matter of S–H–, 23 I&N Dec. 462 (BIA in the past, its lack of clarity clearly At least one commenter noted that the 2002); See 67 FR at 54902. Accordingly, supports the change in this rule. rule mentioned that there is no statutory the BIA has never been authorized to Whether the Board previously failed to or regulatory basis for the totality of the review decisions based on the ‘‘totality apply a correct or appropriate standard circumstances standard but failed to of the circumstances,’’ and the rule of review when remanding a case based acknowledge that statutes and merely codifies that principle. on the totality of the circumstances or regulations are not the only types of law Further, the Department is unaware of whether it merely was unclear about the applicable in removal proceedings or any appellate court—and commenters standard it was actually applying, the other proceedings reviewed by the BIA. did not provide an example—employing rule ensures that all parties are now Accordingly, the commenter stated, the a ‘‘totality of the circumstances’’ aware that there is no such standard of Department’s failure to consider other standard of review for questions of law, review and that the Board will be sources of law, many of which utilize fact, discretion, judgment or other clearer in the future on this issue. the ‘‘totality of the circumstances’’ appellate issues similar to those Contrary to commenters’ suggestions, standard of review, renders the rule’s considered by the BIA. 8 CFR neither the lack of clarity nor the allegation—that remands justified by 1003.1(d)(3). The Department agrees potential to apply an incorrect standard review of a totality of the circumstances that ‘‘totality of the circumstances’’ may are without merit—highly questionable. be a relevant trial-level consideration in 40 This distinction is best illustrated by the Another commenter further stated various situations and that an appellate Board’s decision in Matter of Miranda-Cordiero, 27 that the totality of the circumstances body may review an underlying I&N Dec. at 554 which was cited by at least one standard was particularly important for determination by the trial entity of the commenter. In that decision, the Board noted that ‘‘[w]hether proceedings should be reopened sua the BIA’s review of in absentia motions, ‘‘totality of the circumstances’’; sponte is a discretionary determination to be made in order to resolve whether exceptional however, that is not the same as using based on the totality of circumstances presented in circumstances exist pursuant to section ‘‘totality of the circumstances’’ as a each case,’’ but it did not apply or purport to apply 240(b)(5)(C)(i) of the Act, 8 U.S.C. standard for appellate review. See, e.g., such a standard on appellate review. Matter of Miranda-Cordiero, 27 I&N Dec. at 554–55. Rather, 1229a(b)(5)(C)(i). The commenter also Cousin v. Sundquist, 145 F.3d 818, 832 it appropriately applied a de novo standard of disagreed with the Department’s (6th Cir. 1998) (‘‘We therefore undertake review to that question of discretion, consistent position that there was no statutory or de novo review of the district court’s with 8 CFR 1003.1(d)(3)(ii). Id. at 555 (‘‘Upon our regulatory basis for the ‘‘totality of the analysis of the totality of the de novo review, we find that the respondent’s case does not present an exceptional situation that circumstances’’ standard. circumstances[.]’’). warrants the exercise of discretion to reopen sua One commenter criticized the To the commenter’s point about the sponte, regardless of the availability of a provisional Department for proposing such a rule BIA’s review of in absentia motions and waiver.’’ (emphasis added)).

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of review are persuasive reasons to is no existing statutory or regulatory case is back before the immigration continue the Board’s occasional prior basis for applying this standard of judge, he or she may take new evidence practice on this issue in perpetuity. review even though the BIA, arguably, and engage in fact finding to resolve Rather, the Department believes it is may have utilized it in the past without issues that may later have to be important to reiterate the BIA’s authority. 85 FR at 52501. In short, the addressed in a motion to reopen. commitment to adhering to regulatory risk of continued confusion over Commenters also suggested that an standards in order to ensure consistent whether the Board applied the correct individual should not be bound to the adjudication of similarly situated cases. standard of review—and whether there record before the immigration judge Commenters’ suggestions that, exists a standard of review outside of where a new avenue of relief had without a ‘‘totality of the the regulatory text that is applied only become available in the intervening circumstances’’ standard of review, as the BIA subjectively sees fit in period of time when he or she was adjudicators would specifically select individual cases—significantly waiting for their new individual facts that would allow them to deny outweighs commenters’ concerns that it hearing. One commenter stated that they remands for otherwise meritorious cases should remain as a nebulous quasi- opposed what they characterized as the is both contrary to the existing equitable authority whose provenance is Department’s attempt to force regulations—which do not permit such unknown and whose application immigration judges to improperly issue a standard—and unsupported by any approaches an ad hoc basis. removal orders for the purposes of evidence. Members of the BIA will Nonetheless, in light of the confusion eliminating confusion for immigration consider whether remand for any of the evidenced by commenters, the judges. The commenter suggested that permitted purposes would be Department in this final rule is making this rule would harm both respondents appropriate after an impartial clear that the Board cannot remand a and immigration judges. examination of the record and applying case following a totality of the Commenters stated that the rule the correct standard of review, without circumstances standard of review, change arbitrarily precluded the reference to a regulatory atextual—and though an immigration judge’s immigration judge from considering almost wholly subjective—totality of the consideration of the totality of the new facts or law and would not improve circumstances standard of review. See 8 circumstances may be a relevant subject efficiency because it would force CFR 1003.1(d)(1) (‘‘The Board shall for review under an appropriate litigation of such issues to be resolve the questions before it in a standard. contemplated upon a separate motion to manner that is timely, impartial, and Finally, to the extent that commenters reopen, after the conclusion of consistent with the Act and objected to the specific prohibition on proceedings, when it could be more regulations.’’). Indeed, the Department the Board’s ability to remand cases in efficiently addressed on remand. The believes that the nebulous and vague the ‘‘totality of circumstances’’ solely commenter also suggested that there ‘‘totality of the circumstances’’ standard because they perceived such remands as would be increased litigation about the that the BIA may have previously being beneficial only to respondents, the constitutionality of the rule which applied is itself ripe for exactly the kind Department finds that an unpersuasive would also decrease efficiency and of unfair ‘‘cherry picking’’ that the basis for declining to issue this rule. increase inconsistent outcomes. Another commenter fears. Rather, those comments support the commenter stated that issues that could Regarding commenters’ discussion of Department’s concern about the have previously been resolved with a case law and the totality of the inappropriate use of such a putative ‘‘simple remand’’ and straightforward circumstances standard, the Department standard of review and its decision to adjudication in immigration court first notes that the BIA and Federal codify the inapplicability of such a would now require the BIA to produce appellate courts do not necessarily standard to the extent that it has been a transcripts, order briefing, and review employ parallel standards of review. applied in a manner that benefits one briefing by both sides before rendering Compare Sandoval-Loffredo v. party over the other and, thus, raises a decision. Gonzales, 414 F.3d 892, 895 (8th Cir. questions regarding the Board’s Response: The Department disagrees 2005) (applying ‘‘deferential substantial impartiality. See 8 CFR 1003.1(d)(1); 5 with commenter concerns regarding evidence standard’’ to review agency CFR 2635.101(b)(8); BIA Ethics and limiting the scope of remand to the findings of fact), with, e.g., 8 CFR Professionalism Guide at sec. V. immigration court. The rule is intended 1003.1(d)(3)(i) (establishing a clear error to alleviate confusion for immigration standard for reviewing immigration i. Issues With Respect to Limiting Scope judges regarding the scope of a remand. judge findings of fact). Nevertheless, as of Remand to Immigration Court ‘‘[E]ven where the [BIA] clearly intends discussed, supra, the Department is Comment: Commenters also raised a remand to be for a limited purpose[,]’’ unaware of any Federal appellate court concerns regarding the Department’s an immigration judge interpreting the that uses a ‘‘totality of the proposed changes that would limit the remand as a ‘‘general remand’’ would circumstances’’ standard of review, and scope of a remand to the immigration allow consideration, litigation, or commenters did not provide any such court. For example, commenters relitigation, of the myriad of issues that examples. suggested, the rule would unfairly had either already been addressed or The Department disagrees with impact individuals who had been were unrelated to the initial commenter concerns regarding whether subject to ineffective assistance of proceedings. See 85 FR at 52502. the ‘‘totality of the circumstances’’ counsel before the immigration court Commenters did not explain why an standard has resulted in incorrect or but whose cases had been wrongly immigration judge should not be bound unfair case outcomes. Regardless of decided for other reasons. Such by the intent of a Board remand nor why whether this putative standard of individuals, the commenter suggested, the Board should not adopt the same review, which is not authorized by should not be limited to their prior, principle used by Federal appellate statute or regulation, results in poorly developed record on remand courts distinguishing between general ‘‘incorrect’’ or ‘‘unfair’’ case outcomes, when they might be represented by new and limited remands. See, e.g., United which are subjective determinations counsel. One commenter suggested that States v. Campbell, 168 F.3d 263, 265 made by commenters, the Department is limiting the scope of a remand does not (6th Cir. 1999) (‘‘Remands, however, can issuing this rule to make clear that there improve efficiency because once the be either general or limited in scope.

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Limited remands explicitly outline the respondent may file a motion to respondents, the Department finds that issues to be addressed by the district reconsider the scope of the BIA’s an unpersuasive basis for declining to court and create a narrow framework remand decision. Alternatively, the issue this rule. First, to reiterate, the within which the district court must respondent may file a motion to reopen rule applies to both parties, and general operate. General remands, in contrast, or reconsider with the immigration remands may benefit or hinder either give district courts authority to address judge after the judge enters a new party. It is just as likely that DHS may all matters as long as remaining decision following the remand. The acquire additional evidence or submit consistent with the remand.’’ (internal Department further notes that such additional arguments following a citations omitted)). As the NPRM issues may generally be appealed to the general remand as the respondent explained, all Board remands are Federal circuit courts of appeals. would. Consequently, the Department currently de facto general remands, even Commenters are correct that aliens focuses on the efficiency aspects of when the intent of the remand is clearly would submit motions to reopen after eliminating the current ‘‘only general limited. 85 FR at 52496; see Bermudez- the BIA’s adjudications, but the remands’’ principle, rather than its use Ariza v. Sessions, 893 F.3d 685, 688–89 Department disagrees that this to obtain any specific results. Second, to (9th Cir. 2018) (‘‘We think it likely that procedure would lead to delays or the extent that there is a misperception the BIA limited the scope of remand to conflict with the purpose of the rule. that the general remand rule aids only a specific purpose in this case by stating Instead, one of the main animating aliens, those comments support the that it was remanding ‘for further purposes of the rule is to reduce Department’s decision to authorize the consideration of the respondent’s claim unnecessary and inefficient remands Board to issue both limited and general under the Convention Against Torture.’ and to ensure the BIA is able to move remands in order to ensure that the That said, the BIA’s remand order forward independently with as many Board remains impartial in its treatment nowhere mentioned jurisdiction, much appeals as possible, and maintaining a of both parties. See 8 CFR 1003.1(d)(1); less expressly retained it. Thus, general remand rule erodes both of 5 CFR 2635.101(b)(8); BIA Ethics and irrespective of whether the BIA those goals. Professionalism Guide at sec. V. qualified or limited the scope of The Department disagrees with the Overall, after weighing the potential remand, the IJ had jurisdiction to commenter’s concerns that limiting the burdens and commenters’ concerns, as reconsider his earlier decisions under 8 scope of remand would unfairly impact well as the Board’s position as an CFR 1003.23.’’). However, the individuals who have been subject to impartial appellate body, the Department sees no basis to retain such ineffective assistance of counsel. As an Department has concluded that the an anomalous system or to continue to initial point, the commenter did not benefits of expressly allowing the Board preclude the BIA from exercising its explain how such a claim would arise to issue limited remands, including appellate authority to issue limited- in either a general or limited remand increased efficiency and better scope remands. situation, as claims of ineffective alignment with the Board’s status as an Commenters did not explain why assistance of counsel on direct appeal appellate authority, outweigh concerns such an inefficient limitation—and one are relatively rare; nevertheless, such raised by commenters that parties that encourages the re-litigation of claims could be considered by the Board should continue to be able to raise all issues already addressed by an as with any other appellate argument. issues again on remand, even if they immigration judge and the Board— Moreover, individuals who have been have previously been litigated. should be retained. Requiring every subjected to ineffective assistance of h. New Evidence on Appeal (8 CFR remand to constitute a general remand counsel may pursue reopening of their 1003.1(d)(7)(v)) both increases inefficiency—by proceedings pursuant to Matter of requiring the parties to potentially re- Lozada, 19 I&N Dec. 637 (BIA 1988). In Comment: Numerous commenters argue issues previously addressed—and short, nothing in this final rule affects expressed general concerns about the undermines finality by allowing a an alien’s ability to raise claims of amendments at 8 CFR 1003.1(d)(7)(v) second chance to argue and appeal ineffective assistance of counsel through regarding the BIA’s consideration of issues to the Board that the Board has established channels. new evidence on appeal. For example, already ruled upon once. The Department agrees with at least one commenter characterized Additionally, it is not appropriate for commenters that administrative the change as ‘‘banning the submission the immigration court to, without appellate review is an important part of of new evidence.’’ Other commenters explicit directive, expand the scope of removal proceedings; however, the expressed that the changes were a its decision beyond that which is Department believes that at least some ‘‘blatant power grab’’ and offensive to desired by its reviewing court. Cf. 8 CFR commenters have mischaracterized the the constitution, principles of basic 1003.1(d)(1) (‘‘The Board shall function role of administrative appeals as decency, and fundamental fairness. as an appellate body charged with the maintaining ‘‘court[] checks and Commenters explained that motions to review of those administrative balances and separation of powers.’’ reopen are inadequate substitutes for adjudications under the Act that the Rather, the BIA exists to review motions to remand for consideration of Attorney General may by regulation immigration court decisions for new evidence due to the strict time and assign to it.’’). The Department notes accuracy and adherence to the law, as number limitations that apply. See INA that, should a respondent disagree with well as providing guidance to 240(c)(7)(C)(i), 8 U.S.C. 1229a(c)(7)(C)(i). the immigration judge’s determinations adjudicators. See 8 CFR 1003.1(d)(1). Commenters stated that motions to made on remand, he or she may appeal This role is unrelated to the concepts of remand on account of new evidence are that determination to the BIA. Thus, the checks and balances and separation of critical to protecting aliens’ due process respondent would not be prejudiced by powers as they exist between separate, rights in immigration proceedings and limiting the scope of the remand to coequal branches of government. that, by banning motions to remand for issues as directed by the appellate body. To the extent that commenters new evidence, the rule would violate To the extent that new relief becomes objected to the codification of the aliens’ rights at section 240(b)(4)(B) of available in the intervening time while Board’s authority to issue limited the Act, 8 U.S.C. 1229a(b)(4)(B), to a case is being rescheduled before the remands solely because they perceived present evidence on their behalf. immigration court on remand, the such remands as being beneficial only to Commenters explained that these

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motions to remand allow aliens to Other commenters voiced concern motion to reopen—and the NPRM does account for situations when evidence that pro se aliens who improperly label not impact motions to reopen. Because that is material was formerly their motion to the BIA as a motion to the sole statutorily created process to unavailable. Commenters noted that remand rather than a motion to reopen consider new evidence is still available, new evidence may be necessary for will have their motions dismissed and the Department finds that aliens’ due consideration due to intervening their new evidence would be process rights regarding the submission changes in the law. ‘‘foreclosed from consideration.’’ of new evidence remain intact. Similarly, commenters disagreed with Another commenter echoed this Commenters mischaracterize the the Department’s characterization of the concern and noted that the government, Department’s basis for these changes. basis for these changes as which will always be represented by While the Department noted that the gamesmanship by the parties, noting counsel, would not be required to meet procedures and availability of motions that it frequently takes time for an alien the same motion formalities as aliens in to remand create opportunities for to obtain evidence from other sources. order for the BIA to remand due to gamesmanship, such possible Commenters also noted that the derogatory information. gamesmanship was not alone the reason Department did not provide concrete Concerned about refoulement, a for the changes. 85 FR at 52501. Instead, evidence or citations in support of these commenter stated that the Department as the Department noted, such motions characterizations. See 85 FR at 52501. should not make it more difficult for have resulted in inconsistent In general, commenters expressed asylum seekers, who often have limited applications of the law, particularly concern that this provision would allow access to evidence due to harms from given the general prohibition on the the BIA to remand a case when there is abusers or traffickers or post-traumatic BIA’s consideration of new evidence on derogatory information about an alien as stresses, to submit whatever evidence appeal. 85 FR at 52500–01. Further, a result of the identity, law enforcement, they are able to procure. Similarly, at prohibiting the BIA from considering or security investigations or least one commenter noted the new evidence on appeal is in keeping examinations but prevent aliens from difficulties faced by children in with the immigration judge’s authority seeking a remand for new and favorable proceedings. to manage the filing of applications and evidence. This difference, according to Commenters described a range of collection of relevant documents. Under commenters, gives ‘‘the appearance of situations when they believe the rule 8 CFR 1003.31(c), a party who fails to impropriety and favoritism toward one would prevent aliens from submitting file an application or document within party in the beginning.’’ Another new evidence that is relevant or needed. the time set by the immigration judge is commenter alleged that such an Examples include when an alien has deemed to have waived the opportunity appearance ‘‘damages the public trust in been approved for a U-visa but has not to file that application or document. the neutral adjudication process.’’ actually received it and when an Further, commenters are incorrect Extending the allegations, a commenter immigration judge unreasonably limited that the rule demonstrates bias or claimed that these changes resulted in the record and the alien needs to particular aid to DHS. The NPRM the decision makers no longer being establish that the immigration judge contains three exceptions: New neutral or unbiased, a constitutional abused her discretion in a prejudicial evidence that (1) is the result of identity, requirement, according to the manner. law enforcement, or security commenter, that was established in Response: The Department has investigations or examination; (2) Mathews v. Eldridge, 424 U.S. 319 addressed many of these comments pertains to an alien’s removability under (1976). Commenters noted that allowing regarding the submission of new the provisions of 8 U.S.C. 1182 and remands due to information uncovered evidence on appeal, supra, and 1227; or (3) calls into question an aspect in the investigations without restrictions incorporates and reiterates its previous of the jurisdiction of the immigration conflicts with the Department’s response here. Further, the Department courts. These are the three situations in efficiency-based justification for the notes that the rule does not ban the which the Department determined that rule. submission or consideration of new the need for remand ‘‘overrides any Commenters similarly stated that the evidence following the completion of other consideration because the new rule favors DHS because all three immigration court proceedings. Instead, evidence calls into question the exceptions to remands for consideration the changes require that a party comply availability or scope of proceedings in of new evidence at 8 CFR with the statutory requirements for a the first instance.’’ 85 FR at 52501. 1003.1(d)(7)(v)(B) relate to types of motion to reopen to submit such Only the first basis applies solely to evidence more likely to benefit DHS’s evidence.41 A motion to remand, which DHS, and as the Department has case or arguments than the alien’s. is an administratively created concept 42 discussed, supra, that basis is consistent Other commenters warned that this that was later codified into the with statutes and regulations that are change would increase the backlog at regulations, was never imagined as part beyond the scope of this rule. 8 CFR the immigration courts, the BIA, and the of the statutory scheme. However, the 1003.47; INA 208(d)(5)(A)(i), 8 U.S.C. circuit courts. For example, at least one statutory scheme of the INA included an 1158(d)(5)(A)(i). The second and third commenter argued that the change avenue to address new evidence—a bases apply equally to both parties and would lead to unnecessary delays by allow, for example, a respondent to requiring the BIA to affirm a removal 41 The Department recognizes commenters’ submit new evidence of United States order that would be subsequently concerns that motions to reopen are limited by citizenship (which would call into reopened since the BIA could not grant statute to certain time and number requirements. question the jurisdiction of the a remand to account for new evidence See INA 240(c)(7)(C)(i), 8 U.S.C. 1229a(c)(7)(C)(i). proceedings) or new evidence that Such limitations are the product of congressional while the case is still pending. judgment and otherwise outside the Department’s suggests the respondent is no longer Similarly, commenters stated that authority to set or amend. Nevertheless, the removable. Both parties have vested forcing cases to first have a removal Department also recognizes that equitable tolling, interests in ensuring that removal order before evidence could be which commenters generally did not acknowledge, proceedings do not occur in may also be available in certain circumstances to considered with a motion to reopen ameliorate time limitations. circumstances when a respondent is not unnecessarily starts the removal process 42 See Matter of Coelho, 20 I&N Dec. 464, 470– amenable to removal, and the and creates complications. 71 (BIA 1992). Department accordingly disagrees with

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commenters that these circumstances matters.44 The BIA reviews each have sufficient time to meaningfully are in any way one-sided or beneficial submission for its substance. In review the appeal. Commenters solely or primarily to DHS. addition, EOIR provides reference similarly expressed concern that the Further, it is a mischaracterization to materials to the public regarding rule’s requirement that a single BIA isolate the first exception, remands for procedures before EOIR, which provide member decide whether to issue a evidence that is the result of the alien’s pro se aliens with assistance when single-member decision or refer the case identity, law enforcement, or security engaging in self-representation. See for three-member review will cause BIA investigations or examinations, as generally BIA Practice Manual; see also members to emphasize speed over particular evidence that the provision is EOIR, Immigration Court Online fairness in reviewing case records, biased in favor of the government. As Resource, supra; EOIR, Self-Help which could result in erroneous denials. discussed in the NPRM, by statute, no Materials (Aug. 1, 2019), available at The commenters suggested that these alien may be granted asylum ‘‘until the https://www.justice.gov/eoir/self-help- timelines were arbitrary. One identity of the applicant has been materials. Thus, the Department does commenter stated that it supported checked against all appropriate records not find that mistitled or extending the existing regulatory or databases maintained by the Attorney mischaracterized motions will be an deadlines, rather than shortening them. General and by the Secretary of State, undue burden on the BIA or present a One commenter cited several Ninth including the Automated Visa Lookout particular risk that aliens’ opportunity Circuit cases that determined that the System, to determine any grounds on to have new evidence considered will BIA had erred in its summary dismissal which the alien may be inadmissible to be denied due to formalities. of an appeal. See, e.g., Vargas-Garcia v. or deportable from the United States, or The Department finds that the various INS, 287 F.3d 882, 885–86 (9th Cir. ineligible to apply for or be granted scenarios when motions to remand for 2002) (holding that the BIA Notice of asylum.’’ INA 208(d)(5)(A)(i), 8 U.S.C. consideration of new evidence would be Appeal form was inadequate for an 1158(d)(5)(A)(i). As such, the BIA must used do not compel reconsideration of unrepresented respondent given the be able to remand on account of the rule. The three exceptions provide BIA’s standards of specificity and lack unfavorable findings resulting from safeguards that allow for the of notice in summarily dismissing the identity and security investigations or consideration of evidence when it calls appeal); Casas Chavez v. INS, 300 F.3d the BIA would not be complying with into question the availability or scope of 1088, 1090 & n.2 (9th Cir. 2002) the statutory requirements, and aliens proceedings, and motions to reopen (holding that the notice of the reasons would not have an opportunity to remain the appropriate recourse for for appeal sought by the summary present relevant evidence in response. aliens with newly discovered or dismissal regulation can be met either in Commenters are correct that aliens previously unavailable evidence. the Notice of Appeal or in the brief and may submit motions to reopen after the Similarly, a motion to reopen provides ‘‘there is an underlying assumption in BIA’s adjudication, but the Department the proper avenue for newly acquired the regulation that both requirements disagrees that this procedure, compared evidence for asylum seekers or others need not be satisfied as long as with the submission of new evidence on concerned about refoulement; thus, sufficient notice is conveyed to the BIA’’ appeal, would lead to delays or conflict aliens in that situation are not and reasoning that ‘‘[i]f this were not with the purpose of the rule. As ‘‘arbitrarily blocked’’ from presenting true, the constitutionality of the discussed in the NPRM, 85 FR at 52500– such evidence. regulation would be called into question on the basis of denial of due 01, and reiterated, supra, the BIA’s i. BIA Timelines (8 CFR 1003.1(e)(1), process.... In the context of inconsistent treatment of new evidence (8)) deportation proceedings, due process submitted on appeal warrants a change requires that aliens who seek to appeal in the regulations, and commenters i. Issues With Respect to Screening be given a fair opportunity to present suggestions to the contrary are Panel Deadlines their cases.’’) (internal citations and unpersuasive. After weighing the Comment: Commenters expressed quotations omitted); relevant equities—including the need concern that the rule’s 14-day timeframe Response: Most, if not all, of the for clarity and consistency, the for the BIA to conduct its initial commenters’ concerns appear to be availability of alternatives such as screening for summary dismissal and based on a tacit assertion that either motions to reopen, the burden of 30-day timeframe for the BIA to issue a Board members are incompetent and immigration judges caused by improper decision would lead to erroneous cannot screen an incoming case within consideration of new evidence on dismissals in light of the number of two weeks or Board members are appeal, and the importance of cases pending before the BIA. incompetent or unethical and will issue encouraging parties to submit all Specifically, the commenters stated that summary dismissal orders for reasons available and probative evidence at the BIA staff conducting the initial unrelated to the merits or the law. The trial level—the Department decided that screening would not know whether the Department categorically rejects those the benefits of the rule outweigh the case could be summarily dismissed assertions and any comments based on concerns raised by commenters, until after they have screened the case, such presumptions. Chem. Found., Inc., particularly due to the availability of and that the ‘‘mandatory adjudicatory 272 U.S. at 14–15 (‘‘The presumption of 43 motions to reopen. timeframes’’ would pressure screeners regularity supports the official acts of As to the commenters’ concerns to review cases quickly rather than public officers, and, in the absence of regarding the risk of unrepresented accurately. Another commenter stated clear evidence to the contrary, courts aliens submitting improperly titled that the ‘‘screening panel’’ consisted of presume that they have properly motions, the issue is not novel, and the only one BIA member, who would not discharged their official duties.’’). BIA is familiar in handling such There is no evidence—and 44 Nevertheless, the Department reiterates that commenters did not provide any—that 43 To the extent commenters are concerned about approximately 86 percent of aliens are represented establishing a 14-day timeframe within removal pending a motion to reopen given these upon appeal. EOIR Workload and Adjudication changes, the Department notes that aliens may seek Statistics, Current Representation Rates, Oct. 13, which the BIA must conduct its initial stays of removal from DHS or, as appropriate, the 2020, available at https://www.justice.gov/eoir/ screening for summary dismissal and BIA. 8 CFR 241.6 and 1241.6. page/file/1062991/download. 30-day timeframe for issuing a decision

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will result in erroneous denials. The essential statutory or regulatory processing time for an appeal of 364 BIA has already established such requirements; or the appeal is expressly days in FY 2016. internal requirements by policy, see PM prohibited by statute or regulation. See Response: Again, many, if not all, of 20–01 at 2 without any known 8 CFR 1003.1(d)(2)(i). The cases the commenters’ concerns appear to be degradation in the quality of its identified by commenters, however, are based on a tacit underlying assertion screening or issuance of summary inapposite to this rule, which does not that Board members are either dismissals. amend the circumstances under 8 CFR incompetent or unethical and, thus, Contrary to the suggestion of at least 1003.1(d)(2)(i) when the BIA may cannot or will not perform their duties one commenter, the screening panel is summarily dismiss a case. properly in a timely manner, comprised of multiple Board members, notwithstanding the longstanding not just one, and the panel consists of ii. Issues With Respect to Other Appeals regulatory directive for them to ‘‘resolve a ‘‘sufficient number of Board members’’ Comment: One commenter asserted the questions before [them] in a manner to carry out screening functions. 8 CFR that the changes to the BIA’s timelines that is timely, impartial, and consistent 1003.1(e). The rule does not alter the were designed to codify an October with the Act and regulations.’’ 8 CFR existence or composition of the 2019 EOIR policy memo, but the 1003.1(d)(1). The Department screening panel. Further, commenters commenter stated that the Department categorically rejects those assertions and did not provide any evidence—and the did not point to any increased efficiency any comments based on such Department is unaware of any—that the or productivity since those new case- presumptions. Chem. Found., Inc., 272 screening panel is insufficient to carry management procedures were U.S. at 14–15 (‘‘The presumption of out its functions under the rule. implemented. Other commenters regularity supports the official acts of As noted in the NPRM, 85 FR at similarly criticized the Department for public officers, and, in the absence of 52507, the regulations currently direct not adequately explaining how its clear evidence to the contrary, courts the BIA to screen and ‘‘promptly’’ objectives to achieve higher consistency, presume that they have properly identify cases subject to summary efficiency, and quality of decisions discharged their official duties.’’). dismissal, 8 CFR 1003.1(d)(2)(ii), and would be furthered by limiting BIA Although aspects of PM 20–01 few commenters acknowledged that discretion to manage its own caseload. informed this rule, it was not the sole promptness requirement nor explained Commenters likened their concerns consideration nor the basis of authority why an undefined promptness with the new timelines to concerns with for the rulemaking. The Attorney requirement is preferable to a clear one the BIA’s procedures for affirmances General is statutorily authorized to issue set at 30 days. These regulatory without opinion. regulations to carry out his authority in timelines will both improve efficiency Commenters stated that the rule the INA. INA 103(g)(2), 8 U.S.C. at the BIA, so that there is more time for would lead the BIA to issue rushed, not 1101(g)(2). Further, the Director BIA members and staff to devote to quality, decisions. For example, exercises delegated authority from the cases involving more substantive, commenters stated that BIA decisions Attorney General to ensure the dispositive issues. They will also benefit would be inconsistent since achieving ‘‘efficient disposition of all pending the parties by offering more expedient consistency requires reviewing previous cases, including the power, in his resolution of appeals amenable to decisions and understanding important discretion, to set priorities or time summary dismissal allowing more time distinctions between different cases. frames for the resolution of cases.’’ 8 to be devoted to meritorious cases. The Commenters stated that decisions made CFR 1003.0(b)(1)(i). Additionally, the Department believes that 14 and 30 days without sufficient consideration of the Director may ‘‘[e]valuate the are ample periods of time to both screen facts and law would be more likely to performance of the Board of and issue decisions, respectively, on be overturned for errors, which Immigration Appeals . . . and take such limited matters, and these decreases efficiency. corrective action where needed[.]’’ Id. timelines will not negatively affect the The commenters also stated that this § 1003.0(a)(1)(iv). quality or accuracy of such rule would incentivize BIA members to The Department notes that this adjudications. decide and deny cases themselves rather rulemaking, and other recent Finally, the Department notes the than determine that a case requires rulemakings, designed to improve commenter’s citation to cases regarding three-member review, which is required efficiencies at the BIA, in addition to the incorrect usage of the BIA’s summary to reverse an immigration judge’s measures outlined in the policy dismissal procedures. The BIA may decision, because it is faster for a single memorandum, to the extent that they dismiss an appeal summarily without member to affirm an immigration are not included in the rulemaking will reaching its merits in the following judge’s decision. work in conjunction to improve circumstances: Failure to adequately Commenters criticized that the efficiencies at the BIA. See, e.g., inform the BIA of the specific reasons Department did not explain why the Organization of the Executive Office for for the appeal on either the Notice of BIA would benefit from such Immigration Review, 84 FR 44537 (Aug. Appeal (Form EOIR–26) or any brief or adjudication timelines when other 26, 2019); 85 FR 18105. The Department attachment; failure to file a brief if the courts can issue rulings only when they also notes that the Board has already appealing party has indicated that a are prepared to do so. demonstrated improved efficiency by brief or statement would be filed; the One commenter stated that the time completing over 40,000 cases in the first appeal is based on a finding of fact or period proposed for EOIR adjudicators full fiscal year (FY) after PM 20–01 was conclusion of law that has already been is much less than many other issued, which was its highest conceded by the appealing party; the administrative tribunals. The completion total since FY 2008. EOIR, appeal is from an order granting the commenter listed, as examples, the Adjudication Statistics: All Appeals relief requested; the appeal is filed for Board of Veterans Appeals, which the Filed, Completed, and Pending, Oct. 13, an improper purpose; the appeal does commenter alleged took an average of 2020, available at https:// not fall within the BIA’s jurisdiction; 247 days to decide an appeal in FY www.justice.gov/eoir/page/file/1248506/ the appeal is untimely; the appeal is 2017, and the Social Security download. barred by an affirmative waiver of the Administration Appeals Council, which Contrary to commenters’ assertions, right of appeal; the appeal fails to meet the commenter alleged had an average this rule does not encourage any

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particular result of an appellate with commenters’ concerns that, given commenters asserted that this would adjudication; rather, the outcome of an the number of cases pending before the promote the denial of appeals. The appeal remains wholly dependent on BIA, it would not be possible for BIA commenters also expressed concerns the merits of the appeal and the members to adjudicate appeals within that this would consolidate final applicable law. This rule does not the given timeframes or other decision-making authority with one encourage the denial of appeals or the allegations that the 335-day time period allegedly politically appointed person, issuance of legally deficient decisions, is insufficient. As noted in the NPRM, the Director, whom, the commenters and the Department again rejects the most appeals are already decided within alleged, would not have the necessary insinuation that its adjudicators would the given parameters. 85 FR at 52508. information or knowledge of the case to abdicate their duties or are too Accordingly, commenters’ comparisons issue a decision. Commenters alleged incompetent to perform them correctly. to other courts or administrative bodies that the Director’s decision in referred Further, this provision regarding the with different processing timelines and cases would be made based on the rules, BIA’s timelines are intended to improve averages are inapposite, though the without taking the appropriate time to efficiency and encourage the timeliness Department notes that the BIA’s evaluate the case. of appeals, not to affect the disposition timeline falls between the two examples Further, commenters objected that the of appeals. The NPRM clearly states that given, which actually supports the rule. rule would undermine the perception of ‘‘this delegation of authority to the For such cases that are atypical, and neutrality, politicize the appellate Director does not change the applicable for which it would be appropriate for process and violate substantive Due law that the Board or the Director must the BIA to devote additional time to Process by allowing the Director, a apply in deciding each appeal[.]’’ 85 FR completing adjudication, the regulations political appointee, rather than a career at 52508. BIA members are directed by provide for an extension of the adjudicator to adjudicate hundreds or regulation to ‘‘exercise independent adjudication time period. 8 CFR thousands of cases. One commenter judgment and discretion in considering 1003.1(e)(8)(ii) (‘‘[I]n exigent asserted that it is not the role of the and determining the cases coming circumstances . . . in those cases where Director to adjudicate decisions, and before the [BIA.]’’ 8 CFR 1003.1(d)(1)(ii). the panel is unable to issue a decision that the position is a non-adjudicatory Such determinations must be made in within the established time limits, as position that is meant to run EOIR accordance with applicable statutes, extended, the Chairman shall either operations and does not have expertise, regulations, and binding case law. assign the case to himself or a Vice training, or impartiality necessary to Additionally, BIA members receive Chairman for final decision within 14 decide cases. The commenter stated ‘‘comprehensive, continuing training,’’ days or shall refer the case to the that, as an executive position, the administered by the Director, in order to Director for decision.’’); Director would make decisions based on promote adjudicative quality. Id. 1003.1(d)(6)(ii)(B) (allowing BIA to the priorities of the executive branch § 1003.0(b)(1)(vi), (vii). Furthermore, place a case on hold while it awaits the rather than the requirements of the law. BIA members, who are adjudicators completion or updating of all identity, Numerous commenters opposed the within EOIR, were hired to serve EOIR’s law enforcement, or security 335-day period before referrals because mission to adjudicate cases in a fair, investigations or examinations); it is not much longer than the 323-day expeditious, and uniform manner. See 1003.1(e)(8)(iii) (permitting BIA Chief median case appeal time period. EOIR, About the Office, Aug. 14, 2018, Appellate Immigration Judge to hold a One commenter criticized the available at https://www.justice.gov/ case pending a decision by the U.S. rulemaking because the Department did eoir/about-office. The Department Supreme Court or a U.S. Court of not address how the Director would rejects commenters’ insinuations that Appeals, in anticipation of a BIA en have time to personally write decisions BIA members would act outside of that banc decision, or in anticipation of an or, alternatively, who would write them mission by affirming an immigration amendment to the regulations). under the Director’s name. The judge’s decision solely to dispose of an Therefore, as noted in the NPRM, the commenter further criticized that the appeal more expediently due to the Department expects few, if any, appeals NPRM did not discuss what kind of timelines.45 The Department disagrees to not be resolved within the regulatory training and oversight such individuals time frames. 85 FR at 52508. In short, would receive or what metrics they 45 Because an alien may appeal a BIA decision to commenters simply did not would use. Federal court, this asserted behavior would not be efficient or rational—and, thus, would be unlikely persuasively explain why it would be Some commenters offered anecdotal to occur, contrary to commenters’ allegations— neither feasible nor desirable for the BIA evidence about appeals that were because improper adjudications will simply lead to to adjudicate cases within 11 months, pending for more than 335 days and more cases being remanded from Federal court. subject to certain exceptions contained noted that such delays have become Moreover, although commenters did not acknowledge it, the Department is cognizant that in the rule. even increasingly common in light of the COVID–19 epidemic. One DHS cannot petition a Federal court for review of iii. Issues With Respect to Referral to the a BIA decision. Thus, if BIA adjudicators were to commenter stated that every non- ignore their ethical obligations, disregard the law Director detained BIA appeal filed under the and evidence in each case, and adjudicate cases based solely on regulatory timelines in the manner Comment: Commenters also current administration had been alleged by commenters, they would actually have expressed a range of disagreements with pending for well over 335 days, and an incentive to rule in favor of aliens—contrary to the rule’s procedures for the referral of that, accordingly, the rule would result the assertions of commenters—because there is appeals that have been pending for more in the Director issuing decisions for little likelihood of a subsequent reversal. Thus, if 46 commenters were correct about an asserted than 335 days to the Director. The every respondent. relationship between efficiency and outcomes, then One commenter asserted that referring that relationship would logically favor aliens, 1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA Ethics and decisions to the Director would which is, paradoxically, a result favored by most Professionalism Guide at sec. V. undermine rule’s efficiency purpose commenters opposing the rule. Nevertheless, the 46 Numerous comments refer to a 355 day Department reiterates that the improved efficiency deadline which appears to be a typographical error, because it would introduce a third level created by the rule is outcome-neutral, and it as the time period set forth in the NPRM was 335 expects that all Board members will carry out their days, and there is no discussion of a 355 day time addressed such comments for substance as if they duties in an impartial and professional manner period in the NPRM. See 8 CFR 1003.1(e)(8)(v) had correctly stated that there was a 335 day consistent with the regulations. See 8 CFR (proposed). The Department has reviewed and deadline.

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of administrative review. Instead, have traditionally been filled only by ‘‘[p]rovid[ing] for comprehensive, commenters asserted that it would be career appointees, and the incumbent continuing training and support for more efficient to allow the BIA member Director serves through a career Board members, immigration judges, or BIA panel that has already reviewed appointment. In short, all of EOIR’s and EOIR staff in order to promote the the case and the record to make the Federal employees, including the quality and consistency of ultimate disposition in the case. Director, are career employees chosen adjudications.’’ Id. § 1003.0(b)(1). Each At least one commenter alleged that through merit-based processes, and of these responsibilities necessarily the rule would result in increased contrary to commenters’ assertions, requires some manner of subject-matter appeals to the Federal courts. none of EOIR’s employees, including expertise to carry out effectively. Commenters asserted that it would the Director, are political appointees.47 Moreover, the Director was given not be possible for the BIA to adequately Similarly, some commenters objected explicit adjudicatory review authority review the number of pending BIA cases to the NPRM by asserting that the involving recognition and accreditation in the given timeframe to avoid referrals Director is merely an administrator with (‘‘R&A’’) cases in January 2017, well to the EOIR Director. For example, no adjudicatory role and no subject before the NPRM was promulgated. See commenters stated, based on DOJ matter expertise regarding immigration Recognition of Organizations and statistics, that there were over 70,000 law. Longstanding regulations make Accreditation of Non-Attorney cases pending before the BIA at the end clear, however, that the Director must Representatives, 81 FR 92346, 92357 of FY 2019, and that for a 23-member have significant subject matter expertise (Dec. 19, 2016) (‘‘Additionally, the final BIA, each BIA member would have to in order to issue instructions and policy, rule provides that organizations whose complete 3,043 cases per year to comply including regarding the implementation requests for reconsideration are denied with the 335-day deadline. of new legal authorities. See 8 CFR may seek administrative review by the Commenters also raised concerns 1003.0(b)(1)(i). The position of Director Director of EOIR. See final rule at 8 CFR with imposing quotas on judicial requires a significant amount of subject- 1292.18. This provision responds to processes, and stated that the same matter expertise regarding immigration concerns that [the Office of Legal Access concerns apply to both BIA adjudicators laws. The Director is charged with, inter Programs (‘‘OLAP’’)] would be the sole and immigration judges. alia, directing and supervising each decision-maker regarding recognition Response: As an initial point, the EOIR component in the execution of its and accreditation and that another Director is not a political appointee. A duties under the Act, which include entity should be able to review OLAP’s political appointee is a full-time, non- adjudicating cases; evaluating the decisions.’’). In short, existing career presidential or vice-presidential performance of the adjudicatory regulations already require some level of appointee, a non-career Senior components and taking corrective action subject-matter knowledge by the Executive Service (‘‘SES’’) (or other as necessary; providing for performance Director and provide for the Director to similar system) appointee, or an appraisals for adjudicators, including a have an adjudicatory role in addition to appointee to a position that has been process for reporting adjudications that administrative duties. See, e.g., Matter excepted from the competitive service reflect poor decisional quality; of Bay Area Legal Services, 27 I&N Dec. by reason of being of a confidential or ‘‘[a]dminister[ing] an examination for 837 (Dir. 2020) (decision by the Director policy-making character (Schedule C newly appointed immigration judges in R&A proceedings). Accordingly, to and other positions excepted under and Board members with respect to the extent that commenters’ objections comparable criteria) in an executive their familiarity with key principles of to this provision are based on an agency. See, e.g., E.O. 13770, sec. 2(b) immigration law before they begin to inaccurate understanding of the Director (Jan. 28, 2017) (‘‘Ethics Commitments by adjudicate matters, and evaluat[ing] the position, the Department finds those Executive Branch Appointees’’); see also temperament and skills of each new objections unsupported and Edward ‘Ted’ Kaufman and Michael unpersuasive. Leavitt Presidential Transitions immigration judge or Board member within 2 years of appointment’’; and, Further, the Director, like members of Improvements Act of 2015, Public Law the BIA, exercises independent 114–136, sec. 4(a)(4), (5), Mar. 18, 2016, 47 Most, if not all, of the comments opposing the judgment and discretion in accordance 130 Stat. 301. No employee currently at NPRM because the Director is an alleged political with the statutes and regulations to EOIR, including the Director, falls appointee assume that any employee appointed to decide any case before him for a final within these categories. See an agency position by an agency head, such as the decision pursuant to 8 CFR Organization of the Executive Office for Attorney General, is necessarily a political 1003.1(e)(8)(v) due to the BIA’s failure appointee. By statute, regulation, policy, or to Immigration Review, 85 FR 69465, comply with the Appointments Clause of the in that case to meet the established 69467 (Nov. 3, 2020) (‘‘In short, all of Constitution, approximately 545 positions at EOIR timelines. See 8 CFR 1003.0(c) (‘‘When EOIR’s federal employees, including the currently require appointment by the Attorney acting under authority [to adjudicate Director and the Assistant Director for General, including Board members, immigration cases], the Director shall exercise judges, and administrative law judges. The fact that Policy, are career employees chosen the Attorney General, who is a political appointee, independent judgment and discretion in through merit-based processes, and appoints an individual to a position does not considering and determining the cases none of EOIR’s employees are political convert that position to a political position. and may take any action consistent with appointees.’’). Moreover, even if the Director position were filled the Director’s’s authority as is by a political appointment, that fact alone would EOIR has no Schedule C positions or not render the individual a biased adjudicator appropriate and necessary for the positions requiring appointment by the incapable of adjudicating cases under the disposition of the case.’’); cf. 8 CFR President or Vice President. The regulations. Cf. Matter of L-E-A-, 27 I&N Dec. at 585 1003.1(d)(1)(ii) (‘‘Board members shall Director is a career appointee within the (rejecting arguments that the Attorney General is a exercise their independent judgment biased adjudicator of immigration cases in the SES. SES positions are specifically absence of any personal interest in the case or and discretion in considering and designed to ‘‘provide for an executive public statements about the case). After all, the determining the cases coming before the system which is guided by the public functions of EOIR are vested in the Attorney Board[.]’’). Further, the Director’s interest and free from improper political General, who is a political appointee, and the INA decisions are subject to review by the specifically provides that determinations in interference.’’ 5 U.S.C. 3131(13). immigration proceedings are subject to the Attorney Attorney General, either at the Director’s Although the Director and Deputy General’s review. 28 U.S.C. 503, 509, 510; INA or Attorney General’s request. Id. Director are general SES positions, they 103(g), 8 U.S.C. 1103(g). § 1003.1(e)(8)(v). And as the final

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agency decision, such decisions would (‘‘The core of due process is the right to 1103(g)(1); 28 CFR 0.115(a). The be subject to further review in Federal notice and a meaningful opportunity to Director may only act in accordance court. INA 242, 8 U.S.C. 1252. Thus, the be heard.’’). Nothing in the rule with the statutes and regulations and Director’s authority on such cases eliminates notice of charges of within the authority delegated to him by would not necessarily be ‘‘final’’ to any removability against an alien, INA the Attorney General; put differently, extent greater than BIA’s authority is 239(a)(1), 8 U.S.C. 1229(a)(1), or the the statute and regulations provide the ‘‘final.’’ opportunity for the alien to make his or Attorney General with the authority to Regarding the commenters’ concerns her case to an immigration judge, INA act, and the Attorney General, in turn, about the lack of information in the rule 240(a)(1), 8 U.S.C. 1229a(a)(1), or on determines the extent of the Director’s regarding the particular support staff or appeal, 8 CFR 1003.38. Further, authority. The Attorney General, by other internal procedures that the EOIR although due process requires a fair regulation, provides a list of the Director would utilize for issuing tribunal, In re Murchison, 349 U.S. 133, Director’s authority and responsibilities decisions referred under the rule, the 136 (1955), generalized, ad hominem at 8 CFR 1003.0(b), which includes the Department notes that such details allegations of bias or impropriety are authority to ‘‘[e]xercise such other regarding internal staffing models are insufficient to ‘‘overcome a presumption authorities as the Attorney General may not generally the topic of regulations. of honesty and integrity in those serving provide.’’ 8 CFR 1003.0(b)(1)(ix). Such Nevertheless, the regulations do make as adjudicators.’’ Withrow v. Larkin, 421 delegation supersedes the restrictions clear that the Director may employ U.S. 35, 47 (1975). Commenters related to adjudication outlined in 8 sufficient staff as needed to carry out identified no reason—other than ad CFR 1003.0(c) due to that paragraph’s EOIR’s functions, 8 CFR 1003.0(a) hominem dislike, crude suppositions, deference to 8 CFR 1003.0(b). (‘‘EOIR shall include . . . such . . . staff and unfounded, tendentious accusations The Director’s authority provided in as the Attorney General or the Director of bias—why it would be inappropriate the rule to adjudicate BIA cases that may provide.’’); 28 CFR 0.115(a) (same), for a career, non-political SES official have otherwise not been timely just as they make clear that the Director with no pecuniary or personal interest adjudicated constitutes ‘‘such other is integral to ensuring the Board itself in the outcome of immigration authorities’’ provided to the Director by has sufficient staff, 8 CFR 1003.1(a)(6) proceedings and with both subject- the Attorney General, based on the (‘‘There shall also be attached to the matter expertise and adjudicatory powers to delegate and conduct Board such number of attorneys and experience, such as the Director, to administrative review under other employees as the Deputy Attorney adjudicate appeals in limited, specific section103(g) of the Act, 8 U.S.C. General, upon recommendation of the circumstances. Cf. Matter of L-E-A-, 27 1103(g). See 8 CFR 1003.0(c), Director, shall from time to time I&N Dec. 581, 585 (A.G. 2019) (rejecting 1003.1(e)(8). To reiterate, the Attorney direct.’’). arguments that the Attorney General is General’s authority to review The Department further notes that it a biased adjudicator of immigration administrative determinations does not is not uncommon for someone other cases in the absence of any personal violate due process; thus, the proper than the adjudicator to prepare a interest in the case or public statements delegation of that authority to the decision draft for the adjudicator’s about the case). Director pursuant to statute and pre- review and signature and that EOIR has, Additionally, the Department notes existing regulations does not violate due for many years, hired judicial law clerks that the Attorney General oversees EOIR process—specifically in light of the fact to assist with drafting decisions. See and has statutory authority to, among that those decisions ultimately remain Dept. of Justice, Honors Program other responsibilities, review subject to the Attorney General’s review Participating Components, Aug. 25, administrative determinations in under 8 CFR 1003.1(e)(8). To the extent 2020, available at https:// immigration proceedings; delegate that commenters are concerned about www.justice.gov/legal-careers/honors- authority; and perform other actions such an appearance, the Department program-participating-components necessary to carry out the Attorney emphasizes the clear, direct intent of (‘‘EOIR Honors Program hires serve 2 General’s authority over EOIR. INA Congress in statutorily authorizing such year judicial clerkships . . . .’’). It is a 103(g), 8 U.S.C. 1103(g). Over time, the delegations, and the Attorney General is common practice for both BIA and Attorney General has promulgated acting within the bounds of his statutory immigration court adjudicators to have regulations pursuant to this statutory authority by issuing the rule. INA supporting staff prepare decision drafts. authority that reflect the full range of his 103(g)(2), 8 U.S.C. 1103(g)(2); see also Such decisions are still ultimately authority and oversight in section 103(g) Chevron v. Nat. Res. Def. Council, 467 issued by the adjudicator, which in the of the Act, 8 U.S.C. 1103(g). Among U.S. 837, 842 (1984). In issuing the rule, case of untimely adjudications that have many examples, in 8 CFR 1003.1(h), the the Attorney General properly delegates been referred is the Director—not the Attorney General codified the authority adjudicatory authority to the Director to staff who prepared the draft. Moreover, to review BIA decisions, and in 8 CFR review certain administrative decisions the Department notes that the Director 1003.0(a), the Attorney General that are otherwise untimely. 8 CFR has the power to ‘‘[p]rovide for delegated authority to the Director to 1003.1(e)(8). This delegation aligns with comprehensive, continuing training and head EOIR. Despite this delegated the Attorney General’s longstanding support for Board members, authority, EOIR remains subject to the authority to issue regulations and immigration judges, and EOIR staff in Attorney General’s oversight, and it is delegate that authority, in line with order to promote the quality and reasonable and proper that the Attorney principles of due process. consistency of adjudications[,]’’ General continue to exercise that The Department disagrees that these including adjudications that are referred oversight by way of such delegations of procedures would introduce to him. See 8 CFR 1003.0(b)(1)(vii). administrative review. inefficiency or a third level of review. Contrary to the commenters’ In accordance with 8 CFR 1003.0(a), Under this rulemaking, the Director concerns, the proposed changes would the Director, who is appointed by the would not review appeals that the BIA not undermine due process. The essence Attorney General, exercises delegated had adjudicated in a timely fashion. of due process in an immigration authority from the Attorney General Rather, the Director will, acting with the proceeding is notice and an opportunity related to oversight and supervision of same authority as a BIA adjudicator to be heard. LaChance, 522 U.S. at 266 EOIR. See also INA 103(g)(1), 8 U.S.C. would have, issue decisions on appeals

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that have been pending for longer than regarding the potential volume of cases system to screen all cases and to manage the prescribed regulatory period. Id. that could conceivably be subject to the Board’s caseload.’’) make clear, the § 1003.1(e). referral, as well as the interaction provisions of the paragraph apply to Commenters are also incorrect that between the referral procedures and ‘‘cases.’’ 8 CFR 1003.1(e) (emphasis the referral of appeals that have not other changes to the rule. To that end, added). In turn, ‘‘the term case means been timely decided could be the final rule adds four further any proceeding arising under any characterized as an improper exceptions to 8 CFR 1003.1(e)(8)(v) in immigration or naturalization law.’’ 8 consolidation of power under one which cases would not be referred. CFR 1001.1(g). At the Board, cases may individual. Cases would be referred to Cases on hold pursuant to 8 CFR be initiated in one of three ways: the the Director only where the BIA has 1003.1(d)(6)(ii) to await the results of filing of a Notice of Appeal, the filing taken more than 335 days to adjudicate identity, law enforcement, or security of a motion directly with the Board (e.g., an appeal, in order to ensure timely investigations or examinations will not a motion to reconsider or a motion to disposition of a case. As noted by the be subject to referral if the hold causes reopen), or the receipt of a remand from NPRM, ‘‘absent a regulatory basis for the appeal to remain pending beyond a Federal court, the Attorney General, delay, there is no reason for a typical 335 days. Cases whose adjudication has or—under this rule—the Director. In appeal to take more than 335 days to been deferred by the Director pursuant other words, the Board adjudicates adjudicate—including time for to 8 CFR 1003.0(b)(1)(ii) will not be multiple types of cases, not just appeals. transcription, briefing, and adherence to subject to referral if the deferral causes Although the existing language of 8 CFR the exiting 90- or 180- day time frames the appeal to remain pending beyond 1003.1(e) is clear that it applies to all for decision.’’ 85 FR at 52508. Moreover, 335 days. Cases remanded by the types of cases at the Board, regardless of commenters did not explain why aliens Director under 8 CFR 1003.1(k) will not how they are initiated, the inconsistent, with meritorious appeals should have to be subject to referral if the case remains subsequent use of ‘‘appeals’’ throughout wait more than 335 days for a decision, pending beyond 335 days after the that paragraph creates confusion as to and the Department is unaware of any referral. Cases that have been its scope since appeals are not the only reason for doing so. To the contrary, administratively closed pursuant to a type of case the Board considers. See, allowing the Director to adjudicate regulation promulgated by the e.g., 8 CFR 1003.1(e)(3) (in describing appeals which have languished for Department of Justice or a previous the Board’s merits review process, using almost a year without adjudication will judicially approved settlement that ‘‘case’’ in the first sentence, ‘‘case’’ and help ensure that aliens with meritorious expressly authorizes such an action will ‘‘appeal’’ in the second sentence, and claims receive the decision they warrant not be subject to referral if the ‘‘appeal’’ in the third sentence, all is in a timely manner. administrative closure occurred prior to describing a unitary process). To avoid Additionally, for such cases that are the elapse of 335 days and causes the continued confusion and to ensure that atypical, and for which it would be appeal to remain pending beyond 335 the scope of the other changes in the appropriate for the BIA to devote days. final rule regarding the Board’s case additional time to completing These changes, which are management process are clear, the final adjudication, the regulations provide for incorporated through a stylistic rule makes edits to 8 CFR 1003.1(e) to an extension of the adjudication time restructuring of 8 CFR 1003.1(e)(8)(v) for ensure that it is clearly applicable to all period. 8 CFR 1003.1(e)(8)(ii) (‘‘[I]n clarity, recognize additional situations cases before the Board, not solely cases exigent circumstances . . . in those in which a case may appropriately arising through appeals.48 cases where the panel is unable to issue remain pending beyond 335 days a decision within the established time without adjudication or when referral iv. Other Issues limits, as extended, the Chairman shall back to the Director would be Comment: One commenter objected to either assign the case to himself or a incongruent because the Director had the rule’s limitation of the Board Vice Chairman for final decision within remanded the case immediately prior to Chairman’s authority to hold a decision 14 days or shall refer the case to the the referral. They also recognize, in in anticipation of a pending decision by Director for decision.’’); response to commenters’ concerns, that a U.S. Court of Appeals or an 1003.1(d)(6)(ii)(B) (allowing BIA to the Director may defer adjudication of amendment to the regulations. The place a case on hold while it awaits the BIA cases, consistent with authority commenter stated that such a change completion or updating of all identity, under 8 CFR 1003.0(b)(1)(ii), in order to was not necessary and irrational law enforcement, or security avoid needing to have those cases because the Board Chairman’s existing investigations or examinations); referred to himself. In short, although authority to place cases on hold is 1003.1(e)(8)(iii) (permitting BIA most commenters’ concerns are permissive. The commenter stated that Chairman to hold a case pending a inaccurate, unfounded, or hyperbolic, the proposed change would eliminate decision by the U.S. Supreme Court or the Department recognizes that the BIA the Board Chairman’s discretion to hold a U.S. Court of Appeals, in anticipation should exercise default appellate cases when changes to the case law or of a BIA en banc decision, or in adjudicatory authority in immigration regulations would benefit immigrants. anticipation of an amendment to the cases and that referral of cases to the The commenter stated that making the regulations). The Attorney General has Director should be the exception, rather Board Chairman’s determination to hold delegated decision-making authority to than the rule. a case subject to the concurrence by the the Director pursuant to 8 CFR Finally, in response to comments Director was intended to enhance the 1003.1(e)(8)(ii), subject to possible about the clarity and scope of the Director’s influence over appellate further review by the Attorney General. NPRM’s changes to the BIA’s case The Director may only adjudicate cases management procedures, the final rule 48 For similar reasons, the final rule also makes that have surpassed the articulated also makes edits to eliminate confusion changes to 8 CFR 1003.1(d)(3)(iv) to clarify that 8 deadlines, and the rule is clear that the over the scope of 8 CFR 1003.1(e). As CFR 1003.1(d)(3)(iv)(A) applies to all cases at the Director’s scope of review is limited to both the title of that paragraph (‘‘Case Board, whereas 8 CFR 1003.1(d)(3)(iv)(D) applies only to direct appeals of immigration judge only a narrow subset of EOIR cases. management system’’) and its general decisions. None of these changes effect any Nevertheless, the Department introductory language (‘‘The Chairman substantive alteration of the applicable regulations recognizes commenters’ concerns shall establish a case management governing the BIA’s functioning.

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decision making and ensure that cases Comment: One commenter asserted adjudicate appeals in the timespan are held only when it would further the that the NPRM improperly characterized proposed in the rule. The commenter administration’s political agenda, and the BIA’s decreased efficiency as stated that, if expediency of not in the administration of justice. paradoxical. Rather, the commenter adjudications was the administration’s Response: The Department disagrees asserted, this resulted from ‘‘massive priority, subjecting adjudicators to such with this comment and finds it changes that the current administration lawsuits would give adjudicators the unpersuasive for several reasons. First, has wrought in immigration extra incentive to meet applicable the regulatory process is unpredictable, proceedings.’’ The commenter stated deadlines. and both the timing and final substance that there have been constant and Commenters suggested that survivors of any given regulation cannot be repeated changes to the law, as well as of gender-based violence, children, and predicted with sufficient accuracy to national, regional, and local injunctions detained individuals without warrant holding adjudications for future of such changes, making it difficult to representation might be particularly regulations. Similarly, there is no keep track of the current law and negatively impacted by the rule’s timelines. reliable method of predicting how long causing appeals adjudications to take One commenter compared criticism an adjudication at a circuit court of longer as adjudicators research the from the BIA’s practice of issuing appeals will take or when, precisely, a current state of the law. Another 49 commenter offered as a specific affirmances without opinion (‘‘AWOs’’) circuit court will render a decision. to the NPRM because ‘‘[e]ncouraging Moreover, the proliferation of example, the Attorney General’s decision in Matter of Castro-Tum, 27 even quicker and more opaque decision- immigration litigation in recent years making from an overworked, under- has increased the likelihood both that a I&N Dec. 271, which, the commenter alleged, added 330,211 previously resourced, and now highly politicized circuit court panel’s decision may not completed cases back on to the pending appellate body’’ was both arbitrary and be the last word on the issue—due to caseload. capricious and result in legally the possibility of rehearing en banc or One commenter asserted, without erroneous, and possibly biased, decision a petition for certiorari filed with the providing further detail, that the making. Supreme Court—and that multiple Department’s claim about the length of Response: With respect to criticism of circuits may reach different time that it takes to adjudicate most the rule pertaining to the Department conclusions. Thus, there is little reason appeals is ‘‘patently false’’ and a factual setting new regulatory case-management to place cases on hold to await an misrepresentation. procedures, the Department maintains individual circuit court decision since Commenters also raised concerns that it has acted with the appropriate the timing of that decision is unknown, with imposing quotas on judicial authority do so. Case management it may not be the final decision, and it processes, and stated that the same procedures have been in place regarding may conflict with other circuit courts concerns apply to both BIA adjudicators Board adjudications for many years, causing the Board to pause some cases and immigration judges. including 90-day and 180-day timelines but not others even though the cases At least one commenter asserted that for the adjudication of appeals, and the raise the same issues. the Department had failed to consider Department’s authority to maintain such Additionally, requiring the Director to other alternatives to improving procedures is not seriously subject to concur with the BIA Chairman about efficiencies and offered alternative question. As discussed in the NPRM, 85 whether to hold cases is not irregular, suggestions to the timeline-related FR at 52493, the case-management and the Department rejects the changes. For example, at least one procedures also respond to concerns insinuation that the concurrence commenter suggested the preparation of raised by the Department’s Office of the process would be used for nefarious, reports concerning longstanding cases, Inspector General (‘‘OIG’’) regarding political, or otherwise inappropriate akin to the reports submitted to how EOIR manages the timely ends. The Chairman is, by regulation, Congress concerning district court adjudication of cases at the BIA. generally subject to the supervision of motions and cases that have been Nor were the Department’s decisions the Director. 8 CFR 1003.1(a)(2); 28 CFR pending adjudication for a long time. about the timelines arbitrary. Rather, 0.115(a). As explained above, the This alternative, the commenter they were based on experience and Director is not a political appointee, and suggested, would explain why specific consideration of the average amount of the Director’s decisions regarding EOIR cases required longer-than-usual time that it has taken the BIA to procedures, including whether an adjudication times. The commenter also adjudicate appeals. See 85 FR at 52508 appeal is of such a nature so as to proposed, as another alternative, n.38. Moreover, as noted supra, warrant further delay in adjudication, recommended timelines that required commenters have not seriously will be made in accordance with his brief explanations when such timelines questioned why it is impossible or general supervisory authority. were exceeded. The commenter improper to expect the BIA to be able Moreover, both the Director and the proposed a third alternative where, as to complete a case within 11 months. To Board Chairman already possess part of the initial screening, the BIA the contrary, the cases of delayed longstanding authority to defer could subcategorize cases assigned to adjudication cited by commenters adjudication of Board cases, 8 CFR single BIA members or three-member provide support for the rule’s timeline, 1003.0(b)(1)(ii) and 1003.1(a)(2)(i)(C), panels based upon their apparent and the Department agrees that the and there is no evidence either has used complexity, with different timelines provisions of this final rule will respond that authority inappropriately. assigned to each subcategory. to commenters’ concerns about any Accordingly, there is no basis to expect At least one commenter expressed excessive delays in case adjudications. that they would apply the hold support for the 30-day interlocutory The Department shares a commenter’s authority in 8 CFR 1003.1(e)(8)(iii) appeal timeline but asserted that the concern regarding the Board’s decreased inappropriately. rule would be meaningless without an efficiency. To the extent that the Board’s enforcement method. The commenter efficiency decreased even as its number of adjudicators increased or held steady 49 In contrast, the term of the Supreme Court is suggested that the Department consider well-established, and decisions for a particular term adding a privately enforceable cause of prior to FY 2020, the Department does are ordinarily expected by the end of June. action against the BIA if it failed to find that paradoxical. Nevertheless,

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regardless of the precise basis for the basis,’’ 8 CFR 1003.1(e)(8)(v), and that Commenter criticisms of AWOs, Board’s decreased efficiency, the existing requirement, which does not comparison with other agency Department believes it must be appear to have been followed with any adjudication timelines, which involve addressed and that the NPRM sets forth diligence prior to 2019, has not aided completely different factors for well-supported ways of doing so. the Board’s efficiency. Similarly, consideration, and concerns over Regarding the commenter who explanations for why timelines have ‘‘flooding’’ the circuit courts of appeals, asserted that the decision in Matter of been exceeded are useful for are outside of the scope of this Castro-Tum added 330,211 previously understanding why cases may move at rulemaking, although the Department completed cases back to the pending different speeds, and the regulations reiterates that it does not believe that caseload, the Department notes first that already contemplate situations in which this rulemaking would encourage speed an administratively closed cases is not case processing may be delayed due to over quality of decisions, but rather a completed case. Thus, the assertion specific explanations. See id. believes that it strikes an appropriate that the cases mentioned were § 1003.1(e)(8)(i)–(iii). Explanations balance. The Department acknowledges ‘‘completed’’ is erroneous. See Matter of themselves, however, do not ensure that commenter anecdotes about appeals that Lopez-Barrios, 20 I&N Dec. 203, 204 cases are processed in a timely and fair have been pending for longer than the (BIA 1990) (‘‘[A]dministrative closing is manner, which is the Board’s goal. 335-day regulatory period for various merely an administrative Finally, the commenter’s suggestion of stated reasons and notes that stating a convenience.... However, it does not subcategorization is already built into median, by definition, will include result in a final order.’’); Hernandez- the screening process and the cases that have been pending for longer. Serrano, 2020 WL 6883420 at *3 differential timelines for single-member Nevertheless, the Department (‘‘Administrative closure typically is not versus panel decisions. Although the acknowledges that these anecdotes an action taken ‘[i]n deciding’ a case Department appreciates the further support the Department’s efforts before an IJ; instead, as shown above, it commenter’s suggestions and has fully to resolve cases more expeditiously is typically a decision not to decide the considered them, it believes they are through this rule. case. Nor is administrative closure either already contemplated by the typically an action ‘necessary for the j. Immigration Judge Quality Assurance regulations or would not otherwise Certification (8 CFR 1003.1(k)) disposition’ of an immigration case. improve the efficiency of the Board’s Administrative closure is not itself a adjudications. Comment: Some commenters expressed concern regarding the ‘disposition’ of a case, as Hernandez- The Department appreciates one Serrano concedes in this appeal.’’). establishment of new quality assurance commenter’s support for a 30-day Second, the Department notes that cases procedures that allow immigration interlocutory appeal timeline but notes that have been administratively closed judges to certify cases, in certain limited that it does not possess the legal remain pending even while they are circumstances, to the Director. 8 CFR authority to establish a cause of action closed; thus, those cases never went 1003.1(k). in Federal court to ensure that timeline away and, accordingly, were not added Commenters opined the quality is met. by Matter of Castro-Tum. assurance procedures would undermine The Department is unable to respond Although commenters suggested that the BIA in a variety of manners. For to the commenter who alleged that the survivors of gender-based violence, example, at least one commenter stated median time to complete an appeal children, and detained individuals that quality assurance certifications represented by the Department was false without representation might be undermine the BIA’s integrity by without providing further detail. The particularly negatively impacted by the dispossessing it of its full appellate Department maintains that its rule’s timelines, they did not explain authority. Other commenters stated that calculation was accurate. Further, most how or why that would be the case. The the procedures will erode a fundamental commenters, who have experience timelines are not case-specific and do purpose of the BIA: National practicing before the Board and are not depend on the facts of any particular consistency. Commenters further opined familiar with its timelines, did not case. The Department has explained, that the NPRM would undermine the dispute the idea that, on average, the supra, that the rule would not have a adversarial nature of BIA proceedings. Board takes, roughly, just over 10 deleterious impact on individuals Others claimed that the procedures months to adjudicate cases. without representation, and there is no would remove discretion from the BIA, The rule does not impose any basis to believe that the rule will apply which the commenter likened to other ‘‘quotas’’ on Board members, nor does it differently to children or survivors of changes by the Department that the establish any type of case completion violence. To the extent that commenters commenter felt have removed discretion goal for BIA members. To the extent that are concerned about cases of detained from immigration judges. Commenters commenters believe that the 90-day and aliens, existing regulations already further alleged that the rule would have 180-day timelines establish a quota, prioritize such cases, 8 CFR 1003.1(e) a chilling effect on the BIA as it would those timeframes have existed for many (prioritizing ‘‘cases or custody appeals heighten their concerns about job years, and the rule does not alter them, involving detained aliens’’), and the security over fairness and impartiality. though it harmonizes when they begin Department maintains a longstanding At least one commenter expressed a in response to criticism and confusion goal developed pursuant to the belief that quality assurance over the years, including by the Government Performance and Results certifications are not needed because Department’s OIG, 85 FR at 52493. Act, Public Law 103–62, Aug. 3, 1993, every opinion the commenter received Regarding proposed alternatives, the 107 Stat. 285, of completing 90 percent from the BIA was ‘‘highly professional Department finds that preparing a report of detained appeals within 150 days of [and] based on the Board members’ would not address issues with the filing. PM 20–01 at 6. In short, the rule evaluation of the law and the facts of the Board’s efficiency. To the contrary the has no impact on the efficiency of particular case.’’ Another commenter regulations already require the Board adjudicating appeals of detained aliens, opined that there were easier ways to Chairman to prepare a report ‘‘assessing as such cases are already adjudicated change a typographical error. the timeliness of the disposition of cases expeditiously in the normal course According to commenters, the bases by each Board member on an annual under existing principles. for the quality assurance certifications

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are so broad that an immigration judge commenter expressed concern about the inconsistent, or otherwise did not who simply disagrees with the BIA’s implications on the immigration judge’s resolve the basis for the appeal; or (4) a decision—or the decision’s impact on posture in the proceedings and claimed material factor pertinent to the issue(s) the immigration judge’s performance that immigration judges who issue before the immigration judge was metrics—can certify the case to the certifications would have to recuse clearly not considered in the BIA Director. See id. § 1003.1(k)(1)(i)–(iv). themselves in case of remand because decision. 8 CFR 1003.1(k)(1)(i)–(iv). Commenters expressed concerns the certification is in effect an appeal by These narrow situations are all tailored regarding the appropriateness of the the judge that equates the judges to an to quality control—not to express Director receiving such quality advocate in the proceedings. disagreement with the BIA’s well- assurance certifications and the Other commenters expressed concern founded legal analysis, which is how Director’s ability to appropriately that the certification procedures curtail another layer of appellate review would respond to and manage the certifications aliens’ due process rights. function. he would receive. For example, Commenters opined that the quality Further, the Director only has a commenters predicted that the Director assurance certifications, when limited number of options available could receive thousands of cases from combined with the restriction on the upon certification. The Director may: (1) the BIA due to other changes in the rule BIA considering new evidence, will Dismiss the certification and return the as well as the cases certified from result in numerous certifications case to the immigration judge; (2) immigration judges. Due to the caseload, because the BIA will fail to consider a remand the case back to the BIA for a commenter claimed that the Director material factor pertinent to the issue(s) further proceedings; (3) refer the case to would simply ‘‘rubber stamp denials.’’ before the immigration judge. the Attorney General; (4) or issue a Commenters described the position of Some commenters claimed that the precedent decision that does not the Director as managerial and non- rule would increase inefficiency include an order of removal, a request adjudicatory and accordingly opined because, in order for the case to be for voluntary departure, or the grant or that the individual appointed to it does resolved, the Director must refer the denial of an application for relief or not necessarily possess the ‘‘expertise, case to a different adjudicator. protection from removal. Id. training, or impartiality necessary to Response: As an initial point, the § 1003.1(k)(3). Thus, the quality decide cases.’’ Others expressed concern Department notes that many of the same assurance procedures do not vest the about the Director’s role reviewing and commenters who criticized other parts Director with any final adjudicatory responding to quality assurance of this final rule because it would power of cases that have been certified, certifications due to the commenters’ allegedly allow the BIA to deny and the Director must return the case to perception that the Director is a political meritorious appeals for inappropriate either the BIA or the immigration judge appointee or otherwise is politically reasons also criticized this provision by in order for the case to be resolved. motivated. Some commenters alleged claiming it would undermine the Accordingly, commenters are incorrect that the Director is not subject to the professionalism and expertise of the BIA that the rule creates an additional level same the ethics and professionalism in deciding cases. To the extent that of appellate review. guidelines applicable to BIA members commenters inconsistently asserted that The Department appreciates the and the decisions of the Director cannot the BIA is both unprofessional and commenter’s compliments that the be remedied through EOIR’s procedure professional—depending solely on decisions that they have received from for addressing complaints against EOIR which view allowed the commenter to the BIA have been faithful to the law adjudicators. oppose a particular provision of this and highly professional, though it notes Other commenters requested that the final rule—the Department finds such that other commenters insinuated that neutral arbiter be other experts in tendentious criticism insufficient to the BIA’s decisions are not always immigration law or another body. warrant changes to the final rule. faithful to the law. Regardless, the Other commenters worried that Further, any implication that these Department cannot rely on anecdotal regardless of the Director’s decision, it quality assurance certifications divests evidence to maintain quality control in would be unreviewable by any the BIA of its appellate jurisdiction and all cases in the context of the ever- adjudicator, while another commenter role in the immigration system is growing BIA with a mounting caseload, claimed that appeals would flood the incorrect. The new procedures at 8 CFR see 85 FR at 52492; EOIR, Adjudication circuit courts. 1003.1(k) do not create a higher Statistics: Case Appeals Filed, Commenters claimed that the secondary appellate review body. Completed, and Pending, Oct. 23, 2019, Department mischaracterized HALLEX Rather, they provide a quality control available at https://www.justice.gov/ I–3–6–10. For example, one commenter measure to ensure that the BIA’s eoir/page/file/1198906/download, and stated that the cited section allows for decisions consistently provide the Department is aware of examples clarity but not for Administrative Law appropriate and sufficient direction to from immigration judges raising Judges to ‘‘protest’’ or question immigration judges. The distinction is questions about the quality or accuracy decisions on their cases in the same evident in the certification process and of BIA decisions. The Department manner immigration judges would be the actions available to the Director. believes that the rule creates a clear and allowed to do for BIA decisions. Cases may only be certified to the efficient mechanism to ensure that the Other commenters were concerned Director if they fall within limited, and commenter’s remarks that the BIA’s with procedural issues. Some specifically delineated, circumstances: decisions are accurate and dispositive commenters claimed that the parties (1) The BIA decision contains a are, and remain, true. The Department and the BIA should receive notice that typographical or clerical error affecting does not believe that a quality control the immigration judge certified a case. the outcome of the case; (2) the BIA process that is aimed toward full and Commenters requested that parties be decision is clearly contrary to a accurate decisions would have any allowed to object to certification and file provision of the INA, any other other substantial impact that to cause briefs accordingly and noted that the immigration law or statute, any increased attention to the accuracy and non-moving party has a chance to applicable regulation, or a published, completeness of decisions. Overall, the respond in the current scheme to binding decision; (3) the BIA decision is Department finds that the certification address BIA errors. At least one vague, ambiguous, internally process as laid out in the rule will, in

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a timely manner, ensure that BIA adjudication outlined in 8 CFR reviewing certain types of decisions in decisions are accurate and dispositive, 1003.0(c) due to that paragraph’s recognition and accreditation cases, which is the purpose of the changes. deference to 8 CFR 1003.0(b). which the Director has been tasked with In regards to commenters’ allegations Moreover, the Director is responsible the authority to do since 2017 with no that immigration judges could simply for the supervision of the immigration noted objection at that time. See id. certify cases with which they disagree, judges and the BIA members and § 1292.18(a). Further, the Director is particularly for political or other already possesses the authority to held to the same professionalism and personal reasons, the Department ensure that adjudications are conducted ethical standards as all Department specifically reiterates that merely in a timely manner. See id. employees. In short, commenters’ disagreeing with decisions or objecting § 1003.0(b)(1)(ii). Accordingly, the concerns appear to be rooted in either to specific legal interpretations is not a Director is in a well-positioned to a personal dislike for the incumbent basis for certification. 85 FR at 52503. address errors made by the BIA and to Director or disagreement with the Some commenters worried that the remedy them in a timely manner. The overall policies of the Department, bases for certification are so broad that Director is also in a direct position to rather than any specific or genuine an immigration judge could solely implement changes to address repeat concern about the Director position object to a particular legal interpretation errors. Because the delegation of itself. and still certify the case by sweeping it authority is proper, the process requires In response to commenters’ concerns into one of the four criteria, specifically notice, and the process involves a over the workload for the Director that that the decision is ‘‘vague.’’ To this, the neutral decisionmaker who lacks quality assurance certifications may Department notes that vagueness is authority to issue a final order, it does cause, the Director may utilize all included in the criteria in order to not violate due process. appropriate support staff to assist with address a specific problem: Immigration In response to commenters concerns his responsibility. Nevertheless, because judges receiving orders that are that the delegation of authority, even if of the narrow scope of issues subject to confusing and need additional proper, will appear improper, the certification and the procedural clarification or explanation. See 85 FR Department responds that Congress’ requirements which will dissuade filing intent is clear and explicit in statutorily at 52496. ‘‘Vagueness’’ is not so broad frivolous or meritless certifications— authorizing such delegations, and the as to contain within it a myriad of legal particularly because immigration judges Attorney General is acting within the objections to specific legal already have generally full dockets of bounds of his statutory authority when interpretations; certainly, it cannot be cases to adjudicate—the Department by issuing the rule. INA 103(g)(2), 8 stretched to contain personal or political expects that these procedures will be U.S.C. 1103(g)(2); see also Chevron, 467 objections to such legal interpretations. employed infrequently. Accordingly, Moreover, although few commenters U.S. at 842. In issuing the rule, the although the Department appreciates acknowledged it, immigration judges Attorney General properly delegates the commenters’ concerns about the already possess the authority to certify Director the authority to review certified Director’s workload, the rule already a case to the BIA following a remand cases from the immigration judges. This and the issuance of another decision, 8 delegation aligns with the Attorney anticipates and limits the number of CFR 1003.7, and some immigration General’s longstanding authority to cases expected to be subject to this judges have used that procedure in issue regulations and delegate that process. order to seek clarification of the BIA’s authority, in line with principles of due In regards to the reviewability of the decision. That indirect process, process. Director’s decision, the Department however, is both burdensome to the Regarding commenters concerns notes first that the Director’s decision is parties, who must wait until the about perceived political influence or not final and that, regardless of what immigration judge issues another politicization of the Director position, action the Director does take, the decision (even if the immigration judge the Department reiterates its response to ultimate, underlying final EOIR considers the Board’s decision unclear similar concerns raised and discussed, administrative decision may be or vague), and inefficient in that it supra. The Department again notes that appealed to the circuit court. See INA results in a case being sent back to the the Director is a career appointee, who 242, 8 U.S.C. 1252. same body which remanded it in the is selected based on merit, independent Regarding commenters’ accusations of first instance without further of any political influence, and a member the mischaracterization of HALLEX I–3– clarification. The Department’s quality of the SES. The position requires a 6–10, the Department notes that it assurance process will ensure clearer significant amount of subject-matter referenced Social Security’s protest and more timely resolution of expertise regarding immigration laws as criteria for decisions by administrative disagreements, within four narrow demonstrated by various duties of the law judges or its administrative appeals categories, between immigration judges Director: ‘‘[a]dminister an examination body, the Appeals Council, in the and the BIA by a neutral third-party for newly-appointed immigration judges context of explaining the narrow set of who supervises each. and Board members with respect to criteria for certification set out in the As far as the authority of the Director, their familiarity with key principles of rule. 85 FR at 52502 (‘‘These criteria are the Attorney General is authorized to immigration law before they begin to used in similar circumstances at other decide the Director’s authority. INA adjudicate matters, . . . [p]rovide for adjudicatory agencies.’’) The 103(g)(1), 8 U.S.C. 1103(g)(1); 28 CFR comprehensive, continuing training and Department was not attempting to claim 0.115(a). Reviewing certified cases falls support for Board members, that the two processes exactly mirror within the ‘‘such other authorities’’ immigration judges, and EOIR staff[, one another, nor was it attempting to provided to the Director by the Attorney and] [i]mplement a process for claim that it structured the certification General, based on the powers to receiving, evaluating, and responding to procedure to directly mimic the Social delegate and conduct administrative complaints of inappropriate conduct by Security Administration. The review under INA 103(g) (8 U.S.C. EOIR adjudicators.’’ 8 CFR Department believes although the two 1103(g)). See 8 CFR 1003.0(b)(1)(ix) and 1003.0(b)(1)(vi)–(viii). Additionally, procedures are not identical, the degree (c), 1003.1(e)(8)(ii). This delegation reviewing certified cases would require of similarity—as well as the underlying supersedes the restrictions related to no more expertise than administratively purpose, i.e., to ensure correct, quality

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decisions by adjudicators—is enough to to any organization or individual when Commenters are incorrect that the warrant analogy. adjudicating the merits of a particular quality assurance certification Regarding commenters’ requests that case.’’); see also Chem. Found., Inc., 272 procedures are incompatible with the the various parties should receive notice U.S. at 14–15 (‘‘The presumption of restriction on the BIA’s consideration of at the time of certification, the regularity supports the official acts of new evidence. In order for a case to be Department notes that the rule, in fact, public officers, and, in the absence of certified, the BIA decision must have requires the immigration judge to clear evidence to the contrary, courts clearly not considered ‘‘a material factor provide notice of certification to both presume that they have properly pertinent to the issue(s) before the parties. 8 CFR 1003.1(k)(2)(iii). discharged their official duties.’’). The immigration judge.’’ Id. However, the Department disagrees with Department categorically rejects this § 1003.1(k)(1)(iv). The only such commenters’ argument that the parties suggestion. material factors would be those that should have opportunities for objections In the context of the quality assurance were already before the judge and, and additional briefing at the time of process, the immigration judge is accordingly, not new evidence before certification, particularly because the flagging an issue and relaying it to the the BIA only at the appeal. Thus, no case was likely already briefed to the Director for examination. While the new evidence that the BIA was barred Board prior to the certification to the immigration judge is required to from considering based on the Director. The certification procedures ‘‘specify the regulatory basis for the regulations would amount to a ‘‘material allow immigration judges to quickly certification and summarize the factor’’ before an immigration judge. determine a potential error by the BIA underlying procedural, factual, or legal As to a commenter’s assertion that and to timely seek a remedy to that basis,’’ this is necessary to relay the there must be an easier way to correct error, all without placing an additional immigration judge’s determination of typographical errors, the Department burden on the parties. The Department error by the BIA to the Director in order notes that the certification process determined that the current incomplete to both qualify for certification and to involves more than just typographical and piecemeal system of various parties expedite the process. Moreover, this errors. The quality assurance provisions filing various motions or appeals was process is substantively similar to the are designed to address wider examples cumbersome, time consuming, and may existing certification process utilized by of quality concerns at the BIA level, of not fully address the error. 85 FR at immigration judges for many years, 8 which typographical errors are just one 52502. Adding time for objections and CFR 1003.7. Commenters did not kind.51 briefs, as suggested by some provide any evidence that this existing Further, while the Department commenters, would morph the process process has raised questions about appreciates commenters suggestions for in the rule into a portion of what it was immigration judges becoming advocates, other methods to meet the Department’s created to avoid: A cumbersome and and the Department is unaware of any. quality assurance goals, such as time consuming process. Moreover, Regarding commenters’ concerns suggestions that the Department make regardless of whether the Director 52 about the Department not supporting BIA decisions public, increase three- returns the case to the immigration the rule with data, the Department notes member panel decisions, or increase the judge or to the Board, the parties will that such quality assurance issues are number of detailed and reasoned have an opportunity to raise appropriate not subject to tracking or amenable to precedential decisions, the Department arguments or issues before a final particular data points. For instance, finds that they would not provide an decision is rendered. Nevertheless, the commenters did not indicate how the efficient and accurate process to ensure Department recognizes that in discrete that BIA decisions are dispositive and cases, additional briefing or filings may Department would measure the ‘‘correctness’’ of Board remand accurate. Instead, such suggestions be helpful to the Director in reviewing represent a continuation of the status a certified case. Accordingly, the final decisions in order to calculate the data they sought, and the Department is quo rather than the real introduction of rule provides that the Director, in his or new procedures for immigration judges her discretion, may request additional unaware of any metric for measuring the ‘‘correctness’’ or ‘‘appropriateness’’ of to bring issues to the forefront for briefs or filings from the parties when consideration. Moreover, commenters reviewing a certified case through the remand decisions by an appellate court.50 Further, since no quality did not explain how increased three- quality-control process. member panel decisions or an increased Additionally, the Department rejects assurance system is currently in place, there is no baseline for data to provide. number of precedential decisions, both any claim that the immigration judges actions by the BIA, would improve are acting as advocates and would thus Moreover, even without specific further data, the Department is still well within quality in each individual BIA have to recuse themselves. Again, this adjudication or how such actions assertion suggests that immigration its authority to create a certification process that ensures the quality of BIA judges will behave unethically or 51 Further to the commenter’s point, the partially in violation of regulations and decisions. 8 CFR 1003.0(b)(1)(ii). Department notes that because the BIA retains sua their code of conduct. 8 CFR 1003.10 sponte authority to reconsider a decision to correct (‘‘In all cases, immigration judges shall 50 Whether the result of a case is ‘‘correct’’—e.g., a typographical error under this rule, 8 CFR 1003.2, seek to resolve the questions before whether an application or appeal should have been situations in which an immigration judge may use granted or denied—is often solely based on the this quality assurance process on that basis alone them in a timely and impartial manner narrative seeking to be advanced by the evaluator, should be extremely rare. consistent with the Act and and there is no accepted way of determining 52 The Department notes that this suggestion regulations.’’) (emphasis added)); 5 CFR whether an adjudicator’s decision is normatively suffers from an additional infirmity. Due to privacy 2635.101(b)(8) (‘‘Employees [of the ‘‘correct.’’ See Barry C. Edwards, Why Appeals restrictions and confidentiality regulations, e.g., 8 Courts Rarely Reverse Lower Courts: An CFR 1208.6, the Department cannot simply make all federal government] shall act Experimental Study to Explore Affirmation Bias, 68 BIA decisions public without redactions, and the impartially and not give preferential Emory L.J. On. 1035, 1046 (2019) (‘‘Given a sample requirement for redactions would necessarily treatment to any private organization or of . . . court cases, no researcher could practically inhibit the ability to determine whether those individual.’’); IJ Ethics and determine what the courts got ‘right’ and what they decisions were of appropriate quality. Further, the got ‘wrong.’ There is no reliable method of coding Department notes that many BIA decisions are Professionalism Guide at sec. V (‘‘An how cases ‘‘should’’ have been decided and, thus, already available through commercial databases, Immigration Judge shall act impartially no reliable way of assessing whether the [decision] but that availability has not ensured that the Board and shall not give preferential treatment rate is ‘too high’ using observational data.’’). issues a quality or correct decision in every case.

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address immigration judge concerns In addition, commenters confuse sua incentive for filing such procedurally about the quality of BIA decisions. sponte authority with motions to improper motions. Id. Finally, to the extent that most, if not reopen. Filing a motion to reopen, In short, the rule returns the focus on all, commenters focused on how this regardless of whether it is time or motions to reopen to the merits of the process would affect cases of aliens, the number-barred as commenters describe, motions themselves and the applicable Department reiterates that it would does not invite the BIA to exercise sua law, rather than the BIA’s subjective and affect both parties equally. Moreover, sponte authority; it requests the BIA to inconsistent invocation of its sua sponte many commenters appear to not have reopen a proceeding in response to the authority. Finally, as discussed, supra, recognized that the process is primarily motion. See Malukas v. Barr, 940 F.3d and noted in the NPRM, the Supreme designed for EOIR’s adjudicators and to 968, 969 (7th Cir. 2019) (‘‘Reopening in Court has recognized that ‘‘the BIA is improve quality decisionmaking at both response to a motion is not sua sponte; simply a regulatory creature of the the trial and appellate levels, rather than it is a response to the motion and thus Attorney General, to which he has being a process designed to favor one subject to the time-and-number delegated much of his authority under party over another. limits.’’). Thus the rule’s removal of sua the applicable statutes.’’ Id. at 52492 n.1 sponte authority does not itself preclude (quoting Doherty, 502 U.S. at 327 k. Removal of Sua Sponte Motion To the BIA from reopening a case in (1992)). Accordingly, to the extent that Reopen Authority (8 CFR 1003.2(a), accordance with applicable law. See, the Attorney General can delegate 1003.23(b)(1)) e.g., 8 CFR 1003.2(c)(3)(iii), authority to the BIA, he can also i. Due Process Concerns 1003.23(b)(4)(iv). Rather, it ensures that unquestionably remove that delegation. The removal of such authority, which is Comment: Commenters opposed the reopening occurs in meritorious solely the Attorney General’s to rule’s removal of the BIA and situations authorized by statute or delegate, does not violate due process. immigration judge’s authority to sua regulation, rather than through the BIA’s subjective and largely unchecked view Comment: Similarly, commenters sponte reopen proceedings. Commenters were concerned that the rule would alleged that the Department failed to of what constitutes an exceptional circumstance. Accordingly, contrary to foreclose reopening the cases of consider due process and explained that respondents who later became eligible sua sponte authority was a ‘‘vital tool’’ commenters’ assertions, the rule promotes fairness due to ‘‘the lack of a for relief, providing some of the for ‘‘curing errors and injustices’’ that following examples: An approved may have occurred during removal meaningful standard to guide a decision whether to order reopening or immediate immigrant relative petition, proceedings. Further, commenters an approved application for SIJ status, explained that even if a BIA member reconsideration of cases through the use of sua sponte authority, the lack of a an approved application for U visa saw good reason to reopen a case, such status, or derivative asylum status definition of ‘exceptional situations’ for as in the case of an untimely or number- through a spouse or parent. Commenters purposes of exercising sua sponte barred motion to reopen, the member noted that these applications typically authority, the resulting potential for would be unable to do so without the take years to adjudicate. Commenters inconsistent application or even abuse sua sponte authority. were also concerned that the rule would of this authority, the inherent problems Response: As an initial point, the deny protection to the most vulnerable in exercising sua sponte authority based Department notes that several courts populations in immigration on a procedurally improper motion or have acknowledged that sua sponte proceedings, such as by foreclosing request, and the strong interest in reopening (or the lack thereof) cannot reopening the cases of respondents who finality’’ by withdrawing an authority implicate due process rights because it were victims of fraud or ineffective is entirely discretionary, so there is no subject to inconsistent and potentially assistance of counsel, non-English liberty interest in it that would abusive usage. 85 FR at 52505. speakers or others with language implicate any of an alien’s rights in Further, as discussed in the NPRM, barriers, and children who failed to proceedings. See, e.g., Mejia v. the Department recognizes that the BIA appear for their hearings by no fault of Whitaker, 913 F.3d 482, 490 (5th Cir. has, in the past, exercised what it their own. One commenter further 2019); Gyamfi v. Whitaker, 913 F.3d 168 termed ‘‘sua sponte authority’’ in described the effects on unaccompanied (1st Cir. 2019); Salgado-Toribio v. response to a motion and, arguably, alien children (‘‘UAC’’) generally, Holder, 713 F.3d 1267, 1271 (10th Cir. contrary to law. 85 FR at 52504 n.31 explaining that sua sponte authority 2013); see also Matter of G-D-, 22 I&N (‘‘Despite this case law to the contrary, was an important safeguard to protect Dec. 1132, 1137 (BIA 1999) (‘‘We see no the Board has sometimes granted children because critical details and procedural due process concerns arising motions using what it erroneously labels information in children’s cases typically from our discretionary decision as ‘sua sponte’ authority.’’). To the emerge over time. declining to exercise our independent extent that the commenters oppose the At least one commenter alleged that reopening powers on behalf of the change in this practice—particularly the Department purposefully respondent. The respondent’s right to a based on the perception that it favors promulgated these provisions as an full and fair hearing on his asylum aliens—the Department has ‘‘attack’’ on asylum seekers and claim has not been compromised.’’). acknowledged that the rule would no migrants. As explained in the NPRM, sua longer provide an avenue for the Board As with other provisions of the rule, sponte authority is entirely a creature of to use its sua sponte authority to grant commenters explained that the regulation based on a delegation of a motion to use such authority. Indeed, Department should not remove the sua authority from the Attorney General. 8 one of the reasons stated for the rule sponte authority because ‘‘fairness is CFR 1003.2(a), 1003.23(b)(1); see also 85 was ‘‘the inherent problems in more important than finality’’ or quick FR at 52504. It is also not the only tool exercising sua sponte authority based removals. available to address possible errors in on a procedurally improper motion or Response: As an initial point, the immigration proceedings; thus, removal request.’’ Id. at 52505. The rule seeks to Department notes that many of its of sua sponte authority, in and of itself, end the practice of the Board taking responses to comments regarding the does not constitute a violation of due allegedly sua sponte action in response withdrawal of the BIA’s certification process. to a motion and to thereby reduce the authority discussed, supra, are equally

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applicable to comments regarding the been the victim of fraud, ineffective current or who obtain the potential for withdrawal of sua sponte reopening assistance of counsel, and other harms derivative status—should be granted authority. On balance, the inconsistent may be subject to equitable tolling. reopening sua sponte as a matter of right application of such authority, even with Salazar-Gonzalez v. Lynch, 798 F.3d and that, accordingly, the rule will a well-established standard, and the 917, 920 (9th Cir. 2015) (stating that the deprive such aliens of a ‘‘right’’ to existence of equally functional deadline for filing a motion to reopen is reopen their cases and obtain relief from alternatives, particularly as equitable subject to equitable tolling). removal. This view, however, is tolling has advanced as a doctrine to Regarding commenters’ concerns for unsupported by law in multiple ways extend filing deadlines for motions to UAC, the Department has considered and, thus, unpersuasive. reopen, militate in favor of removing the whether there would be any specific First, as discussed, supra, there is no Attorney General’s delegation of such impacts of the rule on UAC in right to reopening of a removal authority. particular—as distinguished from other proceeding, and the Board may even The Department did not promulgate categories of aliens—but has identified deny a motion to reopen when the alien this rule as an attack on anyone. As none. As discussed, supra, there is no establishes a prima facie claim for relief. discussed herein, the rule applies right to a motion to reopen sua sponte 8 CFR 1003.2(a) (‘‘The Board has equally to DHS and respondents, it for any classification of aliens, many discretion to deny a motion to reopen applies to all types of cases (not just aliens (not just UAC) are subject to even if the party moving has made out asylum cases), and it addresses remote visa priority dates, and many a prima facie case for relief.’’). Second, significant issues of inconsistent aliens (not just UAC) may become as also discussed, supra, a motion to adjudications and efficiency, among putatively eligible for relief well after reopen sua sponte is an ‘‘oxymoron’’ others. Commenters generalized policy their immigration proceedings have and represents an improper filing that disagreements with the rule do not concluded. Commenters also did not should ordinarily be rejected. Third, effectively engage with its provisions identify any specific impacts on UAC Board case law makes clear that and, thus, do not provide a useful basis that would not also fall on the general untimely motions to reopen to pursue for the Department to respond. population of aliens in immigration adjustment of status should ordinarily In general, commenters’ concerns that proceedings. Moreover, even if the rule be denied, indicating that it ordinarily respondents will be unable to reopen did have particular impacts on UAC, the would not exercise sua sponte their cases without the BIA’s sua sponte Department finds that those impacts are reopening authority in such situations authority are based on an erroneous far outweighed by the benefits provided either. See Matter of Yauri, 25 I&N Dec. understanding or assumption that the rule, namely more consistent 103, 105 (BIA 2009) (‘‘We emphasize respondents are entitled to such a application of the law, more efficient that untimely motions to reopen to reopening. The Department emphasizes adjudication of cases, and a more pursue an application for adjustment of that the vehicle by which such appropriate emphasis on the importance status, even for cases that do not involve respondents should seek reopening is a of finality in immigration proceedings. an ‘arriving alien,’ do not fall within any motion to reopen. See Malukas, 940 The Department further emphasizes of the statutory or regulatory exceptions F.3d at 969 (‘‘Reopening in response to that safeguards for UAC seeking asylum to the time limits for motions to reopen a motion is not sua sponte; it is a remain in place under provisions on before the Board and will ordinarily be response to the motion and thus subject motions to reopen that are premised on denied.’’ (emphasis added)); cf. Vithlani to the time-and-number limits.’’). The changed country conditions, see INA v. Att’y Gen., 823 F. App’x 104, 105–06 Attorney General has already 240(c)(7)(C)(ii), 8 U.S.C. (11th Cir. Aug. 10, 2020) (‘‘The BIA determined that sua sponte authority 1229a(c)(7)(C)(ii); 8 CFR 1003.2(c)(3)(ii), denied the motion [to reopen based on may not be used to circumvent timing 1003.23(b)(4)(i). Further, nothing in the asserted eligibility for adjustment of and numerical limits, see Doherty, 502 rule singles out UAC for adverse status], finding that it was untimely and U.S. at 323; INS v. Abudu, 485 U.S. 94, treatment, and available avenues for number-barred, and that it did not 107 (1988). Further, Congress included untimely motions to reopen—e.g., joint demonstrate an exceptional situation such limitations to promote finality in motions and motions based on equitable warranting sua sponte reopening. The proceedings. Matter of Monges-Garcia, tolling—continue to exist independent BIA later also denied her motion to 25 I&N Dec. 246, 250 (BIA 2010) of the rule. The law does not guarantee reconsider, stating that becoming (explaining that, by requiring the UAC a right to sua sponte reopening, eligible for adjustment of status was not Department to promulgate motion time just as it does not guarantee any an exceptional situation warranting the and number limits by regulation as part particular alien such a right for the grant of an untimely motion to reopen. of the Immigration Act of 1990, reasons stated in this rule, and In 2019, Vithlani .... sought sua ‘‘Congress clearly intended that the time commenters did not point to any sponte reopening, again seeking to and number limitations on motions provision claiming such a right. For apply for adjustment of status.... The would further the statute’s purpose of similar reasons, commenters’ allegation IJ denied Vithlani’s motion to reopen bringing finality to immigration that the generally applicable provision .... stat[ing] that becoming eligible to proceedings’’). is specifically targeted at asylum- adjust status was not uncommon.... Nevertheless, aliens who reach seekers, is without merit. The [and finding] that the motion did not agreement with DHS regarding the withdrawal of sua sponte authority demonstrate an exceptional situation to validity of their changed claim may applies to all cases and all parties, and warrant sua sponte reopening.’’). jointly file a motion to reopen with DHS it is well within the Attorney General’s The Department emphasizes that, as regardless of the amount of time that has authority to withdraw a delegation of stated throughout this final rule, the passed since the underlying final order. authority that he alone has provided. changes to Board procedures are 8 CFR 1003.2(c)(3)(iii), 1003.23(b)(4)(iv). Underlying many of the comments on intended to promote consistency and The rule does not affect that pre-existing this provision is a tacit claim that an efficiency in proceedings. To the extent exception to the time and number alien who establishes eligibility for that commenters assert as a policy limitations on motions to reopen. In relief long after immigration matter that the Board should retain sua addition, the deadline for filing a proceedings have concluded—e.g., sponte authority solely as a vehicle for motion to reopen by aliens who have aliens whose visa numbers become aliens to file motions seeking to evade

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the usual time and number limitations particularly when those populations application and possible abuse, due to and possibly delay removal, cf. Doherty, could not file a putative motion to the lack of a meaningful standard to 502 U.S. at 323 (‘‘[A]s a general matter, reopen sua sponte in the first instance. evaluate the use of sua sponte authority, every delay works to the advantage of As a delegation of procedural authority, see 85 FR at 52505 (collecting cases); the the deportable alien who wishes merely sua sponte reopening authority does not lack of a definition for ‘‘exceptional to remain in the United States.’’), or that apply differently to different types of circumstances’’ required to exercise the Department should not seek to cases; accordingly, its withdrawal will such authority; and, the problems correct the inconsistent and potentially not affect any specific populations. resulting from a procedurally improper inappropriate usage of that authority, Finally, to the extent commenters motion or request. Contrary to the Department finds such policy alleged that the withdrawal of sua commenters’ assertions, the Department arguments unpersuasive for the reasons sponte authority would impact aliens did provide examples of cases in which given in the NPRM and this final rule. with in absentia removal orders, the sua sponte authority appears to have Further, commenters are incorrect Department notes there is already no been improperly used. Id. Considering that the respondents whom they alleged time limit on such motions if they are all of those reasons together, the would be unable to reopen their cases based on a lack of notice. INA Department determined that use of sua if the BIA can no longer exercise sua 240(b)(5)(C)(ii), 8 U.S.C. sponte authority severely undermines sponte authority. As discussed in the 1229a(b)(5)(C)(ii). Thus, the withdrawal finality in immigration proceedings, see NPRM, 85 FR at 52504–05 and supra, of sua sponte authority would not affect 85 FR at 52493, in which there lies a those respondents are not truly the ability of an alien to file a motion strong public interest in bringing requesting that the BIA exercise sua to reopen an in absentia removal order litigation to a close, consistent with sponte authority; in actuality, they seek based on a lack of notice. Similarly, an providing a fair opportunity to the a response to their filed motion. See alien who fails to appear due to parties to develop and present their Salazar-Marroquin v. Barr, 969 F.3d exceptional circumstances may file a cases. See Abudu, 485 U.S. at 107. 814, 816 n.1 (7th Cir. 2020) (‘‘Describing motion to reopen any resulting in Comment: Commenters alleged that the motion as seeking a ‘sua sponte’ absentia removal order within 180 days. immigration judges and the BIA reopening is a common but unfortunate INA 240(b)(5)(C)(i), 8 U.S.C. ‘‘frequently have unfettered discretion misnomer and even an oxymoron. Board 1229a(b)(5)(C)(i). Commenters did not in deciding when to order removal action on a motion would not be sua explain why an alien who failed to proceedings.’’ Accordingly, the sponte.’’). Nothing in the rule prohibits appear due to exceptional commenters explained that removing the BIA from adjudicating motions to circumstances would wait longer than sua sponte authority due to concerns of reopen filed by aliens in accordance 180 days to file such a motion, and the abuse of such authority was with well-established principles of law. Department declines to speculate as to ‘‘laughable.’’ Further, the Attorney General has such reasons. Nevertheless, the The commenters further explained already determined that sua sponte Department notes that even in that that removing such authority would authority may not be used to circumvent unlikely situation, an alien may seek to exacerbate the backlog because BIA timing and numerical limits. Matter of have the 180-day deadline equitably members would be unable to remand a J-J-, 21 I&N Dec. 976, 984 (BIA 1997). tolled. In short, the withdrawal of sua case to further develop the facts, which Thus, to the extent that commenters sponte reopening authority has no another commenter asserted would assert sua sponte authority has been impact on existing and well-established conflict with Congress and the Attorney used to circumvent those limits avenues for aliens to reopen in absentia General’s trust in the BIA and previously, the BIA’s prior failure to removal orders. immigration judges ‘‘to intervene in follow the law in individual cases is not cases where fundamental fairness and a compelling or persuasive reason to ii. Limited Current Use and Abuse of the interests of justice so warrant.’’ retain such authority. To the contrary, it Authority Similarly, commenters alleged that the would further reinforce the Comment: Commenters generally Department failed to explain in the rule Department’s decision to remove the opposed the Department’s removal of why speed in this context was not delegation of such authority. sua sponte authority, stating that the favored, given that sua sponte action Additionally, contrary to commenters’ Department did not provide any specific would be faster than waiting for a concerns, regulations at 8 CFR examples of abuse in the rule and that motion to reopen. Commenters 1003.2(c)(3), 1003.23(b)(4)(iv), immigration judges or BIA members do explained that removing such authority 214.11(d)(9)(ii), and 214.14(c)(5)(i)—in not need much time to consider requests would increase the number of appeals addition to the ability to file a joint to reopen. and the BIA’s workload. motion to reopen, 8 CFR Commenters explained that Response: The Department does not 1003.2(c)(3)(iii)—would continue to immigration judges and BIA members have ‘‘unfettered discretion’’ in regard provide exceptions to the time and currently use sua sponte authority to removal proceedings. As an initial numerical limits in appropriate cases, sparingly and only for the most matter, EOIR’s jurisdiction in and none of those are affected by this compelling cases. Accordingly, the proceedings is bound by the INA and rulemaking. Similarly, the availability of commenter believes that the authority is the regulations. See, e.g., INA 240, 8 equitable tolling in particular cases, neither abused by adjudicators nor U.S.C. 1229a. Second, immigration which many commenters did not evidence of finality issues as the rule judges exercise independent judgement acknowledge, would also allow aliens suggested. and discretion in applying applicable the ability to evade strict adherence to Commenters stated further that there law and regulations. See 8 CFR statutory time limitations. was no reason to believe that 1003.10(b), 1240.1(a). Likewise, BIA Other than highlighting its incorrect adjudicators could not properly apply members resolve issues before them in usage to evade time and number the appropriate standards for sua sponte a manner that is timely, impartial, and limitations contrary to Matter of J-J-, reopening. consistent with applicable law and commenters did not explain how the Response: As the Departments regulations, in an exercise of their withdrawal of sua sponte authority explained in the NPRM, use of sua independent judgment and discretion. would affect any discrete populations, sponte authority facilitates inconsistent See 8 CFR 1003.1(d)(1) introductory

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text, (d)(1)(ii). Nevertheless, the Commenters nevertheless disagreed of such authority. See Lopez v. Davis, authority of immigration judges and that the Department was unable to 531 U.S. 230, 244 (2001) (observing that Board members to reopen cases is check inconsistencies or abuses that ‘‘a single rulemaking proceeding’’ may circumscribed by law, and neither class may result from the exercise of sua allow an agency to more ‘‘fairly and of adjudicator possesses free-floating sponte because they asserted that the efficiently’’ address an issue than would authority to reopen cases in Attorney General could review BIA ‘‘case-by-case decisionmaking’’); Marin- contravention of established law or in decisions regarding whether to exercise Rodriguez v. Holder, 612 F.3d 591, 593 the absence of clear legal authority. sua sponte authority instead. (7th Cir. 2010) (‘‘An agency may The Department’s decision to Response: The Department agrees exercise discretion categorically, by withdraw sua sponte authority would with the commenters that the court in regulation, and is not limited to making not exacerbate the backlog, and the Lenis declined to review for lack of discretionary decisions one case at a Department finds this particular jurisdiction; however, that court time under open-ended standards.’’). comment somewhat illogical. By explained that it lacked such Comment: Commenters explained definition, sua sponte authority to jurisdiction under 5 U.S.C. 701(a)(2), that, under Ekimian v. INS, 303 F.3d reopen a case would apply only to cases which prohibits judicial review of 1153, 1158 (9th Cir. 2002), sua sponte that are already administratively final decisions ‘‘committed to agency decisions are not reviewable simply as and, thus, not part of the pending discretion.’’ Lenis, 525 F.3d at 1293. The a result of their discretionary nature, caseload. In fact, also by definition, the court explained this exception was which the commenter alleged was not a continued use of sua sponte authority extremely narrow, applicable only reasonable or sufficient justification to would necessarily increase the pending where ‘‘statutes are drawn in such broad retract the authority since other caseload because it would allow the terms that in a given case there is no law discretionary matters were not so Board to reopen proceedings even in to apply.’’ Id. (quoting Citizens to scrutinized. Response: Sua sponte authority is cases in which there was otherwise no Preserve Overton Park, Inc. v. Volpe, distinct from other discretionary forms legal basis to do so. Similarly, there is 401 U.S. 402, 410 (1971)). The court of relief. As aptly explained in Lenis, no basis to believe that withdrawing sua explained that: sua sponte authority is subject to an sponte reopening authority would [n]either the statute nor the regulation at exception prohibiting judicial review, 5 increase the number of appeals to the issue today provides any ‘‘meaningful U.S.C. 701(a)(2), because the statute Board because, again, that authority standard against which to judge the agency’s from which it derives is ‘‘drawn in such would only be used for a case that is exercise of discretion.’’ Indeed, no statute broad terms that in a given case there is already final and, thus, not subject to expressly authorizes the BIA to reopen cases sua sponte; rather, the regulation at issue no law to apply.’’ 525 F.3d at 1293 further appeal. derives from a statute that grants general (quoting Citizens to Preserve Overton The commenter’s concern about speed authority over immigration and Park, Inc., 401 U.S. at 410). Other forms is also misplaced. The Department’s nationalization matters to the Attorney of discretionary relief, such as asylum, withdrawal of sua sponte authority does General, and sets no standard for the do not meet this exception. not indicate that the Department favored Attorney General’s decision-making in this Accordingly, the commenters’ context. speed in this context. Rather, the comparison of sua sponte authority to Department explained the multitude of Id. Accordingly, that case supports the any other discretionary form of relief is reasons, considered together, that Department’s position that no incorrect; moreover, the Department did prompted its decision. See generally 85 meaningful standard exists, which not justify withdrawing sua sponte FR at 52505–06. These reasons invoke prompted, in part, the Department’s authority based solely on its concerns over finality and consistency, decision to withdraw this authority. discretionary nature, though that nature which are distinct from speed. Further, Further, as discussed, supra, has contributed to inconsistent regardless of whether sua sponte regarding the Board’s certification application. reopening or a motion to reopen is authority, precedential decisions, Comment: Commenters explained that ‘‘faster’’ to adjudicate in the abstract— including by the Attorney General, e.g., the Department’s citations to circuit a question for which the Department Matter of J-J-, 21 I&N Dec. at 984, have court decisions upholding the denial of does not believe an appropriate metric been ineffective at checking inconsistent a request for sua sponte reopening does exists—the need to manage the or abusive usages of sua sponte not support the Department’s concern inappropriate and inconsistent use of authority. Thus, the Department finds that the sua sponte authority is being sua sponte reopening authority would that further Attorney General review of abused; instead, the commenters outweigh whatever marginal ‘‘speed’’ such authority would not necessarily contend that those cases demonstrate benefits may be obtained from its usage. address the concerns regarding its use. that immigration judges and the BIA are In other words, the expediency of the Moreover, the current—and applying the BIA’s precedents limiting usage of sua sponte authority does not comparatively inefficient—case-by-case the use of that authority to truly outweigh the need to ensure its correct nature of determining ‘‘exceptional exceptional situations. Commenters and consistent application. circumstances,’’ the inconsistent further explained that courts have only application of that standard and its iii. Standard of Review limited jurisdiction to review the BIA’s consideration through an open-ended decision not to use its sua sponte Comment: Commenters disagreed and largely subjective lens by Board authority to reopen a case based on legal with the rule’s assertion that Federal members and immigration judges, and or constitutional errors. Accordingly, circuit courts had no meaningful the lack of an effective and efficient the commenters asserted that the BIA’s standard of review with which to review corrective measure for addressing decision on sua sponte authority is an exercise of sua sponte authority. improper reopenings under that generally final and thus does not Rather, the commenters, citing Lenis v. authority (e.g., in response to a motion contribute to inefficiencies in the United States, 525 F.3d 1291, 1292 or to cure filing defects or circumvent immigration courts or the BIA. (11th Cir. 2008), explained that the regulations), all make the subject of sua Response: The Department’s reference Federal circuit courts declined to review sponte reopening authority both ripe for to circuit court decisions in the NPRM, because they lacked jurisdiction. rulemaking and, ultimately, withdrawal 85 FR at 52505, was not meant to

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demonstrate abuse of the authority. of return to the country of origin.’’ a meaningful opportunity to resolve Instead, the Department collected cases Commenters stated that sua sponte their claims, in accordance with to underscore the fact that, generally, authority allowed for reopening such applicable law, regulations, and ‘‘no meaningful standards exist to cases and other related circumstances. obligations under international law. In evaluate the BIA’s decision not to Commenters explained that sua sponte short, this rule does nothing to restrict reopen or reconsider a case based on authority facilitates compliance with the an alien’s ability to seek asylum, sua sponte authority.’’ Id. Moreover, UN Protocol and Convention Relating to statutory withholding of removal, or commenters did not acknowledge that the Status of Refugees, the UN other protections as permitted by statute DHS lacks authority to appeal BIA Convention Against Torture (CAT), and and regulation. decisions to Federal court; accordingly, the TVPRA because adjudicators may v. Alternatives to Sua Sponte Authority there necessarily will be few circuit reopen cases in which newly discovered court decisions holding that the BIA or previously unavailable material Comment: Commenters disagreed abused its sua sponte authority in evidence relevant to a persecution claim with the rule’s assertion that a joint reopening a case in which reopening is discovered more than 90 days after a motion to reopen was a viable inured to the benefit of the alien.53 decision becomes administratively final. alternative to sua sponte authority Commenters are correct that some Accordingly, the commenters alleged because, as commenters explained, DHS courts have held that there is that refoulement would increasingly and immigrants are ‘‘rarely in jurisdiction to review the BIA’s denial occur. Commenters also explained that agreement’’ in regard to motions to of a motion to reopen sua sponte for removing sua sponte authority reopen. The commenters explained that constitutional or legal error. However, conflicted with UNHCR guidelines that the joint motion process places ultimate the Department’s finality and provide that an applicant should ‘‘not authority to reopen or reconsider a case consistency concerns still stand—absent be prohibited from presented new on DHS, which is not the case with sua the rule, sua sponte authority may still evidence at the appeals stage.’’ sponte requests; thus, the joint motion be exercised by either immigration Commenters reasoned that sua sponte was not an equitable alternative. judges or the BIA in an inconsistent or authority may be an alien’s only way to Commenters explained that removing inappropriate manner, which present new evidence on appeal, thus, sua sponte reopening while at the same undermines the importance of removal of such authority would time removing the BIA’s ability to decisional finality. Moreover, the conflict with the UNHCR guidelines. remand a case for consideration of new acknowledged lack of meaningful Response: As an initial point, as evidence presented by the respondent, standards invites inconsistent discussed, supra, an alien has no right instead instructing the respondent to application which is at odds with both to file a ‘‘motion to reopen sua sponte,’’ file a motion to reopen, was particularly decisional finality and principle of and such a motion is an ‘‘oxymoron.’’ ‘‘harsh.’’ Further, commenters averred treating similar cases in a similar See Malukas, 940 F.3d at 970. To the that the Department could not claim manner. Given all of these issues and extent that commenters assert that the there were ‘‘sufficient avenues understanding commenters’ concerns, withdrawal of sua sponte authority available’’ to present claims for relief the Department maintains that infringes upon such a right, they are when the Department had both restricted the BIA’s ability to remand a withdrawing sua sponte authority, on simply mistaken as a matter of law. case and had eliminated sua sponte balance, represents an appropriate Further, no domestic law or reopening. course of action. international convention enshrines a right to sua sponte reopening, and the Commenters explained that although iv. Obligations Under International and withdrawal of such authority, which the rule mentions the ability to toll the Domestic Law and Treaties exists solely through a delegation from time and number limitations on motions Comment: Various commenters stated the Attorney General, does not to reopen, equitable tolling and the that removing sua sponte authority contravene any binding body of law. Department’s procedures for motions to violated the United States’ obligations Further, because the rule does not reopen are difficult for lawyers, much under international law, specifically the foreclose other mechanisms that may be less pro se parties, to understand. American Declaration, to ‘‘protect and used as exceptions to time and number Accordingly, commenters claimed that preserve the rights of individuals (both limits, as discussed, supra, withdrawal equitable tolling and motions to reopen U.S. citizens and noncitizens) to of sua sponte authority does not were not viable avenues for relief. Commenters suggested that instead of establish a family.’’ Commenters constitute denial of protection for removing sua sponte authority, the explained that ‘‘refugee law’’ provides particular populations, nor does it Department should define ‘‘exceptional for a ‘‘ ‘refugee sur place,’ meaning that contradict the United States’ obligations circumstances.’’ The commenters something has changed to create a fear under international and domestic law and various treaties. The United States explained that this would preserve the 53 Consistent with the general tenor of comments continues to fulfill its obligations under flexibility associated with sua sponte focusing only on the rule’s alleged impact on aliens, international and domestic law, action while also providing the circuit commenters also failed to acknowledge that the including the 1967 Protocol, the CAT, courts with a meaningful standard of Board has exercised sua sponte authority in the TVPRA, and any other applicable review to review sua sponte reopening response to motions filed by DHS. See, e.g., Chehazeh v. Att’y Gen., 666 F.3d 118, 124 (3d Cir. treaties. This rulemaking does not or reconsideration. Commenters 2012). In such circumstances at least one circuit violate those obligations. Moreover, this explained that although exercising sua court has questioned whether the Board’s decision rule does not affect the ability of aliens sponte authority should be rare, it was to exercise sua sponte authority was an abuse of to file a motion to reopen to apply for ‘‘worthy of consideration,’’ especially in that authority. Id. at 140 (‘‘The BIA has plainly stated that its sua sponte authority is not designed asylum or statutory withholding of cases where DHS does not oppose the to ‘circumvent the regulations.’ Matter of J-J-, 21 removal based on changed country motion to reopen. Commenters I&N Dec. at 984. That authority may, of course, have conditions and supported with new, suggested that the BIA and the the effect of circumventing the regulations when an material evidence. INA 240(c)(7)(C)(ii), immigration judges could reject exceptional situation calls for it, but wherever the line between an unexceptional situation and an 8 U.S.C. 1229a(c)(7)(C)(ii). Further, the ‘‘improper invitations’’ to invoke sua exceptional situation lies, we wonder whether—on Department continues to provide all sponte authority, rather than remove the this record—this case is near it.’’). aliens, including refugees and children, authority altogether. One commenter

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explained that the rule’s failure to a time limit or to seek a joint motion Department’s decision to withdraw that consider these alternatives renders the with DHS. The alleged difficulty of authority. rule arbitrary and capricious in arguments for equitable tolling is belied vi. Other Concerns violation of the APA. by the frequency with which it has been Response: The Department maintains argued before the BIA and Federal Comment: Commenters alleged that that the rule does not disturb various courts, and every Federal court to have although the Department addressed the viable alternatives to sua sponte considered the issue has found it to be use of sua sponte authority in authority. Indeed, the Department applicable to deadlines for motions to precedential decisions, the Department reiterates that respondents have no right reopen. See, e.g., Avila-Santoyo v. U.S. failed to address whether the BIA’s use to an adjudicator’s sua sponte exercise Att’y Gen., 713 F.3d 1357, 1364 (11th of sua sponte authority in non- of authority and that a motion to reopen Cir. 2013) (per curiam) (collecting precedential decisions forms the vast sua sponte is an ‘‘oxymoron.’’ See cases). Furthermore, one commenter’s majority of its docket. The commenters Malukas, 940 F.3d at 970. Although the suggestion that sua sponte authority claimed that EOIR was in the ‘‘better contours of such alternatives may differ should be used when DHS does not position’’ to address this issue but that to some extent from sua sponte oppose a motion to reopen—though, as it failed to analyze the issue. authority, the alternatives noted remain noted, supra, sua sponte authority is not Response: The extent to which sua viable alternatives for aliens, both with exercised in response to a motion— sponte authority is used in non- and without representation. 85 FR at actually suggests that a joint motion precedential decisions did not and 52505–06. Aliens may seek a motion to with DHS would be a viable alternative, would not affect the Department’s reopen under well-established statutory at least in the case identified by the conclusion that such authority is no and regulatory procedures, including to commenter. longer appropriate. As described in the submit a new application for relief or The Department also considered the NPRM, the Department withdrew sua protection. They may seek a joint alternatives advanced by commenters. sponte authority for several reasons: motion with DHS. They may seek As discussed elsewhere, a standard for ‘‘the exceptional nature of a situation equitable tolling of time limitations, as ‘‘exceptional circumstances’’ has existed required to invoke sua sponte authority appropriate, based on case law. The rule since 1997, Matter of J-J-, 21 I&N Dec. in the first instance, the general lack of itself codifies new exceptions to time at 984, but that standard has not use of genuine sua sponte authority and number limitations for motions to prevented inconsistent or improper since 2002, and the availability of reopen. 8 CFR 1003.1(c)(3)(v). Thus, usage of sua sponte authority. Thus, the multiple other avenues to reopen or there remain multiple, significant Department does not believe that further reconsider cases and to alleviate the avenues for an alien to have his or her elaboration of that standard would hardships imposed by time and number case reopened as appropriate. address the concern. Because sua sponte deadlines.’’ 85 FR at 52506. Although Regarding commenters’ assertion that authority is not properly exercised in the Department noted the extremely removing sua sponte reopening while at response to a motion or ‘‘invitation,’’ 85 limited use of sua sponte authority in the same time removing the BIA’s FR at 52504–05, the Department does precedential decisions, the Department ability to remand a case for not see how limiting the use of such did not withdraw sua sponte authority consideration of new evidence authority to only ‘‘proper’’ invitations based on that consideration alone. The presented by the respondent, instead would be appropriate, even if it could Department’s conclusion, was multi- instructing the respondent to file a devise a workable and consistently motion to reopen, was particularly applied distinction between ‘‘proper’’ faceted, and regardless of the nature of ‘‘harsh,’’ the Department again reiterates and ‘‘improper’’ invitations. Similarly, cases in which sua sponte authority is both that an alien has no right to sua situations in which DHS does not exercised, the Department has sponte reopening and that the concept oppose a motion to reopen are not determined that it is appropriate to of a motion to reopen sua sponte is an appropriate for the exercise of sua withdraw sua sponte authority because, oxymoron. Thus, the withdrawal of the sponte authority because such authority inter alia, there are multiple viable delegation of the BIA’s sua sponte is not exercised in response to a motion. alternatives for both parties, its use reopening authority is not ‘‘harsh’’— Id. Rather, such situations appear undermines efficiency by encouraging regardless of any other changes— amenable to a joint motion which the improper motions, and its potentially because there is no right to the exercise rule does not alter. 8 CFR inconsistent and borderline ad hoc of such authority in the first instance. 1003.2(c)(3)(iii). In short, the usage is both inappropriate and Moreover, as discussed, supra, multiple Department has considered inefficient to the extent that it is used avenues remain for an alien to have his commenters’ concerns about the to reopen cases contrary to law. or her case reopened as appropriate. available alternatives to the exercise of Comment: Without further Further, an alien who wished to submit sua sponte authority, but finds them explanation, one commenter alleged additional evidence during the unpersuasive or legally inapposite for that removing sua sponte authority pendency of an appeal would the reasons given. would violate principles of ‘‘equal presumably be able to submit that Finally, to the extent that protection under the law for all.’’ Also evidence with a motion to reopen commenters’ concerns are based on a without further explanation, a within the applicable time period for belief that sua sponte authority should commenter stated that limiting sua such a motion and, thus, would have no be retained because it allows aliens to sponte motions to reopen would need to avail himself of the BIA’s sua file motions to reopen sua sponte in continue the family separation policy. sponte authority. In short, the order to circumvent time and number One commenter disagreed with the rule, Department disagrees with commenters bars to motions to reopen, the stating that its fixation on the phrase that it changes are ‘‘harsh’’ and further Department reiterates that the exercise sua sponte ‘‘converts an important issue notes that any alleged ‘‘harshness’’ is of sua sponte authority is not proper in of fairness and justice into a debate over outweighed by the benefits provided by response to a motion and that its use to semantics.’’ Commenters explained that the rule discussed herein. circumvent regulatory or statutory removing sua sponte authority violated The rule does not affect the alien’s deadlines contravenes established case the APA because Congress did not enact ability to argue for equitable tolling of law and, accordingly, supports the limits on such authority, thereby

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infringing on congressional authority to l. DHS Motions To Reopen Time and and specifically imposed those limits on create laws. Number Limitations (8 CFR the alien only.’’).55 Here, the rule’s amendment to 8 CFR Response: The Department disagrees 1003.2(c)(3)(vii)) 1003.2(c)(3)(vii) regarding motions to with commenters that these provisions Comment: Commenters expressed reopen filed by DHS similarly aligns the generally violate equal protection. The concern that the NPRM’s proposed changes regarding the time and number BIA’s regulations with the INA’s Department continues to equally apply limitation only on alien-filed motions to applicable law and regulations to all limitation for DHS motions to reopen before the BIA are unfair and would reopen. By ensuring that EOIR’s aliens in proceedings before the agency. regulations provide clarity for the public In addition, the Department rejects create different rules for the government and for aliens in proceedings, noting regarding the requirements and allegations, which contained no further restrictions set out by Congress in the that both aliens and the government at explanation, that the rule furthers any INA, commenters are incorrect that the times have good cause to file motions to family separation ‘‘policy.’’ To the Department is providing DHS with any reopen that exceed the normal time and extent the commenter was referring to favorable or preferential treatment. number limitations. Commenters were the prosecution of criminal aliens along To the extent that commenters are concerned that the change would give the southwest border in late spring 2018 concerned that aliens will be unable to DHS favorable or preferential treatment. have confidence that their cases will be which involved the separation of alien Commenters noted that allowing DHS to criminal defendants from their families subject to an infinite number of motions file motions to reopen without regard to to reopen for an indefinite amount of while those defendants were being any time or number limitations would prosecuted—consistent with the time, the Department first emphasizes prevent aliens who have been in that any motion to reopen filed by DHS treatment of most criminal defendants proceedings from ever feeling confident subject to arrest in the United States— is not automatically granted by the BIA. that the decision in their case is final. Instead, like all motions to reopen, DHS there is no identifiable linkage between At least one commenter stated the this rule and that situation. must ‘‘state the new facts that will be Department should restrict DHS’s ability proven at a hearing to be held if the As previously explained, sua sponte to file motions to reopen before the BIA motion is granted,’’ support the motion authority is a product of regulation; and create parity between the parties with ‘‘affidavits or other evidentiary Congress has not statutorily established rather than have the same unequal material,’’ and demonstrate that the this authority. Accordingly, procedures before both the immigration ‘‘evidence sought to be offered is withdrawing this authority does not courts and the BIA. material and was not available and Response: In 1996, Congress amended violate the APA or infringe on could not have been discovered or the INA and provided specific congressional authority. To the contrary, presented at the former hearing.’’ 8 CFR restrictions regarding motions to reopen 1003.2(c)(1). As with all motions and preventing the Attorney General from filed by aliens in proceedings. See INA appeals, the BIA considers the merits of withdrawing authority that is his alone 240(c)(7), 8 U.S.C. 1229a(c)(7). The INA each motion to reopen individually. to delegate in the first instance would restricts aliens to file one motion to Moreover, DHS has possessed the infringe upon his statutory authority. reopen proceedings within 90 days of authority to file motions to reopen at the INA 103(g), 8 U.S.C. 1103(g). Further, the date of the entry of a final order of immigration court level without being courts afford broad deference to an removal, subject to time and number subject to the general time and number agency’s policy changes. ‘‘Agencies are exceptions based on lack of notice and bars since 1997, and there is no free to change their existing policies as when the motion to reopen is premised evidence that it has engaged in a long as they provide a reasoned on changed country conditions in practice of filing infinite motions over explanation for the change.’’ Encino support of an application for asylum. Id. an indefinite period. Accordingly, the Motor Cars v. Navarro, 136 S. Ct. 2117, Notably, however, Congress did not Department finds that commenters’ 2125 (2016) (citing Nat’l Cable & provide any similar restriction on concerns are overstated, if not wholly Telecomm. Assn. v. Brand X internet motions to reopen filed by the unfounded, in light of the applicable government. Accordingly, the Services, 545 U.S. 967, 981–982 (2005)). regulatory requirements and DHS’s Department previously removed the The Department provided an extensive practice before the immigration courts. discussion in the NPRM, supplemented time and number limitation on motions Finally, apart from being statutorily by this final rule, to explain its to reopen filed by the government as atextual and ahistorical regarding DHS reasoning for withdrawing sua sponte part of the regulatory changes practice, commenters’ suggestion that authority. 85 FR at 52504–06. This implemented following the enactment the rule provides DHS with preferable discussion did not ‘‘fixate’’ on of the Illegal Immigration Reform and treatment fails to acknowledge the semantics or any one reason to justify Immigrant Responsibility Act of 1996 various exceptions to time and number withdrawing sua sponte authority. (‘‘IIRIRA’’), Public Law 104–208, Sept. limitations afforded motions to reopen Rather, the Department provided a 30, 1996, 108 Stat. 1796. See Inspection filed by aliens. First, there is not a and Expedited Removal of Aliens; fulsome discussion, supplemented by limitation when the motion to reopen is Detention and Removal of Aliens; this final rule, of the many reasons that, Conduct of Removal Proceedings; 55 Notably, although the regulatory changes in considered together, prompted Asylum Procedures, 62 FR 10312, 10321 withdrawal of sua sponte authority.54 1997 only explicitly codified the exception to the (Mar. 6, 1997) (explaining, in response time and number limitations filed by the to public comments that the same government in removal proceedings before the limitations on motions to reopen should immigration court, commenters at the time 54 The text of 8 CFR 1003.2(a) in the NPRM understood the changes to apply to motions to apply to all parties, that ‘‘IIRIRA reopen filed by the government before the BIA and inadvertently removed the phrase ‘‘or reconsider’’ specifically mandates that ‘[a]n alien the immigration courts. See 62 FR at 10321 (‘‘A from the first sentence of that paragraph. This final may only file one motion to reopen’ in number of commenters pointed out that §§ 3.2(d) rule reinserts that phrase to ensure that parties and and 3.23(b) subject all parties to time and numerical the BIA are clear that the Board can reconsider a removal proceedings. Congress has limits for motions to reopen in deportation and decision sua sponte in order to correct a imposed limits on motions to reopen, exclusion proceedings, but apply those limits only typographical error or defect in service. where none existed by statute before, to aliens in removal proceedings.’’).

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for the purpose of applying or the United States uses sequential commenters simply disagree as a policy reapplying for asylum or withholding of briefing in order to allow the parties to matter that Board cases should be removal based on changed country respond to each other’s arguments. By completed in a timely manner, see 8 conditions ‘‘if such evidence is material contrast, commenters claimed that CFR 1003.1(d); cf. Doherty, 502 U.S. at and was not available and could not under this rule, the non-appealing party 323 (‘‘as a general matter, every delay have been discovered or presented at will not receive sufficient notice of works to the advantage of the deportable the previous hearing.’’ 8 CFR which arguments to focus on in their alien who wishes merely to remain in 1003.2(c)(3)(ii). Second, as discussed, brief, as the appealing party may the United States’’), or that the supra, aliens may rely on equitable include multiple issues in the Notice of Department should take measures, tolling in certain circumstances to avoid Appeal but only brief a few of those consistent with due process, to ensure a strict application of the time deadlines issues. Commenters allege that this will the timely completion of such cases, the for motions to reopen. Third, the rule result in briefs with cursory coverage of Department finds such policy itself provides a new avenue for aliens every topic rather than focused disagreements unpersuasive for the to file a motion to reopen when a arguments on the few key issues raised reasons given in the NPRM and this ‘‘material change in fact or law . . . in the appellant’s brief. Commenters final rule. vitiates all grounds of removability stated this would be particularly The BIA has used simultaneous applicable to the alien.’’ 8 CFR problematic in cases with difficult legal briefing for detained appeals for nearly 1003.2(c)(3)(v). In short, the rule retains issues, such as unaccompanied children 20 years,58 with no apparent issues for significant options for aliens to file or gender-based asylum claims. the parties or the BIA.59 Conforming motions to reopen which offset the Commenters also claimed that non-detained appeals to the same unsupported allegations of allegedly simultaneous briefing would require the simultaneous briefing schedules will favorable treatment, even if such BIA to expend additional effort in provide consistency across all appeals treatment were not rooted in statutory reviewing the appeal record, as the while helping to more efficiently text. parties would no longer be vetting each process the growing appeals caseload. other’s arguments through sequential As such, the Department disagrees with m. Briefing Schedule Changes (8 CFR briefing and instead may focus on commenters requesting that all appeal 1003.3(c)) different issues. Commenters further move to non-simultaneous briefing. i. General Concerns argued that non-detained cases have Commenters’ suggestion that the non- larger administrative records due to appealing party will not receive Comment: Commenters raised non-detained persons generally having sufficient notice of which arguments to concerns with the rule’s changes to the greater relief eligibility and do not focus on in their brief because the briefing schedule process, claiming that invoke the same liberty interests as appealing party may include multiple the changes favor speed over fairness detained cases, which makes issues in the Notice of Appeal but only and that the limited time savings does simultaneous briefings less appropriate. brief a few of those issues is both not sufficiently outweigh the Commenters also noted that briefing conjectural and illogical, as party who disadvantages to the parties. every potential issue would also fails to raise an issue in a brief risks Response: The Department expects inevitably conflict with the BIA’s page having that issue deemed waived. Thus, the Board to adjudicate cases fairly and limit requirements.56 As a result, one the Department would expect that all efficiently, 8 CFR 1003.1(d)(1) (noting commenter recommended changing all issues raised in the Notice of Appeal that Board members will resolve cases briefing, including detained cases, to will be briefed. in both a ‘‘timely’’ and ‘‘impartial’’ non-simultaneous sequential briefing. The Department also disagrees with manner (emphasis added)), and does not Response: Commenters generally commenters that the non-appealing view ‘‘speed’’ and ‘‘fairness’’ as failed to engage the specific reasons put party will have difficulty drafting a mutually exclusive objectives. forth by the Department—both in the simultaneous brief without first having Consequently, the rule not favor one NPRM and previously when it proposed the appealing party’s brief to review. To goal over the other, and commenters’ simultaneous briefing in 2002, 85 FR at reiterate, this system already occurs in suggestion amounts to a false dichotomy 52498–99—for adopting simultaneous the context of appeals of detained cases, that cases cannot be handled both fairly briefing in all cases or to acknowledge and commenters did not explain why and efficiently. that a change to simultaneous briefing that system has not experienced the As explained in the NPRM, due to the falls principally on DHS because the problems alleged to necessarily result growing BIA caseload, the Department vast majority of Board appeals are filed finds it necessary to implement these by respondents whose initial brief 58 67 FR 54878. briefing schedule reforms to ensure that timing as an appellant is unchanged by 59 In an analogous situation, EOIR’s Office of the appeals are adjudicated in a timely 57 Chief Administrative Hearing Officer (OCAHO) also this rule. To the extent that utilizes a simultaneous 21-day briefing schedule for manner. 85 FR at 52492–93. In doing so, cases reviewed by the CAHO following the decision the Department disagrees with 56 See BIA Practice Manual at Ch. 3.3(c)(iii) of an administrative law judge. 28 CFR 68.54(b)(1) commenters’ unsubstantiated alleged (limiting briefs to 25 pages absent a motion to (‘‘In any case in which administrative review has potential difficulties caused by the increase the page limit). been requested or ordered pursuant to paragraph (a) 57 In FY 2019, respondents filed 50,129 appeals of this section, the parties may file briefs or other briefing schedule changes outweigh the from immigration judge decisions, compared to written statements within twenty-one (21) days of benefits of more prompt adjudication. 5,636 appeals filed by DHS and 116 cases in which the date of entry of the Administrative Law Judge’s Further discussion of commenters both parties filed an appeal. Preliminary data from order.’’). OCAHO cases under the provisions of INA concerns with specific briefing-related FY 2020 paints a similar picture: Respondents filed 274A and 274C, 8 U.S.C. 1324a and 1324c, involve 45,117 appeals from immigration judge decisions, violations of worksite enforcement laws, including changes follows below. compared to 5,965 appeals filed by DHS and 117 violations related to completion of Form I–9, and cases in which both parties filed an appeal. Because document fraud, and they are just as complex or ii. Simultaneous Briefing the appellant filed the initial brief under the prior involved as cases in immigration court, if not more Comment: Regarding the rule’s change regulation, in approximately 90 percent of appeals so. Yet, the Department is unaware of any challenge in FY 2019 and approximately 88 percent of to OCAHO’s simultaneous 21-day briefing schedule to require simultaneous briefing in all appeals in FY 2020, the change to simultaneous for administrative reviews or any reason why it is cases, commenters noted that almost briefing would have had no impact on the timing not an appropriate model or analogy for such a every appellate adjudication system in of the brief filed by a respondent. schedule before the BIA.

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from utilizing the same system for non- discretion. See BIA Practice Manual at and the efficient use of administrative detained cases on appeal. Further, as Ch. 3.3(c)(iii). resources, extension requests are not explained in the NPRM, the appealing favored.’’). Further, there is no iii. Briefing Extensions party must identify the reasons for the entitlement to a briefing extension, and appeal in the Notice of Appeal (Form Comment: Commenters were also to the extent that commenters opposed EOIR–26 or Form EOIR–29) or in any concerned about the shortened the NPRM because they believe parties accompanying attachments. 8 CFR timeframe for briefing extensions, have a right to an extension—e.g., for 1003.3(b). In doing so, the appealing explaining that by the time a filer newly retained counsel—they are party must already comply with the receives a response as to whether or not mistaken. Id. at ch. 4.7(c) (‘‘The Board following well-established requirements the extension is granted, the 14 days has the authority to set briefing which are unaltered by the final rule: would be nearly expired. Moreover, deadlines and to extend them. The filing • commenters were concerned with of an extension request does not The party taking the appeal must limiting the briefing extension to a identify the reasons for the appeal in the automatically extend the filing deadline, Notice of Appeal (Form EOIR–26 or Form single 14-day period, noting that there nor can the filing party assume that a EOIR–29) or in any attachments thereto, in may be issues that prevent filing within request will be granted. Until such time order to avoid summary dismissal pursuant the 14-day extension period, including as the Board affirmatively grants an to § 1003.1(d)(2)(i). serious medical issues or a death in the extension request, the existing deadline • The statement must specifically identify family. stands.’’). the findings of fact, the conclusions of law, Commenters were also concerned that Additionally, few commenters or both, that are being challenged. the shortened briefing extension acknowledged that notwithstanding the • If a question of law is presented, timeframe would lead to less legal existing language of 8 CFR 1003.3(c)(1), supporting authority must be cited. • representation before the BIA. the Board’s longstanding policy has If the dispute is over the findings of fact, Commenters stated that if newly the specific facts contested must be been to limit briefing extensions to 21 identified. retained counsel, including pro bono days. BIA Practice Manual at Ch. • Where the appeal concerns discretionary counsel, cannot receive a reasonable 4.7(c)(i). Nor did commenters generally relief, the appellant must state whether the extension to review the record and acknowledge that the Board already alleged error relates to statutory grounds of prepare a brief, it is unlikely the counsel possesses the authority to shorten the eligibility or to the exercise of discretion and would accept representation in order overall briefing period to less than 21 must identify the specific factual and legal prevent the possibility of providing days. 8 CFR 1003.3(c)(1). Consequently, finding or findings that are being challenged. ineffective representation. As a result, the final rule merely codifies timelines Id. commenters were concerned that this that the Board itself could choose to Commenters did not generally address rule would make pursuing appeals even adopt, and commenters did not why this information, which should more difficult for pro se respondents. persuasively explain why it would already be contained in the Notice of One commenter stated that requiring preferable for the Board to adopt those Appeal, is insufficient to apprise the the BIA to make individualized good changes through policy or case-by-case opposing party of the issues on cause determinations for briefing adjudication rather than through appeal.60 See also BIA Practice Manual extensions would create a significant rulemaking. See Lopez, 531 U.S. at 244 at Ch. 4.4(b)(iv)(D) (‘‘The statement of burden for the BIA. (observing that ‘‘a single rulemaking appeal is not limited to the space on the Commenters also raised issues with proceeding’’ may allow an agency to form but may be continued on the NPRM’s reference to preventing more ‘‘fairly and efficiently’’ address an additional sheets of paper . . . Parties ‘‘gamesmanship’’ as a reason to shorten issue than would ‘‘case-by-case are advised that vague generalities, the briefing extension time period, decisionmaking’’); Marin-Rodriguez, generic recitations of the law, and stating that the Department did not 612 F.3d at 593 (‘‘An agency may general assertions of Immigration Judge provide support for this claim. exercise discretion categorically, by Commenters claimed that the error are unlikely to apprise the Board regulation, and is not limited to making shortened briefing schedule changes of the reasons for appeal.’’). As a result, discretionary decisions one case at a would also create institutional bias the Department believes these time under open-ended standards.’’). against women, such as due to timing To the extent that commenters assert statements provide the non-appealing issues surrounding child birth and child as a policy matter that the Board should party with ample information to draft a care responsibilities. always grant a briefing extension for a simultaneous brief in non-detained Another commenter stated that maximum amount of time because such cases, just as it has in detained cases for shortening the briefing extension period extensions inherently delay many years. during the COVID–19 pandemic was adjudication in the case to the benefit of Finally, the Department also has no improper. aliens, cf. Doherty, 502 U.S. at 323 (‘‘as concerns that appellees will be unable Response: As an initial matter, the a general matter, every delay works to to follow the page limit requirements for Department notes that underlying most the advantage of the deportable alien briefs, and such concerns are commenter objections was a tacit who wishes merely to remain in the unsupported by any evidence and suggestion that there is an entitlement to United States’’), or that the Department wholly speculative. Moreover, increases briefing extensions and that they should should not take measures, consistent are available by motion at the BIA’s be granted by the Board as a matter of with due process, to ensure the timely right. That view is incorrect. Briefing completion of cases, the Department 60 Commenters did not challenge 8 CFR 1003.3(b), extensions are generally disfavored, as finds such policy disagreements which has been in effect for many years, or suggest that its requirements were inappropriate. To the parties, including newly retained unpersuasive for the reasons given in extent that commenters assert that parties do not counsel, should be completing their the NPRM and this final rule. Moreover, comply with this regulatory requirement, such briefs in the original allotted time, few, if any, commenters acknowledged regulatory noncompliance is not a persuasive basis particularly in cases where the briefing that this rule applies equally to DHS, to adopt commenters’ objections. The Department expects both parties to comply with all regulatory period only begins once transcripts are which will also have to comply with the requirements regarding appeals adjudicated at the complete. See BIA Practice Manual at timelines, or that this rule will benefit Board. Ch. 4.7(c)(i), (‘‘In the interest of fairness aliens with meritorious claims for relief

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or protection by allowing them to of the briefing schedule—and are have at least a full 21 days to review the receive a decision sooner. To the extent unaltered by the rule.61 opposing party’s brief and tailor its that commenters did not fully assess the Further, the Department’s BIA Pro arguments accordingly in filing an implication of the rule—and, thus, Bono Project is not tied to the issuance initial brief. provided comments without a complete of a briefing schedule. The Department The Department acknowledges that foundation—the Department finds those reviews cases for referral through that eliminating briefing extensions comments unpersuasive. Project upon the filing of a Notice of altogether would also eliminate these risks of dilatory tactics and The briefing extension time period in Appeal, not upon the issuance of a briefing schedule. Moreover, under gamesmanship. However, after this rule is sufficient for parties to file considering that alternative, the their briefs, and commenters have not current practice, pro bono volunteers who accept a case typically receive a Department does not believe it is persuasively explained why a total of up copy of the alien’s file before a briefing necessary at the present time. Although to 35 days is an insufficient amount of schedule is issued and, like all the final rule will not end either dilatory time to file a brief. Moreover, few representatives, may request an tactics or gamesmanship, shortening the commenters acknowledged that the BIA extension if appropriate. Consequently, period for a briefing extension will can ask for supplemental briefing if it there is no evidence that shortening the reduce both the incentive to engage in finds that the briefs submitted are length of a briefing extension, which is such tactics and the impact on both the inadequate, which allows an additional already a disfavored practice and not BIA’s efficiency and the opposing party opportunity for parties to submit guaranteed to any representative, will when such tactics are employed.62 arguments if the BIA believes such have any negative impact on In response to comments about additional argument is necessary. The representation before the BIA, COVID–19, the Department recognizes Board, rather than the parties, is particularly pro bono representation. the challenges caused by the pandemic. ultimately in the best position to Regarding commenters’ concerns with However, those challenges are largely determine whether briefing is sufficient requiring the BIA to make inapplicable to the BIA which has in a particular case, and this rule does individualized good cause maintained generally regular operations not restrict the Board’s ability to request determinations for briefing extensions, during the COVID–19 outbreak because supplemental briefing if it believes such commenters are incorrect that this it typically receives briefs by mail or briefing is helpful. 8 CFR 1003.3(c)(1). requirement will significantly burden expedited courier service, and it began In short, the procedures and time the BIA. Indeed, such good cause accepting briefs by email during the provided by this rule are sufficient to determinations are already incorporated pandemic until after it was cleared to ensure that the Board receives into the regulations, 8 CFR 1003.3(c)(1), enter Phase Two of the Department’s appropriate information through and, thus, also into the current BIA plan for returning to normal briefing in order to aid its adjudication. practice. Accordingly, the final rule operations.63 Moreover, the BIA is Further, as noted in the NPRM, 85 FR does alter the need for the Board to find scheduled to adopt ECAS in early 2021. at 52498–99, the parties need not wait good cause in order to grant a briefing Consequently, these challenges do not until a briefing schedule is actually extension. warrant maintaining the regulatory issued to begin drafting the brief, and With regards to ‘‘gamesmanship,’’ the maximum length for a briefing they can use any extension to complete Department notes that the shortened extension, particularly since the BIA has the brief, as appropriate. briefing extension period may help to shortened that length already by The Departments disagree with reduce any possible future policy—which has remained in effect commenters’ supposition that shortened gamesmanship attributable to last- during the COVID–19 outbreak—with briefing extension time periods will lead minute extension requests in two no noted adverse effects or challenges. to less representation at the BIA. As an respects. First, in the Board’s Lastly, in response to one commenter, initial point, commenters did not experience, it is not uncommon to the briefing extension changes do not explain why a respondent would wait receive a briefing extension request filed and are not intended to reflect any bias until a briefing schedule has been just before or on the date a brief is due, or adverse treatment toward women. To issued or a brief is due before retaining suggesting that many extension requests the extent that the commenter suggests representation. The Department expects are merely last-minute delay tactics that women are incapable of addressing 64 that most aliens whose cases are on rather than genuine representations of both childbirth or childcare concerns appeal will obtain representation as unforeseen circumstances preventing and professional obligations as a quickly as possible, especially in the adherence to the original schedule. representative, the Department cases in which the respondent files the Second, such last-minute requests often categorically rejects such a suggestion. Notice of Appeal. Commenters did not occur after the opposing party has already served its brief, as a party 62 Although the Department is aware of anecdotal explain what incentive an alien would examples of gamesmanship and dilatory tactics have to wait until an appeal has been submitting a brief by mail will often do occurring, it did not state that such activity occurs pending for a notable length of time so several days in advance of the in every case. Rather, one of the principles before engaging representation, and the deadline to ensure that it is timely animating this provision of the rule, as well as the received. In such situations, if the provision related to simultaneous briefing, is to Department is aware of none. Moreover, ensure that the risk of such activity occurring is in any litigation, newly retained counsel extension request is granted, the party reduced and, concomitantly, ensuring that the BIA’s takes a client as he or she finds him, and who sought the extension would then regulations provide for as efficient and orderly an as discussed above, there is no appeals system as possible. 85 FR at 52498. entitlement to a briefing extension in 61 The Department reiterates that approximately 63 The BIA holds oral argument infrequently and 86 percent of aliens are represented upon appeal has not held any oral argument sessions since any circumstance, even for newly under the existing system which is largely before March 2020. retained counsel. Consequently, the condified in this rule. EOIR, Adjudication Statistics: 64 The Department notes, contrary to the same concerns advanced by commenters Current Representation Rates, Oct. 13, 2020, commenter’s suggestion, that men may also have already exist under the present system— available at https://www.justice.gov/eoir/page/file/ childcare responsibilities. Nevertheless, the rule 1062991/download. Thus, there is even less basis to imposes no burden on any caregiver any greater i.e., a new representative may be assert that this rule will increase the number of pro than that which already exists for any unsuccessful at obtaining an extension se cases before the Board. representative caring for another individual.

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Female attorneys routinely practice account the fact that the BIA does not n. Changes to Immigration Judge before the Board without any particular have electronic filing, which would Transcript Review Process and difficulties—as they do before all types allow the parties to immediately receive Forwarding of Record (8 CFR 1003.5) of courts and administrative agencies. opposing briefs and grants of leave to Comment: At least one commenter Nothing in the rule singles out any file reply briefs. opposed the rule’s transcript review particular gender nor suggests that Response: The Departments first note certain genders are inherently incapable provisions, stating that immigration that reply briefs are generally judges are best positioned to determine of compliance with generally applicable disfavored. See BIA Practice Manual at and established procedural rules for the accuracy of a transcript of a Ch. 4.6(h) (explaining that the BIA representation before a tribunal. decision. Technology and human error, Finally, the Department notes that as ‘‘does not normally accept briefs outside the commenter alleged, result in routine the Board received briefs from both the time set in the briefing schedule’’ transcription errors, which the parties in fewer than half of the cases in such as reply briefs, but that the BIA commenter asserted required correction which it issued briefing schedules in FY may accept reply briefs in limited by the immigration judge. 2019—and received no brief from either circumstances). Further, there is no Moreover commenters pointed to the party in approximately 18 percent of right to file a reply brief, and the Board following common transcription errors: such cases—the impact of changes to must accept it through the granting of a Punctuation errors, which can briefing procedures, including a change motion. Id. Most significantly, ‘‘[t]he drastically change the meaning of a to simultaneous briefing and the Board will not suspend or delay sentence; mis-transcribed legal reduction in the maximum time adjudication of the appeal in language, which can also change the allowable for a briefing extension, is far anticipation of, or in response to, the meaning of a sentence; and, errors in less than what many commenters filing of a reply brief.’’ Id. Commenters names, locations, and other issues. speculated based on supposition and did not persuasively explain why Commenters disagreed with the BIA’s unsubstantiated anecdotes.65 85 FR at shortening the time to file a brief that is need to ‘‘guess’’ what the immigration 52498. The Department has considered already disfavored, not guaranteed to be judge said or listen to the audio decision the issues and concerns raised by accepted, and does not suspend the to determine what the transcriber commenters but finds them ultimately adjudication of an appeal would have incorrectly typed, and the commenter unpersuasive for the reasons noted. In any additional impact on such briefs alleged that without the immigration short, weighing the need for additional beyond those already established. judge’s approval of the ultimate operational efficiency, the ability of the Moreover, parties that are allowed to file decision and transcript, the BIA would Board to request additional briefing in reply briefs should not require have ‘‘no idea if what was transcribed any case if it believes such briefing is significant time to file such briefs as all is what was actually ultimately decided necessary, the importance of reducing issues should have already been covered by the immigration judge.’’ Commenters opportunities for gamesmanship, the in the Notice of Appeal and the initial explained that the rule lacked any actual number of briefs filed and the simultaneous briefs; thus, any reply mechanism for the BIA to return the party identity of most appeals, and the briefs should only be clarifications on case to the immigration judge to clarify largely speculative or anecdotal issues existing issues. In short, the rule does confusion resulting from a hastily made raised by commenters, the Department not prohibit the submission of reply decision. Further, commenters alleged finds that, on balance, the benefits of the briefs, but its shortened submission that sending a case back to the changes in the final rule significantly timeline recognizes both their already- immigration judge after a briefing outweigh the purported drawbacks. disfavored status and the reality of the schedule has been issued would result iv. Reply Briefs likelihood that they will have a in adjudication delays. The commenter substantive impact on the adjudication predicted that a significant increase in Comment: Commenters raised of the case. remands from the Federal courts would concerns that the rule would, in result. practice, prohibit the filing of reply The Department again notes that EOIR Commenters alleged that the current briefs. Commenters stated that the is currently in the process of a staggered 14-day time period in which an parties would have much less than 14 nationwide deployment of the EOIR immigration judge must review the days to file a reply brief because the Court & Appeals System (‘‘ECAS’’), transcript and make corrections is too time period would be shortened by the which will allow registered attorneys short, given that, as the commenter length of time required to request and and accredited representatives to view alleged, it takes more than a year to get have the BIA grant leave to file the reply electronic records of proceeding and a copy of the transcript. The commenter brief and by the amount of time it takes electronically file against them. See suggested that hiring more transcribers the opposing parties’ brief to be served EOIR Electronic Filing Pilot Program, 83 with appropriate training to produce by mail, which commenters stated FR 29575 (June 25, 2018); EOIR, EOIR transcriptions in a timely manner or routinely takes approximately five days Launches Electronic Filing Pilot procuring new technology to produce to receive. Commenters also noted that Program (July 19, 2018), available at transcriptions with fewer errors would the Department should take into https://www.justice.gov/eoir/pr/eoir- launches-electronic-filing-pilot- increase efficiency more so than the provisions of the rule. 65 Preliminary data from FY 2020 indicates that program. Once ECAS is deployed at the the Board set a briefing schedule in approximately BIA, which is expected in early 2021, Other commenters opposed 30,000 cases; the respondent filed a brief in roughly registered attorneys and accredited elimination of the 14-day review 21,000 cases (69 percent), and DHS filed a brief in representatives will be able to process because they stated that it roughly 11,500 cases (38 percent). In approximately 5200 cases (17 percent), neither party filed a brief. immediately view and download sacrificed quality in favor of speed, As noted in the NPRM, 85 FR at 52498, n.15, these documents for cases with electronic risking the possibility that errors that numbers treat the filing of a motion to summarily records of proceeding, which will could have been corrected at an early affirm the decision below as the filing of a brief and mitigate commenters’ concerns about stage in the appeal process absent the do not exclude cases in which a party indicated on the Notice of Appeal that it did not intend to file mail service and its potential effect on rule would now require a remand and a separate brief. briefing schedule timing. further delay. The commenters alleged

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that subsequent efficiencies to be gained on his opinion after the case has entered 85 FR at 52508. Given these safeguards were minimal. the appellate process . . . .’’). and circuit court considerations, the Response: The Department Many commenters also did not appear Department disagrees with commenters to appreciate the distinction in the appreciates a commenter’s supportive that immigration judges should existing regulation that immigration suggestion—and tacit support for continue to use scarce judicial resources judges review only the transcript of to review transcripts of their decisions. additional resources—to hire more their decision, not the entire transcript The Department disagrees that the transcribers and obtain new technology of proceedings. 8 CFR 1003.5(a) (2019). rule sacrifices quality for speed. As to improve the quality and timeliness of Thus, many potential issues identified noted, supra, immigration judges should transcript production. Transcription at by commenters regarding errors in the not make substantive corrections, and the Board may occasionally become an full transcript of proceedings are there is no operational need for them to issue, e.g., PM 20–01 at 3 & n.6, and the inapposite to the change made by this make minor typographical corrections. Department is always looking for rule. Consequently, the current regulation additional ways in which to make the Additionally, an immigration judge’s serves little, if any, purpose and process more efficient and accurate. To primary role is to adjudicate cases certainly not one that promotes either that end, the Department, through this expeditiously and impartially, not to quality or speed. Moreover, given the rulemaking, adopts the NPRM’s review transcripts for errors. As quality of EOIR’s audio recording provisions on this issue without change explained in the NPRM, the Department technology systems and the protections because it believes such provisions uses ‘‘reliable digital audio recording to ensure accuracy set out in the BIA properly balance efficiency in the technology,’’ 85 FR at 52508, and Practice Manual and available remands transcription review process while maintains a procedure through which to address defective transcripts, the facilitating the development and parties may address defective or Department finds removing the distribution of accurate transcripts. inaccurate transcripts, including the inefficiencies resulting from the Nevertheless, further changes to internal errors cited by commenters. See BIA immigration judge-review period will transcription technologies or contracts Practice Manual at Ch. 4.2(f)(iii) not affect the quality of transcriptions. are outside the scope of this rule. (instructing parties that believe a Comment: At least one commenter Regarding other commenters’ transcript contains an error that is stated that the Department should not statements, in general, they did not significant to their argument or the end the practice of forwarding physical explain precisely which errors appeal to identify such defect in records to the BIA until ECAS is fully immigration judge review would be able briefing). Moreover, pursuant to 8 CFR implemented nationwide. Response: The rule amends 8 CFR to correct. Immigration judges should 1003.1(e)(2), the BIA may also remedy 1003.5(a) in relevant part to provide that not make substantive corrections to a defective transcripts through a remand the immigration court shall promptly transcript, 85 FR at 52508–09, and there for clarification or correction. forward the record of proceeding to the is no operational or legal need for an Accordingly, the BIA need not ‘‘guess,’’ as commenters alleged, at what the BIA, ‘‘unless the Board already has immigration judge to correct minor transcript said or what the decision access to the record of proceeding in typographical errors.66 To the extent held. electronic format.’’ Accordingly, this that commenters identified examples of Further, the NPRM did not neglect to change does not end the practice of substantive errors, those are generally provide or overlook the need for a immigration courts forwarding the not the type immigration judges should mechanism through which defective or record of proceeding, but instead correct, particularly since the parties are inaccurate transcripts could be provides the immigration courts and the not able to argue whether they are addressed. The BIA Practice Manual BIA with flexibilities as ECAS is genuinely errors before the immigration already provides such process; thus, implemented. It is illogical to require judge makes an edit. Id.; see also concerns that litigation would the immigration court to create a Mamedov v. Ashcroft, 387 F.3d 918, 920 proliferate based on the absence of such physical record of an otherwise (7th Cir. 2004) (‘‘[I]n general it is a bad processes are purely speculative and electronic record simply for the practice for a judge to continue working unfounded. Despite this speculation, the purposes of sending it to the BIA in case Department reiterates the importance of of an appeal if the BIA has the 66 Since 1993, immigration judges have been accurate transcripts and will continue to capability of accessing the record prohibited from correcting any part of a transcript have procedures, as described in the electronically. other than minor typographical errors. EOIR, BIA Practice Manual and 8 CFR Operating Policies and Procedures Memorandum o. BIA Authority To Grant Voluntary 93–1: Immigration Judge Decisions and Immigration 1003.1(e)(2), available to ensure that Judge Orders at 2 (May 6, 1993), available at https:// end. Departure in the First Instance (8 CFR www.justice.gov/sites/default/files/eoir/legacy/ Circuit courts have affirmed EOIR’s 1003.1(d)(7)(iv), 1240.26(k)) 2002/07/31/93-1.pdf (‘‘The ‘clean-up’ of an oral decision must be limited to the review of the current procedures through which Comment: Commenters raised transcript for corrections in punctuation, grammar parties may address defective or concerns about the rule’s changes and syntax.’’). There is no need, however, for an inaccurate transcripts in accordance requiring the BIA to adjudicate immigration judge to correct such minor errors, and with the BIA Practice Manual and voluntary departure requests rather than commenters did not identify one. Moreover, there is also no consistent practice among immigration regulations, and courts have criticized remand them back to the immigration judges in reviewing transcripts of decisions. Some the practice of immigration judge- courts, explaining that the changes review for style and substance, whereas others review of a transcript following the raised significant due process and review only for substance; some review with the filing of an appeal. See Witjaksono v. fairness concerns. record of proceedings at hand, whereas others do not. Inconsistent practices breed inefficiency and Holder, 573 F.3d 968, 976 (10th Cir. Commenters were concerned about risk inadvertent errors. Thus, ‘‘there is simply no 2009); Mamedov, 387 F.3d at 920. allowing the BIA to adjudicate reason to retain the requirement that immigration Practically, removing the immigration voluntary departure requests without judges continue to review transcripts, and removing judge-review period will eliminate the allowing aliens to submit evidence to this requirement will also eliminate the possibility the BIA supporting their request. For of the transcript being amended incorrectly, even possibility that a transcript is inadvertently, after a decision has been rendered.’’ incorrectly or inadvertently amended example, commenters stated that 85 FR at 52508–09. after the decision has been issued. See required travel documents filed with the

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immigration court may have expired by allowing the BIA to grant voluntary n.1 (expressly declining to address an the time the case reaches the BIA. departure. First, the commenter asked if issue not raised by party on appeal). Similarly, commenters stated that the noncitizens can apply for voluntary Thus, for the Board to even consider an alien may not have submitted all departure in the first instance with the alien’s eligibility for voluntary necessary evidence before the BIA. Second, the commenter questioned departure, the alien must have already immigration court, particularly in cases whether the rule conflicts with existing raised the issue with the immigration where the immigration judge grants regulations prohibiting the BIA from judge—and with the Board if appealing relief and does not reach the merits of making findings of fact. Similarly, the immigration judge’s adverse an alternative voluntary departure another commenter raised concerns decision—and the record must already request. Commenters also raised about cases where DHS opposes a contain evidence—or at least a proffer of concerns that the BIA would not have voluntary departure grant and whether evidence—of the alien’s eligibility. a sufficient record on which to such cases require a merits hearing and Assuming that an alien did not waive determine which conditions would be fact-finding before an immigration the issue by failing to raise it with the necessary to ensure the alien’s timely judge. immigration judge, there are no departure from the United States. In Lastly, a commenter raised concerns operational impediments to the Board addition, commenters were concerned that this authority would shift the making its own voluntary departure that the BIA will not have the workload of adjudicating voluntary determination. The requirements for immigration judge’s ability to view the departure requests from immigration such relief under either 8 CFR alien’s credibility, which may go courts to the BIA. 1240.26(b) or (c) are straightforward and towards the voluntary departure Response: In general, most involve determinations that the Board determination. commenters’ concerns on this issue routinely already makes, e.g., whether Separately, commenters claimed the reflected a misunderstanding of an alien has been convicted of an rule did not provide an ability to immigration court procedures and aggravated felony, has good moral challenge any BIA denial of voluntary relevant law. An alien who seeks character, and is not deportable on departure under the rule. Commenters voluntary departure as a form of relief national security grounds. Further, the also stated that there was no mechanism from removal must apply for it in the Board routinely reviews credibility to remedy an improperly served first instance before the immigration determinations made by immigration voluntary departure grant from the BIA, judge; otherwise, the alien’s opportunity judges and is well-prepared in assessing which would prevent the alien from to seek such relief will be deemed the credibility of an alien’s assertion or being able to comply with the voluntary waived, both by the immigration judge proffer on appeal that he or she departure requirements and conditions and by the Board on appeal. 8 CFR possesses ‘‘the means to depart the and, in turn, result in an alternate order 1003.31(c); Matter of J–Y–C–, 24 I&N United States and . . . the intention do of removal. Dec. at 261 n.1 (‘‘Because the so.’’ 8 CFR 1240.26(c)(1)(iv).68 Commenters were concerned about respondent failed to raise this claim Most significantly, the Board already the requirement that the voluntary below, it is not appropriate for us to routinely reviews immigration judge departure bond must be posted within consider it for the first time on appeal’’); decisions about voluntary departure on five business days, which commenters Matter of Edwards, 20 I&N Dec. at 196 appeal and possesses the authority to argued was too short due to the mail n.4 (‘‘We note in passing, however, that reinstate an immigration judge’s grant of delivery time. because the respondent did not object to such relief. 8 CFR 1240.26(c)(3)(ii). It Commenters were concerned that the the entry of this document into evidence further already provides advisals, which rule only requires the conditions and at the hearing below, it is not are required to be in writing, related to consequences to be provided in writing appropriate for him to object on voluntary departure if it does reinstate to the alien, rather than in person like that relief. E.g., 8 CFR 1240.26(i) (‘‘The appeal.’’). Thus, the alien will have the voluntary departure regulations for Board shall advise the alien of the necessarily already raised the issue to the immigration courts. Commenters condition provided in this paragraph in the immigration judge and, particularly explained that many aliens would have writing if it reinstates the immigration for requests for voluntary departure difficulty understanding an English- judge’s grant of voluntary departure.’’). under section 240B(b) of the Act,67 language voluntary departure order, In short, the Board already serves as a introduced evidence or a proffer of which could result in significant de facto adjudicator of requests for evidence regarding the alien’s eligibility adverse consequences if they were voluntary departure, and commenters for voluntary departure. unable to comply with the order’s did not identify a particular, realistic Similarly, if the alien appeals the requirements or conditions. scenario in which the Board would be immigration judge’s decision, the alien Commenters noted that, in cases unable to discern from the record must raise the issue of voluntary where an immigration judge grants whether an alien was eligible for departure eligibility on appeal; another form of relief or protection, and voluntary departure and warranted a otherwise, it would be waived. See DHS appeals the decision to the BIA, grant of such relief as a matter of Matter of Cervantes, 22 I&N Dec. at 561 the rule would prevent the BIA from discretion, especially in cases in which alternatively considering the alien’s an alien maintains on appeal—and, 67 Because voluntary departure pursuant to INA voluntary departure request because, as 240B(a), 8 U.S.C. 1229c(a), requires that the alien thus, necessarily asserts eligibility written, the rule requires the waives appeal of all issues, 8 CFR immigration judge to have denied the 1240.26(b)(1)(i)(D), the Board is unlikely to see 68 In a case in which DHS appeals an immigration voluntary departure request and the many appeals related to that provision. judge’s decision granting another form of relief, that Nevertheless, an alien who appeals the denial of a the alien applied for and the immigration judge alien to have appealed that denial. request for voluntary departure under INA 240B(a), adjudicated such relief necessarily means that the However, in granting another form of 8 U.S.C. 1229c(a), will have necessarily raised that alien was seeking voluntary departure under INA relief or protection, the immigration issue to the immigration judge. Similarly, by 240B(b) at the conclusion of proceedings. Therefore, judge would not have reached voluntary definition, in cases in which DHS appeals a grant the record below will contain evidence regarding of voluntary departure under INA 240B(a), 8 U.S.C. the alien’s eligibility for voluntary departure—or departure. 1229c(a), the alien will have raised the issue and else the alien would have waived the issue before One commenter requested offered evidence of eligibility before the the immigration judge—allowing the Board to make clarification on the rule’s change immigration judge. a determination on that application on appeal.

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through reference to evidence already in With regards to commenter’s concerns the Department notes that under the record—that he or she warrants about being able to post a voluntary longstanding practice, a BIA order voluntary departure. departure bond within five days of the reinstating voluntary departure—which The purpose of the changes to allow BIA’s decision, the Department notes is, in all material parts, an order the Board to grant voluntary departure that the five-day requirement remains granting voluntary departure—is already are to increase operational efficiency by unchanged from the existing regulations issued in English with appropriate allowing the BIA to grant voluntary regarding the immigration courts. See 8 warnings. Commenters raised no departure rather than first requiring CFR 1240.26(c)(3)(i). It further notes that particular issues with this existing remand to the immigration court. With immigration judges may issue voluntary process, and the Department is unaware regard to the ability of aliens to submit departure orders in written decisions of any. evidence in support of their voluntary that are mailed to aliens, and it is In response to commenters’ concerns departure requests, the Department unaware of any noted problems with about cases in which DHS appeals a notes that the alien must submit all that process. Moreover, once ECAS is separate grant of relief or protection, the relevant voluntary departure evidence deployed to the BIA, registered Department is making edits from the to the immigration court. The BIA will attorneys and accredited representatives NPRM to clarify the Board’s procedure then adjudicate the voluntary departure will be able to immediately view and in that situation. Although cases in request like any other appeal by download documents for cases with which an alien made multiple reviewing the record developed at the electronic records of proceeding, which applications for relief or protection immigration court. See 8 CFR will mitigate commenters’ concerns (including voluntary departure), an 1003.1(d)(7)(iv) (requiring the BIA to about mail service and its potential immigration judge granted at least one adjudicate voluntary departure requests effect on complying with voluntary application but did not address the ‘‘based on the record’’). Likewise, the departure requirements. See generally request for voluntary departure, DHS BIA will only impose necessary EOIR, EOIR Courts & Appeals System appealed the immigration judge’s conditions to ensure the alien’s timely (ECAS)—Online Filing (Oct. 5, 2020), decision, the BIA determined that the departure based on the record on available at https://www.justice.gov/ immigration judge’s decision was in appeal. See 8 CFR 1240.26(k)(4). eoir/ECAS. error and that the alien’s application(s) Nevertheless, in recognition of the should be denied, and the BIA found a Responding to a commenter’s fact that Board orders are generally basis to deny all other applications concerns about the inability to challenge served by mail—unlike orders of submitted by the respondent without a BIA denial of voluntary departure, the immigration judges which are more needing to remand the case, leaving Department first notes that existing often served in person—the final rule only the request for voluntary departure statutory provisions already preclude states that aliens will have ten business unadjudicated, should be uncommon, appeals of voluntary departure days, rather than five, to post a the Department nevertheless makes decisions to Federal court, and this rule voluntary departure bond if the Board’s clarifying edits to 8 CFR 1240.26(k)(2) does not—and could not—change those order of voluntary departure was served and (3) 69 to indicate that the BIA may provisions. INA 242(a)(2)(B)(i), 8 U.S.C. by mail. Further, as the Board is grant voluntary departure in cases in 1252(a)(2)(B)(i) (stripping jurisdiction to currently transitioning to an electronic which DHS appeals provided that the review most discretionary filing system and expects to fully deploy alien requested voluntary departure determinations in immigration that system within the next year, the from the immigration judge and is proceedings, including voluntary final rule retains a period of five otherwise eligible. departure under INA 240B, 8 U.S.C. business days to post a voluntary In response to at least one 1229c); see also INA 240B(f), 8 U.S.C. departure bond if the Board’s order was commenter’s concern regarding the 1229c(f) (precluding judicial review of served electronically. expiration of an alien’s travel denials of voluntary departure under In response to commenters’ concerns documents, the Department notes that INA 240B(b), 8 U.S.C. 1229c(b)). about aliens being unable to understand current regulations do not require the Moreover, cases in which aliens seek English-language voluntary departure presentation of an unexpired travel only voluntary departure before an orders, the Department first notes that document in every case. See, e.g., 8 CFR immigration judge—and not another all orders, decisions, and notices issued 1240.26(b)(3)(i) (presentation of a travel form of relief such as asylum, which is by EOIR—including written decisions document for voluntary departure is not commonly appealed to Federal court— issued by an immigration judge granting required when ‘‘[a] travel document is require the waiver of appeal and are, voluntary departure—are in English not necessary to return to [the alien’s] thus, unlikely to be appealed to the and, likewise, all documents filed with native country or to which country the Board in the first instance. 8 CFR EOIR must be in English or alien is departing . . . [or] [t]he 1240.26(b)(1)(i)(D). Further, where the accompanied by an English-language document is already in the possession of Board has denied voluntary departure translation. See, e.g., 8 CFR 1003.3(a)(3), the [DHS].’’) Moreover, ‘‘[i]f such aliens are not prevented from filing 1003.33. Moreover, the Department does documentation is not immediately motions to reopen or reconsider if not believe that an English-language available to the alien, but the applicable. See generally 8 CFR 1003.2; voluntary departure order, which is immigration judge is satisfied that the cf. 8 CFR 1240.26(e)(1) (providing that already used in thousands of cases every alien is making diligent efforts to secure such a motion prior to the expiration of year with no noted concerns, raises any it, voluntary departure may be granted the voluntary departure period due process issues, as a reasonable for a period not to exceed 120 days, terminates a ‘‘grant of voluntary recipient would be on notice that subject to the condition that the alien departure’’). In short, the rule has no further inquiry is required. See Ojeda- within 60 days must secure such impact on an alien’s existing ability to Calderon v. Holder, 726 F.3d 669, 675 challenge the denial of a request for (5th Cir. 2013) (citing Nazarova v. INS, 69 The Department also notes that 8 CFR voluntary departure through an appeal 171 F.3d 478, 483 (7th Cir. 1999) 1240.26(k)(2) and (3) were duplicative in the NPRM and has further edited the provisions to remove the to Federal court or a motion to reopen, (explaining that due process does not duplication since they apply to both types of and commenters’ concerns on those require notices to be in a language the voluntary departure under INA 240B, 8 U.S.C. points are, accordingly, unpersuasive. alien can understand)). Additionally, 1229c.

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documentation and present it to [DHS].’’ requests and possesses the authority to breadth and a level of detail which 8 CFR 1240.26(b)(3)(ii). The rule adopts reinstate voluntary departure, which is suggests that the period was more than those provisions by reference and, thus, the functional equivalent of granting it, sufficient. Cf. City of Waukesha v. EPA, already addresses this concern to some simply authorizing the BIA to grant 320 F.3d 228, 246 (D.C. Cir. 2003) (‘‘In extent. Nevertheless, the Department is voluntary departure rather than [showing prejudice] in the context of a making changes to the final rule to make remanding a case back to an violation of notice-and-comment clear that if the record does not contain immigration judge to take the same requirements, petitioners may be evidence of travel documentation action imposes minimal operational required to demonstrate that, had proper sufficient to assure lawful entry into the burden on the Board but reduces notice been provided, they would have country to which the alien is operational inefficiency for EOIR as a submitted additional, different departing—and the alien otherwise has whole. comments that could have invalidated both asserted a request for voluntary the rationale for the revised rule.’’). 4. Administrative Procedure Act: departure and established eligibility Additionally, to the extent that Sufficiency of 30-Day Comment Period under the other requirements—the commenters referred to other proposed Board may nevertheless grant voluntary Comment: Many commenters objected rulemakings as a basis for asserting the for a period not to exceed 120 days, to the Department’s allowance of a 30- comment period should have been subject to the condition that the alien day comment period instead of a 60-day longer, their comparisons are within 60 days must secure such or longer period. Commenters cited inapposite. No other proposed documentation. Executive Order 12866 and stated that a rulemaking cited by commenters In response to one commenter’s 60-day comment period is the standard addressed a small, discrete set of question, the Department notes that period of time that should be provided procedures which are already well- respondents cannot apply for voluntary for a complex rule like the NPRM. established and with which aliens and departure in the first instance with the Commenters also stated that the 30-day practitioners have been quite familiar BIA because they would have waived comment period is insufficient in the with for decades. In short, the that opportunity on appeal by not context of the COVID–19 pandemic, Department acknowledges and has raising it before the immigration judge which, commenters explained, has reviewed commenters’ concerns about below. 8 CFR 1003.31(c); Matter of J–Y– strained commenters’ ability to prepare the 30-day comment period, but those C–, 24 I&N Dec. at 261 n.1 (‘‘Because the comments due to unique childcare, comments are unavailing for all of the respondent failed to raise this claim work-life, and academic difficulties. In reasons given herein. below, it is not appropriate for us to addition, commenters stated that there The Department believes the 30-day consider it for the first time on appeal’’); was insufficient time to prepare comment period was sufficient to allow Matter of Edwards, 20 I&N Dec. at 196 responses to this rule due to other items for meaningful public input, as n.4 (‘‘We note in passing, however, that that were published or released during evidenced by the 1,284 public because the respondent did not object to the comment period, such as the comments received, including the entry of this document into evidence Department’s NPRM related to asylum numerous detailed comments from at the hearing below, it is not procedures that the Department interested organizations.72 The APA appropriate for him to object on published in the final days of the does not require a specific comment appeal.’’). comment period 70 and the Attorney period length, see generally 5 U.S.C. In addition, the rule does not conflict General’s decision in Matter of A–C–A– 553(b)–(c), and although Executive with 8 CFR 1003.1(d)(3)(iv), which A–, 28 I&N Dec. 84 (A.G. 2020). Order 12866 recommends a comment generally prohibits the BIA from Similarly, commenters cited an NPRM period of at least 60 days, a 60-day engaging in fact finding. As explained in that the Department jointly published period is not required. Instead, Federal 71 the NPRM, the rule does not allow the with DHS in June as an example of courts have presumed 30 days to be a BIA to engage in additional fact finding the complexity of recent rulemaking for reasonable comment period length. For if granting voluntary departure, but which commenters need adequate time example, the D.C. Circuit has stated that rather the grant ‘‘would continue to be to prepare responses. Some commenters ‘‘[w]hen substantial rule changes are a legal determination based upon the stated that there is no need for urgency proposed, a 30-day comment period is facts as found by the immigration judge and a short comment period given generally the shortest time period during the course of the underlying recent drops in asylum seekers at the sufficient for interested persons to proceedings . . . .’’ See 85 FR at 52500. border. Commenters argued that the meaningfully review a proposed rule Similarly, in cases where DHS opposed Department should withdraw the rule and provide informed comment.’’ Nat’l voluntary departure at the immigration and republish it with a longer period for Lifeline Ass’n v. Fed. Commc’ns court, the record will contain evidence public comment. Comm’n, 921 F.3d 1102, 1117 (D.C. Cir. Response: As an initial point, the of all necessary facts, or else the 2019) (citing Petry v. Block, 737 F.2d Department notes that a far more application would have been deemed 1193, 1201 (D.C. Cir. 1984)). waived or abandoned. sweeping regulatory change to the BIA’s Further, litigation has mainly focused In response to concerns about BIA procedures also had only a 30-day on the reasonableness of comment workload, the Department notes that comment period, 67 FR at 54879, but that there is no evidence that period was immigration judges will continue to 72 The Department notes for comparison that the adjudicate voluntary departure requests insufficient. Further, commenters did most significant regulatory change to the BIA’s case in the first instance. This rule merely not suggest or indicate what additional management process had a 30-day comment period, gives the BIA the authority to grant issues the comment period precluded and the Department received comments from 68 them from addressing; to the contrary, commenters. 67 FR at 54879. Although commenters voluntary departure if certain objected to the 30-day period then as they do now, requirements are met, rather than the comments received reflect both a there is no evidence either then or now that such inefficiently remanding the case back to a window is insufficient. To the contrary, the the immigration judge solely to grant 70 Procedures for Asylum and Withholding of significant increase in comments regarding a less voluntary departure. Moreover, as Removal, 85 FR 59692 (Sept. 23, 2020). comprehensive change to the BIA’s case 71 Procedures for Asylum and Withholding of management process during a comment period of noted, supra, as the BIA already reviews Removal; Credible Fear and Reasonable Fear identical length strongly suggests that the 30-day appeals related to voluntary departure Review, 85 FR 36264 (June 15, 2020). period was appropriate.

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periods shorter than 30 days, often in Overall, based on the breadth and predicted that the costs would be lower the face of exigent circumstances. See, detail of the comments received, the and the benefits higher if the e.g., N. Carolina Growers’ Ass’n, Inc. v. Department’s prior experience with a Departments simply defined United Farm Workers, 702 F.3d 755, 770 30-day comment period for a much ‘‘exceptional circumstances’’ rather than (4th Cir. 2012) (analyzing the more sweeping change to BIA entirely remove sua sponte authority.’’ sufficiency of a 10-day comment procedures, the rule’s codification of Similarly, commenters claimed that period); Florida Power & Light Co. v. established law with which the rule does not comply with Executive United States, 846 F.2d 765, 772 (D.C. practitioners and aliens are already Orders 12866 and 13563 because EOIR Cir. 1988) (15-day comment period); familiar, the discrete and clear nature of did not assess the costs and benefits of Northwest Airlines, Inc. v. Goldschmidt, the issues presented in the NPRM, the available alternatives to prohibiting the 645 F.2d 1309, 1321 (8th Cir. 1981) (7- electronic receipt of most comments, general use of administrative closure, day comment period). Here, the and the essential nature of legal services including better tracking of significant number of detailed public even during the outbreak of COVID–19, administratively closed cases or comments is evidence that the 30-day the Department maintains that a 30-day regulatory changes requiring the parties period was sufficient for the public to comment period was ample for the to notify the court when ancillary relief meaningfully review and provide public to comment on this rule. In short, is adjudicated. Commenters also noted informed comment. See, e.g., Little none of the circumstances alleged by that EOIR did not weigh the costs of Sisters of the Poor Saints Peter and Paul commenters appears to have actually unnecessary removal orders that the Home, 140 S. Ct. at 2385 (‘‘The object limited the public’s ability to administrative closure prohibition will [of notice and comment], in short, is one meaningfully engage in the notice and cause and the effect on applicants and of fair notice.’’ (citation omitted)). comment period, and all available their families or the costs from the rule’s The Department also believes that the evidence provided by commenters effects on eligibility for unlawful COVID–19 pandemic has no effect on indicates that the comment period was presence waivers before DHS. Similarly, the sufficiency of the 30-day comment sufficient. commenters stated that EOIR should period. Employers around the country consider the reliance interests of 5. Concerns With Regulatory have adopted telework flexibilities to adjustment of status applicants who Requirements the greatest extent possible, and the were relying on a grant of administrative Department believes that interested Comment: Commenters generally closure in order to apply for a parties can use the available expressed concern that the Department provisional unlawful presence waiver. technological tools to prepare their did not comply with Executive Orders Likewise, a commenter stated that EOIR comments and submit them 12866 and 13563 because the should consider the effect on legal electronically. Indeed, nearly every Departments did not adequately representation agreements since the rule comment was received in this manner. consider the costs and possible would render agreements to pursue Further, some of the issues identified by alternatives to the provisions in the rule administrative closure in order to apply commenters—e.g., childcare—would due to the significance of many of the for provisional unlawful presence apply regardless of the length of the rule’s provisions. waivers moot. The commenter also comment period and would effectively For example, one commenter asserted claimed that the rule violates Executive preclude rulemaking by the Department that removing the ability to reopen or Order 13563’s requirement to harmonize for the duration of the COVID–19 reconsider cases via sua sponte rules because it contravenes 8 CFR outbreak. The Department finds no basis authority constitutes ‘‘significant 212.7(e)(4)(iii). Response: As an initial point, the to suspend all rulemaking while the regulatory action’’ that would trigger a Department has addressed many of COVID–19 outbreak is ongoing. cost and benefits analysis, as required these comments, supra, particularly The Department acknowledges that by Executive Order 13563. The regarding proposed alternatives, and it particular commenters may have faced commenter stated that the Department reiterates and incorporates those individual personal circumstances should have conducted a cost and discussions by reference here. which created challenges to benefits analysis for alternatives to the Additionally, commenters assume or commenting, but that assertion is true of rule, including preserving the current conjecture, without evidence, that cases every rulemaking. Further, there is no system and defining ‘‘exceptional which are administratively closed evidence of a systemic inability of circumstances.’’ The commenter would otherwise necessarily result in commenters to provide comments based removal orders. As each case is on personal circumstances, and Cir. 1991) (delegations of authority have ‘‘no legal impact on, or significance for, the general public,’’ adjudicated on its own merits in commenters’ assertions appear to reflect and ‘‘simply effect[] a shifting of responsibilities accordance with the evidence and a desire to slow the rulemaking due to wholly internal to the Treasury Department’’); applicable law, the Department declines Lonsdale v. United States, 919 F.2d 1440, 1446 policy disagreements rather than an to accept such a sweeping actual inability to comment on the (10th Cir. 1990) (‘‘APA does not require publication 73 of [rules] which internally delegate authority to unsubstantiated generalization and rule. enforce the Internal Revenue laws’’); United States finds comments based on such a v. Goodman, 605 F.2d 870, 887–88 (5th Cir. 1979) generalization unpersuasive 73 The Department also notes that several portions (unpublished delegation of authority from Attorney of the rule, e.g., the changes to 8 CFR 1003.1(e)(8) General to Acting Administrator of the Drug accordingly. and (k), reflect either internal delegations of Enforcement Agency did not violate APA); Hogg v. The Department agrees with the authority and assignment of responsibility or United States, 428 F.2d 274, 280 (6th Cir. 1970) commenter that the NPRM constitutes a matters of agency management, personnel, (where taxpayer would not be adversely affected by ‘‘significant regulatory action.’’ 85 FR at organization, procedure, or practice, making those the internal delegations of authority from the portions a rule exempt from any period of notice Attorney General, APA does not require 52509. The Department drafted the rule and comment under the APA. 5 U.S.C. 553(a)(2), publication). Thus, to the extent that commenters consistent with the principles of (b)(A). An internal delegation of administrative complained about the sufficiency of the comment Executive Orders 12866 and 13563 and authority does not adversely affect members of the period regarding those provisions not subject to the submitted the rule to the Office of public and involves an agency management APA’s notice-and-comment requirements, such decision that is exempt from the notice-and- complaints are also unavailing because commenters Management and Budget. Id. comment rulemaking procedures of the APA. See were not entitled to a comment period in the first Nevertheless, because the Department United States v. Saunders, 951 F.2d 1065, 1068 (9th instance. believes associated costs will be

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negligible, if any, the Department would simply codify the existing possess some intrinsic, freestanding determined that no numeric cost benefit limitations on immigration judges’ authority to administratively close analysis was necessary. As most of the general authority to grant administrative cases, commenters’ proposed rule is directed at internal case closure. For those courts that are not alternatives suffer from other infirmities processing, it would substantially bound by Matter of Castro-Tum, the or do not otherwise address the problem improve the quality and efficiency of Department disagrees that the change identified. For example, commenters the BIA appellate procedure while not will result in unnecessary removal did not explain why additional tracking imposing new costs on the public.74 orders, as immigration judges are tasked of administratively closed cases and a In response to administrative closure- with resolving the proceedings before requirement that parties notify the court related concerns regarding compliance them, including determining of a situational change would effectively with Executive Orders 12866 and 13563, removability and issuing removal orders resolve the legal or policy issues the Departments have weighed the if required. See, e.g., 8 CFR 1003.10(b) presented. In fact, the Department relevant costs and benefits of the rule’s (‘‘In all cases, immigration judges shall already tracks administratively closed administrative closure change in seek to resolve the questions before cases, EOIR, Adjudication Statistics: accordance with Executive Orders them in a timely and impartial manner Administratively Closed Cases 12866 and 13563. The Department does consistent with the Act and [hereinafter Administratively Closed not believe that the administrative regulations.’’). The Department cannot Cases], Oct. 13, 2020, available at closure changes will have a significant credit commenters’ counter-factual https://www.justice.gov/eoir/page/file/ impact on the public, as most speculation as to the likely outcomes of 1061521/download, and the parties immigration courts—all but those in cases that have been administratively should already be notifying an Arlington, Baltimore, Charlotte, and closed, for as the Department discussed, immigration court or the Board if the Chicago 75—currently follow either supra, aliens have opposed basis for an order of administrative Matter of Castro-Tum itself or an administrative closure in individual closure changes; 76 yet, those items have applicable Federal court decisioning cases because it interfered with their not resolved the problems with affirming it, e.g., Hernandez-Serrano, ability to obtain relief. administrative closure identified in the 2020 WL 6883420 at *5 (‘‘In summary, As the Department asserted, free- NPRM. therefore, we agree with the Attorney floating authority to unilaterally The question of unlawful presence General that §§ 1003.10 and 1003.1(d) administratively close cases is in waivers was already addressed by do not delegate to IJs or the Board ‘the significant tension with existing law, Matter of Castro-Tum, 27 I&N Dec. at general authority to suspend including regulations and longstanding 278 n.3, 287 n.9, and this final rule does indefinitely immigration proceedings by Board case law. 85 FR at 52503–05. To not impact such waivers accordingly. administrative closure.’ ’’ (quoting the extent that commenters suggested Moreover, the regulation identified by Matter of Castro-Tum, 27 I&N Dec. at the Department should consider commenters, 8 CFR 212.7(e)(4)(iii), has 272)). Therefore, the effect of this rule alternatives to the rule that retain that no analogue in chapter V of title 8, and tension with existing law, the that regulation is not binding on the 74 The Department notes that a prior, more Department finds those suggestions comprehensive revision of the BIA’s case Department. Further, such a waiver is unpersuasive. See Hernandez-Serrano, both ‘‘provisional’’ and ‘‘discretionary,’’ management process did not contain a numeric 2020 WL 6883420 at *1, *4 (‘‘A cost-benefit analysis of the type suggested by 8 CFR 212.7(e)(2)(i), and like commenters. 67 FR at 54900. Moreover, regulation delegating to immigration administrative closure itself, an alien commenters did not identify what metrics would be judges authority to take certain actions has no right to such a waiver. Further, appropriate to use to measure, for example, whether ‘[i]n deciding the individual cases although aliens in removal proceedings the BIA granted a motion to reopen sua sponte in before them’ does not delegate to them contravention of Matter of J–J– or the predictive (unless administratively closed) and general authority not to decide those outcome of a case that has been administratively aliens with administratively final orders closed. The Department is unaware of any cases at all. Yet in more than 400,000 of removal are barred from obtaining the established measures of adherence to the law by cases in which an alien was charged adjudicators or for case processing questions that waiver, 8 CFR 212.7(e)(4)(iii) and (iv), with being subject to deportation or turn on the specific facts of each case. In the an alien with an administratively final (after April 1, 1997) removal, absence of such measures—and granular data which order of voluntary departure is not, and could be utilized to fulfill them—the Department immigration judges or the Board of by definition, aliens must voluntarily asserts that its qualitative assessment of the costs Immigration Appeals have invoked such and benefits of the rule in the NPRM and in the depart the United States in order to final rule, in concert with the rule’s review by a regulation to close cases administratively—meaning the case was receive the benefit of such a waiver. OMB, satisfies the requirements of the relevant Although the Department has Executive Orders. removed from the IJ’s docket without 75 The Department notes that Matter of Castro- further proceedings absent some considered the link between such Tum did not incorporate all of the legal arguments persuasive reason to reopen it. As of waivers and administrative closure— presented in the NPRM regarding whether October 2018, more than 350,000 of just as the Attorney General did in immigration judges and Board members have free- Matter of Castro-Tum—that link is too floating authority to defer adjudication of cases. those cases had not been reopened. An E.g., 85 FR at 52503 (discussing tension created by adjudicatory default on that scale strikes attenuated to outweigh the significant interpreting 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to directly at the rule of law.... [N]o legal and policy concerns raised by the allow free-floating authority to administratively one—neither Hernandez-Serrano, nor Department regarding administrative close cases with references in those provisions to 77 the ‘‘disposition’’ of cases and with the provisions the two circuit courts that have rejected closure. of 8 CFR 1003.1(a)(2)(i)(C) and 1003.9(b)(3) which the Attorney General’s decision in 76 assign authority to defer case adjudications to the Castro-Tum—has explained how a As representatives are officers of an Board Chairman and the Chief Immigration Judge immigration court and have professional rather than to all Board members and all general authority to close cases responsibility obligations of candor toward the immigration judges). Thus, circuit court decisions administratively can itself be lawful immigration court, parties with representation abrogating Matter of Castro-Tum did not necessarily while leading to such facially unlawful should already be notifying an immigration court of address those arguments. Accordingly, independent results.’’). a relevant change that would affect the grant of of Matter of Castro-Tum, immigration judges and administrative closure. Board members may still come to the conclusion Further, in addition to not resolving 77 For similar reasons, the Department finds that that they generally lack free-floating authority to the legal issues raised by the view that this rule does not violate Executive Order 13563 administratively close cases. immigration judges and Board members regarding harmonization. To the contrary, the final

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Similarly, concerns about putative final rule regarding administrative Comment: At least one commenter reliance interests are misplaced. First, as closure. On balance, however, the stated that the Department failed to discussed, infra, the rule applies, in alternatives are either unavailing or adequately consider the costs of the rule general, only prospectively, so it does would not resolve the issues identified on small entities, particularly not disturb cases that have already been by the Department, and the concerns immigration practitioners, under the administratively closed. Second, and raised by commenters are far Regulatory Flexibility Act (RFA). The relatedly, all changes in the law may outweighed by both the significant legal commenter predicted that the rule impact matters of attorney strategy in and policy issues raised by the would have a variety of effects of the interactions with clients, but that is an Department in the NPRM regarding finances of these practitioners, such as insufficient basis to decline to change administrative closure and the increased the need for additional appeals in the law.78 To find otherwise would efficiency and consistency that a formal Federal courts or limits on the number effectively preclude any law from ever clarification of its use will provide. of cases a practitioner can ethically being changed. Third, nothing in the With regards to the costs to persons in accept due to shortened filing deadlines. rule prohibits a practitioner from removal proceedings who may no longer Response: As the Department stated seeking administrative closure; rather, it be eligible to obtain a provisional in the proposed rule, this rule ‘‘does not more clearly delineates the situations in unlawful presence waiver without limit the fees [practitioners] may charge, which administrative closure is legally administrative closure, the Department or the number of cases a representative authorized. Fourth, a representative may believes that the strong interest in the may ethically accept under the rules of not ethically guarantee any result in a efficient adjudication of cases and the professional responsibility.’’ 85 FR at particular case; thus, to the extent legal and policy issues identified in the 52509. Moreover, the comments assume, commenters suggest that the final rule NPRM outweigh the potential inability without evidence, that the rule will lead restricts or interferes with an attorney’s of these persons to obtain provisional only to adverse outcomes for aliens and, ability to guarantee an alien both a grant unlawful presence waivers, something thus, more appeals to Federal court. As of administrative closure and the to which they are not entitled to in the noted, supra, that unsubstantiated approval of a provisional waiver, the first instance. The Department notes generalization presumes that cases will Department finds such a suggestion that these persons may still apply for an be adjudicated either unethically or unavailing. See Model Rules Prof’l unlawful presence waiver from outside incompetently, and the Department Conduct R. 7.1 cmt. 3 (2020) (‘‘A the United States, and that DHS may declines to engage in such unfounded communication that truthfully reports a choose, as a matter of policy, to amend conjecture. As also noted, supra, the lawyer’s achievements on behalf of their regulations to remove the change in filing deadlines falls clients or former clients may be administrative closure requirement for principally on DHS, and commenters misleading if presented so as to lead a persons in removal proceedings neither acknowledged that point nor reasonable person to form an unjustified applying for a provisional waiver. explained why a change in filing expectation that the same results could Moreover, as Matter of Castro-Tum was deadlines that affects few non- be obtained for other clients in similar issued in 2018, aliens and their government practitioners would have a matters without reference to the specific representatives in jurisdictions widespread effect of limiting many factual and legal circumstances of each following Castro-Tum should not be practitioners’ caseloads. Additionally, client’s case.’’), cmt. 4 (‘‘It is currently relying on the expectation of although the shortened filing deadlines professional misconduct for a lawyer to administrative closure to pursue may change when a particular brief is engage in conduct involving dishonesty, provisional unlawful presence waivers. due to the BIA, the Department fraud, deceit or misrepresentation.’’) The Department also disagrees that disagrees with the commenter’s (quoting r. 8.4(c)), and r.8.4(e) (‘‘It is the general prohibition on speculation that it would change the professional misconduct for a lawyer to administrative closure does not overall amount of time required to . . . state or imply an ability to harmonize with DHS regulations prepare that brief or related filings, influence improperly a government regarding provisional unlawful presence which is determined by the relative agency or official or to achieve results waivers. The Department considered the complexity of the case. by means that violate the Rules of interplay of EOIR and DHS’s regulations The rule sets no limits on how many Professional Conduct or other law’’). and, due to the strong equities in favor cases an ethical and competent attorney In short, the Department of limiting administrative closure, may accept, all courts set filing appropriately considered potential decided to continue with a general deadlines, and all ethical and competent alternatives as well as the relevant prohibition on administrative closure in attorneys will adjust their practices as interests and alleged costs in issuing the immigration proceedings before EOIR. needed accordingly. Contrary to an DHS chose to limit the eligibility for implicit assertion by commenters, the rule promotes regulatory harmonization because it provisional unlawful presence waivers intent of the Board’s current practices is establishes consistency—and eliminates as a matter of policy, and DHS may not to provide or ensure a minimum superfluousness—with the authority of the Board choose to update their more specific level of employment for practitioners; Chairman and the Chief Immigration Judge to defer regulations accordingly as a result of rather, the intent is to provide a fair and case adjudications as established in 8 CFR efficient system for adjudicating 1003.1(a)(2)(i)(C) and 8 CFR 1003.9(b)(3). As this rule. discussed, supra, it also harmonizes briefing In sum, the Department’s analysis appeals. Consequently, any effects on schedules between detained and non-detained fully complied with all relevant employment of practitioners due to appeals and harmonizes the starting point for the changes in those procedures are both adjudicatory deadlines for appeals heard by single Executive Orders, and OMB has 79 minimal and incidental or ancillary at BIA members and by three-member panels. In short, appropriately reviewed the rule. the rule promotes harmonization of regulatory most; moreover, to the extent that an requirements in multiple ways. 79 The Department notes that in formulating the ancillary effect would be the provision 78 Furthermore, as Matter of Castro-Tum was NPRM, it also considered other alternatives as well issued in 2018, aliens and their representatives in to promote more efficient BIA processing of the BIA discretionary. 67 FR at 54900. Although the jurisdictions following Castro-Tum should not be appeals. For example, the BIA reviewed prior Department may revisit those proposals in the currently relying on the expectation of suggestions to charge respondents filing and future, they were not incorporated into the NPRM administrative closure to pursue provisional transcript fees more commensurate with the actual and are not being included in the final rule unlawful presence waivers. costs of the proceedings or to make all appeals to accordingly.

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of representation by a larger cohort of representatives are employed, and the regarding immigration regulations practitioners, as logically intimated by Departments are unaware of cases in aimed at aliens, rather than practitioners commenters who claim that the rule which the RFA’s requirements have who represent aliens, including much will limit cases handled by individual been applied to legal representatives of broader and more sweeping practitioners, commenters did not entities subject to its provisions, in rulemakings. See, e.g., Inspection and explain why such an effect is addition to or in lieu of the entities Expedited Removal of Aliens; Detention necessarily unwelcome. In short, themselves. See 5 U.S.C. 603(b)(3) and Removal of Aliens; Conduct of despite commenters’ unfounded (requiring that an RFA analysis include Removal Proceedings; Asylum speculation, the Department finds that a description of and, if feasible, an Procedures, 62 FR 444, 453 (Jan. 3, further analysis under the RFA is not estimate of the number of ‘‘small 1997) (certifying that the rule would not warranted. entities’’ to which the rule ‘‘will have a significant impact on a The Department has reviewed this apply’’). To the contrary, case law substantial number of small entities rule in accordance with the RFA, 5 indicates that indirect effects on entities because it ‘‘affects only Federal U.S.C. 601–612, as amended by the not regulated by a proposed rule are not government operations’’ by revising the Small Business Regulatory Enforcement subject to an RFA analysis. See, e.g., procedures for the ‘‘examination, Fairness Act of 1996, Public Law 104– Mid-Tex Elec. Co-op, Inc. v. FERC, 773 detention, and removal of aliens’’). That 121, tit. II, Mar. 29, 1996, 110 Stat. 847, F.2d 327, 342–43 (D.C. Cir. 1985) (‘‘[W]e conclusion was reiterated in the interim and has determined that this rule would conclude that an agency may properly rule, 62 FR at 10328, which was not have a significant economic impact certify that no regulatory flexibility adopted with no noted challenge or on a substantial number of small analysis is necessary when it determines dispute. The parts of this final rule entities. The rule will not economically that the rule will not have a significant related to administrative closure are impact representatives of aliens in economic impact on a substantial similar, in that they, too, affect only the immigration proceedings. It does not number of small entities that are subject operations of the Federal government. In limit the fees they may charge or the to the requirements of the rule .... short, the Department reiterates its number of cases a representative may Congress did not intend to require that determination that there is no evidence ethically accept under the rules of every agency consider every indirect that this final will have a significant professional responsibility. effect that any regulation might have on impact on small entities as Moreover, this determination is small businesses in any stratum of the contemplated by the RFA. consistent with the Department’s prior national economy. That is a very broad 6. Miscellaneous determination regarding much more and ambitious agenda, and we think sweeping changes to procedures before that Congress is unlikely to have a. Retroactivity Concerns the Board. See 67 FR at 54900 (‘‘The embarked on such a course without Attorney General, in accordance with 5 Comment: Some commenters airing the matter.’’); Cement Kiln U.S.C. 605(b), has reviewed this rule expressed concerns that the rule will Recycling Coalition v. EPA, 255 F.3d and, by approving it, certifies that it have an impermissible retroactive effect. 855, 869 (D.C. Cir. 2001) (‘‘Contrary to affects only Departmental employees, First, at least one commenter argued what [petitioner] supposes, application aliens, or their representatives who that making the provisions regarding of the RFA does turn on whether appear in proceedings before the Board changes to administrative closure and particular entities are the ‘targets’ of a of Immigration Appeals, and carriers sua sponte reopening authority effective given rule. The statute requires that the who appeal decisions of [DHS] officers. on the date of publication to pending agency conduct the relevant analysis or Therefore, this rule does not have a cases would have impermissible certify ‘no impact’ for those small significant economic impact on a retroactive effect because doing so substantial number of small entities.’’). businesses that are ‘subject to’ the would impair the rights that asylum The Department is unaware of any regulation, that is, those to which the applicants have under current law. challenge to that determination regulation ‘will apply.’. . . The rule Second, at least one other commenter regarding its 2002 rulemaking which will doubtless have economic impacts noted that even making changes significantly streamlined Board in many sectors of the economy. But to applicable only to new appellate filings operations and made greater changes to require an agency to assess the impact fails to account for downstream effects Board procedures, including altering the on all of the nation’s small businesses of the rule that could influence a Board’s standard of review for possibly affected by a rule would be to respondent’s filings or other decisions credibility determinations, than this convert every rulemaking process into a before the immigration judge. Finally, at final rule. The Department thus believes massive exercise in economic modeling, least one commenter stated that the that the experience of implementing an approach we have already rejected.’’ Department has not sufficiently that prior, broader rule also supports its (citing Mid-Tex, 773 F.2d 327 at 343)); considered the costs to respondents of conclusion that there is no evidence that see also White Eagle Co-op Ass’n v. the retroactive elements of the rule. this final will have a significant impact Conner, 553 F.3d 467, 480 (7th Cir. Response: As noted, supra, the on small entities as contemplated by the 2009) (‘‘The rule that emerges from this Department is clarifying the generally RFA. line of cases is that small entities prospective temporal application of the Additionally, the portions of the rule directly regulated by the proposed rule. The provisions of the rule related to administrative closure would [rulemaking]—whose conduct is applicable to appellate procedures and not regulate ‘‘small entities’’ as that term circumscribed or mandated—may bring internal case processing at the BIA is defined in 5 U.S.C. 601(6). That a challenge to the RFA analysis or apply only to appeals filed, motions to portion of the rule applies to aliens in certification of an agency .... reopen or reconsider filed, or cases immigration proceedings, who are However, when the regulation reaches remanded to the Board by a Federal individuals, not entities. See 5 U.S.C. small entities only indirectly, they do court on or after the effective date of the 601(6). Nothing in that portion of the not have standing to bring an RFA final rule. As the withdrawal of a rule in any fashion regulates the legal challenge.’’). delegation of authority by the Attorney representatives of such individuals or Further, the Department has General, the provisions of the rule the organizations by which those consistently maintained this position related to the restrictions on sua sponte

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reopening authority are effective for all not account for either the case-by-case clamor.’’), IJ Ethics and Professionalism cases, regardless of posture, on the nature of adjudication or the fact- Guide at sec. VIII (‘‘An Immigration effective date.80 The provisions of the intensive nature of many cases. Judge should not be swayed by partisan rule related to restrictions on the BIA’s Hypothetical effects on procedural interests or public clamor.’’). Thus, certification authority are effective for choices and tactical decisions related to contrary to commenters’ assertions, all cases in which an immigration judge an alien’s claims in future cases, immigration judges and Board members issues a decision on or after the effective including those that have not even been are already independent adjudicators date. The provisions of the rule filed or reopened, are not impositions who do not render decisions based on regarding administrative closure are on an alien’s legal rights in a manner political influence or political interests. applicable to all cases initiated by a that has retroactivity concerns. Finally, As commenters’ claims are unfounded charging document filed by DHS, as commenters’ concerns about in law or practice—and beyond the reopened, or recalendared on or after retroactivity of the rule are unfounded scope of this rulemaking—the the effective date.81 for the reasons given, their concerns Department declines to address them Commenters are incorrect that the about alleged costs imposed by such further. rule’s amendments regarding authority ‘‘retroactivity’’ are similarly c. Transactional Records Access over administrative closure and sua unfounded.82 Clearinghouse (TRAC) Report sponte reopening authority would have b. Creation of Independent Immigration Comment: Several commenters impermissible retroactive effect. First, as Courts noted supra, the change regarding objecting to the NPRM’s provisions administrative closure generally applies Comment: Multiple commenters regarding administrative closure prospectively and merely codifies the stated that the rule highlighted the need pointed to a press announcement and status quo for all but four immigration for the immigration courts and web page by TRAC, issued on courts nationwide. Second, there is no immigration judges to be ‘‘independent’’ September 10, 2020, during the right to sua sponte reopening or even to and outside the Executive branch and comment period.83 See TRAC, What’s file such a cognizable motion. There is political influence. New: The Life and Death of similarly no right to administrative Response: These commenters’ Administrative Closure, Sept. 10, 2020, closure. Thus, these changes do not recommendations are both beyond the available at https://trac.syr.edu/ remove any ‘‘vested rights’’ from aliens. scope of this rulemaking and the whatsnew/email.200910.html (last In addition, in the context of the Department’s authority. Congress has visited Nov. 25, 2020), and TRAC, The changes regarding administrative provided for a system of administrative Life and Death of Administrative closure, the Department emphasizes that hearings for immigration cases, which Closure, Sept. 10, 2020, available at the alien may continue to proceed with the Departments believe should be https://trac.syr.edu/immigration/ their relief applications before USCIS maintained. See generally INA 240, 8 reports/623/ (last visited Nov. 25, 2020) and seek continuances before EOIR, see U.S.C. 1229a (laying out administrative (‘‘TRAC Report’’). Commenters asserted Matter of L–A–B–R–, 27 I&N Dec. 405. procedures for removal proceedings); cf. that TRAC’s analysis undermined the Similarly, aliens may continue to utilize Strengthening and Reforming America’s Department’s bases for the rule related motions to reopen, including those filed Immigration Court System: Hearing to administrative closure. as joint motions or those based on before the Subcomm. On Border Sec. & Response: The Department has equitable tolling, in lieu of filing Immigration of the S. Comm. on the reviewed the TRAC Report referenced improper motions to reopen sua sponte. Judiciary, 115th Cong. (2018) (written by commenters but finds it both Commenters broad and generalized response to Questions for the Record of unpersuasive as a basis for commenters’ concerns about alleged downstream James McHenry, Director, Executive suggestions to revise the final rule and effects are wholly speculative and do Office for Immigration Review) (‘‘The largely inapposite to the issue overall. financial costs and logistical hurdles to As an initial point, the TRAC Report 80 As discussed, supra, neither party possesses a implementing an Article I immigration does not address any of the legal issues right to file a ‘‘motion to reopen sua sponte,’’ and court system would be monumental and surrounding administrative closure such a motion is, in fact, an ‘‘oxymoron.’’ Thus, the would likely delay pending cases even raised by the NPRM. 85 FR at 52503–05. restrictions on the use of that authority have no further.’’). Only Congress has the impact on the parties’ ability to seek use of that Thus, for example, it does not address authority, regardless of the current status of a case. authority to create a new Article I court the existing regulations’ references to 81 To the extent that the rule merely codifies or other changed framework for the the ‘‘disposition’’ of a case, the existing law or authority, however, nothing in the adjudication of immigration cases. superfluousness issue raised by existing rule precludes adjudicators from applying that Finally, the Department reiterates that existing authority to pending cases independently regulations for the Board Chairman and of the generally prospective application of the rule. immigration judges and Board members the Chief Immigration Judge allowing For example, the Department notes that already exercise ‘‘independent judgment them to defer adjudication of cases, or independent of the final rule, the Attorney and discretion’’ in deciding cases, 8 CFR the propriety of authorizing an General’s decision in Matter of Castro-Tum, 27 I&N 1003.1(d)(1)(ii) and 1003.10(b), and are Dec. 271, remains binding and applicable to all immigration judge or Board Member to pending cases, except in the Fourth and Seventh prohibited from considering political infringe upon the prosecutorial Circuits. See INA 103(a)(1), 8 U.S.C. 1103(a)(1) influences in their decision-making, BIA discretion of DHS. Without engaging the (‘‘[D]etermination and ruling by the Attorney Ethics and Professionalism Guide at sec. Department’s legal concerns, the utility General with respect to all questions of law [as to VIII (‘‘A Board Member should not be the INA and other laws relating to the immigration and persuasiveness of the TRAC Report and naturalization of aliens] shall be controlling’’); swayed by partisan interests or public are inherently limited. INA 103(g)(2), 8 U.S.C. 1103(g)(2) (‘‘The Attorney TRAC’s broader claims regarding General shall . . . review such administrative 82 In addition, the Department notes that the administrative closure, framed by determinations in immigration proceedings . . . as commenter cited INS v. St. Cyr, 533 U.S. 289, 316 the Attorney General determines to be necessary for (2001) in support of the argument that the commenters as a policy challenge to the carrying out [his authorities].’’); 8 CFR 1003.1(g)(1) Department failed to consider costs, but the relevant (‘‘[D]ecisions of the Attorney General are binding on discussion by the Supreme Court in that case is 83 Although several commenters cited the TRAC all officers and employees of DHS or immigration dicta surrounding the reasons that courts must first report, TRAC itself did not submit a comment on judges in the administration of the immigration consider if Congress intended for legislative to have the NPRM and appears not to have taken a position laws of the United States.’’). retroactive effect. on it.

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Department’s position, also provide years (Administratively Closed Cases). pending, albeit inactive. In other words, little support for revising the rule. TRAC See id. at *1, *4 (‘‘A regulation the removal of the case from an active listed four conclusions it derived from delegating to immigration judges docket does not make the case data analysis on EOIR data 84 regarding authority to take certain actions ‘[i]n disappear; thus, administratively closed administratively closed cases. Those deciding the individual cases before cases contribute to the overall tally of conclusions, however, are of limited them’ does not delegate to them general pending cases—colloquially called a probative value and do not undermine authority not to decide those cases at ‘‘backlog’’—just as much as active cases the Department’s foundations for the all. Yet in more than 400,000 cases in do. Both TRAC’s data and the rule. which an alien was charged with being Department’s data, EOIR, Adjudication TRAC’s first conclusion is that subject to deportation or (after April 1, Statistics: Active and Inactive Pending ‘‘administrative closure has been 1997) removal, immigration judges or Cases, Oct. 13, 2020, available at routinely used by Immigration Judges to the Board of Immigration Appeals have https://www.justice.gov/eoir/page/file/ manage their growing caseloads as well invoked such a regulation to close cases 1139516/download, show that the as manage the unresolved overlapping administratively—meaning the case was pending caseload, including both active of jurisdictions between the EOIR and removed from the IJ’s docket without and inactive cases, has grown other immigration agencies.’’ TRAC further proceedings absent some considerably in recent years.86 This Report, supra. No one, including the persuasive reason to reopen it. As of growth has occurred for reasons other Department, has disputed that October 2018, more than 350,000 of than administrative closure, particularly immigration judges previously used those cases had not been reopened. An since 2017. Nevertheless, the increase in administrative closure. See, e.g., adjudicatory default on that scale strikes the use of administrative closure Administratively Closed Cases. There is directly at the rule of law. . . [N]o beginning in FY 2012 did not reduce the no evidence, however, that it was used one. . . has explained how a general overall pending caseload, contrary to effectively to manage caseloads—in the authority to close cases administratively the assertions of TRAC and commenters. sense of resolving cases more can itself be lawful while leading to TRAC’s third conclusion, ‘‘data from efficiently—or used to resolve issues of such facially unlawful results.’’). the Immigration Courts show that overlapping jurisdiction,85 and TRAC Further, administrative closure does immigrants who obtain administrative does not provide evidence to the not resolve legal questions of closure are likely to have followed legal contrary. TRAC merely states the jurisdiction, and even if it did, TRAC requirements and obtain lawful status,’’ historical frequency of the usage of does not explain why prolonging a case is both arguable as an assertion of fact administrative closure, which is a through administrative closure would and, ultimately of little relevance to the statement not in dispute or of particular address the issue of cases already rule. TRAC Report, supra. According to relevance to the rule. prolonged due to jurisdictional TRAC’s data, only 16 percent of aliens Moreover, TRAC’s conclusory questions. Further, TRAC does not were awarded relief after their cases observation that ‘‘[a]dministrative explain why it is appropriate for an were administratively closed, whereas closures have allowed judges to immigration judge to choose which 40 percent were ordered removed or temporarily close cases and take them cases are a ‘‘priority’’ rather than DHS, received an order of voluntary off their active docket either because who—unlike EOIR and immigration departure.87 Id. Those numbers belie the judges wish to focus limited resources judges—is statutorily tasked by on higher priority removal cases or Congress with ‘‘[e]stablishing national 86 TRAC itself has issued reports since at least because jurisdictional issues were immigration enforcement policies and 2009 noting the annual growth in the pending prolonging the case’’ is doubtful for caseload which it terms a backlog. TRAC priorities.’’ Homeland Security Act of Immigration Reports, Immigration Courts, available several reasons. See Hernandez-Serrano, 2002, Public Law 107–296, sec. 402(5), at https://trac.syr.edu/phptools/reports/ 2020 WL 6883420 at *4 (‘‘To the Nov. 25, 2002, 116 Stat. 2135, 2178 reports.php?layer=immigration&report_type=report contrary, the regulations expressly limit (codified at 6 U.S.C. 202(5)). For all of (last visited Nov. 24, 2020). TRAC also noted this their delegation to actions ‘necessary for these reasons, TRAC’s first conclusion, increase in the pending caseload even at the height of the use of administrative closure between 2012 the disposition’ of the case. And that to the extent it is relied on by and 2018. Compare TRAC Immigration Reports, more restricted delegation cannot commenters, does not provide a Once Intended to Reduce Immigration Court support a decision not to decide the persuasive basis for altering the rule. Backlog, Prosecutorial Discretion Closures Continue case for reasons of administrative TRAC’s second conclusion, Unabated (Jan. 15, 2014), available at https:// trac.syr.edu/immigration/reports/339/ (last visited ‘convenience’ or the ‘efficient ‘‘administrative closure has helped Nov. 25, 2020) (use of administrative closure was management of the resources of the reduce the backlog,’’ is patently intended ‘‘as a program to clear cases from the immigration courts and the BIA.’ ’’ incorrect, as both the Department and accumulated court backlog’’) with TRAC (cleaned up, emphasis in original)). As TRAC’s own data establishes. TRAC Immigration Reports, Immigration Court Backlog Keeps Rising (May 15, 2015), available at https:// both TRAC and the Department have Report, supra. As TRAC acknowledges, trac.syr.edu/immigration/reports/385/ (last visited noted, administratively closed cases are ‘‘[a]dministrative closure does not Nov. 25, 2020) (caseload still increasing in 2015) not ‘‘temporarily’’ closed in any realistic terminate a case, it does not provide and TRAC Immigration Reports, Immigration sense of the word; rather, they are taken permanent relief from deportation, and Backlog Still Rising Despite New Judge Investitures off the docket for either at least three it does not confer lawful status of any (July 19, 2016), available at https://trac.syr.edu/ immigration/reports/429/ (last visited Nov. 25, years (according to TRAC) or at least 10 kind.’’ TRAC Report, supra; see also 2020) (caseload still increasing in 2016). Matter of Amico, 19 I&N Dec. 652, 654 87 TRAC reports that 44 percent of cases resulted 84 The Department does not know what analytics n.1 (BIA 1988) (‘‘The administrative in the termination of proceedings after being TRAC performed or the precise methods and closing of a case does not result in a administratively closed, which TRAC intuits to definitions it employed. Accordingly, the mean there was no longer a valid ground to remove Department cannot speak to the accuracy of TRAC’s final order.’’); Matter of Lopez-Barrios, the alien. As terminations may result from different results. Even assuming the results are accurate, 20 I&N Dec. at 204 (‘‘However, bases, however, it is not clear that every termination however, TRAC’s assertions—and commenters’ [administrative closure] does not result resulted from the vitiation of grounds of removal reliance on them—are unpersuasive for the reasons in a final order.’’). Consequently, against an alien. Moreover, TRAC’s analysis does given. because administrative closure is not a not consider whether the terminations were proper 85 TRAC does not explain what it means by under the law, which was recently clarified by the ‘‘overlapping jurisdiction’’ and does not elaborate disposition of a case and does not result Attorney General. See Matter of S-O-G- & F-D-B-, 27 further on the point in its Report. in a final order, the case remains I&N Dec. 462, 468 (A.G. 2018) (‘‘As discussed

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assertion that aliens whose cases have Similarly, TRAC asserts that EOIR Additionally, even if TRAC’s analysis been administratively closed are likely that did not consider the average were accurate, the implications of it for to obtain lawful status.88 Moreover, number of completed cases by the rule are not apparent.90 To the whatever outcomes may or may not immigration judges over time which extent that TRAC asserts that result following the administrative TRAC asserts has declined in recent immigration judge productivity has closure of a case, those outcomes, which years. As an initial point, the declined over time—at least until FY are based on specific evidence in each Department notes that TRAC includes 2019—the Department generally agrees case and applicable law and may cut decisions of administrative closure as with that assertion, but its relevance to both for and against the parties, do not ‘‘completions’’ in its analysis which is the rule is unclear. Although the effectively outweigh the concerns noted contrary to both TRAC’s own view and Department acknowledges TRAC’s tacit by the Department in issuing the rule. the relevant case law, as discussed suggestion that the limitation of TRAC’s fourth conclusion, ‘‘the EOIR above. Nevertheless, even if administrative closure by Matter of administratively closed cases were significantly misrepresented the data it Castro-Tum in FY 2018 contributed to included as completed cases, TRAC’s used to justify this rule,’’ is simply an increase in immigration judge analysis presents an additional flaw. wrong. TRAC Report, supra. TRAC productivity in FY 2019, the The Department does not generally Department has not investigated that bases its claim primarily on the fact that provide average, per-immigration judge link explicitly. Moreover, the rule was EOIR does not include administrative completion numbers and did not rely on proposed to address multiple legal and closure decisions as completed cases; any such statistics in the rule. Further, policy concerns with the use of however, TRAC itself acknowledges that TRAC’s reliance on the raw number of administrative closure, to provide administratively closed cases are not immigration judges to calculate its own clearer delineation regarding the final and, thus, not complete. Id. average—suggesting that per- appropriateness of its usage, and to (‘‘Administrative closure does not immigration judge completions have address inefficiency issues that it has terminate a case, it does not provide declined from 737 to 657—illustrates wrought, particularly to the extent that permanent relief from deportation, and the problem with calculating such an it has contributed to docket churning it does not confer lawful status of any average. Immigration judges are hired and unnecessary delays in adjudicating kind.’’); cf. Hernandez-Serrano, 2020 throughout the year, they may be cases. 85 FR at 52503–04. Thus, WL 6883420 at *3 (‘‘Administrative promoted at different times in the year, although decreased immigration judge closure typically is not an action taken and they may retire, separate, or die productivity, which may result from ‘[i]n deciding’ a case before an IJ; during the year. Further, new multiple causes including the instead, as shown above, it is typically immigration judges do not begin hearing inappropriate use of administrative a decision not to decide the case. Nor full dockets of cases immediately upon closure, may undermine the is administrative closure typically an hire, and immigration judges may also Department’s ability to efficiently action ‘necessary for the disposition’ of be off the bench for extended periods adjudicate cases, the rule was not an immigration case. Administrative due to leave, military obligations, or promulgated solely to increase closure is not itself a ‘disposition’ of a disciplinary action. Thus, the number of productivity. case, as Hernandez-Serrano concedes in immigration judges frequently fluctuates In short, to the extent that this appeal.’’). Moreover, TRAC does not throughout the year and is not static. commenters relied on the TRAC Report explain why an administratively closed Consequently, using the snapshot as a basis for opposing the rule, the case should be considered completed in number of immigration judges at the Department finds that Report light of longstanding BIA case law that beginning or end of the fiscal year—as unpersuasive for the many reasons such cases are not, in fact, completed. TRAC does—does not account for those noted. Consequently, the Department See Matter of Amico, 19 I&N Dec. at 654 changes, particularly for newly hired or also declines to accept the comments n.1 (‘‘The administrative closing of a supervisory immigration judges who are based on it. case does not result in a final order.’’); not hearing full or regular dockets. In Matter of Lopez-Barrios, 20 I&N Dec. at other words, due to retirements, III. Regulatory Requirements 204 (‘‘However, [administrative closure] promotions, and new hires, the actual A. Administrative Procedure Act does not result in a final order.’’). number of immigration judges who Portions of this final rule state a rule adjudicated cases during a fiscal year— of agency organization, procedure, or above, however, immigration judges have no and whose cases are included in the practice and reflect matters of agency inherent authority to terminate removal end-of-the-year completion totals—is proceedings even though a particular case may pose management or personnel, e.g., the necessarily different than the end-of- sympathetic circumstances.’’). Accordingly, it is not provisions of 8 CFR 1003.1(e)(8) and (k), clear that the data, even if it is accurate, supports the-year total. TRAC’s data does not because they reflect internal the assertion that aliens whose cases have been appear to have controlled for terminated ‘‘followed legal requirements and immigration judges who were not or no obtain[ed] lawful status.’’ TRAC Immigration numbers-fiscal-year-2019 (‘‘On average, Reports, The Life and Death of Administrative longer hearing full dockets, including immigration judges who performed over the whole Closure (Sept. 10, 2020) available at https:// those not hearing full dockets but year completed 708 cases each in FY19.’’) trac.syr.edu/immigration/reports/623/ (last visited counted in EOIR’s overall total and, (emphasis added)). 11/25/2020). 90 The Department notes in passing two 88 thus, the Department finds its assertions TRAC did not distinguish cases that would 89 additional concerns about TRAC’s analysis on this remain eligible for administrative closure under the unsupported. point. First, TRAC divides its analysis by final rule. Nevertheless, the Department notes that Presidential administration even though the ability because an appropriate exercise of administrative 89 In contrast, when the Department does of an immigration judge to administratively close a closure under the rule includes regulations and calculate a per-immigration judge completion case continued for over a year into the current settlement agreements that allow aliens to seek average, it controls for judges who did not hear administration. Second, TRAC does not different types of relief from removal, Matter of regular dockets of cases throughout the fiscal year. acknowledge that even under its methodology, per- Castro-Tum, 27 I&N Dec. at 276–78, the fact that See, e.g., EOIR, Executive Office for Immigration immigration judge case completions increased in only 16 percent of aliens overall obtain relief after Review Announces Case Completion Numbers for FY 2019. Thus, it is not clear that its overall their cases are administratively closed is further Fiscal Year 2019, Oct. 10, 2019, available at https:// assertion—a clear decline in per-immigration judge evidence that the impact of the rule is much less www.justice.gov/opa/pr/executive-office- productivity under the current administration—is than commenters assert. immigration-review-announces-case-completion- even factually accurate.

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management directives or delegations of and benefits of available regulatory final rule, and no balance is needed authority by the Attorney General. Thus, alternatives and, if regulation is from the repeal of other regulations. those portions of the rule are exempt necessary, to select regulatory E. Executive Order 13132—Federalism from the requirements for notice-and- approaches that maximize net benefits comment rulemaking and a 30-day (including potential economic, This rule will not have substantial delay in effective date. 5 U.S.C. environmental, public health, and safety direct effects on the states, on the 553(a)(2), (b)(A). Nevertheless, rather effects, distributive impacts, and relationship between the Federal than attempting to parse out different equity). Executive Order 13563 government and the states, or on the sections of the rule with different emphasizes the importance of distribution of power and effective dates, the Department has quantifying both costs and benefits, responsibilities among the various elected to publish the entire final rule reducing costs, harmonizing rules, and levels of government. Therefore, in with a 30-day effective date under the promoting flexibility. accordance with section six of Executive APA. 5 U.S.C. 553(d). As noted in the NPRM, 85 FR at Order 13132, it is determined that this B. Regulatory Flexibility Act 52509, the Department believes that the rule would not have sufficient rule will help more efficiently federalism implications to warrant the The Department has reviewed this adjudicate cases before the BIA allowing preparation of a federalism summary rule in accordance with the RFA (5 for a reduction in the number of cases impact statement. U.S.C. 605(b)) and has determined that pending before EOIR overall and an this rule will not have a significant increase in the BIA adjudicating more F. Executive Order 12988—Civil Justice economic impact on a substantial appeals annually. The Department Reform number of small entities. The believes the costs to the public will be This rule meets the applicable Department’s discussion of the RFA in negligible, if any, because the basic section II.C.5, supra, in response to standards set forth in sections 3(a) and briefing procedures will remain the 3(b)(2) of Executive Order 12988. RFA-related comments received on the same (and any notable changes fall rule is incorporated in full herein by principally on DHS rather than the G. Paperwork Reduction Act reference. public), because current BIA policy This rule does not propose new already disfavors multiple or lengthy C. Unfunded Mandates Reform Act of ‘‘collection[s] of information’’ as that briefing extension requests, because the 1995 term is defined under the Paperwork use of administrative closure has This rule will not result in the Reduction Act of 1995, Public Law 104– already been restricted subsequent to expenditure by State, local, and tribal 13, 109 Stat. 163 (codified at 44 U.S.C. the decision in Matter of Castro-Tum, 27 governments, in the aggregate, or by the 3501–3521) (‘‘PRA’’), and its I&N Dec. 271, because no party has a private sector, of $100 million or more implementing regulations, 5 CFR part right to sua sponte reopening authority in any one year (adjusted annually for 1320. inflation), and it will not significantly or and a motion to exercise such authority uniquely affect small governments. is already not cognizable under existing H. Congressional Review Act law, and because the BIA is generally Therefore, no actions were deemed This proposed rule is not a major rule necessary under the provisions of the already prohibited from considering new evidence on appeal. Further, the as defined by section 804 of the Unfunded Mandates Reform Act of Congressional Review Act. 5 U.S.C. 804. 1995. Department notes that the most significant regulatory change to the This rule will not result in an annual D. Executive Orders 12866, 13563, and BIA’s case management process—and a effect on the economy of $100 million 13771 more comprehensive one than the one or more; a major increase in costs or prices; or significant adverse effects on Portions of this rule involve agency in the final rule—was promulgated competition, employment, investment, organization, management, or personnel without the type of numeric analysis productivity, innovation, or on the matters and would, therefore, not be commenters suggested is warranted ability of United States-based subject to review by the Office of with no noted concerns or challenges on enterprises to compete with foreign- Management and Budget (OMB) that basis. 67 FR at 54900. based enterprises in domestic and pursuant to section 3(d)(3) of Executive In short, the rule does not impose any export markets. Order 12866. For similar reasons, those new costs, and most, if not all, of the portions would not be subject to the proposed rule is directed at internal List of Subjects requirements of Executive Orders 13563 case processing. Any changes 8 CFR Part 1003 or 13771. Nevertheless, rather than contemplated by the rule would have parse out individual provisions to little, if any, apparent impact on the Administrative practice and determine whether OMB review is public but would substantially improve procedure, Aliens, Immigration, Legal warranted for discrete provisions of the both the quality and efficiency of BIA services, Organization and functions rule, the Department has determined appellate adjudications. The (Government agencies). that this rule, as a whole, is a Department has complied with the ‘‘significant regulatory action’’ under relevant Executive Orders. 8 CFR Part 1240 The Department did find the rule to section 3(f) of Executive Order 12866, Administrative practice and be a significant regulatory action and, as Regulatory Planning and Review. procedure, Aliens. Accordingly, this rule has been such, performed an analysis under submitted to OMB for review. Executive Order 13771. In applying Accordingly, for the reasons set forth The Department certifies that this Executive Order 13771, the Department in the preamble, and by the authority regulation has been drafted in determined that this final rule will vested in the Director, Executive Office accordance with the principles of substantially improve BIA appellate for Immigration Review, by the Attorney Executive Orders 12866, 13563, and procedure with the result of negligible General Order Number 4910–2020, the 13771. Executive Orders 12866 and new costs to the public. As such, no Department amends 8 CFR parts 1003 13563 direct agencies to assess the costs budget implications will result from this and 1240 as follows:

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PART 1003—EXECUTIVE OFFICE FOR judicially approved settlement expressly (iii) Remand to DHS is warranted IMMIGRATION REVIEW authorizes such an action. Only the following de novo review. Director or Chief Appellate Immigration (v) The Board may affirm the decision ■ 1. The authority citation for part 1003 Judge may direct the deferral of of the immigration judge or the continues to read as follows: adjudication of any case or cases by the Department of Homeland Security on Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 Board. any basis supported by the record, U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, * * * * * including a basis supported by facts that 1226, 1229, 1229a, 1229b, 1229c, 1231, (3) * * * are not reasonably subject to dispute, 1254a, 1255, 1324d, 1330, 1361, 1362; 28 (iv)(A) The Board will not engage in such as undisputed facts in the record. U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. factfinding in the course of deciding * * * * * 2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002; cases, except that the Board may take (6) * * * section 203 of Pub. L. 105–100, 111 Stat. administrative notice of facts that are 2196–200; sections 1506 and 1510 of Pub. L. (ii) Except as provided in paragraph 106–386, 114 Stat. 1527–29, 1531–32; section not reasonably subject to dispute, such (d)(6)(iv) of this section, if identity, law 1505 of Pub. L. 106–554, 114 Stat. 2763A– as: enforcement, or security investigations 326 to –328. (1) Current events; or examinations have not been (2) The contents of official documents completed or DHS reports that the ■ 2. Amend § 1003.1 by: outside the record; ■ a. Revising paragraph (c), (d)(1)(ii), results of prior investigations or (3) Facts that can be accurately and examinations are no longer current and (d)(3)(iv); readily determined from official ■ b. Adding paragraph (d)(3)(v); under the standards established by DHS, government sources and whose and the completion of the investigations ■ c. Revising paragraph (d)(6)(ii), (iii), accuracy is not disputed; or and (iv) and (d)(7); or examinations is necessary for the (4) Undisputed facts contained in the Board to complete its adjudication of ■ d. In pargraph (e) introductory text: record. ■ i. Removing ‘‘this paragraph’’ and the appeal, the Board will provide (B) If the Board intends to rely on an notice to both parties that, in order to adding ‘‘this paragraph (e)’’ in its place; administratively noticed fact outside of and complete adjudication of the appeal, the the record, such as those indicated in case is being placed on hold until such ■ ii. Adding a sentence at the end of the paragraphs (d)(3)(iv)(A)(1) through (3) of paragraph; time as all identity, law enforcement, or this section, as the basis for reversing an security investigations or examinations ■ e. Revising paragraphs (e)(1), (e)(8) immigration judge’s grant of relief or introductory text, and (e)(8)(i) and (iii); are completed or updated and the protection from removal, it must results have been reported to the Board. ■ f. Removing and reserving paragraph provide notice to the parties of its intent (e)(8)(iv); Unless DHS advises the Board that such and afford them an opportunity of not information is no longer necessary in ■ g. Adding five sentences at the end of less than 14 days to respond to the paragraph (e)(8)(v) and adding the particular case, the Board’s notice notice. will notify the alien that DHS will paragraphs (e)(8)(v)(A) through (F); and (C) The Board shall not sua sponte contact the alien to take additional steps ■ h. Adding paragraph (k). remand a case for further factfinding to complete or update the identity, law The additions and revisions read as unless the factfinding is necessary to enforcement, or security investigations follows: determine whether the immigration or examinations only if DHS is unable judge had jurisdiction over the case. § 1003.1 Organization, jurisdiction, and (D) Except as provided in paragraph to independently update the necessary powers of the Board of Immigration investigations or examinations. If DHS Appeals. (d)(6)(iii) or (d)(7)(v)(B) of this section, the Board shall not remand a direct is unable to independently update the * * * * * appeal from an immigration judge’s necessary investigations or (c) Jurisdiction by certification. The decision for additional factfinding examinations, DHS shall send the alien Secretary, or any other duly authorized unless: instructions that comply with the officer of DHS, or an immigration judge (1) The party seeking remand requirements of § 1003.47(d) regarding may in any case arising under paragraph preserved the issue by presenting it the necessary procedures and (b) of this section certify such case to before the immigration judge; contemporaneously serve a copy of the the Board for adjudication. (2) The party seeking remand, if it instructions with the Board. The Board’s (d) * * * bore the burden of proof before the notice will also advise the alien of the (1) * * * immigration judge, attempted to adduce consequences for failing to comply with (ii) Subject to the governing standards the additional facts before the the requirements of this section. DHS is set forth in paragraph (d)(1)(i) of this immigration judge; responsible for obtaining biometrics and section, Board members shall exercise (3) The additional factfinding would other biographical information to their independent judgment and alter the outcome or disposition of the complete or update the identity, law discretion in considering and case; enforcement, or security investigations determining the cases coming before the (4) The additional factfinding would or examinations with respect to any Board, and a panel or Board member to not be cumulative of the evidence alien in detention. whom a case is assigned may take any already presented or contained in the (iii) In any case placed on hold under action consistent with their authorities record; and paragraph (d)(6)(ii) of this section, DHS under the Act and the regulations as is (5) One of the following shall report to the Board promptly when appropriate and necessary for the circumstances is present in the case: the identity, law enforcement, or disposition of the case. Nothing in this (i) The immigration judge’s factual security investigations or examinations paragraph (d)(1)(ii) shall be construed as findings were clearly erroneous; have been completed or updated. If a authorizing the Board to (ii) The immigration judge’s factual non-detained alien fails to comply with administratively close or otherwise findings were not clearly erroneous, but necessary procedures for collecting defer adjudication of a case unless a the immigration judge committed an biometrics or other biographical regulation promulgated by the error of law that requires additional information within 90 days of the DHS’s Department of Justice or a previous factfinding on remand; or instruction notice under paragraph

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(d)(6)(ii) of this section, if applicable, applying the appropriate standard of before an immigration judge, the alien’s the Board shall deem the application review on appeal, the Board may issue notice of appeal specified that the alien abandoned unless the alien shows good an order remanding a case to an is appealing the immigration judge’s cause before the 90-day period has immigration judge or DHS for further denial of voluntary departure and elapsed, in which case the alien should consideration based on an error of law identified the specific factual and legal be given no more than an additional 30 or fact, subject to any applicable findings that the alien is challenging, days to comply with the procedures. If statutory or regulatory limitations, and the Board finds that the alien is the Board deems an application including paragraph (d)(3)(iv)(D) of this otherwise eligible for voluntary abandoned under this section, it shall section and the following: departure, as provided in § 1240.26(k) of adjudicate the remainder of the appeal (A) The Board shall not remand a case this chapter. In order to grant voluntary within 30 days and shall enter an order for further action without identifying departure, the Board must find that all of removal or a grant of voluntary the standard of review it applied and applicable statutory and regulatory departure, as appropriate. If DHS the specific error or errors made by the criteria have been met, based on the obtains relevant information as a result adjudicator in paragraphs (d)(7)(ii)(B) record and within the scope of its of the identity, law enforcement, or through (E) of this section. review authority on appeal, and that the security investigations or examinations, (B) The Board shall not remand a case alien merits voluntary departure as a including civil or criminal based on the application of a ‘‘totality of matter of discretion. If the Board does investigations of immigration fraud, the circumstances’’ standard of review. not grant the request for voluntary DHS may move the Board to remand the (C) The Board shall not remand a case departure, it must deny the request. record to the immigration judge for based on a legal argument not presented (v) New evidence on appeal. (A) consideration of whether, in view of the in paragraphs (d)(7)(ii)(D) through (E) of Subject to paragraph (d)(7)(v)(B), the new information, any pending this section unless that argument Board shall not receive or review new applications for immigration relief or pertains to an issue of jurisdiction over evidence submitted on appeal, shall not protection should be denied, either on an application or the proceedings, or to remand a case for consideration of new a material change in fact or law grounds of eligibility or, where evidence received on appeal, and shall underlying a removability ground or applicable, as a matter of discretion. If not consider a motion to remand based grounds specified in section 212 or 237 DHS fails to report the results of timely on new evidence. A party seeking to of the Act that occurred after the date of completed or updated identity, law submit new evidence shall file a motion the immigration judge’s decision, and enforcement, or security investigations to reopen in accordance with applicable substantial evidence indicates that or examinations within 180 days of the law. change has vitiated all grounds of Board’s notice under paragraph (d)(6)(ii) (B) Nothing in paragraph (d)(7)(v)(A) removability applicable to the alien. of this section, the Board shall remand (D) The Board shall not sua sponte of this section shall preclude the Board the case to the immigration judge for remand a case unless the basis for such from remanding a case based on new further proceedings under § 1003.47(h). a remand is solely a question of evidence or information obtained after (iv) The Board is not required to hold jurisdiction over an application or the the date of the immigration judge’s a case pursuant to paragraph (d)(6)(ii) of proceedings. decision as a result of identity, law this section if the Board decides to (E) The Board shall not remand a case enforcement, or security investigations dismiss the respondent’s appeal or deny to an immigration judge solely to or examinations, including civil or the relief or protection sought. consider or reconsider a request for criminal investigations of immigration * * * * * voluntary departure nor solely due to fraud, regardless of whether the (7) Finality of decision—(i) In general. the failure of the immigration judge to investigations or examinations were The decision of the Board shall be final provide advisals following a grant of conducted pursuant to § 1003.47(h) or except in those cases reviewed by the voluntary departure. In such situations, paragraph (d)(6) of this section, nor from Attorney General in accordance with the Board shall follow the procedures in remanding a case to address a question paragraph (h) of this section. In § 1240.26(k) of this chapter. of jurisdiction over an application or the adjudicating an appeal, the Board (iii) Scope of the remand. Where the proceedings or a question regarding a possesses authority to issue an order of Board remands a case to an immigration ground or grounds of removability removal, an order granting relief from judge, it divests itself of jurisdiction of specified in section 212 or 237 of the removal, an order granting protection that case, unless the Board remands a Act. from removal combined with an order of case due to the court’s failure to forward * * * * * removal as appropriate, an order the administrative record in response to (e) * * * The provisions of this granting voluntary departure with an the Board’s request. The Board may paragraph (e) shall apply to all cases alternate order of removal, and an order qualify or limit the scope or purpose of before the Board, regardless of whether terminating or dismissing proceedings, a remand order without retaining they were initiated by filing a Notice of provided that the issuance of any order jurisdiction over the case following the Appeal, filing a motion, or receipt of a is consistent with applicable law. The remand. In any case in which the Board remand from Federal court, the Attorney Board may affirm the decision of the has qualified or limited the scope or General, or the Director. immigration judge or DHS on any basis purpose of the remand, the immigration (1) Initial screening. All cases shall be supported by the record. In no case shall judge shall not consider any issues referred to the screening panel for the Board order a remand for an outside the scope or purpose of that review upon the filing of a Notice of immigration judge to issue an order that order, unless such an issue calls into Appeal or a motion or upon receipt of the Board itself could issue. question the immigration judge’s a remand from a Federal court, the (ii) Remands. In addition to the continuing jurisdiction over the case. Attorney General, or the Director. possibility of remands regarding (iv) Voluntary departure. The Board Screening panel review shall be information obtained as a result of the may issue an order of voluntary completed within 14 days of the filing identity, law enforcement, or security departure under section 240B of the Act, or receipt. Appeals subject to summary investigations or examinations under with an alternate order of removal, if the dismissal as provided in paragraph paragraph (d)(6)(iii) of this section, after alien requested voluntary departure (d)(2) of this section, except for those

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subject to summary dismissal as States Supreme Court or an impending closure causes the pendency of the provided in paragraph (d)(2)(i)(E) of this en banc Board decision may appeal to exceed 335 days. section, shall be promptly dismissed no substantially determine the outcome of * * * * * later than 30 days after the Notice of a group of cases pending before the (k) Quality assurance certification. (1) Appeal was filed. Unless referred for a Board, the Chairman, subject to In any case in which the Board remands three-member panel decision pursuant concurrence by the Director, may hold a case to an immigration judge or to paragraph (e)(6) of this section, an the cases until such decision is reopens and remands a case to an interlocutory appeal shall be rendered, temporarily suspending the immigration judge, the immigration adjudicated within 30 days of the filing time limits described in this paragraph judge may forward that case by of the appeal. (e)(8). The length of such a hold shall certification to the Director for further * * * * * not exceed 120 days. review only in the following (8) Timeliness. The Board shall * * * * * circumstances: (i) The Board decision contains a promptly enter orders of summary (v) * * * The Chairman shall notify dismissal, or other miscellaneous typographical or clerical error affecting the Director of all cases in which an the outcome of the case; dispositions, in appropriate cases extension under paragraph (e)(8)(ii) of consistent with paragraph (e)(1) of this (ii) The Board decision is clearly this section, a hold under paragraph contrary to a provision of the Act, any section. In all other cases, the Board (e)(8)(iii) of this section, or any other shall promptly order a transcript, if other immigration law or statute, any delay in meeting the requirements of applicable regulation, or a published, appropriate, within seven days after the paragraph (e)(8) of this section occurs. screening panel completes its review binding precedent; For any case still pending adjudication (iii) The Board decision is vague, and shall issue a briefing schedule by the Board more than 335 days after within seven days after the transcript is ambiguous, internally inconsistent, or the appeal was filed, the motion was otherwise did not resolve the basis for provided. If no transcript may be filed, or the remand was received and the appeal; or ordered due to a lack of available not described in paragraphs (e)(8)(v)(A) (iv) A material factor pertinent to the funding or a lack of vendor capacity, the through (E) of this section, the Chairman issue(s) before the immigration judge Chairman shall so certify that fact in shall refer that case to the Director for was clearly not considered in the writing to the Director. The Chairman decision. For a case referred to the decision. shall also maintain a record of all such Director under this paragraph (e)(8)(v), (2) In order to certify a decision under cases in which transcription cannot be the Director shall exercise delegated paragraph (k)(1) of this section, an ordered and provide that record to the authority from the Attorney General immigration judge must: Director. If no transcript is required, the identical to that of the Board as (i) Issue an order of certification Board shall issue a briefing schedule described in this section, including the within 30 days of the Board decision if within seven days after the screening authority to issue a precedential the alien is not detained and within 15 panel completes its review. The case decision and the authority to refer the days of the Board decision if the alien shall be assigned to a single Board case to the Attorney General for review, is detained; member for merits review under either on his own or at the direction of (ii) In the order of certification, paragraph (e)(3) of this section within the Attorney General. The Director may specify the regulatory basis for the seven days of the completion of the not further delegate this authority. For certification and summarize the record on appeal, including any briefs purposes of this paragraph (e)(8)(v), the underlying procedural, factual, or legal or motions. The single Board member following categories of cases pending basis; and shall then determine whether to adjudication by the Board more than (iii) Provide notice of the certification adjudicate the appeal or to designate the 335 days after the appeal was filed, the to both parties. case for decision by a three-member motion was filed, or the remand was (3) For a case certified to the Director panel under paragraphs (e)(5) and (6) of received will not be referred by the under this paragraph (k), the Director this section within 14 days of being Chairman to the Director: shall exercise delegated authority from assigned the case. The single Board the Attorney General identical to that of member or three-member panel to (A) Cases subject to a hold under the Board as described in this section, which the case is assigned shall issue a paragraph (d)(6)(ii) of this section; except as otherwise provided in this decision on the merits consistent with (B) Cases subject to an extension paragraph (k), including the authority to this section and with a priority for cases under paragraph (e)(8)(ii) of this section; request briefing or additional filings or custody appeals involving detained (C) Cases subject to a hold under from the parties at the sole discretion of aliens. paragraph (e)(8)(iii) of this section; the Director, the authority to issue a (i) Except in exigent circumstances as (D) Cases whose adjudication has precedent decision, and the authority to determined by the Chairman, subject to refer the case to the Attorney General for concurrence by the Director, or as been deferred by the Director pursuant to § 1003.0(b)(1)(ii); review, either on the Director’s own or provided in paragraph (d)(6) of this at the direction of the Attorney General. section or as provided in §§ 1003.6(c) (E) Cases remanded by the Director For a case certified to the Director under and 1003.19(i), the Board shall dispose under paragraph (k) of this section in this paragraph (k), the Director may of all cases assigned to a single Board which 335 days have elapsed following dismiss the certification and return the member within 90 days of completion of the remand; and, case to the immigration judge or the the record, or within 180 days of (F) Cases that have been Director may remand the case back to completion of the record for all cases administratively closed prior to the the Board for further proceedings. In a assigned to a three-member panel elapse of 335 days after the appeal was case certified to the Director under this (including any additional opinion by a filed pursuant to a regulation paragraph (k), the Director may not member of the panel). promulgated by the Department of issue an order of removal, grant a * * * * * Justice or a previous judicially approved request for voluntary departure, or grant (iii) In rare circumstances, when an settlement that expressly authorizes or deny an application for relief or impending decision by the United such an action and the administrative protection from removal.

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(4) The quality assurance certification the Act or in proceedings initiated opposition to an appeal from a decision process shall not be used as a basis pursuant to § 1208.2(c) of this chapter. of a DHS officer shall be filed directly solely to express disapproval of or * * * * * with DHS in accordance with the disagreement with the outcome of a ■ 4. Amend § 1003.3 by revising instructions in the decision of the DHS Board decision unless that decision is paragraphs (a)(2) and (c)(1) and (2) to officer. The applicant or petitioner and alleged to reflect an error described in read as follows: DHS shall be provided 21 days in which paragraph (k)(1) of this section. to file a brief, unless a shorter period is ■ 3. Amend § 1003.2 by: § 1003.3 Notice of appeal. specified by the DHS officer from whose ■ a. In paragraph (a), revising the first (a) * * * decision the appeal is taken, and reply sentence and adding a sentence (2) Appeal from decision of a DHS briefs shall be permitted only by leave following the first sentence; officer. A party affected by a decision of of the Board and only if filed within 14 ■ b. Revising paragraph (b)(1); a DHS officer that may be appealed to days of the deadline for the initial ■ c. Removing the word ‘‘or’’ in the Board under this chapter shall be briefs. Upon written request of the alien paragraph (c)(3)(iii); given notice of the opportunity to file an and a maximum of one time per case, ■ appeal. An appeal from a decision of a d. Removing the period at the end of the DHS officer from whose decision the DHS officer shall be taken by filing a paragraph (c)(3)(iv) and adding a appeal is taken or the Board may extend Notice of Appeal to the Board of semicolon in its place; the period for filing a brief for up to 14 ■ e. Adding paragraph (c)(3)(v), (vi), and Immigration Appeals from a Decision of a DHS Officer (Form EOIR–29) directly days for good cause shown. After the (vii); and forwarding of the record on appeal by ■ with DHS in accordance with the f. Removing paragraph (c)(4). the DHS officer the Board may, solely in The revision and additions read as instructions in the decision of the DHS its discretion, authorize the filing of follows: officer within 30 days of the service of the decision being appealed. An appeal supplemental briefs directly with the § 1003.2 Reopening or reconsideration is not properly filed until it is received Board and may provide the parties up before the Board of Immigration Appeals. at the appropriate DHS office, together to a maximum of 14 days to (a) General. The Board may at any with all required documents, and the fee simultaneously file such briefs. In its time reopen or reconsider a case in provisions of § 1003.8 are satisfied. discretion, the Board may consider a which it has rendered a decision on its * * * * * brief that has been filed out of time. All own motion solely in order to correct a (c) * * * briefs and other documents filed in ministerial mistake or typographical (1) Appeal from decision of an conjunction with an appeal, unless filed error in that decision or to reissue the immigration judge. Briefs in support of by an alien directly with a DHS office, decision to correct a defect in service. In or in opposition to an appeal from a shall include proof of service on the all other cases, the Board may only decision of an immigration judge shall opposing party. reopen or reconsider any case in which be filed directly with the Board. In those * * * * * it has rendered a decision solely cases that are transcribed, the briefing ■ pursuant to a motion filed by one or schedule shall be set by the Board after 5. Revise § 1003.5 to read as follows: both parties. * * * the transcript is available. In all cases, § 1003.5 Forwarding of record on appeal. (b) * * * the parties shall be provided 21 days in (1) A motion to reconsider shall state which to file simultaneous briefs unless (a) Appeal from decision of an the reasons for the motion by specifying a shorter period is specified by the immigration judge. If an appeal is taken the errors of fact or law in the prior Board. Reply briefs shall be permitted from a decision of an immigration judge, Board decision and shall be supported only by leave of the Board and only if the record of proceeding shall be by pertinent authority. filed within 14 days of the deadline for promptly forwarded to the Board upon * * * * * the initial briefs. The Board, upon the request or the order of the Board, (c) * * * written motion and a maximum of one unless the Board already has access to (3) * * * time per case, may extend the period for the record of proceeding in electronic (v) For which a three-member panel of filing a brief or, if permitted, a reply format. The Director, in consultation the Board agrees that reopening is brief for up to 14 days for good cause with the Chairman and the Chief warranted when the following shown. If an extension is granted, it is Immigration Judge, shall determine the circumstances are present, provided that granted to both parties, and neither most effective and expeditious way to a respondent may file only one motion party may request a further extension. transcribe proceedings before the to reopen pursuant to this paragraph Nothing in this paragraph (c)(1) shall be immigration judges. The Chairman and (c)(3): construed as creating a right to a the Chief Immigration Judge shall take (A) A material change in fact or law briefing extension for any party in any such steps as necessary to reduce the underlying a removability ground or case, and the Board shall not adopt a time required to produce transcripts of grounds specified in section 212 or 237 policy of granting all extension requests those proceedings and to ensure their of the Act that occurred after the entry without individualized consideration of quality. of an administratively final order that good cause. In its discretion, the Board vitiates all grounds of removability may consider a brief that has been filed (b) Appeal from decision of a DHS applicable to the alien; and out of time. In its discretion, the Board officer. If an appeal is taken from a (B) The movant exercised diligence in may request supplemental briefing from decision of a DHS officer, the record of pursuing the motion to reopen; the parties after the expiration of the proceeding shall be forwarded to the (vi) Filed based on specific briefing deadline. All briefs, filings, and Board by the DHS officer promptly upon allegations, supported by evidence, that motions filed in conjunction with an receipt of the briefs of the parties, or the respondent is a United States citizen appeal shall include proof of service on upon expiration of the time allowed for or national; or the opposing party. the submission of such briefs, unless the (vii) Filed by DHS in removal (2) Appeal from decision of a DHS DHS officer reopens and approves the proceedings pursuant to section 240 of officer. Briefs in support of or in petition.

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§ 1003.7 [Amended] limitations set forth in paragraph (b)(1) decision or in which DHS and the alien ■ 6. Amend § 1003.7 by removing of this section shall not apply to a have both appealed an immigration ‘‘Service’’ and ‘‘the Service’’ each place motion to reopen proceedings filed judge’s decision, the Board shall not they appear and adding in their place when each of the following grant voluntary departure under section the acronym ‘‘DHS’’. circumstances is present, provided that 240B of the Act unless: ■ a respondent may file only one motion (i) The alien requested voluntary 7. Amend § 1003.10(b) by: departure under that section before the ■ a. Removing ‘‘governing standards’’ to reopen pursuant to this paragraph (b)(4): immigration judge, the immigration and adding ‘‘governing standards set judge denied the request, and the alien forth in paragraph (d) of this section’’ in (A) A material change in fact or law underlying a removability ground or timely appealed; its place; and (ii) The alien’s notice of appeal ■ b. Adding two sentences at the end of grounds specified in section 212 or 237 of the Act occurred after the entry of an specified that the alien is appealing the the paragraph. immigration judge’s denial of voluntary The additions reads as follows: administratively final order that vitiates all grounds of removability applicable to departure and identified the specific § 1003.10 Immigration judges. the alien; and factual and legal findings that the alien * * * * * (B) The movant exercised diligence in is challenging; (b) * * * Nothing in this paragraph pursuing the motion to reopen. (iii) The Board finds that the (b) nor in any regulation contained in (vi) Asserted United States citizenship immigration judge’s decision was in part 1240 of this chapter shall be or nationality. The time limitations set error; and (iv) The Board finds that the alien construed as authorizing an immigration forth in paragraph (b)(1) of this section meets all applicable statutory and judge to administratively close or shall not apply to a motion to reopen regulatory criteria for voluntary otherwise defer adjudication of a case proceedings filed based on specific allegations, supported by evidence, that departure under that section. unless a regulation promulgated by the (3) In cases in which DHS has the respondent is a United States citizen Department of Justice or a previous appealed an immigration judge’s or national. judicially approved settlement expressly decision, the Board shall not grant authorizes such an action. Only the PART 1240—PROCEEDINGS TO voluntary departure under section 240B Director or Chief Immigration Judge may of the Act unless: direct the deferral of adjudication of any DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES (i) The alien requested voluntary case or cases by an immigration judge. departure under that section before the * * * * * ■ 9. The authority citation for part 1240 immigration judge and provided ■ 8. Amend § 1003.23 by: continues to read as follows: evidence or a proffer of evidence in ■ a. In paragraph (b)(1) introductory support of the alien’s request; Authority: 8 U.S.C. 1103, 1158, 1182, (ii) The immigration judge either text: 1186a, 1186b, 1225, 1226, 1227, 1228, 1229a, ■ i. Revising the first sentence and 1229b, 1229c, 1252 note, 1361, 1362; secs. granted the request or did not rule on it; adding a sentence following the first 202 and 203, Pub. L. 105–100 (111 Stat. 2160, and, sentence; and 2193); sec. 902, Pub. L. 105–277 (112 Stat. (iii) The Board finds that the alien ■ ii. Removing ‘‘this paragraph’’ and 2681). meets all applicable statutory and adding ‘‘this paragraph (b)(1)’’ in its ■ 10. Amend § 1240.26 by: regulatory criteria for voluntary place; ■ a. Redesignating paragraph (j) as departure under that section. ■ b. Adding paragraphs (b)(4)(v) and paragraph (l); (4) The Board may impose such (vi). ■ b. Adding a new reserved paragraph conditions as it deems necessary to The revision and additions read as (j); and ensure the alien’s timely departure from follows: ■ c. Adding paragraph (k). the United States, if supported by the The addition reads as follows: record on appeal and within the scope § 1003.23 Reopening or reconsideration of the Board’s authority on appeal. before the Immigration Court. § 1240.26 Voluntary departure—authority Unless otherwise indicated in this * * * * * of the Executive Office for Immigration section, the Board shall advise the alien (b) * * * Review. in writing of the conditions set by the (1) In general. Unless jurisdiction is * * * * * Board, consistent with the conditions vested with the Board of Immigration (k) Authority of the Board to grant set forth in paragraphs (b), (c), (d), (e), Appeals, an immigration judge may at voluntary departure in the first instance. (h), and (i) of this section (other than any time reopen a case in which he or The following procedures apply to any paragraph (c)(3)(ii) of this section), she has rendered a decision on his or request for voluntary departure except that the Board shall advise the her own motion solely in order to reviewed by the Board: alien of the duty to post the bond with correct a ministerial mistake or (1) The Board shall not remand a case the ICE Field Office Director within 10 typographical error in that decision or to to an immigration judge to reconsider a business days of the Board’s order reissue the decision to correct a defect request for voluntary departure. If the granting voluntary departure if that in service. Unless jurisdiction is vested Board first finds that an immigration order was served by mail and shall with the Board of Immigration Appeals, judge incorrectly denied an alien’s advise the alien of the duty to post the in all other cases, an immigration judge request for voluntary departure or failed bond with the ICE Field Office Director may only reopen or reconsider any case to provide appropriate advisals, the within five business days of the Board’s in which he or she has rendered a Board shall consider the alien’s request order granting voluntary departure if decision solely pursuant to a motion for voluntary departure de novo and, if that order was served electronically. If filed by one or both parties. * * * warranted, may enter its own order of documentation sufficient to assure * * * * * voluntary departure with an alternate lawful entry into the country to which (4) * * * order of removal. the alien is departing is not contained (v) Exceptions to time and numerical (2) In cases which an alien has in the record, but the alien continues to limitations. The time and numerical appealed an immigration judge’s assert a request for voluntary departure

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under section 240B of the Act and the alien may accept or decline the grant of for review of the Board’s decision. The Board finds that the alien is otherwise voluntary departure and may manifest alien may decline voluntary departure if eligible for voluntary departure under his or her declination either by written he or she is unwilling to accept the the Act, the Board may grant voluntary notice to the Board within five days of amount of the bond or other conditions. departure for a period not to exceed 120 receipt of its decision, by failing to * * * * * days, subject to the condition that the timely post any required bond, or by alien within 60 days must secure such otherwise failing to comply with the James R. McHenry III, documentation and present it to DHS Board’s order. The grant of voluntary Director, Executive Office for Immigration and the Board. If the Board imposes departure shall automatically terminate Review, Department of Justice. conditions beyond those specifically upon a filing by the alien of a motion [FR Doc. 2020–27008 Filed 12–11–20; 8:45 am] enumerated, the Board shall advise the to reopen or reconsider the Board’s BILLING CODE 4410–30–P alien in writing of such conditions. The decision, or by filing a timely petition

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