Chief, Immigration Law Division, Office of Policy

1125-AB18 202310 The Regulatory Plan and the Unified Agenda of Federal Regulatory and Deregulatory Actions 1125 Executive Office for Immigration Review EOIR 1100 Department of Justice DOJ Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure

On December 16, 2020, by a rule titled Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure (RIN 1125-AA96) the Department of Justice (Department) amended its regulations regarding finality of case disposition at both the immigration court and appellate levels. The Department is planning to modify or rescind those regulations and to clarify the authority of immigration judges and the Board of Immigration Appeals (BIA) to administratively close, terminate, dismiss, and sua sponte reopen and reconsider a case.

]]> Other Significant Previously Published in The Unified Agenda Proposed Rule Stage No No 8 CFR 1003 8 CFR 1239 8 CFR 1240 ... 5 U.S.C. 301 6 U.S.C. 521 8 U.S.C. 1101 8 U.S.C. 1103 8 U.S.C. 1154-1155 8 U.S.C. 1158 8 U.S.C. 1182 8 U.S.C. 1226 8 U.S.C. 1229 8 U.S.C. 1229a 8 U.S.C. 1229b 8 U.S.C. 1229c 8 U.S.C. 1231 8 U.S.C. 1254a 8 U.S.C. 1255 8 U.S.C. 1324d 8 U.S.C. 1330 8 U.S.C. 1361-1362 28 U.S.C. 509-510 28 U.S.C. 1746 sec. 2 Reorg. Plan No. 2 of 1950, 3 CFR 1949–1953, Comp. p. 1002 sec. 203 of Pub. L. 105–100, 111 Stat. 2196–200 secs. 1506 and 1510 of Pub. L. 106–386, 114 Stat. 1527–29, 1531–32 sec. 1505 of Pub. L. 106–554, 114 Stat. 2763A–326 to –328 Yes

On December 16, 2020, the Department amended the regulations related to processing of appeals and EOIR adjudicator authority to administratively close cases. Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 FR 81588 (RIN 1125-AA96). The Department has reconsidered its position on those matters and proposed to revise the regulations accordingly and make other related amendments. This proposed rule will clarify immigration judge and the Board authority, including clarifying general authority to administratively close, terminate, or dismiss a case under certain circumstances and the authority to sua sponte reopen and reconsider cases. The proposed rule also revises Board of Immigration Appeals standards involving adjudication timelines, briefing schedules, self-certification, remands, background checks, administrative notice, and voluntary departure. Moreover, the proposed rule rescinds the EOIR Director’s authority to issue decisions in certain cases, rescinds procedures for immigration judges to certify cases for quality assurance, and revises procedures for background checks, remand procedures for adjudication of voluntary departure, and for the forwarding of the record on appeal, as well as other minor revisions. The Department believes that this proposed rule is needed to provide guidance to EOIR adjudicators about the necessary or appropriate exercise of their general authorities to promote fairness and efficiency in proceedings.

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The Attorney General has general authority under 8 U.S.C. 1103(g) to establish regulations related to the immigration and naturalization of noncitizens. Thus, this proposed rule utilizes such authority to propose revisions to the regulations regarding administrative determinations in immigration proceedings and the authorities of EOIR adjudicators.

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The December 2020 rule, 85 FR 81588 (Dec. 16, 2020), was enjoined nationwide in March 2021. Nat’l Immigrant Just. Ctr. et al., v. EOIR et al., 21-CV-0056 (D.D.C. Jan 14, 2021). Unless the Department relies on litigation, there are no feasible alternatives to revising the regulations. Relying on litigation could be extremely time consuming and may introduce confusion as to whether the regulation is in effect. Thus, the Department considers this alternative to be an inadequate and inadvisable course of action.

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The Department is largely reinstating the briefing schedules and other appellate procedures that the December 2020 rule revised. As stated in the December 2020 rule, 85 FR at 81650, the basic briefing procedures have remained across rules; thus, the Department believes the costs to the public will be negligible, if any, given that costs will revert back to those established for decades prior to the December 2020 rule. The proposed rule imposes no new additional costs, as much of the proposed rule involves internal case processing. For those provisions that constitute more than simple internal case processing measures, such as the amendments to the EOIR adjudicator’s administrative closure and termination authority, they likewise would not impose significant costs to the public. Indeed, such measures would generally reduce costs, as they facilitate and reintroduce various mechanisms for fair, efficient case processing

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Without this rulemaking, the regulations will remain enjoined pending litigation (as described in the Alternatives section). This is inadvisable, as litigation typically takes an inordinate time to conclude. The Department strongly prefers proactively addressing the regulations through this proposed rule.

]]> NPRM 09/08/2023 88 FR 62242 NPRM Comment Period End 11/07/2023 Final Action 03/00/2024 Related to EOIR Docket No. 19-0022 No None No http://www.regulations.gov http://www.regulations.gov No No 1125-AA96 Related to Raechel Horowitz Chief, Immigration Law Division, Office of Policy 1125 Executive Office for Immigration Review EOIR 703 305-0289 pao.eoir@usdoj.gov 5107 Leesburg Pike, Suite 1800, Falls Church VA 22041