On July 29, 2024, a new Executive Office of Immigration Review (EOIR) Final Rule, Efficient Case and Docket Management in Immigration Proceedings, went into effect. The rule codifies the authority of immigration judges (IJ) and the Board of Immigration Appeals (BIA) to administratively close and terminate removal proceedings. The new rule can be found in its entirety in the Federal Register available online at https://www.govinfo.gov/content/pkg/FR-2024-05-29/pdf/2024-11121.pdf.

The rule includes three major changes:

(1) Immigration Judges’ Authority to Administratively Close Proceedings;

(2)the authority for an Immigration Judge to terminate proceedings in their discretion and sets forth the factors that should be considered in those circumstances;

(3) Rules for Retroactive Application of Law for Post Conviction Relief;

(4) The Rule Restores Important Procedural Safeguards That the Trump Rule Had Eliminated;

(5) The Rule Gives the BIA Expanded Authority to Grant Voluntary Departure Rather than Remand; and

(6) Changes some language to be more appropriate.

1. Immigration Judges’ Authority to Administratively Close Proceedings

The Final Rule codifies IJs’ and the BIA’s administrative closure authority and provides a list of factors for deciding whether to administratively close a case or recalendar a previously administratively closed case. 8 CFR §§ 1003.18(c); 1003.1(l). The rule generally mandates administrative closure if based on a joint motion or a motion led by one party where the other party “has affirmatively indicated its non-opposition.” 8 CFR §§ 1003.18(c)(3); 1003.1(l)(3). In all other situations, the IJs and the BIA may grant administrative closure or
recalendar a case if they deem it warranted, even if a party opposes. However, IJs and the BIA must consider the “totality of the circumstances” including the following non-exclusive factor

(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 led 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;
(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; and
(H) The ICE detention status of the noncitizen.”

Codified at 8 CFR §§ 1003.18(c)(3)(i); 1003.1(l)(3)(i).

The regulation also species that a noncitizen does not need to have an action pending outside of EOIR proceedings to present an appropriate case for administrative closure. 8 CFR §§ 1003.18(c)(3); 1003.1(l)(3). The Final Rule is nearly identical to identical to the proposed rule, with the addition of the noncitizen’s
ICE detention status as an administrative closure factor. Many of the factors listed in the rule are similar to those previously outlined in leading BIA administrative closure cases, see Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012); Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), but motions for administrative closure filed now should be sure to cite to the new regulation.

The Board’s holding in Matter of W–Y–U– that ‘‘the primary consideration . . . in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits,’’ id., is inconsistent with the unweighted, ‘‘totality-of-the-circumstances’’ standard implemented by this rule, Matter of W–Y–U–, 27 I&N Dec. 17, is superseded.”). See 89 Fed. Reg. at 46753.

2. Codifying Immigration Judges’ Authority to Terminate Proceedings in Their Discretion

8 CFR § 1239.2(b) ORDERING TERMINATION OR DISMISSAL

(b) Ordering termination or dismissal. After commencement of proceedings, an immigration judge or Board member shall have authority to resolve or dispose of a case through an order of dismissal or an order of termination. An immigration judge or Board member may enter an order of dismissal in cases where DHS moves for dismissal pursuant to paragraph (c) of this section. A motion to dismiss removal proceedings for a reason other than those authorized by paragraph (c) of this section shall be deemed a motion to terminate and adjudicated pursuant to 8 CFR 1003.1(m), pertaining to cases before the Board, or 8 CFR 1003.18(d), pertaining to cases before the immigration court, as applicable.

8 CFR 1003.1(m) TERMINATION

Mandatory Termination

Under the mandatory termination category, IJs and the BIA are required to terminate proceedings if any of the below circumstances are present:

▹ The removal charge(s) cannot be sustained;
▹ Termination is otherwise required by law;
▹ Fundamentally fair proceedings are not possible because the noncitizen is mentally
incompetent and adequate safeguards are unavailable;
▹ The noncitizen obtained U.S. citizenship after removal proceedings started;
▹ The noncitizen has obtained one of the following statuses and would not have been
removable as charged if they had obtained such status before the initiation of
proceedings: LPR status, refugee status, asylee status, U nonimmigrant status, T
nonimmigrant status, or S nonimmigrant status;
▹ The noncitizen meets the regulatory standard for termination after NACARA
adjustment, see 8 CFR § 1245.13(l); or
▹ The parties led a joint motion to terminate, or “one party led a motion to terminate and the other party affirmatively indicated its non-opposition, unless the [IJ] articulates unusual, clearly identified, and supported reasons for denying the motion.”

Codified at 8 CFR §§ 1003.18(d)(1)(i); 1003.1(m)(1)(i).

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.

NOTE RELATING TO U VISAS: The rule contains several discretionary termination provisions that cross reference and incorporate other termination regulations, the Final Rule eliminated a ground included in the proposed rule for discretionary termination related to U and T visas, reasoning that including those grounds would be superfluous and potentially confusing. 89 Fed. Reg. at 46776.

3. Handling of State Court Modification Orders

8 CFR § 1003.55

Matter of Thomas & Thompson, 27 I&N Dec. 674 (A.G. 2019) is an Attorney General decision that came down during the Trump administration, ruling that State Court sentence Modification Orders would only be given effect for immigration purposes if the order was based on a procedural or substantive defect in the underlying criminal proceeding and orders issued for rehabilitation or other purposes would not be recognized. Prior to Matter of Thomas & Thompson, the Board had held that State Court Sentence Modification Orders should generally be given full faith and credit regardless of the reason for the modification. See Matter of Cota-Vargas, 23 I&N Dec. 849 (BIA 2005); Matter of Song, 23 I&N Dec. 173 (BIA 2001); see also Matter of H. Estrada, 26 I&N Dec. 749 (BIA 2016).

The Final Rule states that Matter of Thomas & Thompson shall not apply to a criminal sentence if:

▹The Court granted a request to modify the sentence at any time, and that request was filed on or before October 25, 2019; or

▹The noncitizen demonstrates that they “reasonably and detrimentally relied” on the availability of a sentence modification order entered in connection with a guilty plea, conviction, or sentence on or before October 25, 2019.

The Final Rule also provides that IJs and the BIA should give effect to orders that “correct[] a genuine ambiguity, mistake, or typographical error on the face of the original conviction or sentencing order and that [were] entered to give effect to the intent of the original order.” See 8 CFR § 1003.55(b).

4. The Rule Restores Important Procedural Safeguards That the Trump Rule Had Eliminated

Many provisions of the Final Rule restore regulations to their pre-January-2021 state, thus maintaining the status quo established since the Trump rule was enjoined in March 2021. Key provisions falling in this category include:

▹ Restoration of IJs and the BIA’s sua sponte reopening authority, which the Trump rule had eliminated. 8 CFR §§ 1003.23(b)(1), 1003.2(a).

▹ Restoration of robust BIA remand authority for additional IJ fact-finding, including recognition of motions to remand led while a BIA appeal is pending, and again limiting the situations when the BIA can take administrative notice of a fact not found by the IJ. 8 CFR §§ 1003.2(b)(1), 1003.2(c)(4), 1003.1(d)(3)(iv).

▹ Reinstating consecutive, rather than simultaneous, BIA briefing schedules in non-detained cases. 8 CFR § 1003.3(c)(1). In detained cases, BIA briefing continues to be simultaneous under the rule, which also species that a reply brief can be led only with the leave from the BIA, within 21 days of the initial briefs’ deadline.

▹The Final Rule also restores the BIA’s authority to extend the briefing deadline upon written motion establishing good cause for up to 90 days (the Trump rule would have created a 14-day maximum extension period). The rule retains language from the Trump rule recognizing that the BIA “may request supplemental briefing from the parties after the expiration of the briefing deadline.” Id.

▹ Eliminating the Trump rule provision that allowed IJs to certify cases remanded from the BIA to the EOIR Director for further review, former 8 CFR § 1003.1(k), as well as other Trump rule provisions that would have allowed the EOIR Director to interfere in cases being handled by BIA members, former 8 CFR § 1003.1(e)(8)(v).

5. The Rule Gives the BIA Expanded Authority to Grant Voluntary Departure Rather than Remand

The Final Rule largely retains a provision from the Trump rule that species circumstances when the BIA can grant a noncitizen voluntary departure during an appeal, rather than remanding the case for the IJ to grant voluntary departure. 8 CFR §§ 1240.26(k); 1003.1(d)(7)(ii). Among other requirements, the noncitizen must have requested voluntary departure before the IJ and must specify in the notice of appeal that they are appealing the voluntary departure denial.

6. Changes some language to be more appropriate.

The Final Rule creates new definition for “noncitizen” and “unaccompanied child” and replaces the terms “alien” and “unaccompanied alien child” with the new terms throughout. 8 CFR § 1001.1(gg)-(hh). The Final Rule also replaces gendered language like “his or her” with gender neutral language