On May 29, 2024 the Executive Office for Immigration Review published a final rule titled “Efficient Case and Docket Management in Immigration Proceedings.” The rule makes important changes to the management of immigration cases in court and will be final on July 29, 2024.
Some of the notable changes include:
- Amending regulations to give “noncitizen” the same meaning as “alien”
- Explicitly giving immigration judges and the members of the Board of Immigration Appeals (BIA) authority to order “administrative closure, termination of proceedings, and dismissal of proceedings.”
- Setting out the procedures for review of appeals at the BIA
- Articulating the authority for immigration judges and the BIA to administratively close cases and the standards for closing and recalendaring cases, and similarly the authority to terminate cases
Changes to administrative closure
Administrative closure is a way for immigration judges and the BIA to close a case without reaching a decision. After being closed, cases can still be recalendared.
The authority of immigration judges and the BIA to administratively close cases has been unclear during the past few years. While it was used in many cases for many years, the BIA changed course under the Trump Administration in Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). This decision was part of an effort to restrict immigration judges and make it more difficult for them to suspend cases, rather than to deport people. That decision was overturned under the Biden Administation in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021). Cruz-Valdez promised to maintain the status quo while regulations were promulgated, and a mere three years later they are finally ready.
New regulations for immigration judges
The new regulations on motions to administratively close and recalendar cases for immigration judges are:
1003.10(b) * * * In deciding the individual cases before them, and subject to the applicable governing standards set forth in paragraph (d) of this section, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is necessary or appropriate for the disposition or alternative resolution of such cases. Such actions include administrative closure, termination of proceedings, and dismissal of proceedings. The standards for the administrative closure, dismissal, and termination of cases are set forth in § 1003.18(c), 8 CFR 1239.2(c), and § 1003.18(d), respectively. Immigration judges shall administer oaths, receive evidence, and interrogate, examine, and cross-examine noncitizens and any witnesses. * * *
1003.18(c)
Administrative closure and recalendaring.
Administrative closure is the temporary suspension of a case. Administrative closure removes a case from the immigration court’s active calendar until the case is recalendared. Recalendaring places a case back on the immigration court’s active calendar.
(1) Administrative closure before immigration judges.
An immigration judge may, in the exercise of discretion, administratively close a case upon the motion of a party, after applying the standard set forth at paragraph (c)(3) of this section. The administrative closure authority described in this section is not limited by the authority provided in any other provisions in this title that separately authorize or require administrative closure in certain circumstances, including 8 CFR 214.15(l), 245.15(p)(4), 1214.2(a), 1214.3, 1240.62(b), 1240.70(f) through (h), 1245.13, 1245.15(p)(4)(i), and 1245.21(c).
(2) *** Standard for administrative closure and recalendaring.
An immigration judge shall grant a motion to administratively close or recalendar filed jointly by both parties, or filed by one party where the other party has affirmatively indicated its non-opposition, unless the immigration judge articulates unusual, clearly identified, and supported reasons for denying the motion. In all other cases, in deciding whether to administratively close or to recalendar a case, an immigration judge shall consider the totality of the circumstances, including as many of the factors listed under paragraphs (c)(3)(i) and (ii) of this section as are relevant to the particular case. The immigration judge may also consider other factors where appropriate. No single factor is dispositive. The immigration judge, having considered the totality of the circumstances, may grant a motion to administratively close or to recalendar a particular case over the objection of a party. Although administrative closure may be appropriate where a petition, application, or other action is pending outside of proceedings before the immigration judge, such a pending petition, application, or other action is not required for a case to be administratively closed.
(i) As the circumstances of the case warrant, the factors relevant to a decision to administratively close a case include:
(A) The reason administrative closure is sought;
(B) The basis for any opposition to administrative closure;
(C) Any requirement that a case be administratively closed in order for a petition, application, or other action to be filed with, or granted by, DHS;
(D) The likelihood the noncitizen will succeed on any petition, application, or other action that the noncitizen is pursuing, or that the noncitizen states in writing or on the record at a hearing that they plan to pursue, outside of proceedings before the immigration judge;
(E) The anticipated duration of the administrative closure;
(F) The responsibility of either party, if any, in contributing to any current or anticipated delay;
(G) The ultimate anticipated outcome of the case pending before the immigration judge; and
(H) The ICE detention status of the noncitizen.
https://www.federalregister.gov/d/2024-11121/p-521
New regulations for the BIA to administratively close and recalendar cases
The new regulations on motions to administratively close and recalendar cases for the BIA are:
(3) Standard for administrative closure and recalendaring. The Board shall grant a motion to administratively close or recalendar filed jointly by both parties, or filed by one party where the other party has affirmatively indicated its non-opposition, unless the Board articulates unusual, clearly identified, and supported reasons for denying the motion. In all other cases, in deciding whether to administratively close or to recalendar a case, the Board shall consider the totality of the circumstances, including as many of the factors listed under paragraphs (l)(3)(i) and (ii) of this section as are relevant to the particular case. The Board may also consider other factors where appropriate. No single factor is dispositive. The Board, having considered the totality of the circumstances, may grant a motion to administratively close or to recalendar a particular case over the objection of a party. Although administrative closure may be appropriate where a petition, application, or other action is pending outside of proceedings before the Board, such a pending petition, application, or other action is not required for a case to be administratively closed.
(i) As the circumstances of the case warrant, the factors relevant to a decision to administratively close a case include:
(A) The reason administrative closure is sought;
(B) The basis for any opposition to administrative closure;
(C) Any requirement that a case be administratively closed in order for a petition, application, or other action to be filed with, or granted by, DHS;
(D) The likelihood the noncitizen will succeed on any petition, application, or other action that the noncitizen is pursuing, or that the noncitizen states in writing or on the record at a hearing that they plan to pursue, outside of proceedings before the Board;
(E) The anticipated duration of the administrative closure;
(F) The responsibility of either party, if any, in contributing to any current or anticipated delay;
(G) The ultimate anticipated outcome of the case pending before the Board; and
(H) The ICE detention status of the noncitizen.
https://www.federalregister.gov/d/2024-11121/p-455
Significance of the changes to administrative closure
Some of the changes here are noteworthy. The rule requires granting joint and unopposed motions absent “unusual” reasons for not doing so. For other motions, immigration judges and the Board will consider the “totality of the circumstances” using the listed factors, but it may also consider other factors not listed. They may also grant a motion even over the opposition of the government or the noncitizen.
The rule is clear that it is not necessary to show any petition or application is pending with USCIS or otherwise in order to close a case. The factors suggest that closure will be used for cases like I-601A waiver applications, which cannot proceed otherwise. They will be evaluating the likelihood of success on those petitions or applications, suggesting that supporting evidence will be required. All things considered, the factors provide a large degree of flexibility for immigration judges and the BIA to close many cases for a variety of reasons.
Motions to terminate
The rule also provides clear guidance on the authority of immigration judges and the BIA to terminate cases. Termination is different from administrative closure because the case is complete and without any opportunity to recalendar. The new rule would add the following regulations for immigration judges and the BIA respectively.
New regulations on motions to terminate for immigration judges
The new regulations providing authority for immigration judges to terminate proceedings are:
1003.18(d) Termination.
Immigration judges shall have the authority to terminate cases before them as set forth in paragraphs (d)(1) and (2) of this section. A motion to dismiss a case in removal proceedings before an immigration
judge for a reason other than authorized by 8 CFR 1239.2(c) shall be deemed a motion to terminate under paragraph (d)(1) of this section.
(1) Removal, deportation, and exclusion proceedings
—(i) Mandatory termination.
In removal, deportation, and exclusion proceedings, immigration judges shall terminate the case where at least one of the requirements in paragraphs (d)(1)(i)(A) through (G) of this section is met.
(A) No charge of deportability, inadmissibility, or excludability can be sustained.
(B) Fundamentally fair proceedings are not possible because the noncitizen is mentally incompetent and adequate safeguards are unavailable.
(C) The noncitizen has, since the initiation of proceedings, obtained United States citizenship.
(D) The noncitizen has, since the initiation of proceedings, obtained at least one status listed in paragraphs (d)(1)(i)(D)(1) through (
4) of this section, provided that the status has not been revoked or terminated, and the noncitizen would not have been deportable, inadmissible, or excludable as charged if the noncitizen had obtained such status before the initiation of proceedings.
(1) Lawful permanent resident status.
(2) Refugee status.
(3) Asylee status.
(4) Nonimmigrant status as defined in section 101(a)(15)(S), (T), or (U) of the Act.
(E) Termination is required under 8 CFR 1245.13(l).
(F) Termination is otherwise required by law.
(G) The parties jointly filed a motion to terminate, or one party filed a motion to terminate and the other party affirmatively indicated its non-opposition, unless the immigration judge articulates unusual, clearly identified, and supported reasons for denying the motion.
(ii) Discretionary termination.
In removal, deportation, or exclusion proceedings, immigration judges may, in the exercise of discretion, terminate the case upon the motion of a party where at least one of the requirements listed in paragraphs (d)(1)(ii)(A) through (F) of this section is met. The immigration judge shall consider the reason termination is sought and the basis for any opposition to termination when adjudicating the motion to terminate.
(A) The noncitizen has filed an asylum application with USCIS pursuant to section 208(b)(3)(C) of the Act pertaining to unaccompanied children, as defined in 8 CFR 1001.1(hh).
(B) The noncitizen is prima facie eligible for naturalization, relief from removal, or lawful status; USCIS has jurisdiction to adjudicate the associated petition, application, or other action if the noncitizen were not in proceedings; and the noncitizen has filed the petition, application, or other action with USCIS. However, no filing is required where the noncitizen is prima facie eligible for adjustment of status or naturalization. Where the basis of a noncitizen’s motion for termination is that the noncitizen is prima facie eligible for naturalization, the immigration judge shall not grant the motion if it is opposed by DHS. Immigration judges shall not terminate a case for the noncitizen to pursue an asylum application before USCIS, except as provided for in paragraph (d)(1)(ii)(A) of this section.
(C) The noncitizen is a beneficiary of Temporary Protected Status, deferred action, or Deferred Enforced Departure.
(D) USCIS has granted the noncitizen’s application for a provisional unlawful presence waiver pursuant to 8 CFR 212.7(e).
(E) Termination is authorized by 8 CFR 1216.4(a)(6) or 1238.1(e).
(F) Due to circumstances comparable to those described in paragraphs (d)(1)(ii)(A) through (E) of this section, termination is similarly necessary or appropriate for the disposition or alternative resolution of the case. However, immigration judges may not terminate a case for purely humanitarian reasons, unless DHS expressly consents to such termination, joins in a motion to terminate, or affirmatively indicates its non-opposition to a noncitizen’s motion.
(2) Other proceedings
—(i) Mandatory termination.
In proceedings other than removal, deportation, or exclusion proceedings, immigration judges shall terminate the case where the parties have jointly filed a motion to terminate, or one party has filed a motion to terminate and the other party has affirmatively indicated its non-opposition, unless the immigration judge articulates unusual, clearly identified, and supported reasons for denying the motion. In addition, immigration judges shall terminate such a case where required by law.
(ii) Discretionary termination.
In proceedings other than removal, deportation, or exclusion proceedings, immigration judges may, in the exercise of discretion, terminate the case upon the motion of a party where terminating the case is necessary or appropriate for the disposition or alternative resolution of the case. However, immigration judges may not terminate a case for purely humanitarian reasons, unless DHS expressly consents to such termination, joins in a motion to terminate, or affirmatively indicates its non-opposition to a noncitizen’s motion.
(iii) Limitation on termination.
Nothing in paragraphs (d)(2)(i) and (ii) of this section authorizes immigration judges to terminate a case where prohibited by another regulatory provision. Further, nothing in paragraphs (d)(2)(i) and (ii) of this section authorizes the immigration judge to terminate a case for the noncitizen to pursue an asylum application before USCIS, unless the noncitizen has filed an asylum application with USCIS pursuant to section 208(b)(3)(C) of the Act pertaining to unaccompanied children, as defined in 8 CFR 1001.1(hh).
https://www.federalregister.gov/d/2024-11121/p-543
New regulations on motions to terminate for the BIA
The new regulations providing authority for the BIA to terminate proceedings are:
(m) Termination. The Board shall have the authority to terminate cases before it as set forth in paragraphs (m)(1) and (2) of this section. A motion to dismiss a case in removal proceedings before the Board for a reason other than authorized by 8 CFR 1239.2(c) shall be deemed a motion to terminate under paragraph (m)(1) of this section.
(1) Removal, deportation, and exclusion proceedings —(i) Mandatory termination. In removal, deportation, and exclusion proceedings, the Board shall terminate the case where at least one of the requirements in paragraphs (m)(1)(i)(A) through (G) of this section is met.
(A) No charge of deportability, inadmissibility, or excludability can be sustained.
(B) Fundamentally fair proceedings are not possible because the noncitizen is mentally incompetent and adequate safeguards are unavailable.
(C) The noncitizen has, since the initiation of proceedings, obtained United States citizenship.
(D) The noncitizen has, since the initiation of proceedings, obtained at least one status listed in paragraphs (m)(1)(i)(D)( 1) through ( 4) of this section, provided that the status has not been revoked or terminated, and the noncitizen would not have been deportable, inadmissible, or excludable as charged if the noncitizen had obtained such status before the initiation of proceedings.
( 1) Lawful permanent resident status.
( 2) Refugee status.
( 3) Asylee status.
( 4) Nonimmigrant status as defined in section 101(a)(15)(S), (T), or (U) of the Act.
(E) Termination is required under 8 CFR 1245.13(l).
(F) Termination is otherwise required by law.
(G) The parties jointly filed a motion to terminate, or one party filed a motion to terminate and the other party affirmatively indicated its non-opposition, unless the Board articulates unusual, clearly identified, and supported reasons for denying the motion.
(ii) Discretionary termination. In removal, deportation, or exclusion proceedings, the Board may, in the exercise of discretion, terminate the case upon the motion of a party where at least one of the requirements listed in paragraphs (m)(1)(ii)(A) through (F) of this section is met. The Board shall consider the reason termination is sought and the basis for any opposition to termination when adjudicating the motion to terminate.
(A) The noncitizen has filed an asylum application with USCIS pursuant to section 208(b)(3)(C) of the Act pertaining to unaccompanied children, as defined in 8 CFR 1001.1(hh).
(B) The noncitizen is prima facie eligible for naturalization, relief from removal, or a lawful status; USCIS has jurisdiction to adjudicate the associated petition, application, or other action if the noncitizen were not in proceedings; and the noncitizen has filed the petition, application, or other action with USCIS. However, no filing is required where the noncitizen is prima facie eligible for adjustment of status or naturalization. Where the basis of a noncitizen’s motion for termination is that the noncitizen is prima facie eligible for naturalization, the Board shall not grant the motion if it is opposed by DHS. The Board shall not terminate a case for the noncitizen to pursue an asylum application before USCIS, except as provided for in paragraph (m)(1)(ii)(A) of this section.
(C) The noncitizen is a beneficiary of Temporary Protected Status, deferred action, or Deferred Enforced Departure.
(D) USCIS has granted the noncitizen’s application for a provisional unlawful presence waiver pursuant to 8 CFR 212.7(e).
(E) Termination is authorized by 8 CFR 1216.4(a)(6) or 1238.1(e).
(F) Due to circumstances comparable to those described in paragraphs (m)(1)(ii)(A) through (E) of this section, termination is similarly necessary or appropriate for the disposition or alternative resolution of the case. However, the Board may not terminate a case for purely humanitarian reasons, unless DHS expressly consents to such termination, joins in a motion to terminate, or affirmatively indicates its non-opposition to a noncitizen’s motion.
(2) Other proceedings —(i) Mandatory termination. In proceedings other than removal, deportation, or exclusion proceedings, the Board shall terminate the case where the parties have jointly filed a motion to terminate, or one party has filed a motion to terminate and the other party has affirmatively indicated its non-opposition, unless the Board articulates unusual, clearly identified, and supported reasons for denying the motion. In addition, the Board shall terminate such a case where required by law.
(ii) Discretionary termination. In proceedings other than removal, deportation, or exclusion proceedings, the Board may, in the exercise of discretion, terminate the case upon the motion of a party where terminating the case is necessary or appropriate for the disposition or alternative resolution of the case. However, the Board may not terminate a case for purely humanitarian reasons, unless DHS expressly consents to such termination, joins in a motion to terminate, or affirmatively indicates its non-opposition to a noncitizen’s motion.
https://www.federalregister.gov/d/2024-11121/p-474
Significance of the changes to termination of cases
The rule has some interesting components. It requires immigration judges and the BIA to terminate proceedings if “[f]undamentally fair proceedings are not possible because the noncitizen is mentally incompetent and adequate safeguards are unavailable.” This creates a kind of analogue to protections in criminal proceedings which are absent from immigration law. People who are not competent in proceedings are provided some safeguards, but currently are still required to proceed in court and can be ordered removed. It also must terminate cases where there is a joint motion to terminate or the motion is not opposed.
This rule also provides for discretionary termination in certain cases that have been unclear until now. Unaccompanied children who have filed for asylum with USCIS may now clearly ask for termination. It also allows for termination upon showing a “prima facie” case of eligibility for “naturalization, relief from removal, or a lawful status.” Here, the most likely cases might be people who become eligible for U or T nonimmigrant status or permanent residency through family while immigration court or BIA proceedings are pending.
The rule also makes clear that immigration judges and the Board can dismiss proceedings for noncitizens with approved I-601A provisional unlawful presence waivers. Notably, the rule does not allow them to dismiss proceedings for purely humanitarian reasons unless it is a joint motion or affirmative non-opposition. It will be important to present more than humanitarian reasons for motions to terminate as a result.