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 orrecalendar 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 otheraction that the noncitizen is pursuing, or that the noncitizen states in writing or onthe 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’sICE 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 mentallyincompetent 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 beenremovable as charged if they had obtained such status before the initiation ofproceedings: LPR status, refugee status, asylee status, U nonimmigrant status, Tnonimmigrant status, or S nonimmigrant status;▹ The noncitizen meets the regulatory standard for termination after NACARAadjustment, 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,