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DOJ/EOIR RIN: 1125-AB18 Publication ID: Fall 2023 
Title: 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.

Agency: Department of Justice(DOJ)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: No  Unfunded Mandates: No 
CFR Citation: 8 CFR 1003    8 CFR 1239    8 CFR 1240    ...     (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: 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   
Legal Deadline:  None

Statement of Need:

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.

Summary of the Legal Basis:

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.


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.

Anticipated Costs and Benefits:

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


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.

Action Date FR Cite
NPRM  09/08/2023  88 FR 62242   
NPRM Comment Period End  11/07/2023 
Final Action  03/00/2024 
Additional Information: Related to EOIR Docket No. 19-0022
Regulatory Flexibility Analysis Required: No  Government Levels Affected: None 
Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Information URL:   Public Comment URL:  
RIN Data Printed in the FR: No 
Related RINs: Related to 1125-AA96 
Agency Contact:
Raechel Horowitz
Chief, Immigration Law Division, Office of Policy
Department of Justice
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 1800,
Falls Church, VA 22041
Phone:703 305-0289