Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 81588-81656 [2020-27008]

Download as PDF 81588 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations parts 1003 and 1240 to ensure that cases heard at the BIA are adjudicated in a consistent and timely manner. DEPARTMENT OF JUSTICE Executive Office for Immigration Review B. Authority The Department issued this final rule pursuant to section 1103(g) of the Immigration and Nationality Act (‘‘INA’’ or ‘‘the Act,’’), 8 U.S.C. 1103(g). 8 CFR Parts 1003 and 1240 [Docket No. EOIR 19–0022; Dir. Order No. 05–2021] RIN 1125–AA96 Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure Executive Office for Immigration Review, Department of Justice. ACTION: Final rule. AGENCY: On August 26, 2020, the Department of Justice (‘‘Department’’) published a notice of proposed rulemaking (‘‘NPRM’’ or ‘‘proposed rule’’) that would amend the regulations of the Executive Office for Immigration Review (‘‘EOIR’’) regarding the handling of appeals to the Board of Immigration Appeals (‘‘BIA’’ or ‘‘Board’’). The Department proposed multiple changes to the processing of appeals to ensure the consistency, efficiency, and quality of its adjudications. The Department also proposed to amend the regulations to make clear that there is no freestanding authority of line immigration judges or BIA members to administratively close cases. Finally, the Department proposed to delete inapplicable or unnecessary provisions regarding the forwarding of the record of proceedings on appeal. This final rule responds to comments received in response to the NPRM and adopts the NPRM with minor changes as described below. DATES: This rule is effective on January 15, 2021. FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305–0289. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background khammond on DSKJM1Z7X2PROD with RULES3 A. Proposed Rule On August 26, 2020, the Department published an NPRM that would amend EOIR’s regulations regarding the BIA’s handling of appeals. Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 FR 52491 (Aug. 26, 2020). Through the NPRM, the Department proposed a number of changes to EOIR’s regulations in 8 CFR VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 C. Final Rule Following careful consideration of the public comments received, which are discussed in detail below in section II, the Department has determined to publish the provisions of the proposed rule as final with the following changes as noted below in sections I.C.3, I.C.4, I.C.5, I.C.8, I.C.9, and I.C.11 below. The Department is also clarifying the generally prospective temporal application of the rule.1 The provisions of the rule applicable to appellate procedures and internal case processing at the BIA apply only to appeals filed, motions to reopen or reconsider filed, or cases remanded to the Board by a Federal court on or after the effective date of the final rule. The provisions of the rule related to the restrictions on sua sponte reopening authority are effective for all cases, regardless of posture, on the effective date. The provisions of the rule related to restrictions on the BIA’s certification authority are effective for all cases in which an immigration judge issues a decision on or after the effective date. The provisions of the rule regarding administrative closure are applicable to all cases initiated by a charging document, reopened, or recalendared after the effective date. The rationale provided in the background of the proposed rule remains valid. Accordingly, the major provisions of the final rule are as follows: 1. Briefing Extensions The final rule will reduce the maximum allowable time for an extension of the briefing schedule for good cause shown from 90 days to 14 days. 8 CFR 1003.3(c). Consistent with current BIA policy ‘‘not to grant second briefing extension requests,’’ the rule expressly limits the parties to one possible extension. EOIR, Board of Immigration Appeals Practice Manual, Ch. 4.7(c) (hereinafter BIA Practice Manual) (last updated Oct. 5, 2020). 1 The Department notes that the NPRM confusingly indicated that some changes would apply ‘‘on or after the effective date of publication,’’ 85 FR at 52498 even though the effective date is 30 days after the date of publication. To correct any confusion from that statement and to provide additional clarity, the Department offers a more delineated explanation of the temporal application of this rule herein. PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 2. Simultaneous Briefing The rule adopts simultaneous briefing schedules instead of consecutive briefing schedules for all cases. 8 CFR 1003.3(c). Previously, the BIA used consecutive briefing for cases involving aliens who are not in custody. The rule does not affect the BIA’s ability to permit reply briefs in certain cases, but it does establish a 14-day deadline for their submission. 3. BIA Remands for Identity, Law Enforcement, or Security Investigations or Examinations The rule revises 8 CFR 1003.1(d)(6)(ii) to provide that, when a case before the BIA requires completing or updating identity, law enforcement, or security investigations or examinations in order to complete adjudication of the appeal, the exclusive course of action would be for the BIA to place the case on hold while identity, law enforcement, or security investigations or examinations are being completed or updated, unless DHS reports that identity, law enforcement, or security investigations or examinations are no longer necessary or until DHS does not timely report the results of completed or updated identity, law enforcement, or security investigations or examinations. Additionally, the rule authorizes the BIA to deem an application abandoned when the applicant fails, after being notified by DHS, to comply with the requisite procedures for DHS to complete the identity, law enforcement, or security investigations or examinations within 90 days of the BIA’s notice that the case is being placed on hold for the completion of the identity, law enforcement, or security investigations or examinations. The rule also retains from the NPRM the exception to abandonment when the immigration judge determines that the alien demonstrates good cause for exceeding the 90-day allowance. Upon such a good cause finding, the immigration judge may grant the alien no more than 30 days to comply with the requisite procedures. Following the review of public comments received,2 the final rule makes two changes from the proposed rule on this point. First, this rule contains an additional requirement that, if DHS is unable to independently update any required identity, law enforcement, or security investigations, DHS shall provide a notice to the alien with appropriate instructions, as DHS does before the immigration courts under 8 CFR 1003.47(d), and 2 See section II.C.3.e for a summary and response to the comments received on this topic. E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 simultaneously serve a copy of the notice with the BIA. Second, while the NPRM would have begun the alien’s 90day timeline for compliance with the biometrics update procedures began at the time the Board provided notice to the alien, the final rule aligns the 90-day time period to begin running at the time DHS submits the instructions notice to the alien, if such notice is applicable. The Department agrees with the commenters’ concerns that without these changes, the provisions of the proposed rule could have resulted in situations where the alien may be unable to effectively comply with the biometrics requirements due to possible delays by DHS or lack of sufficient notice. 4. Finality of BIA Decisions and Voluntary Departure Authority In addition, the rule amends 8 CFR 1003.1(d)(7) to provide further guidance regarding the finality of BIA decisions. To begin with, the rule adds a new paragraph (d)(7)(i) to clarify that the BIA has authority to issue final orders when adjudicating an appeal, including final orders of removal when a finding of removability has been made by an immigration judge and an application for protection or relief from removal has been denied; grants of relief or protection from removal; and, orders to terminate or dismiss proceedings. The rule further adds new § 1003.1(d)(7)(ii) to provide instructions for the BIA regarding when the BIA may order a remand, rather than issuing a final order, after applying the appropriate standard of review to an immigration judge’s decision. For example, the rule requires the BIA to first identify the standard of review that was applied and the specific error made by the immigration judge before remanding the proceeding. 8 CFR 1003.1(d)(7)(ii)(A). The final rule has one update from the same paragraph in the proposed rule to include a crossreference to 8 CFR 1003.1(d)(6)(iii), which allows for BIA remands regarding information obtained as a result of the identity, law enforcement, or security investigations or examinations. The Department has included this crossreference to prevent any unintended confusion that the remand procedures and options under 8 CFR 1003.1(d)(7)(ii) are the sole ones for the BIA. Next, the rule adds new paragraph (d)(7)(iii) to 8 CFR 1003.1 to delegate clear authority to the BIA to consider issues relating to the immigration judge’s decision on voluntary departure de novo and, within the scope of the BIA’s review authority on appeal, to issue final decisions on requests for VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 voluntary departure based on the record of proceedings. Additionally, the rule directly states that the BIA may not remand a case to the immigration court solely to consider a request for voluntary departure under section 240B of the Act, 8 U.S.C. 1229c. The final rule makes three additional changes from the NPRM in response to public comments. First, in recognition of the fact that Board orders are generally served by mail—unlike orders of immigration judges which are frequently served in person—the final rule states that aliens will have 10 business days to post a voluntary departure bond if the Board’s order of voluntary departure was served by mail. Further, as the Board is currently transitioning to an electronic filing system and expects to fully deploy that system within the next year, the final rule retains a period of five business days to post a voluntary departure bond if the Board’s order is served electronically. Second, in response to commenters’ concerns about cases in which DHS appeals a separate grant of relief or protection, the Department is making edits from the NPRM to clarify the Board’s procedure in that situation. Although cases in which an alien made multiple applications for relief or protection (including voluntary departure), an immigration judge granted at least one application but did not address the request for voluntary departure, DHS appealed the immigration judge’s decision, the BIA determined that the immigration judge’s decision was in error and that the alien’s application(s) should be denied, and the BIA found a basis to deny all other applications submitted by the respondent without needing to remand the case, leaving only the request for voluntary departure unadjudicated, should be uncommon, the Department nevertheless makes clarifying edits to 8 CFR 1240.26(k)(2) and (3) 3 to indicate that the BIA may grant voluntary departure in cases in which DHS appeals provided that the alien requested voluntary departure from the immigration judge and is otherwise eligible. Third, in response to at least one commenter’s concern regarding the expiration of an alien’s travel documents, the Department is making changes to the final rule to make clear that if the record does not contain 3 The Department also notes that 8 CFR 1240.26(k)(2) and (3) were duplicative in the NPRM and has further edited the provisions to remove the duplication since they apply to both types of voluntary departure under section 240B of the Act, 8 U.S.C 1229c. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 81589 evidence of travel documentation sufficient to assure lawful entry into the country to which the alien is departing—and the alien otherwise has both asserted a request for voluntary departure and established eligibility under the other requirements—the Board may nevertheless grant voluntary for a period not to exceed 120 days, subject to the condition that the alien within 60 days must secure such documentation. This additional provision is consistent with similar authority already contained in 8 CFR 1240.26(b)(3)(ii).4 5. Prohibition on Consideration of New Evidence, Limitations on Motions To Remand, Factfinding by the BIA, and the Standard of Review The rules make several changes to clarify the BIA’s ability to take certain actions in adjudicating an appeal to ensure that appeals are adjudicated in a timely fashion without undue remands and consistent with the applicable law. First, the rule limits the scope of motions to remand that the BIA may consider. Under new paragraph (d)(7)(v) to 8 CFR 1003.1, the BIA is prohibited from receiving new evidence on appeal, remanding a case for the immigration judge to consider new evidence in the course of adjudicating an appeal, or considering a motion to remand based on new evidence. Parties who wish to have new evidence considered in other circumstances may file a motion to reopen in accordance with the standard procedures for such motions, i.e., compliance with the substantive requirements for such a motion at 8 CFR 1003.2(c). These prohibitions have three exceptions for new evidence: (1) The result of identity, law enforcement, or security investigations or examinations, including civil or criminal investigations of immigration fraud; (2) pertaining to a respondent’s removability under the provisions of sections 212 and 237 of the Act, 8 U.S.C. 1182 and 1227; and (3) that calls into question an aspect of the jurisdiction of the immigration courts, such as evidence pertaining to alienage 5 or 4 This provision was, arguably, already incorporated by reference in the NPRM through 8 CFR 1240.26(k)(4) which adopts the provisions of 8 CFR 1240.26(c), (d), (e), (h), and (i) (with one exception) regarding voluntary departure requests before an immigration judge and makes them applicable to requests before the Board. Nevertheless, the Department is specifically incorporating it into the text of the final rule to be applicable to a grant of voluntary departure under either section 240B(a) or 240B(b) of the Act, 8 U.S.C. 1229c(a) or 1229c(b). 5 For example, EOIR has no jurisdiction over United States citizens with respect to removal proceedings; thus, evidence submitted on appeal E:\FR\FM\16DER3.SGM Continued 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81590 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations EOIR’s authority vis-a`-vis DHS regarding an application for immigration benefits.6 Second, the rule clearly delineates the circumstances in which the BIA may engage in factfinding on appeal. 8 CFR 1003.1(d)(3)(iv)(A) and (B). Although the rule maintains the general prohibition on factfinding by the BIA, the rule allows the BIA to take administrative notice of facts that are not reasonably subject to dispute, such as current events, the contents of official documents outside the record, or facts that can be accurately and readily determined from official government sources and whose accuracy is not disputed. If the BIA intends to administratively notice any such fact outside the record that would be the basis for overturning a grant of relief or protection issued by an immigration judge, the BIA must give notice to the parties and an opportunity for them to respond. Third, the rule more clearly delineates the situations in which it is appropriate for the BIA to remand a case for further factfinding. 8 CFR 1003.1(d)(3)(iv)(C) and (D). Specifically, the BIA may not sua sponte remand a case for further factfinding unless doing is necessary to determine whether the immigration judge had jurisdiction. Id. § 1003.1(d)(3)(iv)(C). Further, the BIA may not grant a motion to remand for further factfinding unless the party seeking the remand preserved the issue and previously attempted to provide such information to the immigration judge, the factfinding would alter the case’s outcome and would not be cumulative of other evidence already in the record, and either the immigration judge’s factual findings were clearly erroneous or remand to DHS is warranted. Id. § 1003.1(d)(3)(iv)(D). Nothing in the rule, however, prohibits the BIA from remanding a case based on new evidence or information obtained after the date of the immigration judge’s decision as a result of identity, law enforcement, or security investigations or examinations, including investigations occurring separate from those required by 8 CFR 1003.47. Following review of public comments and in recognition of possible confusion regarding a situation in which additional factfinding would be a necessary adjunct of a remand due to an regarding whether a respondent is a United States citizen may be a basis for a remand in appropriate cases. See Matter of Fuentes-Martinez, 21 I&N Dec. 893, 898 (BIA 1997). 6 As the NPRM noted, there are multiple situations in which a question of EOIR or DHS jurisdiction over an application may arise. See 85 FR at 52500. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 error of law, the final rule clarifies that, subject to other requirements, the Board may remand a case for additional factfinding in cases in which the immigration judge committed an error of law and that error requires additional factfinding on remand. For example, the Board may order additional factfinding on remand if it determines an immigration judge erred as a matter of law by not sufficiently developing the factual record for an alien proceeding without representation. The rule also directly allows the BIA to affirm the decision of the immigration judge or DHS on any basis supported by the record, including a basis supported by facts that are not disputed. Id. § 1003.1(d)(3)(v). Finally, the rule makes clear that the BIA cannot remand a case based solely on the ‘‘totality of the circumstances’’ as such a standard of review has never been contemplated by either the Act or the regulations. Id. § 1003.1(d)(7)(ii)(B). Nonetheless, in light of the confusion evidenced by commenters regarding that point, the Department in the final rule is making clear that the Board cannot remand a case following a totality of the circumstances standard of review, though an immigration judge’s consideration of the totality of the circumstances may be a relevant subject for review under an appropriate standard. 6. Scope of a BIA Remand The rule provides that the BIA may limit the scope of a remand while simultaneously divesting itself of jurisdiction on remand. Id. § 1003.1(d)(7)(iii). Thus, a remand for a limited purpose—e.g., the completion of identity, law enforcement, or security investigations or examinations—would be limited solely to that purpose consistent with the BIA’s intent, and the immigration judge may not consider any issues beyond the scope of the remand. 7. Immigration Judge Quality Assurance Certification of a BIA Decision Additionally, to ensure the quality of BIA decision-making, the rule establishes a procedure for an immigration judge to certify BIA decisions reopening or remanding proceedings for further review by the Director in situations in which the immigration judge alleges that the BIA made an error. Id. § 1003.1(k). The certification process is limited only to cases in which the immigration judge believes the BIA erred in the decision by: (1) A typographical or clerical error affecting the outcome of the case; (2) a holding that is clearly contrary to a provision of the INA, any PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 other immigration law or statute, any applicable regulation, or a published, binding precedent; (3) failing to resolve the basis for appeal, including being vague, ambiguous, internally inconsistent; or, (4) clearly not considering a material factor pertinent to the issue(s) before the immigration judge. Id. § 1003.1(k)(1)(i)–(iv). In addition, in order to certify a BIA decision for review, the immigration judge must: (1) Issue the certification order, (a) within 30 days of the BIA decision if the alien is not detained, and (b) within 15 days of the BIA decision if the alien is detained; (2) specify in the order the regulatory basis for the certification and summarize the underlying procedural, factual, or legal basis; and (3) provide notice of the certification to both parties. Id. § 1003.1(k)(2)(i)–(iii). To ensure a neutral arbiter between the immigration judge and the BIA, the Director will review any such certification orders. Id. § 1003.1(k)(3). In reviewing such orders, the Director’s delegated authority from the Attorney General permits him to dismiss the certification and return the case to the immigration judge or remand the case back to the BIA for further proceedings. The Director may not, however, issue an order of removal, grant a request for voluntary departure, or grant or deny an application for relief or protection from removal. Id. In response to a concern raised by at least one commenter, the final rule will allow the Director, in his or her discretion, to request briefs or filings from the parties when considering a case under this qualitycontrol certification process. This quality assurance certification process is a mechanism to ensure that BIA decisions are accurate and precise—not a mechanism solely to express disagreements with BIA decisions or to lodge objections to particular legal interpretations. Id. § 1003.1(k)(4). 8. Administrative Closure Authority The rule amends 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to make clear that those provisions—and similar provisions in 8 CFR part 1240—provide no freestanding authority for immigration judges or Board members to administratively close immigration cases absent an express regulatory or judicially approved settlement basis to do so. For example, the rule amends 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to provide explicitly, for clarity, that the existing references in those paragraphs to ‘‘governing standards’’ refer to the applicable governing standards as set forth in the existing provisions of E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations §§ 1003.1(d)(1)(i) and 1003.10(d), respectively and do not refer to some more general, free-floating administrative closure authority. The final rule makes non-substantive change to 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) from the proposed rule by inserting the word ‘‘defer’’ in place of the word ‘‘suspend’’ in both paragraphs and by making conforming stylistic changes to ensure that the language is clear that an administrative closure of a case is a type of deferral of adjudication of that case. The Department has made this change to prevent any unintended confusion regarding whether there is a distinction between cases whose adjudication is deferred and those whose adjudication is suspended and to make clear that an administrative closure is not the only type of deferral of adjudication.7 The Department intended no distinctions and is clarifying that point by ensuring that the description of administrative closure as a type of deferral of adjudication is consistent throughout the rule. khammond on DSKJM1Z7X2PROD with RULES3 9. Sua Sponte Authority The rule removes the Attorney General’s previous general delegation of sua sponte authority to the BIA and immigration judges to reopen or reconsider cases and instead limit such sua sponte reopenings only to correct minor mistakes, such as typographical errors or defects in service. 8 CFR 1003.2(a), 1003.23(b)(1).8 These changes do not preclude parties from filing joint motions, including in situations in which there has been a relevant change in facts or law. Moreover, nothing in the rule precludes the ability of a respondent to argue, in an appropriate case, that a time limit is inapplicable due to equitable tolling. In addition, to ensure that aliens whose removability is vitiated in toto prior to the execution of the removal order retain a mechanism for reopening their proceedings, the rule amends the regulations to allow the filing of a motion to reopen, notwithstanding the time and number bars, when an alien claims that an intervening change in law or fact renders the alien no longer removable at all and the alien has 7 Administrative closure is not the only procedural mechanism for deferring adjudication of cases. For instance, EOIR deferred all non-detained removal hearings between March 17, 2020, and June 12, 2020, due to the outbreak of COVID–19 but did not administratively close the cases. 8 The text of 8 CFR 1003.2(a) in the NPRM inadvertently removed the phrase ‘‘or reconsider’’ from the first sentence of that paragraph. This final rule reinserts that phrase to ensure that parties and the BIA are clear that the Board can reconsider a decision sua sponte in order to correct a typographical error or defect in service. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 exercised diligence in pursuing his or her motion.9 Id. §§ 1003.2(c)(3)(v), 1003.23(b)(4)(v). Similarly, the rule amends the regulations to allow the filing of a motion to reopen, notwithstanding the time and number bars, when an individual claims that he or she is a United States citizen or national in recognition that the law provides jurisdiction only in removal proceedings for aliens. See INA 240(a)(1), 8 U.S.C. 1229a(a)(1); see also 8 CFR 1003.2(c)(3)(vi), 1003.23(b)(4)(v). Finally, to address the effects of removal of sua sponte reopening authority on DHS, the rule clarifies that the filing of a motion to reopen with the BIA by DHS in removal proceedings or in proceedings initiated pursuant to 8 CFR 1208.2(c) is not subject to the time and numerical limits applicable to such motions. 8 CFR 1003.2(c)(3)(vii). 10. Certification Authority The rule also withdraws the BIA’s delegated authority to review cases by self-certification, id. § 1003.1(c), due to concerns over the lack of standards for such certifications, the lack of a consistent application of the ‘‘exceptional’’ situations criteria for purposes of utilizing self-certification, the potential for lack of notice of the BIA’s use of certification authority, the overall potential for inconsistent application and abuse of this authority, and the strong interest in finality, 11. Timeliness of Adjudication of BIA Appeals The rule makes a variety of changes to ensure the timely adjudication of appeals. For example, the rule amends 8 CFR 1003.1(e)(8)(i) to harmonize the time limits for adjudicating cases so that both the 90- and 180-day deadlines are set from the same starting point—when the record is complete.10 In addition, the rule established specific time frames for review by the screening panel, 9 This provision would apply only when the intervening change vitiated the alien’s removability completely—an alien charged with multiple removability grounds would remain subject to the time and number bars unless the intervening change vitiated each removability ground. Additionally, this provision would apply only to grounds of removability. Aliens arguing that an intervening change in law or fact affected their eligibility for relief or protection from removal would remain subject to existing regulatory provisions on such motions. 10 For appeals, the record is complete upon the earlier of the filing of briefs by both parties or the expiration of the briefing schedule. For motions, the record is complete upon the filing of a response to the motion or the expiration of the response period. For remands, the record is complete upon either the date the remand is received by the BIA or, if the BIA elects to order briefing following the remand, the earlier of the filing of briefs by both parties or the expiration of the briefing schedule. PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 81591 processing of transcripts, issuance of briefing schedules, and review by a single BIA member to determine whether a single member or a threemember panel should adjudicate the appeal, none of which were previously considered via regulation or tracked effectively to prevent delays. Id. § 1003.1(e)(1), (8). It also adds tracking and accountability requirements for the Board Chairman, also known as the Chief Appellate Immigration Judge, in cases where the adjudication of appeals must be delayed to ensure that no appeals are overlooked or lost in the process. Id. § 1003.1(e)(8)(v). Similarly, the rule establishes specific time frames for the adjudication of summary dismissals, providing substance to the current requirement at 8 CFR 1003.1(d)(2)(ii) that such cases be identified ‘‘promptly’’ by the screening panel, and for the adjudication of interlocutory appeals, which are not currently addressed in the regulations, except insofar as they may be referred to a three-member panel for review. Id. § 1003.1(e)(1). Additionally, with two exceptions for cases subject to an extension under 8 CFR 1003.1(e)(8)(ii) or a hold under 8 CFR 1003.1(e)(8)(iii), the rule instructs the Board Chairman to refer appeals pending beyond 335 days to the Director for adjudication. Id. § 1003.1(e)(8)(v). Following the review of public comments received, including comments about the potential volume of cases subject to referral and the impact of other provisions of the rule, the final rule makes two changes from the NPRM. First, it adds four further exceptions to 8 CFR 1003.1(e)(8)(v). Cases on hold pursuant to 8 CFR 1003.1(d)(6)(ii) to await the results of identity, law enforcement, or security investigations or examinations will not be subject to referral if the hold causes the appeal to remain pending beyond 335 days. Cases whose adjudication has been deferred by the Director pursuant to 8 CFR 1003.0(b)(1)(ii) will not be subject to referral if the deferral causes the appeal to remain pending beyond 335 days. Cases remanded by the Director under 8 CFR 1003.1(k) will not be subject to referral if the case remains pending beyond 335 days after the referral. Cases that have been administratively closed pursuant to a regulation promulgated by the Department of Justice or a previous judicially approved settlement that expressly authorizes such an action will not be subject to referral if the administrative closure occurred prior to the elapse of 335 days and causes the appeal to remain pending beyond 335 days. These changes, which are incorporated through a stylistic E:\FR\FM\16DER3.SGM 16DER3 81592 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 restructuring of 8 CFR 1003.1(e)(8)(v) for clarity, recognize additional situations in which a case may appropriately remain pending beyond 335 days without adjudication or when referral back to the Director would be incongruous because the Director had remanded the case in the first instance. Second, the final rule makes edits to eliminate confusion over the scope of 8 CFR 1003.1(e). As both the title of that paragraph (‘‘Case management system’’) and its general introductory language (‘‘The Chairman shall establish a case management system to screen all cases and to manage the Board’s caseload.’’) make clear, the provisions of the paragraph apply to ‘‘cases.’’ Id. § 1003.1(e) (emphasis added). In turn, ‘‘the term case means any proceeding arising under any immigration or naturalization law.’’ Id. § 1001.1(g). At the Board, cases may be initiated in one of three ways: (1) The filing of a Notice of Appeal, (2) the filing of a motion directly with the Board (e.g., a motion to reconsider or a motion to reopen), or (3) the receipt of a remand from a Federal court, the Attorney General, or—under this rule—the Director. In other words, the Board adjudicates multiple types of cases, not just appeals. Although the existing language of 8 CFR 1003.1(e) is clear that it applies to all types of cases at the Board, regardless of how they are initiated, the inconsistent, subsequent use of ‘‘appeals’’ throughout that paragraph creates confusion as to its scope since appeals are not the only type of case the Board considers. See, e.g., id. § 1003.1(e)(3) (in describing the Board’s merits review process, using ‘‘case’’ in the first sentence, ‘‘case’’ and ‘‘appeal’’ in the second sentence, and ‘‘appeal’’ in the third sentence, all is describing a unitary process). To avoid continued confusion and to ensure that the scope of the other changes in the final rule regarding the Board’s case management process are clear, the final rule makes edits to 8 CFR 1003.1(e) to ensure that it is clearly applicable to all cases before the Board, not solely cases arising through appeals.11 12. Forwarding the Record on Appeal The rule revises 8 CFR 1003.5(a) regarding the forwarding of the record of proceedings in an appeal to ensure that the transcription process and the forwarding of records do not cause any unwarranted delays. Specifically, the rule clarifies that the immigration judge 11 For similar reasons, the final rule also makes changes to 8 CFR 1003.1(d)(3)(iv) to clarify that 8 CFR 1003.1(d)(3)(iv)(A) applies to all cases at the Board, whereas 8 CFR 1003.1(d)(3)(iv)(D) applies only to direct appeals of immigration judge decisions. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 does not need to forward the record of the proceedings to the BIA if the BIA already has access to the record electronically and removes the process for immigration judge review of the transcript. Id. § 1003.5(a). In addition, the rule removes language in 8 CFR 1003.5(b), which describes procedures regarding appeals from DHS decisions that are within the BIA’s appellate jurisdiction, that is not applicable to EOIR’s adjudicators and replaces outdated references to the former Immigration and Naturalization Service. These changes do not substantively affect the BIA’s adjudication of any appeals from DHS officers that are within the BIA’s jurisdiction. II. Public Comments on the Proposed Rule A. Summary of Public Comments The comment period for the NPRM ended on September 25, 2020, with 1,284 comments received. The majority of comments were from individual and anonymous commenters, including coordinated campaigns. Other commenters included non-profit organizations, law firms, and members of Congress. While some commenters supported the NPRM, the majority of commenters expressed opposition to the rule, either in whole or part. Many, if not most, comments opposing the NPRM either misunderstood what it actually provides, proceed from erroneous legal or factual premises—e.g., that the rule applies only to aliens and not DHS or that its changes apply more heavily to aliens than to DHS—are founded in policy disagreements, or simply repeat tendentious or spurious claims about the Department’s motivations in issuing the rule. Further, many commenters opposing the rule failed to engage with the specific reasons and language put forth by the Department in lieu of broad generalizations or hyperbolic, unsupported presumptions. Additionally, many comments appeared rooted in a belief that EOIR’s adjudicators are incompetent or unethical and are either incapable or unwilling to adhere to applicable law. Finally, most, if not all, commenters in opposition to the rule viewed its procedural changes wholly through a results-oriented lens such that a proposal that commenters speculatively believed would cause aliens to ‘‘win’’ fewer cases was deemed objectionable, even without evidence that such a result would follow. In other words, any change perceived to lead to aliens ‘‘winning’’ fewer cases was deemed PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 unfair, arbitrary and capricious, biased, a violation of due process, or otherwise inappropriate, regardless of the Department’s justification for the change or the relevant law. Such a resultsoriented view both misapprehended the procedural nature of the changes and appeared to have been based on a tacit belief that aliens were entitled to specific outcomes in specific cases, notwithstanding the relevant evidence or law applicable to a case, and that the rule inappropriately required adjudicators to maintain partiality in adjudicating cases rather than continuing to provide what commenters viewed as favorable treatment toward aliens. To the extent that commenters simply disagree as a policy matter that Board cases should be completed in a timely manner, see id. 1003.1(d); cf. INS v. Doherty, 502 U.S. 314, 323 (1992) (‘‘[A]s a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.’’), or that the Department should take measures, consistent with due process, to ensure the timely completion of such cases, the Department finds such policy disagreements unpersuasive for the reasons given in the NPRM and throughout this final rule. Similarly, the Department also categorically rejects any comments suggesting that adjudicators should provide favorable treatment to one party over another, e.g., by granting a sua sponte motion to reopen contrary to well-established law. The Department expects all of its adjudicators to treat both parties fairly and to maintain impartiality when adjudicating cases. 8 CFR 1003.1(d)(1) (‘‘The Board shall resolve the questions before it in a manner that is timely, impartial, and consistent with the Act and regulations.’’ (emphasis added)); 8 CFR 1003.10(b) (‘‘In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.’’) (emphasis added)); 5 CFR 2635.101(b)(8) (‘‘Employees [of the Federal Government] shall act impartially and not give preferential treatment to any private organization or individual.’’); EOIR, Ethics and Professionalism Guide for Members of the Board of Immigration Appeals sec. V (May 4, 2011) [hereinafter BIA Ethics and Professionalism Guide] (‘‘A Board Member shall act impartially and shall not give preferential treatment to any organization or individual when adjudicating the merits of a particular case.’’), available at https:// E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 www.justice.gov/eoir/page/file/992726/ download; EOIR, Ethics and Professionalism Guide for Immigration Judges sec. V (Jan. 26, 2011) [hereinafter IJ Ethics and Professionalism Guide] (‘‘An Immigration Judge shall act impartially and shall not give preferential treatment to any organization or individual when adjudicating the merits of a particular case.’’), available at https:// www.justice.gov/sites/default/files/eoir/ legacy/2013/05/23/Ethicsand ProfessionalismGuideforIJs.pdf. Further, the Department also rejects unsupported and almost ad hominem comments based on a belief that its adjudicators are incompetent or unethical, that they will fail to follow the law, or that they have some results-oriented view that will cause them to adjudicate cases in an inappropriate manner. See United States v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926) (‘‘The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’’). In sum, the Department issued the NPRM for the reasons given in order to bring needed clarity to certain areas of law, improve efficiency at the BIA, ensure authority is appropriately exercised, reduce the risk of gamesmanship by parties, and promote impartial and timely adjudications consistent with the law. It did not do so for any nefarious purpose, nor did it intend for its procedural changes to have any substantive bearing on the outcomes of additional cases, which flow from the evidence and the law, not the Department’s process. As discussed herein, nothing in the NPRM singles out specific populations of aliens, including unrepresented aliens,12 nor do any of its changes fall disproportionately upon such groups in an inappropriate manner. To the extent that commenters did not engage with the NPRM itself, provided unsupported assertions of fact or law, attacked—tacitly or explicitly— the motivations of the Department’s adjudicators, or otherwise put forward suggestions based on their preferred results rather than an impartial process, the Department has nevertheless considered those comments but finds 12 The Department has fully considered the possible impacts of this rule on the relatively small pro se population of aliens with cases before the Board. As discussed below, however, the rule neither singles such aliens out for particular treatment under the Board’s procedures, nor does it restrict or alter any of the many procedural avenues such aliens already have available to them in advancing their cases. Further, nothing in the rule inhibits the availability of pro bono counsel to assist such aliens as appropriate. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 them unavailing. See Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 n.58 (D.C. Cir. 1977) (per curiam) (‘‘In determining what points are significant, the ‘arbitrary and capricious’ standard of review must be kept in mind. Thus only comments which, if true, raise points relevant to the agency’s decision and which, if adopted, would require a change in an agency’s proposed rule cast doubt on the reasonableness of a position taken by the agency. Moreover, comments which themselves are purely speculative and do not disclose the factual or policy basis on which they rest require no response. There must be some basis for thinking a position taken in opposition to the agency is true.’’). Further, to the extent that commenters provided substantive analysis and raised important issues, the Department has considered all of them; however, on balance, except for changes noted below, it has determined that the policy and operational benefits of the rule expressed above—including consistency, impartiality, and efficiency—outweigh all of the issues raised by commenters. Accordingly, although the Department has reviewed all comments received, the vast majority of them fall into the groupings outlined above, and few of them are persuasive for reasons explained in more detail in Part II.C below. B. Comments Expressing Support for the Proposed Rule Comment: Commenters expressed general support for the rule and immigration reform. These commenters supported all aspects of the rule, which they stated would ‘‘streamline’’ BIA processes to help reduce the backlog and the number of frivolous appeals. One commenter stated that the rule ‘‘will have a positive impact on immigration, especially limiting the burden placed on the system by pro se immigrants.’’ Response: The Department appreciates the commenters’ support for the rule. C. Comments Expressing Opposition to the Proposed Rule 1. General Opposition Comment: Many Commenters expressed general opposition to the rule.13 Several commenters asserted that the rule was motivated by politics and would ‘‘enable politicized and biased decision-making.’’ Various commenters raised concerns that the rule would give the EOIR Director ‘‘consolidated power 13 Commenters’ specific concerns regarding different provisions of the rule are discussed separately below in section II.C.3. PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 81593 over appeals.’’ Similarly, several commenters voiced concern that the rule would turn the BIA into a ‘‘political tool’’ or that the changes would turn the BIA into a rubber stamp for deportation orders. Others were concerned that the rule would put increased pressure on immigration judges to decide cases quickly. Some commenters expressed concerns that the rule was an attempt to end legal immigration. Other commenters alleged that the rule was motivated by an attempt to foreclose respondents’ access to relief from removal. Many commenters were concerned that the rule would eliminate a robust and meaningful appeal process. For example, one commenter stated that ‘‘[a]ny individual facing judicial decision making deserves to have a full and fair right to appeal.’’ The commenter went on to claim that the rule seeks ‘‘to erode that right by making it more difficult for individuals to actualize the right to appeal to the BIA.’’ Another commenter was concerned that the rule would completely strip respondents of ‘‘their right to meaningfully contest a poorly reasoned or legally invalided decision.’’ Several commenters expressed concern about the rule’s impact on respondents’ safety and security. One commenter claimed that the rule ‘‘would greatly reduce the rights of noncitizens appearing before EOIR and would result in . . . the potential death of asylum seekers who are removed to their home countries to be killed.’’ Another commenter noted that taking away a respondent’s ability to appeal their case ‘‘exposes them to more violence and risk of death if they are deported.’’ Other commenters were concerned that the rule would lead to permanent family separations. A number of commenters also made the generalized claim that the rule would entirely reshape the immigration system. Others stated that the rule would create significant administrative burdens. Several other commenters alleged that the rule would lead to an increased case backlog and make EOIR less efficient. Multiple commenters raised concerns regarding the impact of the intersection of the rule with other rules recently promulgated by the Department and by DHS, particularly the Department’s proposed rule to increase fees for motions to reopen and appeals. Response: Commenters are incorrect that the rule is the product of political or biased decision-making or that the rule would turn the BIA into a ‘‘political tool.’’ As noted in the NPRM, the BIA has seen recent significant increases in E:\FR\FM\16DER3.SGM 16DER3 81594 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 its pending caseload. 85 FR at 52492. The number of appeals pending is currently at a record high, with 84,673 case appeals pending as of the end of FY 2020. EOIR, Adjudication Statistics: Case Appeals Filed, Completed, and Pending, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/ 1248501/download. Accordingly, the Department has reviewed EOIR’s regulations regarding the procedures for BIA appeals to determine what changes can be implemented to promote increased efficiencies and taken steps to address the BIA’s growing caseload. In this manner, this rule builds on prior similar procedural reviews and amendments to the BIA’s regulations. See, e.g., Board of Immigration Appeals: Procedural Reforms To Improve Case Management, 67 FR 54878 (Aug. 26, 2002) (final rule that revised the structure and procedures of the BIA, provided for an enhanced case management procedure, and expanded the number of cases referred to a single Board member for disposition).14 Similarly, commenters are incorrect that the rule is intended to have an effect on immigration rates or an alien’s opportunity to be heard. As part of the Department of Justice, EOIR’s mission remains to ‘‘to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws.’’ EOIR, About the Office, Aug. 14, 2018, available at https:// www.justice.gov/eoir/about-office. Instead, as part of the Department’s intention to increase efficiencies, the Department believes that the rule will have the effect of reducing the time required for the adjudication of appeals by DHS in cases where the immigration judge or the BIA has found the alien merits relief or protection from removal. In short, the changes to the rule should help both meritorious claims be adjudicated more quickly, which will 14 In addition, the Department notes that it and EOIR have taken numerous steps, both regulatory and sub-regulatory, to increase EOIR’s efficiencies and address the pending caseload. See, e.g., Expanding the Size of the Board of Immigration Appeals, 85 FR 18105 (Apr. 1, 2020) (interim final rule expanding the size of the BIA from 21 to 23 members); EOIR, Policy Memorandum 20–01: Case Processing at the Board of Immigration Appeals [hereinafter PM 20–01] (Oct. 1, 2019), available at https://www.justice.gov/eoir/page/file/1206316/ download (explaining various agency initiatives, including an improved BIA case management system, issuance of performance reports, and a reiteration of EOIR’s responsibility to timely and efficiently decide cases in serving the national interest); EOIR, Policy Memorandum 19–11: No Dark Courtrooms (Mar. 29, 2019), available at https://www.justice.gov/eoir/file/1149286/ download (memorializing policies to reduce and minimize the impact of unused courtrooms and docket time). VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 benefit aliens, and meritless claims adjudicated more quickly, which will benefit the public and the government. Commenters’ statements regarding possible effects on aliens who are denied relief or who may be subject to removal are purely speculative. Moreover, such speculative effects exist currently and independently of the rule, as alien appeals may be denied or dismissed under current procedures. Further, nothing in the rule prevents or inhibits case-by-case adjudication by the Board in accordance with the evidence and applicable law for each such case. Accordingly, the Department finds commenters’ concerns on this point unpersuasive. Finally, the Department acknowledges that it has published multiple proposed rules in 2020, including one that would increase the fee for an appeal to the BIA and for certain motions to reopen for the first time in over 30 years. See Executive Office for Immigration Review; Fee Review, 85 FR 11866 (Feb. 28, 2020). The Department also acknowledges that DHS has imposed a $50 fee for asylum applications, U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 FR 46788, 46791 (Aug. 3, 2020),15 that would also be applicable in EOIR proceedings, 8 CFR 1103.7(b)(4)(ii), though that rule has been enjoined.16 Immigrant Legal Resource Ctr. v. Wolf, —F.Supp.3d—, 2020 WL 5798269 (N.D. Cal. 2020); Nw. Immigrants Rights Proj. v. U.S. Citizenship & Immigration Servs., No. 19–3283 (RDM), 2020 WL 5995206 (D.D.C. Oct. 8, 2020). The Department rejects any assertions, however, that it is proposing multiple rules for any sort of nefarious 15 The DHS rule did not impose a fee for an asylum application filed by a genuine UAC who is in removal proceedings conducted by EOIR. 85 FR 46788 at 46809 (‘‘Notably, unaccompanied alien children in removal proceedings who file an application for asylum with USCIS are exempt from the Form I–589 fee.’’). Thus, contrary to some commenters’ concerns, a genuine UAC who files a motion to reopen based exclusively on an asylum application is not subject to a fee for that motion. 8 CFR 1003.8(a)(2)(ii), 1003.24(b)(2)(i), (ii). 16 While the injunction of DHS’s rule assessing a $50 fee for asylum applications is in effect, EOIR cannot charge a fee for asylum applications in its proceedings. Relatedly, while that injunction is in effect, it cannot charge a fee for a motion to reopen based exclusively on an asylum application. 8 CFR 1003.8(a)(2)(ii), 1003.24(b)(2)(i), (ii). Because the ultimate resolution of that litigation is unknown— and, thus, there is a possibility that DHS’s rule may never take effect—commenters’ concerns about the potential relationship between that rule and this final rule are even more speculative. Nevertheless, as discussed, even if all of the relevant rules were in effect, the Department has concluded that the benefits of the final rule outweigh any substantiated costs identified by commenters. PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 purpose. Each of the Department’s rules stands on its own, includes explanations of their basis and purpose, and allows for public comment, as required by the APA. See Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2385 (2020) (explaining that the APA provides the ‘‘maximum procedural requirements’’ that an agency must follow in order to promulgate a rule). Further, the interplay and impact of all of these rules is speculative at the present time due to both ongoing and expected future litigation—which may allow all, some, or none of the rules to ultimately take effect—and the availability of fee waivers, 8 CFR 1103.7(c), which may offset the impact of some of the increases. Nevertheless, to the extent commenters noted some potential overlap or joint impacts, the Department regularly considers the existing and potential legal framework when a specific rule is proposed or implemented. Moreover, even if all rules were in effect, the Department has concluded that the benefits of the instant rule discussed in the NPRM, e.g., 85 FR at 52509 and herein—as well as the benefits discussed in the other rules, e.g., 85 FR at 11870 17—ultimately outweigh any combined impact the rules may have on aliens, particularly vis-a`-vis fee increases for appeals and motions to reopen.18 17 In issuing its proposed rule regarding fees for applications administered by EOIR, the Department acknowledged the balance between the costs of increased fees and the public benefit associated with such fees, in addition to the need to comply with applicable law and policy in conducting more regular fee reviews. 85 FR at 11870 (‘‘Although EOIR is an appropriated agency, EOIR has determined that it is necessary to update the fees charged for these EOIR forms and motions to more accurately reflect the costs for EOIR’s adjudications of these matters. At the same time, however, EOIR recognizes that these applications for relief, appeals, and motions represent statutorily provided relief and important procedural tools that serve the public interest and provide value to those who are parties to the proceedings by ensuring accurate administrative proceedings. . . . As DHS is the party opposite the alien in these proceedings, EOIR’s hearings provide value to both aliens seeking relief and the Federal interests that DHS represents. Given that EOIR’s cost assessment did not include overhead costs or costs of non-salary benefits (e.g., insurance), recovery of the processing costs reported herein is appropriate to serve the objectives of the IOAA and the public interest. The proposed fees would help the Government recoup some of its costs when possible and would also protect the public policy interests involved. EOIR’s calculation of fees accordingly factors in both the public interest in ensuring that the immigration courts are accessible to aliens seeking relief and the public interest in ensuring that U.S. taxpayers do not bear a disproportionate burden in funding the immigration system.’’). 18 The Department also reiterates that the availability of fee waivers for appeals and motions to reopen, 8 CFR 1003.8(a)(3) and 8 CFR 1003.24(d), addresses the principal concern raised by E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations Comment: At least one commenter stated that the rule is pretext for restrictions on aliens’ access to asylum or related relief. In support, the commenter argued that the rule provides preferential treatment to DHS versus aliens in proceedings and that the Department selectively compares the BIA at times to either Federal courts or other administrative tribunals, whichever best supports the restriction at issue. In addition, the commenter highlighted comments disparaging of immigrants or the immigration system by President Trump and the Attorney General. Response: The rule is not a pretext for any nefarious motive targeting aliens for any reason, and it is appropriately supported by applicable law and examples. As discussed, supra, the rule generally applies to aliens and DHS equally and does not provide preferential treatment to either party. To the extent that commenters simply disagree with either the law or the examples provided, commenters did not provide a persuasive justification for why their particular policy preferences are superior to those adopted by the Department in the rule. Moreover, as explained in the NPRM and herein, this rule is just one example of the Department’s actions, both recently and in the past, to increase efficiencies before the BIA and address the record pending caseload. The Department reiterates the reasoning set out in the proposed rule for the changes, and the discussion further below regarding commenters’ concerns with particular provisions of the rule. khammond on DSKJM1Z7X2PROD with RULES3 2. Violates Due Process Comment: Many commenters expressed broad concerns that the rule would erode aliens’ due process rights in immigration court or BIA proceedings. Specifically, several commenters claimed that the rule favored efficiency over fairness. Commenters stated that the rule claimed to promote efficiency, but that its proposed changes ‘‘would sacrifice fairness and due process for this increased efficiency.’’ Several commenters noted that due process should be more highly valued than efficiency in removal proceedings. For example, one commenter asserted that the rule ‘‘has everything to do with efficiency and nothing to do with due process.’’ A commenter also stated that that rule’s ‘‘goal should not be to create commenters regarding the instant rule’s asserted impact on filing motions to reopen and the Department’s proposed fee increase for motions to reopen. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 a more efficient production system for the rapid removal of litigants.’’ Another commenter claimed that, under the rule, the BIA would put efficiency above its duties as an appellate body, which would thereby violate respondents’ due process rights. Furthermore, commenters voiced concern that the rule was attempting to inappropriately speed up and streamline procedures in a way that would negatively affect due process protections. One commenter stated that the streamlining of procedures ‘‘will foster further inequities and affect due process for all people involved.’’ A number of commenters pointed out that cases should not be decided quickly and that due process requires that attorneys be given a sufficient amount of time to prepare their clients’ cases. Several other commenters raised concerns that the rule was an attempt by the Administration to prioritize deportations over due process protections. Numerous commenters were also concerned with the possible consequences stemming from what they view as a potential erosion of due process protections. Commenters noted that the level of due process in immigration court proceedings can mean the difference between a respondent living safely in the United States and being returned to danger in another country. Response: To the extent that commenters equate ‘‘due process’’ with an outcome favorable to the alien and an ‘‘erosion’’ of due process with an outcome adverse to the alien—and base their comments accordingly on that view—the Department declines to accept both that view of due process and the comments based on it. The foundation of due process is notice and an opportunity to be heard, and nothing in the rule eliminates either an alien’s right to notice or an alien’s opportunity to be heard on a case before the Board.19 See LaChance v. Erickson, 522 19 The Department notes that although the INA statutorily requires proceedings over which an immigration judge must preside to determine an alien’s removability in many situations, under sections 240(a)(1) and (3) of the Act, 8 U.S.C. 1229a(a)(1) and (3), and acknolwedges that an administrative appeal may be permitted, e.g., INA 101(a)(47)(B) and 208(d)(5)(A)(iv), 8 U.S.C. 1101(a)(47)(B) and 1158(d)(5)(A)(iv), there is no constitutional or statutory right to an administrative appeal to the BIA. See Albathani v. INS, 318 F.3d 365, 376 (1st Cir. 2003) (‘‘An alien has no constitutional right to any administrative appeal at all. Such administrative appeal rights as exist are created by regulations promulgated by the Attorney General.’’ (citations omitted)); Guentchev v. INS, 77 F.3d 1036, 1037–38 (7th Cir. 1996) (‘‘The Constitution does not entitle aliens to administrative appeals. Even litigants in the federal PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 81595 U.S. 262, 266 (1998) (‘‘The core of due process is the right to notice and a meaningful opportunity to be heard.’’). The Department does not evaluate due process based on outcomes for either party, and it accordingly declines to adopt comments premised on the intimation that due process occurs only when the outcome of a case is favorable to an alien. Cf. Pugel v. Bd. of Trs. of Univ. of Ill., 378 F.3d 659, 666 (7th Cir. 2004) (‘‘Due process did not entitle [appellant] to a favorable result . . . only to a meaningful opportunity to present [a case].’’). As noted above, EOIR’s mission is ‘‘to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws.’’ These objectives are generally complementary; for example, unnecessary delays in the receipt of relief for meritorious aliens is itself a fairness concern. Moreover, there is nothing inherently unfair in ensuring that a case is adjudicated by the Board within approximately 11 months—i.e., 335 days—of its filing. To the contrary, excessive delay in adjudication, especially when issues of human welfare are at stake, may raise concerns themselves and increase the risk of litigation.20 See, e.g., Telecomms. Rsch. courts are not constitutionally entitled to multiple layers of review. The Attorney General could dispense with the Board and delegate her powers to the immigration judges, or could give the Board discretion to choose which cases to review (a la the Appeals Council of the Social Security Administration, or the Supreme Court exercising its certiorari power).’’); cf. Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 FR 536, 554–55 (Jan. 3, 2013) (‘‘In upholding the BIA’s practice of ‘affirmance without opinion’ of immigration judge decisions, for example, several courts of appeals have recognized that Due Process does not require an agency to provide for administrative appeal of its decisions.’’). Thus, the Department’s administrative appellate process involving the BIA already provides more due process to aliens in removal proceedings than is required by either the INA or the Constitution, and the alteration of the BIA’s procedures through regulations promulgated by the Attorney General is fully consonant with the provision of due process. See Barradas v. Holder, 582 F.3d 754, 765 (7th Cir. 2009) (stating that immigration proceedings that meet the statutory and regulatory standards governing the conduct of such proceedings generally comport with due process). 20 The Department recognizes and agrees with the Supreme Court’s observation that ‘‘as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.’’ Doherty, 502 U.S. at 323. Thus, it is aware that many aliens likely prefer substantial delays in the adjudications of their appeals by the BIA and, accordingly, oppose any efforts to increase the efficiency of such adjudications. Nevertheless, the Department finds any rationale for encouraging or supporting the dilatory adjudication of cases both inherently unpersuasive and wholly outweighed by the importance of timeliness and fairness—especially to aliens with meritorious claims—in BIA adjudications. E:\FR\FM\16DER3.SGM 16DER3 81596 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations and Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (outlining several factors for deciding unreasonable delay claims under the Administrative Procedures Act, including acknowledging ‘‘delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake’’). Commenters are incorrect that the provisions of this rule impede aliens’ due process rights in the manner alleged. Although the rule refines timing and other procedural requirements, the rule does not affect any party’s fundamental rights to notice or an opportunity to be heard by the BIA. Moreover, the rule does not make proceedings before the BIA ‘‘so fundamentally unfair that the alien was prevented from reasonably presenting his case.’’ Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011) (citations and quotation marks omitted). None of the changes in the rule limit aliens in immigration proceedings before EOIR from filing appeals, briefs, or other evidence such that it prevents aliens from reasonably presenting their appeal. Further, many commenters assessed the rule through only a one-sided lens related to aliens and did not acknowledge that (1) most of the changes apply equally to DHS and (2) some of the changes—e.g., the elimination of simultaneous briefing for non-detained cases—fall much more heavily on DHS than on aliens. In short, as the Department explained in the NPRM and reiterates in the final rule, the changes are designed for the benefit of all parties and the adjudicators and do not affect either party’s entitlement to due process in immigration proceedings. 3. Specific Concerns With the NPRM khammond on DSKJM1Z7X2PROD with RULES3 a. BIA Jurisdiction by Certification (8 CFR 1003.1(c)) Comment: Numerous commenters expressed concern over the Department’s removal of the BIA’s selfcertification authority at 8 CFR 1003.1(c). At least one commenter expressed dismay as to why the Department would retract the BIA’s self-certification authority rather than retaining the authority but defining ‘‘exceptional circumstances,’’ which the commenter believed would be less costly and more beneficial. Commenters were concerned that the removal of the BIA’s self-certification authority will negatively impact aliens in proceedings, particularly pro se respondents. For example, a commenter explained that the changes would VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 disproportionately impact pro se aliens because they are ‘‘the parties least likely to have a sophisticated notion of when an appeal to the BIA is worth taking.’’ Another commenter noted that removal of the self-certification authority would prevent the BIA from addressing defects in an alien’s Notice of Appeal, which may be the result of factors outside the alien’s control, such as mail delays, illness, or language ability. One commenter characterized the change as removing an important check on immigration judge misconduct. Taking issue with the Department’s supposed analogy to Federal courts, another commenter claimed that Federal courts were distinct from immigration courts because the ‘‘process of filing a notice of appeal in federal court is straightforward, [ ] the Federal Rules of Civil Procedure provide ample protection for pro se parties who make mistakes, [and] the stakes in most civil suits arising in federal district court are, unlike the stakes in most immigration court cases, not a matter of life and death.’’ Response: As an initial point, the Department notes that many commenters objected to the limitation of the Board’s certification authority solely because they perceived that authority to be beneficial only to respondents. Those comments, however, support the Department’s concern about the inappropriate and inconsistent usage of that authority and its decision to limit that authority because it may be applied in a manner that benefits one party over the other. As the Department discussed in the NPRM, the BIA’s use of its selfcertification authority has been subject to inconsistent usage, if not abuse, by the BIA in the past. For example, despite clear language that required the BIA to have jurisdiction in order to exercise its self-certification authority, BIA members often inverted that principle and used the self-certification authority to establish jurisdiction. See, e.g., Matter of Carlos Daniel JarquinBurgos, 2019 WL 5067262, at *1 n.1 (BIA Aug. 5, 2019) (‘‘On March 29, 2019, we accepted the respondent’s untimely appeal. To further settle any issues of jurisdiction, we accept this matter on appeal pursuant to 8 CFR 1003.1(c).’’), Matter of Daniel Tipantasig-Matzaquiza, 2016 WL 4976725, at *1 (BIA Jul. 22, 2016) (‘‘To settle any issues regarding jurisdiction, we will exercise our discretionary authority to accept this appeal on certification. See 8 CFR 1003.1(c).’’), and Matter of Rafael Antonio Hanze Fuentes, 2011 WL 7071021, at *1 n.1 (BIA Dec. 29, 2011) (‘‘In order to avoid PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 any question regarding our jurisdiction over this appeal, we take jurisdiction over this matter by certification pursuant to 8 CFR 1003.1(c).’’). Commenters’ own suggestions that removing this authority would harm alien appellants because the BIA often uses its self-certification authority inappropriately and contrary to existing case law to avoid finding appeals untimely or correct filing defects provide further support for the Department’s decision. See Matter of Jean, 23 I&N Dec. 373, 380 n.9 (A.G. 2002) (the Board’s certification authority, like its sua sponte authority, ‘‘is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship’’ (internal citation and quotation marks omitted)). Further, commenters did not explain how the Board could exercise jurisdiction through certification without determining its jurisdiction in the first instance. See 85 FR at 52506. Finally, most commenters did not acknowledge that the withdrawal of certification authority would also impact cases in which it may have been used contrary to precedent to accept appeals in favor of DHS. In other words, as the Department has noted, the impact of this provision is equally applicable to both parties and is not directed at one over the other. The Department finds that the same risks would continue should the Department provide further definition of ‘‘exceptional circumstances’’ rather than remove the certification authority, as suggested by commenters. Indeed, the existence of a standard for ‘‘exceptional circumstances’’ applicable to BIA selfcertification since at least 2002, see Matter of Jean, 23 I&N Dec. at 380 n.9, has not precluded the Board members from disregarding that standard as both the NPRM, 85 FR at 52506, and commenters recognize. Accordingly, the Department finds that further attempts to refine that standard would likely be unhelpful, if not futile, especially because there is no effective check on its usage to ensure consistency. Moreover, creating an additional definitional standard for ‘‘exceptional circumstances’’ would also create additional adjudicatory delays and arguments surrounding whether a case genuinely met that standard. Regarding the possible impact of the rule on pro se aliens, the Department first notes that most aliens—i.e., 86 percent, EOIR, Current Representation Rates, Oct. 13, 2020 [hereinafter Representation Rates], available at https://www.justice.gov/eoir/page/file/ E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 1062991/download—whose cases are considered by the Board have representation. For those who do not, there are multiple avenues they may pursue to obtain representation.21 For example, the Department maintains a BIA Pro Bono Project in which ‘‘EOIR assists in identifying potentially meritorious cases based upon criteria determined by the partnering volunteer groups.’’ EOIR, BIA Pro Bono Project, Oct. 16, 2020, available at https:// www.justice.gov/eoir/bia-pro-bonoproject.22 Additionally, certain procedural doctrines, such as equitable tolling, may excuse noncompliance with filing deadlines for pro se aliens.23 21 In an appeal to the Board in removal proceedings, ‘‘the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.’’ INA 292, 8 U.S.C. 1362. Despite this statutory right to counsel at no expense to the Government in appeals to the BIA in removal proceedings, the Department recognizes that some aliens do not obtain representation before the BIA. The Department understands that some aliens do not secure representation because they do not wish to pay the fee charged by a potential representative. The Department also understands that many representatives, due to ethical or professional responsibility obligations, will not take cases of aliens who are ineligible for any relief or protection from removal (e.g., an alien with an aggravated felony drug trafficking conviction who has no fear of persecution or torture in his or her home country) because they do not wish to charge money for representation when representation will not affect the outcome of the proceeding. These situations illustrate only that some aliens may not ultimately secure counsel for reasons common to issues of representation in all civil cases—i.e., the cost of the representation and the strength of the case—not that aliens are limited or prohibited from obtaining representation. See United States v. Torres-Sanchez, 68 F.3d 227, 231 (8th Cir. 1995) (‘‘Although Torres-Sanchez expressed some frustration over his attempt to obtain counsel, that frustration, in our view of the record, stemmed from his realization that he faced the inevitable consequence of deportation, not from a lack of opportunity to retain counsel. In any event, the mere inability to obtain counsel does not constitute a violation of due process.’’). As the Department is not involved in discussions between respondents and potential representatives, it cannot definitively state every reason that an alien who seeks representation may not obtain it. Nevertheless, it can state that this rule does not limit or restrict any alien’s ability to obtain representation in accordance with section 292 of the Act, 8 U.S.C. 1362. 22 In addition, as discussed elsewhere in this rule, the Department emphasizes that EOIR provides numerous resources to assist pro se individuals with self-representation and participation in their proceedings. For example, EOIR’s Office of Policy seeks to increase access to information and raise the level of representation for individuals in hearings before immigration courts and the BIA. See EOIR, Office of Legal Access Programs (Feb. 19, 2020), available at https://www.justice.gov/eoir/office-oflegal-access-programs. In addition, EOIR has developed a thorough electronic resource for individuals in proceedings. EOIR, Immigration Court Online Resource, available at https:// icor.eoir.justice.gov/en/. 23 Although the Board has not formally adopted such a rule, by practice, it also construes pro se VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 Moreover, immigration judges have a duty to develop the record in cases involving pro se aliens which will assist such aliens in pursuing appeals if needed. See Mendoza-Garcia v. Barr, 918 F.3d 498, 504 (6th Cir. 2019) (collecting cases). The Department has fully considered the possible impacts of this rule on the relatively small pro se population of aliens with cases before the Board. However, the rule neither singles such aliens out for particular treatment under the Board’s procedures, nor does it restrict or alter any of the avenues noted above that may assist pro se aliens. Ultimately, however, unless a doctrine such as equitable tolling is applicable, BIA procedures are not excused for pro se respondents, just as they are not excused generally for pro se civil litigants. See, e.g., McNeil v. United States, 508 U.S. 106, 113 (1993) (‘‘[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.’’); Edwards v. INS, 59 F.3d 5, 8–9 (2d Cir. 1995) (rejecting a pro se alien litigant’s arguments for being excused from Federal court procedural requirements due to his pro se status). Although the Department appreciates the challenges faced by pro se litigants and recommends that all aliens obtain representation, but see note 21, supra (explaining why aliens may not obtain representation), it declines to establish two separate procedural tracks for appeals depending on whether an alien has representation. Further, weighing the possibility of abuses of the certification process described above and in the NPRM, 85 FR at 52506–07, the size of the pro se population with cases before the BIA, and the well-established avenues of assistance for pro se aliens, the Department disagrees that it is necessary or appropriate to keep the certification process simply due to the possibility of its use as a means of relieving a party of his or her compliance with particular procedural requirements. The Department is unsure why a commenter claimed the Department’s underlying logic on this issue relied on an analogy to Federal court, as the entire section describing the changes is silent as to Federal appellate courts. Id. at 52506–07. Accordingly, the Department cannot provide an informed response to that comment. filings liberally. At least one court of appeals has held that the Board is legally required to liberally construe pro se filings. See Higgs v. Att’y Gen. of the U.S., 655 F.3d 333, 339–40 (3d Cir. 2011). PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 81597 As to removing a necessary procedural check on immigration judges, the Department notes that the regular appeals process to the BIA is unchanged, and parties that believe an immigration judge erred in his or her decision should seek an appeal at the BIA consistent with those procedures. Commenters did not provide an explanation as to why the certification process would provide a check that the regular appeal process would not, nor did they explain why EOIR’s wellestablished complaint process for immigration judge misconduct would also not be a sufficient check on immigration judge behavior. See EOIR, Summary of EOIR Procedures for Handling Complaints Concerning EOIR Adjudicators, Oct. 15, 2018, available at https://www.justice.gov/eoir/page/file/ 1100946/download (last visited Nov. 24, 2020). In short, commenters did not persuasively explain why the BIA selfcertification process, which is subject to inconsistent application and potential abuse, is superior to the normal appellate process and EOIR’s immigration judge misconduct complaint process for monitoring immigration judge behavior; accordingly, the Department declines to accept the commenters’ suggestions on that issue. b. Administrative Closure (8 CFR 1003.1(d)(1)(ii), 1003.10) Comment: Commenters raised concerns with the rule’s general prohibition on administrative closure, explaining that the prohibition would prevent adjudicators from efficiently organizing and prioritizing cases on their dockets, resulting in increased backlogs. For example, commenters stated that immigration judges would not be able to prioritize terrorism suspects over persons who overstayed visas and have apparent eligibility for relief. Commenters further explained that eliminating administrative closure would result in unfairly harsh consequences for persons who have pending applications with the United States Citizenship and Immigration Services (‘‘USCIS’’), such as U visas and applications for Special Immigrant Juvenile Status. Instead of allowing for administrative closure of their removal proceedings while those applications are being processed by USCIS, the commenters explained that persons would likely be required to appeal a removal order or file a motion to reopen once USCIS approves their application, potentially while the person is outside the United States. Moreover, commenters noted that this would E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81598 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations create inefficiencies due to simultaneous adjudications by EOIR and USCIS. Similarly, commenters noted that the rule would also prejudice persons with pending matters in State or Federal courts as well, such as direct appeals of criminal convictions or other post-conviction relief. Commenters raised multiple concerns about the rule’s effects on persons applying for provisional unlawful presence waivers with DHS. Commenters alleged that the rule conflicts with section 212(a)(9)(B)(v) of the Act, 8 U.S.C. 1182(a)(9)(B)(v), which provides for an unlawful presence hardship waiver. Commenters explained that the Secretary of Homeland Security implemented regulations at 8 CFR 212.7(e)(4)(iii) interpreting the waiver statute as allowing persons in removal proceedings to apply for a provisional waiver if their removal proceeding is administratively closed. In implementing this rule, the commenter alleges that the Department is implicitly amending the DHS regulation by rendering DHS’s administrative closure language superfluous. As a result, commenters believe that the rule infringes on the Secretary’s authority to interpret section 212(a)(9)(B)(v) of the Act, 8 U.S.C. 1182(a)(9)(B)(v). Moreover, commenters also stated that, as a practical matter, the rule would act as a bar to persons in removal proceedings from obtaining provisional unlawful presence waivers from DHS in order to consular process because the waiver applicants would no longer be able to receive administrative closure, as required by DHS regulations. One commenter noted that, instead of administrative closure, immigration courts have been recently using status dockets to handle cases that have applications pending with USCIS. However, the commenter noted that status dockets do not allow persons to apply for provisional unlawful presence waivers because their removal cases remain pending. Relatedly, at least one commenter stated that the administrative closure prohibition will push more aliens into filing applications for cancellation of removal, since they will be unable to administratively close their removal proceedings in order to apply for a provisional unlawful presence waiver. The commenter stated this would raise costs for EOIR since adjudicating cancellation of removal applications costs more than administratively closing proceedings in order for DHS to adjudicate the waiver applications. As a general matter, commenters alleged that the Department’s explanation for the administrative VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 closure changes were insufficient and incapable of justifying the changes under the APA, including claiming that EOIR relied on flawed and misleading statistics and that the Department’s reliance on Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) is misplaced because Castro-Tum was wrongly decided. Commenters alleged that the Department’s statements that prohibiting administrative closure will improve efficiency is not supported in the proposed rule and that administrative closure actually contributes to shrinking the backlog by allowing respondent to pursue ancillary relief. Moreover, commenters stated that the Department should have consulted with DHS to ensure that adjudications between the two agencies are consistent. At least one commenter also raised constitutional concerns with the rule’s administrative closure changes. The commenter alleged that the rule violates due process by depriving persons in removal proceedings of the right to submit applications for provisional unlawful presence waivers and by depriving United States citizens of the opportunity to live with their noncitizen spouse while the spouse’s provisional unlawful presence waiver is being adjudicated by USCIS. The commenter similarly alleged that the rule violates the Equal Protection Clause because persons in removal proceedings will be prevented from applying for a provisional unlawful presence waiver simply because they are in removal proceedings when persons who have been ordered removed are allowed to apply for a waiver. Response: EOIR is tasked with the efficient adjudication of immigration proceedings. See, e.g., 8 CFR 1003.10(b) (explaining that ‘‘immigration judges shall seek to resolve the questions before them in a timely and impartial manner’’). As such, indefinitely delaying immigration court proceedings in order to allow aliens to pursue speculative relief that may take years to resolve does not comport with EOIR’s mission to expeditiously adjudicate cases before it. See, e.g., Matter of L-AB-R-, 27 I&N Dec. 405, 416 (A.G. 2018) (denying a continuance in part because an indefinite request would undermine administrative efficiency). With EOIR’s pending caseload reaching record highs, EOIR simply cannot allow indefinite delays that prolong adjudication any longer than necessary for immigration judges to decide the issues squarely before them. See Hernandez-Serrano v. Barr, —F.3d—, 2020 WL 6883420, *3 (6th Cir. Nov. 24, 2020) (‘‘The result of administrative closure, . . . is that immigration cases leave an IJ’s active PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 calendar and, more often than not, never come back. Thus the reality is that, in hundreds of thousands of cases, administrative closure has amounted to a decision not to apply the Nation’s immigration laws at all.’’). Therefore, the Department does not believe that administrative closure is a proper tool 24 for efficiently adjudicating proceedings and, as a result, is using its authority to clarify its own regulations to preclude immigration judges and the BIA from granting administrative closure, with limited exceptions. See INA 103(g)(2), 8 U.S.C. 1103(g)(2) (granting the Attorney General the authority to issue regulations as necessary for carrying out his authority as it relates to EOIR). Additionally, the Department finds it necessary to provide this clarification to resolve competing interpretations of 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) that have resulted in the inconsistent nationwide application of administrative closure authority. Compare Matter of Castro-Tum, 27 I&N Dec. at 271 (holding that neither immigration judges nor the BIA have a general authority to indefinitely suspend immigration proceedings through administrative closure), and Hernandez-Serrano, 2020 WL 6883420 at *4 (‘‘Indeed no one—neither Hernandez-Serrano, nor the two circuit courts that have rejected the Attorney General’s decision in Castro-Tum—has explained how a general authority to close cases administratively can itself be lawful while leading to such facially unlawful results.’’), with Meza Morales v. Barr, 973 F.3d 656 (7th Cir. 2020) (rejecting Castro-Tum and holding that immigration judges are not precluded from administratively closing cases), and Romero v. Barr, 937 F.3d 282 (4th Cir. 2019) (same). These conflicting decisions, and the possibility of additional such decisions, create uncertainty for immigration judges and the BIA, which this rule seeks to remedy through a consistent nationwide policy. Cf. Meza Morales, 973 F.3d at 667 (noting that the Attorney General may amend the regulations through the proper procedures to remove any perceived administrative closure authority). The Department disagrees with commenters that the agency did not provide sufficient reasons for the change in the NPRM, or that the given reasons were false, erroneous, or relied on incorrect or misleading statistics. 24 The Department notes that there are other potential tools available to respondents with pending relief or actions outside of EOIR, including requesting a continuance or working with DHS counsel to file a motion to dismiss. See 8 CFR 1003.29, 1239.2(c). E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations Rather, the Department explained that the general authority to administratively close cases ‘‘failed as a policy matter and is unsupported by the law.’’ See 85 FR at 52504. In the NPRM, the Department noted that, following the expansion of administrative closure in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), the backlog of immigration court cases has grown significantly. See also Adjudication Statistics: Pending Cases, New Cases, and Total Completions, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/ 1242166/download. While the use of administrative closure is not solely responsible for this growth, the need for prompt adjudication of pending cases has only increased. Administrative closure merely delays a decision until an unknown future date, thus allowing the total number of cases at the immigration courts to grow, rather than requiring the immigration judge to adjudicate the issues before them in order to promptly move cases to completion. The Department also explained in the NPRM that the agency believes the Attorney General’s holding in Matter of Castro-Tum is correct that 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) do not provide for general administrative closure authority, citing the Attorney General’s explanations that general administrative closure authority conflicts with the regulatory ‘‘timely’’ requirements, 27 I&N Dec. at 284; that the regulations do not ordinarily include the authority to suspend cases indefinitely, id. at 285; and that specific delegations that prior Attorneys General have made would be rendered superfluous, id. at 287–88, among others. See also Hernandez-Serrano, 2020 WL 6883420 at *1, *4 (stating that ‘‘[a]s of October 2018, more than 350,000 of those [administratively closed] cases had not been reopened. An adjudicatory default on that scale strikes directly at the rule of law’’ and that ‘‘[t]he result of administrative closure, . . . is that immigration cases leave an IJ’s active calendar and, more often than not, never come back. Thus the reality is that, in hundreds of thousands of cases, administrative closure has amounted to a decision not to apply the Nation’s immigration laws at all.’’). Further, the Department also explained in the NPRM that the agency believes general administrative closure authority improperly allows immigration judges to determine which immigration cases should be adjudicated and which ones should not. See 85 FR at 52503. Similar to continuances, administrative closure is a tool to delay cases in certain instances. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 However, in practice, unlike continuances, administrative closure has at times been used to effectively terminate cases through indefinite delay. Thus, the Department believes that such authority is improper as a policy matter unless expressly provided for by regulation or judicially approved settlement. Lastly, the Department also explained in the NPRM that existing regulations make clear that authority to defer the adjudication of cases lies with EOIR leadership and not with individual members of the BIA or immigration judges. See 8 CFR 1003.0(b)(1)(ii), 1003.1(a)(2)(i)(C), 1003.9(b)(3). The Department also disagrees with commenters that this rule conflicts with section 212(a)(9)(B)(v) of the Act, 8 U.S.C. 1182(a)(9)(B)(v), as interpreted by DHS in 8 CFR 212.7(e)(4)(iii), which makes a person in removal proceedings ineligible for a provisional unlawful presence hardship waiver unless the proceedings are administratively closed. Regulations solely promulgated by and binding on DHS do not confer independent authority on immigration judges or the Board, and DHS does not have the power to provide immigration judges with the general authority to grant administrative closure or to prohibit EOIR from interpreting its own regulations, so any interpretation of § 212.7(e)(4)(iii) attempting to do sowould be erroneous. See INA 103(a)(1), 8 U.S.C. 1103(a)(1) (providing the Attorney General with the authority to make ‘‘controlling’’ determinations of the immigration laws); see also CastroTum, 27 I&N Dec. at 287 n.9 (‘‘Because only the Attorney General may expand the authority of immigration judges or the Board, that regulation [8 CFR 212.7(e)(4)(iii)] cannot be an independent source of authority for administrative closure.’’). The Department has considered the interplay of EOIR and DHS’s regulations regarding provisional unlawful presence waivers and has decided to continue with a general prohibition on administrative closure in immigration proceedings before EOIR. DHS chose to limit the eligibility for provisional unlawful presence waivers as a matter of policy. See 78 FR at 544 (explaining that DHS chose to limit eligibility to aliens with administratively closed removal proceedings in order to be ‘‘consistent with [DHS’s] established enforcement priorities’’). DHS may choose to update their regulations as a result of the Department’s amendments regarding administrative closure authority, but any concerns with DHS’s policy decisions are outside the scope of this rule. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 81599 Commenters did not identify an explicit conflict between the language of INA 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), and the Department is unaware of any. That statutory provision refers to a waiver of inadmissibility based on an alien’s unlawful presence in the United States, and this final rule does not purport to interpret, alter, or even address that provision. Rather, commenters assert that this rule’s restriction on the use of administrative closure presents an undesirable policy choice to the extent that it may limit eligibility for that waiver based on DHS’s current regulatory language. The Department acknowledges commenters’ policy disagreement and has considered it. Nevertheless, the benefits of the final rule far outweigh its alleged costs, even crediting commenters’ speculative assertions.25 Moreover, regardless of policy preferences, the Attorney General has determined that the expansive version of administrative closure preferred by commenters is incompatible with existing law and does not warrant a delegation of such authority. Matter of Castro-Tum, 27 I&N Dec. at 292 (‘‘The current practice of administrative closure lacks a valid legal foundation, and I do not believe it would be appropriate to delegate such authority.’’); cf. Hernandez-Serrano, 2020 WL 6883420 at *4 (‘‘Those concessions imply that the permanent closure of some 350,000 immigration cases was largely contrary to law. Indeed no one—neither HernandezSerrano, nor the two circuit courts that have rejected the Attorney General’s decision in Castro-Tum—has explained how a general authority to close cases administratively can itself be lawful while leading to such facially unlawful results.’’). In short, the Department finds no basis to contradict the Attorney General and adopt commenters’ policy preferences. The Department believes that any increase in cancellation of removal applications in response to this unrelated rule is purely speculative. Further, even if commenters’ predictions turn out to be accurate, the Department is well-equipped to handle an increase in such applications as its adjudicators have considered them for decade and the relevant law is wellestablished. Additionally, commenters’ speculation on this point implies that the majority of such applications would 25 The final rule does not prohibit administrative closure altogether, and commenters did not generally acknowledge or account for those aliens who may still benefit from administrative closure under the rule in their assertions about the rule’s impact. E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81600 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations be meritless; otherwise, the aliens would have already filed such applications because an approved application for cancellation of removal for non-permanent residents provides lawful permanent residence which is a preferable outcome to the limbo-like nature of adnministrative closure. The Department finds that a potential increase in meritless applications for relief is not a persuasive reason for altering this final rule, and any adjudicatory costs associated with such an increase are outweighed by the benefits of the rule. The Departments disagree that the administrative closure provisions raise any constitutional concerns. There is no cognizable due process interest in access to or eligibility for a discretionary, provisional unlawful presence waiver of inadmissibility. See, e.g., Champion v. Holder, 626 F.3d 952, 957 (7th Cir. 2010) (‘‘To articulate a due process claim, [the individual] must demonstrate that she has a protected liberty or property interest under the Fifth Amendment. Aliens have a Fifth Amendment right to due process in some immigration proceedings, but not in those that are discretionary.’’) (citations omitted). Moreover, this rule’s administrative closure changes do not violate the concept of equal protection— in either the Equal Protection Clause of the Fourteenth Amendment or as a component of the Fifth Amendment’s Due Process Clause—as they do not impose any classifications that would invoke the doctrine. To the extent the administrative closure changes would have a disparate impact on persons in removal proceedings as compared to persons not in proceedings, the Departments note that the changes are rationally related to the Department’s interest in efficiently allocating EOIR’s limited adjudicatory capacity in order to decide cases in a timely manner. Cf. DeSousa v. Reno, 190 F.3d 175, 184 (3d Cir. 1995) (‘‘[D]isparate treatment of different groups of aliens triggers only rational basis review under equal protection doctrine. Under this minimal standard of review, a classification is accorded ‘a strong presumption of validity’. . . .’’ (internal citations omitted)). Overall, as discussed in more detail, infra, the Department has weighed the relevant equities of the rule’s administrative closure provision. The Department does not believe that the administrative closure provision will have a significant impact on the public, as most immigration courts—63 out of 67, all but those in Arlington, Baltimore, VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 Charlotte, and Chicago 26—currently follow either Matter of Castro-Tum itself or an applicable Federal court decisioning affirming it, e.g., Hernandez-Serrano, 2020 WL 6883420 at *5 (‘‘In summary, therefore, we agree with the Attorney General that §§ 1003.10 and 1003.1(d) do not delegate to IJs or the Board ‘the general authority to suspend indefinitely immigration proceedings by administrative closure.’’’ (quoting Matter of Castro-Tum, 27 I&N Dec. at 272)). Therefore, the effect of this rule simply codifies the existing limitations on immigration judges’ general authority to grant administrative closure.27 Moreover, to the extent that commenters simply disagree with the decision in Matter of Castro-Tum as a policy matter, the Department has explained that the legal and policy issues implicated by the free-floating use of administrative closure and the efficiency that would follow from clearly delineating the circumstances of its usage outweigh the policy arguments advanced by commenters. See also Hernandez-Serrano, 2020 WL 6883420 at *1 (‘‘A regulation delegating to immigration judges authority to take certain actions ‘[i]n deciding the individual cases before them’ does not delegate to them general authority not to decide those cases at all. Yet in more than 400,000 cases in which an alien was charged with being subject to deportation or (after April 1, 1997) removal, immigration judges or the Board of Immigration Appeals have invoked such a regulation to close cases 26 The Department notes that Matter of CastroTum did not incorporate all of the legal arguments presented in the NPRM regarding whether immigration judges and Board members have freefloating authority to defer adjudication of cases. E.g., 85 FR at 52503 (discussing tension created by interpreting 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to allow free-floating authority to administratively close cases with references in those provisions to the ‘‘disposition’’ of cases and with the provisions of 8 CFR 1003.1(a)(2)(i)(C) and 8 CFR 1003.9(b)(3) which assign authority to defer case adjudications to the Board Chairman and the Chief Immigration Judge rather than to all Board members and all immigration judges); accord Hernandez-Serrano, 2020 WL 6883420 at *4 (‘‘To the contrary, the regulations expressly limit their delegation to actions ‘necessary for the disposition’ of the case. And that more restricted delegation cannot support a decision not to decide the case for reasons of administrative ‘convenience’ or the ‘efficient management of the resources of the immigration courts and the BIA.’ ’’ (emphases in original). Thus, circuit court decisions abrogating Matter of CastroTum did not necessarily address all arguments surrounding administrative closure. Accordingly, independent of Matter of Castro-Tum, immigration judges and Board members may still come to the conclusion that they generally lack free-floating authority to administratively close cases. 27 Although this rule codifies the result of Matter of Castro-Tum, its bases are broader than just that decision. See supra text accompanying note 26. PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 administratively—meaning the case was removed from the IJ’s docket without further proceedings absent some persuasive reason to reopen it. As of October 2018, more than 350,000 of those cases had not been reopened. An adjudicatory default on that scale strikes directly at the rule of law.’’). Further, for those courts that are not bound by Matter of Castro-Tum, the Department disagrees that the change will result in unnecessary removal orders, as immigration judges are already tasked with resolving the proceedings before them, including determining removability and issuing removal orders if required. See, e.g., 8 CFR 1003.10(b) (‘‘In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.’’). The Department declines to adopt commenters’ speculation as to the counter-factual outcomes of cases that have been administratively closed, and commenters did not support their assertion that only cases in which an alien will be ordered removed are administratively closed.28 To the contrary, aliens have sought recalendaring of their proceedings in order to apply for relief from removal for which they believe they are eligible, suggesting that in many cases, aliens themselves do not believe that a case that has been administratively closed would necessarily have otherwise resulted in a removal order. See, e.g., Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) (‘‘[The respondent] filed a timely application for asylum and related relief and protection, which he seeks to have the Immigration Judge review in removal proceedings. The respondent argues that the administrative closure of his case prevents him from pursuing that relief.’’), overruled by Matter of Castro-Tum, 27 I&N Dec. at 272. As the Department asserted, freefloating authority to unilaterally administratively close cases is in significant tension with existing law, including regulations and longstanding Board case law. 85 FR at 52503–05. To the extent that commenters suggested the Department should retain the status quo and its problematic tension with 28 The Department notes that simply delaying an alien’s removal is not a compelling policy basis for declining to promulgate this rule. See Nken v. Holder, 556 U.S. 418, 436 (2009) (‘‘There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permits and prolongs a continuing violation of United States law.’’ (internal citations and quotation marks omitted)). E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations existing law, the Department simply disagrees. The question of unlawful presence waivers was already addressed by Matter of Castro-Tum, 27 I&N Dec. at 278 n.3, 287 n.9, and this final rule does not impact such waivers accordingly. Moreover, the regulation identified by commenters, 8 CFR 212.7(e)(4)(iii) has no analogue in chapter V of title 8, and that regulation is not binding on the Department. Additionally, such a waiver is both ‘‘provisional’’ and ‘‘discretionary,’’ 8 CFR 212.7(e)(2)(i); like administrative closure itself, an alien has no right to such a waiver; and, a provisional and discretionary waiver to which an alien lacks any entitlement cannot be seen as necessary to the disposition of the alien’s case in immigration proceedings. See GutierrezMorales v. Homan, 461 F.3d 605, 610 (5th Cir. 2006) (‘‘We have squarely held that ‘neither relief from removal under discretionary waiver nor eligibility for such discretionary relief is entitled to due process protection.’ Stated differently, an alien has no due process right to a hearing to determine his eligibility for relief that is purely discretionary.’’ (footnotes omitted, emphasis in original)). Further, although aliens in removal proceedings (unless administratively closed) and aliens with administratively final orders of removal are barred from obtaining the waiver, 8 CFR 212.7(e)(4)(iii) and (iv), an alien with an administratively final order of voluntary departure is not, and by definition, aliens must voluntarily depart the United States in order to receive the benefit of such a waiver. Thus, the availability of administrative closure has no bearing on an alien’s ability to receive and effectuate an order of voluntary departure, which is a practical prerequisite for obtaining the benefit of the waiver, and commenters did not explain why the restriction on administrative closure would have any impact at all on an alien’s ability to obtain an order of voluntary departure and then a provisional waiver before departing to receive the final waiver abroad. Although the Department has considered the link between such waivers and administrative closure— just as the Attorney General did in Matter of Castro-Tum—that link is too attenuated to outweigh the significant legal and policy concerns raised by the Department regarding administrative closure. Similarly, concerns about putative reliance interests are misplaced. First, as discussed, infra, the rule applies, in general, only prospectively, so it does not disturb cases that have already been VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 administratively closed. Second, and relatedly, all changes in the law may impact matters of attorney strategy in interactions with clients, but that is an insufficient basis to decline to change the law.29 To find otherwise would effectively preclude any law from ever being changed. Third, nothing in the rule prohibits a practitioner from seeking administrative closure; rather, it more clearly delineates the situations in which administrative closure is legally authorized. Fourth, a representative may not ethically guarantee any result in a particular case; thus, to the extent commenters suggest that the final rule restricts or interferes with an attorney’s ability to guarantee an alien both a grant of administrative closure and the approval of a provisional waiver, the Department finds such a suggestion unavailing. See Model Rules of Prof’l Conduct R. 7.1 cmt. 3 (2020) (‘‘A communication that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.’’); id. cmt. 4 (‘‘It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’’) (quoting R. 8.4(c)); id. R. 8.4(e) (‘‘It is professional misconduct for a lawyer to . . . state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.’’). In short, the Department appropriately considered potential alternatives as well as the relevant interests and alleged costs in issuing the final rule regarding administrative closure. On balance, however, commenters’ suggestions would not resolve the issues identified by the Department, and the concerns raised by commenters are far outweighed by both the significant legal and policy issues raised by the Department in the NPRM regarding administrative closure and the increased efficiency that a formal clarification of its use will provide. With regards to the alleged costs to persons in removal proceedings who allegedly may no longer be eligible to obtain a provisional unlawful presence waiver without administrative closure, 29 Furthermore, as reiterated herein, because Matter of Castro-Tum was issued in 2018, aliens and their representatives in jurisdictions following Castro-Tum should not be currently relying on the expectation of administrative closure to pursue provisional unlawful presence waivers. PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 81601 the Department first reiterates that situation is already the status quo in all but four immigration courts and has been so since 2018. As Matter of CastroTum was issued in 2018, aliens and their representatives in jurisdictions following Castro-Tum should not be currently relying on the expectation of administrative closure to pursue provisional unlawful presence waivers. Consequently, this final rule does not change the status quo regarding the availability of a provisional unlawful presence waiver for the overwhelming majority of aliens currently in removal proceedings, and commenters generally did not distinguish the reality of the status quo in making their speculative projections. Further, the Department believes that the strong interest in the efficient adjudication of cases and the legal and policy issues identified in the NPRM outweigh the potential inability of aliens at 4 out of 67 immigration courts to obtain provisional unlawful presence waivers, something to which they are not entitled to in the first instance. The Department notes that these persons may still apply for an unlawful presence waiver from outside the United States, and that DHS may choose, as a matter of policy, to amend their regulations to remove the administrative closure requirement for persons in removal proceedings applying for a provisional waiver. The Department also disagrees that the general prohibition on administrative closure does not harmonize with DHS regulations regarding provisional unlawful presence waivers. As a Federal circuit court recently noted, the presence of references to administrative closure in existing regulations ‘‘presuppose only the existence of a general practice of administrative closure, not its legality.’’ Hernandez-Serrano, 2020 WL 6883420 at *4. Thus, assuming counterfactually—but as commenters asserted— that 8 CFR 212.7(e)(4)(iii) controlled the Department and that no aliens would be eligible to have their cases administratively closed after this final rule—and, thus, no aliens in immigration proceedings were eligible for a provisional waiver under 8 CFR 212.7(e)(4)(iii)—those factors, even if factually accurate, would not provide a strong policy basis to overrule the Attorney General’s decision in Matter of Castro-Tum for all of the reasons given by the Department in the NPRM and this final rule. See also HernandezSerrano, 2020 WL 6883420 at *4 (‘‘neither the IJs nor the Board [nor parties] enjoy a right of adverse possession as to the Attorney General’s E:\FR\FM\16DER3.SGM 16DER3 81602 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations regulations.’’). The Department considered the interplay of EOIR and DHS’s regulations and, due to the strong equities in favor of limiting administrative closure, decided to continue with a general prohibition on administrative closure in immigration proceedings before EOIR. DHS chose to limit the eligibility for provisional unlawful presence waivers as a matter of policy, and DHS may choose to update their more specific regulations accordingly as a result of this rule. c. Enhanced BIA Factfinding (8 CFR 1003.1(d)(3)(iv)) khammond on DSKJM1Z7X2PROD with RULES3 i. Administrative Notice Comment: As a general matter, many commenters asserted that the provisions regarding administrative notice were biased in favor of DHS, thereby demonstrating the allegedly partisan nature of the BIA and, more broadly, the Department. Similarly, one commenter explained that the administrative notice provisions were ‘‘problematic’’ because, as the commenter alleged, DHS could submit new evidence but the alien was not permitted to submit counter evidence under the new rules. Commenters expressed concern about the types of items the rule would allow the BIA to administratively notice items ‘‘not reasonably subject to dispute.’’ 8 CFR 1003.1(d)(3)(iv)(A). Overall, commenters predicted disputes at both the BIA and the Federal courts over whether particular facts fit any of the listed exemplary categories of such evidence or otherwise constitute such items. 8 CFR 1003.1(d)(3)(iv)(A)(1)–(4). Such disputes, commenters alleged, would undermine the efficiency goals of the rule. One commenter explained that ‘‘[m]ost of this information—especially that contained within government documents—will be adverse to respondents. The rule thus creates a one-sided system in which information favorable to DHS may be considered by the BIA, but information favorable to respondents may not be.’’ Commenters claimed that the rule’s inclusion of all of these facts was arbitrary and capricious. Further, commenters specifically alleged that the ‘‘the contents of official documents outside the record,’’ 8 CFR 1003.1(d)(3)(iv)(A)(2), are subject to reasonable dispute because DHS records, including records from CBP and ICE, ‘‘routinely contain [ ] egregious errors and coerced statements.’’ Commenters also stated that current events, 8 CFR 1003.1(d)(3)(iv)(A)(1), could similarly be subject to reasonable dispute. Commenters stated that the contours of the category of facts from VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 government sources was unclear, despite it being limited to ‘‘facts that can be accurately and reliably determined,’’ 8 CFR 1003.1(d)(3)(iv)(A)(3), because DHS records are unreliable. In addition, at least one commenter stated that the rule did not explain why facts that can be administratively noticed by the BIA may only be sourced from official or universally acclaimed documents. At least one commenter alleged that the administrative notice provisions would allow the BIA to consider and act upon facts not raised by either party, thereby considering ‘‘facts that did not constitute part of the immigration judge’s decision-making.’’ The commenter alleged that this would allow the BIA to act as prosecutor instead of a neutral arbiter. The commenter explained that because DHS rarely submits a brief on appeal, the administrative notice changes would disproportionately affect pro se individuals. Several commenters stated that the provisions regarding notice and an opportunity to respond were insufficient because a response may require witnesses and additional clarifying evidence. Commenters explained that witnesses and additional evidence were more appropriately introduced at the immigration court level, given the immigration judge’s unique position to assess facts and determine credibility and the general prohibition against factfinding by the BIA. Commenters also emphasized that the rule failed to consider that the BIA would need to give notice to the parties and an opportunity to respond if the BIA intended to administratively notice a fact that was outside the record and would serve as the basis for overturning a removal order or denial of relief. The commenter explained that the BIA does not appear to be neutral when it must only administratively notice facts that could be used to deny relief that was previously granted. One commenter explained that the rule’s changes to administrative notice would affect the standard of review for factual findings on appeal at the appellate court level. The commenter explained that the current use of the ‘‘substantial evidence’’ standard would not be justified, given that some factual findings would have been made only by the BIA in the first instance. Thus, the commenter suggested that the ‘‘clearly erroneous’’ standard replace the ‘‘substantial evidence’’ standard in these cases. Response: As an initial point, the Department notes that the Board’s ability to take administrative notice of PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 certain facts is already well-established in both existing regulations, e.g., 8 CFR 1003.1(d)(3)(iv) (2019) (allowing the Board to take administrative notice of current events and the contents of official documents), and case law, e.g., Sankoh v. Mukasey, 539 F.3d 456, 465 (7th Cir. 2008) (‘‘The Board has the authority to take administrative notice of uncontroverted facts, meaning facts that can be characterized as commonly acknowledged.’’ (internal citation and quotation marks omitted)). Thus, to the extent that commenters assert the Board should not be able to take administrative notice of facts not reasonably subject to dispute, they did not explain why the Department should reverse the Board’s longstanding authority to do so. Similarly, commenters did not persuasively explain why Federal Rule of Evidence 201(b), which is wellestablished in Federal jurisprudence and governs judicial notice by appellate courts, In re Omnicare, Inc. Securities Litigation, 769 F.3d 455, 466 (6th Cir. 2014) (‘‘[Federal Rule of Evidence 201(b)] applies to appellate courts taking judicial notice of facts supported by documents not included in the record on appeal.’’ (quoting United States v. Ferguson, 681 F.3d 826, 834 (6th Cir. 2012)), was not an appropriate model for the Board to follow. Without such explanations as to why the Department should overturn these longstanding and well-established principles, the Department finds commenters’ unsupported policy preferences on this point unpersuasive. Additionally, commenters’ suggestions about the allegedly ‘‘onesided’’ nature of this change belie both a misunderstanding of the rule and an acknowledgement of its importance to ensure that only meritorious claims are granted. First, contrary to the assertions of many commenters, the rule applies equally to DHS and to respondents. Thus, the Board may take administrative notice of facts both favorable and adverse to either party, as long as those facts are not reasonably subject to dispute. Second, the broad, hyperbolic, and unsupported assertion that official government documents should not be administratively noticed because they contain only information adverse to respondents is both inaccurate factually, e.g., Dahal v. Barr, 931 F.3d 15, 19 (1st Cir. 2019) (‘‘Thus, far from undercutting Dahal’s fears, the [Department of State] Country Report on the elections recognizes a remaining threat of Maoist persecution.’’), and in tension with well-established Federal practice in which courts may take judicial notice of official government documents, e.g., E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d 156, 166 (S.D.N.Y. 2015) (‘‘Under Federal Rule of Evidence 201, a court may take judicial notice, at ‘any stage of the proceeding,’ of any fact ‘that is not subject to reasonable dispute because’ it ‘can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.’ Fed. R. Evid. 201(b)(2), (d). . . . Pursuant to Rule 201, courts have considered newspaper articles, documents publicly filed with the SEC or FINRA, documents filed with a Secretary of State, documents filed with governmental entities and available on their official websites, and information publicly announced on certain non-governmental websites, such as a party’s official website.’’); Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.1991) (‘‘[A] . . . court may take judicial notice of the contents of relevant public disclosure documents . . . as facts ‘capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’ ’’ (quoting Fed. R. Evid. 201(b)(2)). Moreover, this suggestion misapprehends the nature of the rule and—perhaps unintentionally by the commenter—offers further support for maintaining it. The rule allows the Board to take administrative notice of ‘‘[f]acts that can be accurately and readily determined from official government sources and whose accuracy is not disputed.’’ 8 CFR 1003.1(d)(3)(iv)(A)(3). Commenters did not explain why facts whose accuracy is not disputed and that are unfavorable to an alien should not be considered by individuals adjudicating claims made by aliens—except that ignoring such facts would potentially increase the likelihood that non-meritorious claims would be granted, which is an outcome preference tacitly supported by many commenters. The Department finds it vitally important that all undisputed, accurate facts bearing on a claim should be considered in order to reduce adjudication errors and to ensure that meritorious claims are granted in a timely manner while unmeritorious ones are efficiently addressed. In short, the Department disagrees with the implicit suggestion of commenters that the Board should intentionally turn a blind eye to relevant, undisputed facts, regardless of which party those facts allegedly favor. The rule does not authorize the BIA to rely on facts that did not constitute part of the immigration judge’s decisionmaking, except when such ‘‘facts [ ] are not reasonably subject to dispute.’’ 8 CFR 1003.1(d)(3)(iv)(A) (proposed); see VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 also Matter of J-Y-C-, 24 I&N Dec. 260, 261 n.1 (BIA 2007) (providing that issues not raised before an immigration judge are waived). The BIA must take administrative notice of those facts. 8 CFR 1003.1(d)(3)(iv)(A). Further, if the BIA were to reverse a grant of relief or protection from removal based on such facts, the BIA must give the parties notice and not less than 14 days to respond. 8 CFR 1003.1(d)(3)(iv)(B). Accordingly, contrary to commenters’ assertions, an alien whose grant of relief or protection may be subject to reversal will have an opportunity to respond, including by submitting additional arguments and evidence such as affidavits or declarations. Furthermore, the administrative notice provisions are not the product of partisanship or favoritism toward DHS, and contrary to an implicit assertion made by most commenters, they apply equally to both parties. The BIA has long been able to take administrative notice of commonly known facts and official government records, and these changes build on this prior practice. Moreover, contrary to the assertion of at least one commenter, the Department intends to ensure that an alien receives notice and an opportunity to respond if the BIA were to rely on a fact outside the record to reverse a grant of relief or protection from removal. If anything, the provision treats respondents more favorably than DHS because it does not require the BIA to provide notice to DHS if it intends to rely on facts outside the record to reverse an immigration judge’s denial of relief or protection, yet many commenters failed to acknowledge this discrepancy or to explain why the Department should not adopt such a provision. The Department emphasizes that regulations, not statute, determine appellate procedures at the BIA. See generally 8 CFR part 1003, subpart A; see also 85 FR at 52492. Accordingly, the Department properly exercised its rulemaking authority under section 103(g)(2) of the Act, 8 U.S.C. 1103(g)(2), to promulgate the administrative notice provisions to clarify appellate procedures at the BIA, with the overarching goal of increasing efficiencies and consistency in cases before the BIA. The Department disagrees with commenters’ suggestions that the regulation’s list of facts that may be administratively noticed include disputable facts, as whether any given fact is ‘‘disputable’’ will depend on the putative fact at issue and the overall circumstances of the case. The Department recognizes that parties may disagree over whether a fact is truly PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 81603 undisputed, but factual disputes are already a common feature of immigration proceedings and can be resolved under existing law. Moreover, respondents will have at least 14 days to argue otherwise if the Board intends to rely on a fact ‘‘not reasonably subject to dispute’’ outside the record in order to reverse a rant of relief or protection. 8 CFR 1003.1(d)(3)(iv)(B). Further, the Department rejects any allegation that official documents or government documents contain ‘‘egregious errors’’ and ‘‘coerced statements,’’ or are ‘‘unreliable,’’ as commenters claimed. Government documents, broadly speaking, provide reliable data and cite to reliable sources in support of the ideas presented and are meant to inform the public. Second, the Department disagrees with the commenters’ concerns that all but paragraph (d)(3)(iv)(A)(4) could be disputable. The Department disagrees that administrative notice of any of those facts creates a biased system. Inclusion of these facts is not arbitrary or capricious; both ‘‘current events’’ and ‘‘official documents’’ were carried over from existing regulations. The ‘‘official government sources’’ category provides further clarification and distinction from the ‘‘official documents’’ category. In providing this list, the Department sought to delineate clear categories of facts that were indisputable, and the rule concurrently included the provision requiring notice and an opportunity to respond to ensure that both sides may address administratively noticed facts. Commenters’ concerns regarding prolonged disputes at the BIA and the Federal courts are speculative, as are commenters’ concerns regarding efficiency that stem from those litigation-related concerns. More specifically, all disputes at the BIA may potentially result in Federal litigation, including disputes over the appropriateness of the Board taking administrative notice of undisputed facts. The near-certainty of litigation, which has grown considerably in the immigration field well before the NPRM was published, is an insufficient basis, however, to decline to adopt the rule. In regard to administratively noticed documents, those listed at 8 CFR 1003.1(d)(3)(iv)(A)(1)–(4) are examples of documents, as indicated by the words ‘‘such as’’ preceding the list provided at paragraphs (d)(3)(iv)(A)(1)–(4), that would generally raise facts not reasonably subject to dispute. The rule did not require that sources be ‘‘official’’ or ‘‘universally acclaimed,’’ as commenters claimed. Rather, the rule required that administratively noticed facts, regardless of their sources, be ‘‘not E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81604 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations reasonably subject to dispute.’’ Although official or universally acclaimed documents typically raise facts that are not in dispute, those are not the exclusive sources from which the BIA may administratively notice facts. Because facts that may administratively noticed are not reasonably subject to dispute, the BIA does not act as a ‘‘prosecutor’’ when it takes administrative notice of such facts. Further, the regulation requires the BIA to provide parties at least 14 days to respond if it takes administrative notice of facts. 8 CFR 1003.1(d)(3)(iv)(B). Thus, regardless of whether DHS files a brief on appeal and regardless of whether an alien is represented, the alien is afforded an opportunity to respond to administratively-noticed facts outside the record if those facts will be used to overturn a grant or relief or protection. This rule also does not impose any specific limits on such a response, though the Board’s ordinary rules for service and filing would still apply. Although the Department agrees that immigration courts are generally bestpositioned to engage in factfinding, see generally 85 FR at 52500–01, there are circumstances—similar to those recognized by Federal courts—in which procedural efficiency counsels in favor of being noticed on appeal in order to avoid remanding a case to address a fact that is undisputed. Thus, the Department has determined that certain facts described in 8 CFR 1003.1(d)(3)(iv)(A)(1)–(4) may appropriately be raised before the BIA. See id. at 52501. Some commenters alleged that the rule permits DHS to submit new evidence and prevents the alien from submitting new evidence to counter DHS’s new evidence. However, the rule does not permit either party to submit new evidence in this regard. To the extent that commenters framed this concern as one regarding exceptions related to factual issues raised by identity, law enforcement, or security investigations or examinations, or other investigations noted in 85 FR at 52500 n.21, that issue is distinct from the issue of administratively noticed facts and, for asylum applications, has a statutory foundation, INA 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i) (‘‘[A]sylum cannot be granted until the identity of the applicant has been checked against all appropriate records or databases maintained by the Attorney General and by the Secretary of State, including the Automated Visa Lookout System, to determine any grounds on which the alien may be inadmissible to or deportable from the United States, or VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 ineligible to apply for or be granted asylum’’). For further discussion on issues related to identity, law enforcement, or security investigations or examinations, see section II.C.3.e. Commenters’ concerns regarding use of the clearly erroneous standard in place of the substantial evidence standard is outside the scope of this rulemaking, as this rule does not propose or affect standards of review for factual findings at the appellate court level. The Department does not have the authority to issue a rule that would alter the standard of review employed by a Federal circuit court. This rule does not affect the commenters’ ability to lobby Congress or advise other attorneys in regard to this concern. ii. BIA Factfinding Remands Comment: Commenters opposed the rule’s prohibition on the BIA to remand a case for further factfinding, explaining that oftentimes combining excluded evidence with evidence in the record could determine the outcome of a case. Overall, one commenter explained that the rule ‘‘defied logic’’ by categorically restricting the BIA from exercising discretion to determine whether additional facts must be adduced. The commenter stated that the Department provided no data to support the rule’s changes to the BIA’s long-standing factfinding efforts, nor did the rule explain how restricting the BIA’s factfinding capabilities would increase efficiency and consistency. Commenters voiced general concern for pro se individuals, alleging that the rule’s removal of the BIA’s ability to remand a case sua sponte for further factfinding ‘‘appears designed to quickly, and with finality, remove those without representation who would be least likely to understand that they have the ability to seek remand and would therefore most heavily rely on EOIR to protect their rights.’’ More specifically, especially in the case of pro se individuals, commenters were concerned that respondents who were unaware of what was necessary to meet their burden would also similarly not have attempted to ‘‘adduce the additional facts before the immigration judge,’’ as required by proposed 8 CFR 1003.1(d)(3)(iv)(D)(2) for the BIA to remand a case. One commenter further explained that this provision would ‘‘require respondents to predict a future that will be created by actors beyond their control in order to obtain the lawful status that is otherwise statutorily available to them.’’ Similarly, commenters opposed proposed 8 CFR 1003.1(d)(3)(iv)(D)(1) requiring that an issue be ‘‘preserved’’ PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 before the immigration judge because, the commenters explained, the respondent would be unaware of what factfinding the immigration judge had conducted until the decision is issued. Accordingly, commenters alleged that the respondent would have to ‘‘interrupt the IJ as the IJ is dictating her ruling. Or, even worse, the [r]espondent wouldn’t even have the opportunity to object because he received his decision by postal mail.’’ Citing the performance metrics for immigration judges, commenters were concerned that immigration judges would have ‘‘little incentive’’ to take the time to develop the record in cases ‘‘where there is no possibility that the case could be remanded for failure to do so.’’ Commenters also disagreed with proposed 8 CFR 1003.1(d)(3)(iv)(D)(3), which requires the BIA to first determine whether additional factfinding would ‘‘alter the outcome of the case.’’ Commenters alleged that making such determination constituted factfinding on the part of the BIA, contradicting the general opposition to factfinding by the BIA. Commenters disagreed with the clearly erroneous standard in proposed 8 CFR 1003.1(d)(3)(iv)(D)(5). Commenters explained that it should not make a difference whether an immigration judge’s findings were erroneous if an alien should have been granted asylum in the first instance. Other commenters voiced general support for the current system, which they explained required the BIA to determine whether an immigration judge made a clearly erroneous factual finding that prejudiced the alien. One commenter alleged that, under the rule, the BIA would be forced to issue ‘‘poor decisions based on incomplete facts and conjecture.’’ Response: Again, as an initial point, the Department notes that the assertions of many commenters reflect either an unsubstantiated, tendentious interpretation of the rule or a fundamental misunderstanding of the procedures of adversarial civil proceedings, including immigration proceedings. Except for issues related to identity, law enforcement, or security investigations or examinations, which are required by other regulations or statutes,30 the changes in the rule regarding factfinding apply to both 30 Most applications cannot be granted in immigration proceedings—at the BIA or otherwise—without the completion and clearance of identity, law enforcement, or security investigations or examinations. 8 CFR 1003.47. A similar statutory restriction applies specifically to asylum applications. INA 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i). E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations parties equally. Thus, both DHS and an alien must comply with the rule’s provisions in order to seek a remand for factfinding. Because the parties themselves are responsible for meeting any applicable burdens of proof before the immigration judge, 8 CFR 1240.8, and because the Board acts a neutral arbiter between the parties—rather than as an advocate for one party over the other—there is generally no reason for the Board to remand a case on its own for further factfinding unless a question of jurisdiction has arisen that requires such factfinding. To do otherwise, the Board would, in essence, be acting on behalf of a party in order to advance that party’s arguments, which is inappropriate. 8 CFR 1003.1(d)(1) (‘‘The Board shall resolve the questions before it in a manner that is timely, impartial, and consistent with the Act and regulations.’’ (emphasis added)); 5 CFR 2635.101(b)(8) (‘‘Employees [of the federal government] shall act impartially and not give preferential treatment to any private organization or individual.’’); BIA Ethics and Professionalism Guide at sec. V (‘‘A Board Member shall act impartially and shall not give preferential treatment to any organization or individual when adjudicating the merits of a particular case.’’). In other words, it is not the Board’s role to correct deficiencies in a party’s case or to provide a second or additional opportunity for a party to do so. It is the Board’s role to ‘‘review . . . administrative adjudications under the Act . . . . [R]esolve the questions before it in a manner that is timely, impartial, and consistent with the Act and regulations . . . . [And] provide clear and uniform guidance to the [DHS], the immigration judges, and the general public on the proper interpretation and administration of the Act and its implementing regulations.’’ 8 CFR 1003.1(d)(1). The final rule recognizes the Board’s appropriate role, and to the extent that commenters suggest the Board should employ procedures in resolving appeals that favor one party over the other, the Department declines to adopt such a suggestion to avoid compromising the Board’s impartiality. The rule reflects several wellestablished principles that commenters did not persuasively challenge or address. First, it requires that the party seeking remand for factfinding on an issue to have preserved that issue below. Issues not preserved in front of an immigration judge are generally waived. See Matter of Edwards, 20 I&N Dec. 191, 196 n.4 (BIA 1990) (noting that an issue not preserved in front of the immigration judge is waived). Thus, VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 it is both inefficient and inconsistent with existing case law to remand a case for further factfinding on issue that has already been waived on appeal. Commenters did not explain why EOIR should allow the Board to remand cases for further factfinding on issues that have already been waived, and the Department is unaware of any logical or persuasive basis to do so. Second, the rule requires the party seeking remand, if it bore the burden of proof below, to have attempted to adduce the additional facts before the immigration judge. There is no logical reason for a party to choose not to attempt to adduce facts sufficient to meet its burden of proof before an immigration judge, and this requirement merely recognizes both the inefficiency and the gamesmanship that would follow if parties were relieved of an obligation to attempt to bring out facts to meet a burden of proof before an immigration judge. Again, commenters did not explain why parties—including both aliens and DHS—should be relieved of that burden, particularly since they, presumably, should already have attempted to meet it. 8 CFR 1240.8. Third, the rule requires that the additional factfinding alter the outcome or disposition of the case. To do otherwise would be to remand a case for no purpose since the remand would not affect the outcome or disposition of the case. In short, it would be a remand for no reason. The Department is unaware of any need to remand a case for no reason, and commenters did not provide one. Fourth, and relatedly, the rule requires that the additional factfinding would not be cumulative of the evidence already presented or contained in the record. Again, to do otherwise would largely be purposeless. The Department is unaware of any reason to remand a case for factfinding that is cumulative or already present in the record, and commenters did not advance one. Fifth, the rule requires, inter alia, that the immigration judge’s factual findings were clearly erroneous. The Board already reviews immigration judge factual findings under a clearly erroneous standard, and the rule does not change that standard. Id. § 1003.1(d)(3)(i). Rather, the rule recognizes that additional factfinding in cases in which an immigration judge’s factual findings are not clearly erroneous could mean only one of two possibilities. It could mean that a party failed to meet its burden of proof but the Board believes—for some unknown or unstated reason—that the party warrants another chance to meet that burden to PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 81605 bring out additional facts. Such a decision would effectively convert the Board into an advocate for the party seeking a remand, and in that case, the Board would be abdicating its role as an impartial or neutral arbiter. See id. 1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA Ethics and Professionalism Guide at sec. V. Commenters did not offer persuasive reasons for the Board to abandon its need for impartiality, and to the extent that commenters alleged multiple reasons for not adopting the rule, the Department finds that the need for the Board to remain an impartial body is more compelling than those reasons. Alternatively, additional factfinding in cases in which an immigration judge’s factual findings are not clearly erroneous could mean that the immigration judge made an error of law which will necessitate additional factfinding on remand. For example, an immigration judge may err as a matter of law in failing to sufficiently develop the record for a pro se respondent, which would inherently require further factfinding. Although that interpretation would be based on a legal determination and the rule does not restrict the Board’s ability to remand a case due to a legal error, the Department recognizes that some cases of legal error may require additional factfinding on remand. The Department did not intend the rule to prohibit factfinding on remand when the remand is based on a legal error— subject to other requirements—and the final rule clarifies that point to avoid confusion. 8 CFR 1003.1(d)(3)(iv)(D)(5). Contrary to commenters’ contentions, the rule did not ‘‘categorically restrict’’ the BIA from exercising discretion to determine whether additional facts may be adduced. For example, the BIA may exercise discretion to determine that additional facts not reasonably subject to dispute may be administratively noticed. The rule did, however, clarify the extent to which the BIA may engage in factfinding on appeal and the circumstances in which the BIA may remand for further factfinding, consistent with applicable law and regulations. 85 FR at 52500–01. The rule cited various data, see id. at 52492, to demonstrate the significant increase in cases and related challenges, which the Department believes would be unsustainable under the BIA system pre-dating this rule and thus prompted the Department’s decision to review the BIA’s regulations in order to address and reduce unwarranted delays in the E:\FR\FM\16DER3.SGM 16DER3 81606 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 appeals process and ensure efficient use of resources.31 Contrary to commenters’ claims, the Department maintains that it explained in the NPRM how proposed changes to the BIA’s factfinding abilities would increase efficiency and consistency. For example, in support of the administrative notice provisions, the Department explained that there was no operational or legal reason to remand a case for factfinding if the record already contained evidence of undisputed facts. Id. at 52501. Thus, the Department clarified that the BIA could rely on such facts without remanding the case, thereby reducing an unwarranted delay. Overall, the proposed changes were made ‘‘to more clearly delineate the circumstances in which the BIA may engage in factfinding on appeal.’’ Id. Clarifying such circumstances inherently facilitates a more efficient and consistent process because adjudicators need not spend time determining, for example, whether factfinding is appropriate or whether previous adjudicators otherwise engaged in factfinding in similar circumstances. The Department promulgated this rule to reduce unwarranted delays and ensure efficient use of resources, given the significant increase in pending cases in the immigration courts that has led to an increase in appeals. See id. at 52492. In no way are these changes intended for the purpose of harming or quickly removing pro se individuals. To the contrary, EOIR’s Office of Policy (OP) seeks to increase access to information and raise the level of representation for individuals in hearings before immigration courts and the BIA. In addition, EOIR has developed a thorough electronic resource for individuals in proceedings. EOIR, Immigration Court Online Resource, available at https://icor.eoir.justice.gov/ en/ (last visited Nov. 27, 2020); see also 31 To the extent that commenters asserted that the Department provided no data regarding the BIA’s factfinding procedures, the Department notes that granular data on how many BIA remands for factfinding that do not affect the outcome of cases and that are for factfinding that is cumulative to facts already found in the record is not available and is likely untraceable due to the inherently factspecific nature of each case and the somewhat counter-factual of such data. Moreover, commenters did not suggest that such data was available or could be obtained, nor did they even suggest how to calculate or measure the ‘‘inappropriateness’’ or ‘‘incorrectness’’ of a remand that would be necessary to track such data. As discussed, the remaining parts of the rule follow from wellestablished legal principles (e.g., waiver, burden of proof, and standard of review for factfinding) and are not intended to turn on data. Overall, the Department reiterates that the rule explained how restricting the BIA’s factfinding capabilities would increase efficiency and consistency. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 EOIR Launches Resources to Increase Information and Representation, Oct. 1, 2020, https://www.justice.gov/eoir/pr/ eoir-launches-resources-increaseinformation-and-representation. In short, EOIR’s OP, the private bar, and other non-governmental organizations all may assist individuals with their immigration proceedings,32 which include providing information which may assist individuals in preserving issues or attempting to adduce additional facts before the immigration judge. Regarding the possible impact of the rule on pro se aliens, as noted previously, the Department first reiterates that most aliens—i.e., 86 percent, Representation Rates, supra— whose cases are considered by the Board have representation. For those who do not, there are multiple avenues they may pursue to obtain representation. For example, the Department maintains a BIA Pro Bono Project in which ‘‘EOIR assists in identifying potentially meritorious cases based upon criteria determined by the partnering volunteer groups.’’ BIA Pro Bono Project, supra. Further, immigration judges have a duty to develop the record in cases involving pro se aliens, which will ensure that such aliens attempt to adduce relevant facts to meet their burdens of proof and reduce the likelihood that aliens inadvertently waive an issue.33 See Mendoza-Garcia, 918 F.3d at 504. To be sure, BIA procedures are not excused for pro se respondents, just as they are not excused generally for pro se civil litigants. See, e.g., McNeil, 508 U.S. at 113 (‘‘[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.’’); Edwards, 59 F.3d at 8–9 (rejecting a pro se alien litigant’s arguments for being excused from Federal court procedural requirements due to his pro se status). Moreover, issues not raised below may be deemed waived even for pro se individuals. See, e.g., Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (‘‘Pro 32 The Department notes that individuals in removal proceedings before an immigration judge and the BIA have the ‘‘privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as [the alien] shall choose.’’ INA 292, 8 U.S.C. 1362; see also INA 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); 8 CFR 1240.10(a)(1). 33 Whether a pro se alien knowingly waived an issue may also be a relevant consideration in appropriate cases. See Matter of Samai, 17 I&N Dec. 242 (BIA 1980) (objection to improper notice raised for the first time on appeal by a previously unrepresented respondent could still be considered by the Board). PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed. But, issues not raised below are normally deemed waived.’’ (internal citations omitted)). However, those standards have existed for years and exist independently of the rule, and nothing in the rule alters or affects their applicability. The Department has fully considered the possible impacts of this rule on the relatively small pro se population of aliens with cases before the Board. However, the rule neither singles such aliens out for particular treatment under the Board’s procedures, nor does it restrict or alter any of the avenues noted above that may assist pro se aliens. Further, commenters’ concerns related to pro se aliens and these provisions are based almost entirely on a speculative, unfounded belief that immigration judges will disregard their duty to develop the record in pro se cases. The Department declines to accept such a view of immigration judges as either incompetent or unethical and declines to accept commenters’ suggestions on that basis. Chem. Found., Inc., 272 U.S. at 14–15 (‘‘The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’’). Finally, weighing the complete lack of necessity—and corresponding inefficiency—of factfinding remands where the facts are either irrelevant to the disposition of the case or cumulative to facts already in the record, the importance of maintaining the Board’s impartiality, the duty of immigration judges to develop the record in cases of pro se aliens, the size of the pro se population with cases before the BIA, and the well-established avenues of assistance for pro se aliens, the Department finds, as a matter of policy, that the clarity and efficiency added by factfinding provisions in the rule far outweigh the speculative and unfounded concerns raised by commenters, particularly since many commenters misapprehended that the rule applies to both DHS and respondents. Although commenters provided examples of challenges individuals would face in complying with the regulatory provisions at proposed 8 CFR 1003.1(d)(3)(iv)(D)(1) and (2), the Department finds the examples unpersuasive or inapposite. The commenters’ examples do not demonstrate a bar to preserving issues or adducing additional facts for use on appeal. Indeed, some commenters’ E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations examples assume that issues can only be preserved or additional facts be adduced for use on appeal during an immigration judge’s issuance of a decision, which is inaccurate. Throughout the course of proceedings, individuals may raise evidentiary or factfinding issues as the record is developed. See generally 8 CFR 1240.10 (explaining the course of the hearing, during which an alien may, for example, examine and make objections to evidence against him and present evidence on his behalf); see also 8 CFR 1240.9 (detailing the contents of the record, including ‘‘testimony, exhibits, applications, proffers, and requests, the immigration judge’s decision, and all written orders, motions, appeals, briefs, and other papers filed in the proceedings’’). Moreover, if a party objects to an immigration judge’s exclusion of evidence from the record, the regulations provide that an affected party may submit a brief. Id. 1240.9. Accordingly, numerous avenues exist through which individuals may comply with the proposed provisions at 8 CFR 1003.1(d)(3)(iv)(D)(1) and (2). The Department reiterates that immigration judges and the BIA will continue to exercise independent judgment and discretion to adjudicate cases before them in accordance with applicable law and regulations. See Id. § 1003.1(d)(1)(ii), 1003.10(b), 1240.1(a). Circuit courts have held that under section 240(b)(1) of the Act, 8 U.S.C. 1229a(b)(1), immigration judges have an obligation to develop the record. See, e.g., Yang v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002); Mekhoukh v. Ashcroft, 358 F.3d 118, 130 (1st Cir. 2004); Mendoza-Garcia, 918 F.3d at 504. The Department rejects any speculative contention—rooted in a tacit assertion that immigration judges are either unethical or incompetent—that immigration judges would simply shirk their obligation, including developing the record, in favor of completing more cases. The Department disagrees that the BIA’s determination in accordance with proposed 8 CFR 1003.1(d)(3)(iv)(D)(3), constitutes factfinding on the part of the BIA. Whether ‘‘additional factfinding would alter the outcome or disposition of the case’’ is well within the BIA’s proper scope of review under 8 CFR 1003.1(d)(3) and inherent in the BIA’s responsibility to decide appeals. Because the BIA generally cannot consider new evidence on appeal or engage in further factfinding, 8 CFR 1003.1(d)(3)(iv), subject to some exceptions, the rule sought to clearly establish limitations on the BIA’s ability to remand for further factfinding. As VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 explained in the NPRM, the INA contains few details in regard to the appeals process; thus, EOIR’s regulations govern specific procedural requirements for appeals. 85 FR at 52493. Consequently, in accordance with its statutory authority under section 103(g)(2) of the Act, 8 U.S.C. 1103(g)(2), to promulgate regulations, the Department determined that it would condition remand on a determination that either the immigration judge’s factual findings were clearly erroneous or that remand is warranted following de novo review. As the Department explained in the NPRM, the current system for adjudicating appeals does not always operate in an effective and efficient manner. As explained in the NPRM, the Department believed it was necessary to reevaluate its regulations governing the BIA, as it routinely does, see id. at 52494. As a result, the Department determined that the current system could be amended in various ways to reduce unwarranted delays and ensure efficient use of resources, given the significant increase in pending cases in the immigration courts that has led to an increase in appeals. See id. Moreover, changes made by this rulemaking will best position the Department to address the growing caseload and related challenges. Id. at 52492–93. The Department strongly disagrees with commenters that the rule would force the BIA to issue ‘‘poor decisions based on incomplete facts and conjecture.’’ Again, this comment suggests that Board members are incompetent and cannot perform their functions fairly and efficiently, a suggestion the Department categorically rejects. The Department is confident that the BIA will continue to competently resolve issues in a manner that is timely, impartial, and consistent with applicable law and regulations. See 8 CFR 1003.1(d)(1). BIA members exercise independent judgment and discretion and ‘‘may take any action consistent with their authorities under the Act and the regulations as is appropriate and necessary for the disposition of the case.’’ Id. § 1003.1(d)(1)(ii). d. BIA Affirmance on Any Basis Supported by the Record (8 CFR 1003.1(d)(3)(v)) Comment: Commenters expressed concerns about new paragraph 8 CFR 1003.1(d)(3)(v) that would enable the BIA to affirm the underlying decision of the immigration judge or DHS on ‘‘any basis’’ supported by the record, including a ‘‘basis supported by facts PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 81607 that are not reasonably subject to dispute’’ or ‘‘undisputed facts.’’ Commenters argued that this change creates inefficiencies instead of efficiencies for a variety of reasons. For example, commenters expressed a belief that this provision will inevitably require respondents before the BIA to litigate every possible issue that could be raised by the record in order to preserve their arguments for future appeals, regardless of the particular rulings by the IJ. Commenters noted that this in turn creates inefficiencies as opposed to efficiencies in BIA procedures. In addition, commenters stated that this provision will in effect lead to a full second adjudication of every case by the BIA instead of the BIA only analyzing the specific issues posed by the parties. Citing SEC v. Chenery Corp., 318 U.S. 80 (1943), commenters argued that respondents should not have to guess at what bases the BIA might have for its decisions. Commenters disputed the Department’s citation to Helvering v. Gowran, 302 U.S. 238, 245 (1937) in support of the change, explaining that the Supreme Court in that case provided the parties with an opportunity to establish additional facts that would affect the result under the new theory first presented at the Court of Appeals. Commenters expressed concern that this provision will inevitably lead to the BIA engaging in impermissible factfinding and that the rule is insufficiently clear as to what is a ‘‘disputed’’ or undisputed fact. Commenters stated that this change is internally inconsistent with other provisions of the rule because it allows the BIA to affirm a decision based on arguments not raised in the proceedings below but prohibits the BIA from similarly remanding based on arguments not raised below. Response: As an initial point, few commenters acknowledged that this standard is analogous to the one employed by Federal appellate courts reviewing Federal trial court decisions and is, thus, a well-established principle of appellate review. See, e.g., Keyes v. School Dist. No. 1, 521 F.2d 465, 472– 73 (10th Cir. 1975) (‘‘An appellate court will affirm the rulings of the lower court on any ground that finds support in the record, even where the lower court reached its conclusions from a different or even erroneous course of reasoning.’’). Relatedly, few, if any, commenters offered an explanation or rationale for why that appellate principle would be inappropriate to apply to Board review of immigration judge decisions, particularly since Federal appellate courts handle cases of E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81608 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations pro se litigants and complex records from trial courts below just as the Board does. Further, few, if any, commenters acknowledged that the Board already possesses the authority to base its decision on a review of the record as a whole even if a party has not raised an issue. See, e.g., Ghassan v. INS, 972 F.2d 631, 635 (5th Cir. 1992) (‘‘First, he argues that the BIA should not have disregarded the IJ’s finding, because the INS did not challenge that finding in its brief. We disagree. . . . In the instant case, the BIA based its decision upon the administrative record as a whole. There was no procedural impropriety.’’). To the extent that commenters failed to engage with a principal foundation for this provision of the rule, the Department finds their comments unpersuasive. See Home Box Office, 567 F.2d at 35 n.58 (‘‘Moreover, comments which themselves are purely speculative and do not disclose the factual or policy basis on which they rest require no response. There must be some basis for thinking a position taken in opposition to the agency is true.’’). As the Department also explained in the proposed rule, 85 FR at 52501 n.23, clarifying that the BIA may affirm the decision of the immigration judge or DHS on any basis supported by the record is consistent with long standing principles of judicial review. See, e.g., Chenery Corp., 318 U.S. at 88 (describing the principle that a reviewing court must affirm the result of the lower court if the result is correct, even if the lower court relied upon a wrong ground or wrong reason as ‘‘settled rule’’) (citing Helvering, 302 U.S. at 245)). Indeed, as the Supreme Court explained, it would be wasteful for an appellate body to have to return a case to the lower court based on grounds already in the record and within the power of the BIA to formulate. Id. The Department emphasizes, however, that the BIA may only affirm a decision on a basis that is supported by the record as developed by the immigration judge or any facts not reasonably subject to dispute and of which the BIA takes administrative notice. 8 CFR 1003.1(d)(3)(iv). Accordingly, despite commenters’ unsupported predictions, the rule would not enable the BIA to engage in de novo factfinding as a way to affirm the underlying immigration judge or DHS decision. Cf. Chenery Corp., 318 U.S. at 88 (‘‘[I]t is also familiar appellate procedure that where the correctness of the lower court’s decision depends upon a determination of fact which only a jury could make but which has not been made, the appellate court cannot VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 take the place of the jury.’’). Because the BIA’s review is limited to the record in this manner, the Department disagrees with the commenters’ speculation that the BIA review will be less efficient because it would become an alleged second complete adjudication. Instead— just as in Federal appellate courts—this provision only creates efficiencies by making it clear that the BIA does not have to turn a blind eye to undisputed facts that are clear from the record that relate to the correctness of the underlying decision. In addition, the Department finds unpersuasive commenters’ concerns that aliens must address all possible issues in their briefing or other arguments or else risk ceding a future argument on appeal to Federal court due to failure to exhaust the issue. The Department already expects an appealing party to address all relevant issues on appeal; otherwise, the party risks summary dismissal of the appeal, 8 CFR 1003.1(d)(2)(i)(A) (authorizing summary dismissal when a party does not specify the reasons for appeal on the Notice of Appeal), waiver of the issue before the Board, see Matter of Cervantes, 22 I&N Dec. 560, 561 n.1 (BIA 1999) (expressly declining to address an issue not raised by party on appeal), and potentially dismissal of a petition for review due to a failure to exhaust an issue before the Board, see, e.g., Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (‘‘A petitioner’s failure to raise an issue before the BIA generally constitutes a failure to exhaust, thus depriving this court of jurisdiction to consider the issue.’’). The rule imposes no additional consequences for a party who fails to raise issues on appeal to the BIA beyond those that already exist, and a party choosing to address some issues but not others on appeal does so at its own risk. Consequently, the Department does not see why a party would choose not to raise an issue on appeal, even under the current regulations, and rejects the assertion that the rule imposes a new requirement in this regard. As a practical matter, the Department is also unaware of how such a scenario posited by commenters would occur. For example, an alien appealing an adverse decision by an immigration judge regarding an application for relief or protection will have necessarily argued to the immigration judge all of the elements required to grant such an application; otherwise, the alien will have waived issues not argued anyway. Further, even if the immigration judge denied the application on one basis— and did not address others—and even if the Board affirmed the denial on PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 another basis, the alien will not be deemed to have failed to exhaust the issue even if the alien did not include the issue in the Notice of Appeal. See, e.g., Abebe v. Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (stating that when the BIA reviews the entire record, considers issues argued before an immigration judge but not raised by an alien in a Notice of Appeal, and issues its decision based on such issues after reviewing the entire record, alien is not barred from raising the issue in a petition for review due to exhaustion). In short, commenters’ concerns are unfounded, and the Department declines to credit them accordingly. e. Changes to BIA Procedures for Identity, Law Enforcement, or Security Investigations or Examinations (8 CFR 1003.1(d)(6)) Comment: Commenters expressed concern regarding the rule’s proposed changes to the BIA procedures for identity, law enforcement, or security investigations or examinations. See 8 CFR 1003.1(d)(6)(ii) and (iii); see also 82 FR at 52499. At least one commenter stated that the changes conflict with the Department’s reasoning for the rule’s amendments regarding administrative closure.34 For example, the commenter stated that the BIA does not have the regulatory authority to place a case on hold indefinitely. Other commenters expressed dueprocess related and other concerns about the rule’s procedures for communications between the BIA and DHS and the alien regarding the status of background checks and to allow the BIA to deem an application abandoned if DHS alleges that an alien failed to comply with its biometrics instructions. See 8 CFR 1003.1(d)(6)(ii) and (iii). Specifically, one commenter stated the procedures fail to protect respondents’ due process rights because they require the BIA to deem an application abandoned and accordingly deny relief if DHS states that the respondent failed to comply with its instructions but do not provide adequate opportunity for the alien to contest that they did not receive notice from DHS about the requirements or to otherwise establish good cause for failing to comply. To illustrate this risk, the commenter cited a hypothetical that ‘‘the BIA could deem an otherwise approvable application abandoned because DHS reports to the BIA that the applicant failed to timely comply with biometrics, but where DHS had inadvertently sent the biometrics 34 For further discussion of administrative closure, see section II.C.3.b above. E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations instructions to the wrong address.’’ The commenter also noted that due to recent changes by DHS to the biometrics procedures,35 new individuals, including children under the age of 14, will be subject to biometrics requirements for the first time, increasing the likelihood of removal orders for respondents who otherwise would qualify for relief from removal. Another commenter expressed concern that although the alien’s deadline to comply begins to run from the date the BIA sends out a notice to the alien that DHS will be providing further information, DHS in turn has no deadline to contact the alien. Another commenter also raised issues of disparate treatment, stating that, while respondents would be barred from submitting new evidence on appeal that would likely change the result of the case, the Department would be expressly permitted to submit new evidence that is the result of ‘‘identity, law enforcement, or security investigations.’’ See 8 CFR 1003.1(d)(6)(ii). Response: Neither the BIA nor an immigration judge may grant an alien most forms of relief or protection unless DHS has certified that the alien’s identity, law enforcement, or security investigations have been completed and are current. See 8 CFR 1003.1(d)(6)(i), 1003.47(g); see also INA 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i). When the Department first implemented the background check procedures in 2005,36 the Department provided the BIA with two options in cases where the identity, law enforcement, or security investigations or examinations have not been completed or are no longer current: remand to the immigration judge with instructions or place the case on hold until the investigations or examinations are completed or updated. 8 CFR 1003.1(d)(6)(ii)(A) and (B). At the time, the Department explained that the expectation was that the BIA and DHS would be able to make greater use of the procedure for holding pending appeals without the need to resort to a remand. 70 FR at 4748. Contrary to this prediction, however, it has become common practice for the BIA to remand cases to the immigration judge rather than holding the case for the completion of or updates to the required investigations and examinations. See, e.g., Matter of S–A– 35 Collection and Use of Biometrics by U.S. Citizenship and Immigration Services, 85 FR 56338 (Sept. 11, 2020). 36 Background and Security Investigations in Proceedings Before Immigration Judges and the Board of Immigration Appeals, 70 FR 4743 (Jan. 31, 2005). VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 K– and H–A–H– 24 I&N Dec. 464, 466 (BIA 2008) (order sustaining appeal and remanding the case to the immigration judge for DHS to complete or update background checks). Because this practice creates unnecessary delays in the resolution of cases given the overburdened resources and size of the caseload at the immigration court level, the Department proposed to remove the option at 8 CFR 1003.1(d)(6)(ii)(A) for the BIA to remand cases for the completion or update of the checks and investigations and proposed procedural changes in those cases that remain subject to BIA holds under the amended 8 CFR 1003.1(d)(6)(ii). This procedure, which has existed since 2005, does not conflict with the rule’s changes regarding administrative closure. First, when the BIA places a case on hold for the completion of or updates to the required identity, law enforcement, or security investigations or examinations, the hold is not ‘‘indefinite.’’ Instead, the hold is at most 180 days. See 8 CFR 1003.1(d)(6)(iii) (instructing the BIA to remand the case to the immigration judge for further proceedings under 8 CFR 1003.47(h) if DHS fails to report the result of the investigations or examinations within 180 days). Second, even to the extent that the BIA hold process may be erroneously compared to an administrative closure, such practice would be an example of an administrative closure that is authorized by a regulation promulgated by the Department of Justice. See 8 CFR 1003.1(d)(1)(ii); see also Matter of Castro-Tum, 27 I&N Dec. at 283 (holding that immigration judges only have the authority to grant administrative closure if a regulation or settlement agreement has expressly conferred such authority). In addition, the Department disagrees that the instructions in the proposed rule for the BIA regarding when to deem an application abandoned for failure to comply with biometrics requirements violate due process. As the commenter noted, during the respondent’s initial hearing, the immigration judge must ‘‘specify for the record when the respondent receives the biometrics notice and instructions and the consequences for failing to comply with the requirements.’’ 8 CFR 1003.47(d). Accordingly, respondents before the BIA have already been generally informed about the biometrics process and have fulfilled the requirements at least once and understand how to comply with the requirements for any needed identity, law enforcement, or security investigations or examinations. Moreover, the Board’s notice to the alien will also be part of the record so that it PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 81609 is clear when the alien was served with the notice. Nevertheless, the Department has included two changes from the proposed rule in this section to account for the commenters’ concerns. First, this rule contains an additional requirement that, if DHS is unable to independently update any required identity, law enforcement, or security investigations, DHS shall provide a notice to the alien with appropriate instructions, as DHS does before the immigration courts under 8 CFR 1003.47(d), and simultaneously serve a copy of the notice with the BIA. Second, while the NPRM would have begun the alien’s 90day timeline for compliance with the biometrics update procedures at the time the Board provided notice to the alien, the final rule aligns the 90-day time period to begin running at the time DHS submits the notice to the alien in situations in which DHS is unable to independently update any required checks. The Department agrees with the commenters’ concerns that without these changes, the provisions of the proposed rule could have resulted in situations where the alien is unable to effectively comply with the biometrics requirements due to possible delays by DHS or lack of sufficient notice. Finally, commenters’ concerns about alleged disparate treatment between DHS and aliens are unpersuasive. The rule does not generally allow any party to file a motion to remand based on new evidence pertaining to an issue that was not raised below. Rather, DHS may submit limited evidence solely with respect to information yielded from completed identity, law enforcement, or security investigations or based on the alien’s failure to comply with biometrics requirements, 8 CFR 1003.1(d)(6)(iii), at which time the alien would also have the opportunity to file evidence in response. Accordingly, the alien would not be prejudiced by remands for such issues. Further, such a requirement is fully consistent with existing law, e.g., 8 CFR 1003.47 and INA 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i). To the extent that commenters disagree with those longstanding and well-established provisions, those concerns are beyond the scope of this rule. f. BIA Authority To Issue Final Orders (8 CFR 1003.1(d)(7)(i)) Comment: One commenter stated that the rule’s focus on the BIA’s ability to issue orders of removal in the first instance without a similar focus on the BIA’s ability to grant relief in the first instance would result in an unfair process that favors DHS over aliens in E:\FR\FM\16DER3.SGM 16DER3 81610 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations proceedings. Another commenter speculated that allowing the BIA to issue orders of removal without a remand to the immigration judge would impede respondents’ ability to ultimately seek a petition for review in Federal court. Response: First, the commenter who stated that the rule is focused on enabling the BIA to issue a removal order misconstrues the Department’s amendment regarding the BIA’s authority to issue final orders. The rule amends 8 CFR 1003.1(d)(7)(i) to clarify that the BIA has the authority to issue, inter alia, both final orders of removal and orders granting relief from removal. Accordingly, the commenter is incorrect that these amendments favor either party to proceedings before the BIA. Second, without further explanation, the Department is unable to further respond to the commenter’s speculation that the BIA issuing a removal order would impede a respondent’s ability to seek a petition for review in Federal court. An alien who receives an order of removal, whether from the BIA or the immigration judge, may file a petition for review subject to the requirements of section 242 of the Act, 8 U.S.C. 1252, and nothing in this rule affects that statutory provision. g. BIA Remands Changes (1003.1(d)(7)(ii) and (iii)) khammond on DSKJM1Z7X2PROD with RULES3 i. Issues With Respect to Limitations on BIA’s Authority To Remand Comment: Numerous commenters expressed concern about limiting the BIA’s authority to remand cases. For example, commenters were concerned that the rule would shift more authority to the immigration judge, while tying the hands of BIA members who observed errors and that the rule would provide the BIA with no choice but to affirm an immigration judge’s denial despite concerns that the record was not sufficiently developed. Another commenter stated that the BIA is the consummate authority on immigration law and that they have enough expertise and experience to make determinations on their own without being limited by the rule. Some commenters suggested that the BIA should be permitted to remand cases to the immigration court for any purpose. Commenters stated that the proposed changes have no basis in the law, depart from agency practice, violate the right to present evidence on one’s own behalf, and in many cases, would result in orders of removal that were issued notwithstanding meritorious defenses and dispositive collateral challenges in criminal matters. One commenter stated VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 that prohibiting motions to remand would prejudice respondents with cases that were delayed through no fault of their own. Commenters objected to the rule on the basis that it would not allow the BIA to remand cases where there has been a change in the law. At least one commenter specifically objected to the BIA’s limited remand authority in asylum cases, where, the commenter stated, eligibility rules are in a constant state of flux, and individuals should be permitted to seek remand for cases that were denied based on rules that are under litigation. The commenter further specified that the UNHCR has recommended that appellate bodies look to both facts and law using updated information and take any such new and relevant information into consideration. The commenter listed, as an example, asylum seekers who were denied asylum under the third-country transit bar, which was later vacated by a Federal court, and alleged that such individuals may now be eligible for asylum. See CAIR Coal. et al. v. Trump, No. 19–2117, 2020 WL 3542481 (D.D.C. June 30, 2020). The commenter stated that, in this case, the immigration judge may not have fully developed the record below because the third-country bar analysis would not require evaluation of all bases for asylum. The commenter asserted that such records should be remanded to the immigration judge for further fact finding. At least one commenter stated that the rule does not account for legal issues that arise during the hearing itself, such as the immigration judge conducting the hearing in an unfair manner, which the commenter states, would necessarily not be included in briefing that had been drafted before the hearing. Commenters alleged that the rule would unfairly disadvantage individuals who are unrepresented, unfamiliar with the law, and nonEnglish speaking. One commenter objected to the NPRM’s statement that a party seeking to introduce new evidence in proceedings should file a motion to reopen. 85 FR at 52500. The commenter stated that a motion to reopen while an appeal is pending at the BIA does not make sense because an order is not final until the BIA resolves the appeal under 8 CFR 1241.1(a). One commenter suggested that it would be unfair for EOIR to require that the respondent’s counsel fully brief every issue before the hearing and not to require the same of DHS’s counsel. Response: As noted elsewhere, to the extent that commenters erroneously believe this rule applies only to PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 respondents and not to DHS, they are mistaken. Further, to the extent that commenters assert the BIA should be allowed unfettered discretion to remand cases for any purpose, such a suggestion is inconsistent with the Board’s limited, and regulatorily defined, authority. Additionally, as discussed, supra, the rule does not preclude the Board from remanding a case in which the immigration judge committed an error of law by insufficiently developing the record. To the extent that commenters misconstrue the rule or suggest changes to the rule that are inconsistent with the Board’s authority, the Department declines to accept those suggestions. Commenters are incorrect that this rule has no basis in the law, departs from agency practice, violates the right to present evidence on one’s own behalf, and could result in orders of removal that were issued notwithstanding meritorious defenses and dispositive collateral challenges in criminal matters. As noted in the NPRM, the Supreme Court has recognized that ‘‘the BIA is simply a regulatory creature of the Attorney General, to which he has delegated much of his authority under the applicable statutes.’’ 85 FR at 52492 n.1 (quoting Doherty, 502 U.S. at 327). Although there is a reference to the BIA in section 101(a)(47)(B) of the Act, 8 U.S.C. 1101(a)(47)(B), that reference occurs only in the context of establishing the finality of an order of deportation or removal after the BIA has affirmed the order or the time allowed for appeal to the BIA has expired. It does not address the scope of the BIA’s authority or its procedures. Accordingly, the Department is well within its authority to limit the scope of remands to the immigration courts, as it doing now in order to improve efficiency. At the same time, the Department recognizes the BIA’s expertise in appellate immigration adjudications. Indeed, one purpose for this rulemaking is to better empower the BIA to make final decisions where possible, as the Department recognizes it is capable of doing. To that end, the Department agrees with commenters who noted the Board’s expertise and experience, and it notes that this provision fully effectuates that expertise and experience by allowing the Board to render final decisions in certain circumstances. Further, nothing in the rule precludes a respondent from submitting evidence on his or her own behalf during the course of removal proceedings before the immigration judge, although the rule does, within its authority, limit the BIA’s authority to remand a decision E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 back to the immigration judge on the basis of new evidence at the administrative-appeals stage. 8 CFR 1003.1(d)(3)(iv)(D), (d)(3)(7)(ii). The Department notes that motions to remand are an administrative, adjudicatorily-created concept, not rooted in statute, which was later codified by the regulations. Further, as the NPRM explained, the BIA has treated new evidence submitted on appeal inconsistently, despite both case law and regulations addressing such situations. 85 FR at 52500–01. The concerns raised by commenters do not outweigh the need for uniform and consistent treatment to ensure that all aliens who obtain allegedly new evidence and wish to submit it after an immigration judge has rendered a decision are treated in a similar fashion. Moreover, the INA explicitly provides a statutory avenue to address new evidence: A motion to reopen. See INA 240(c)(7), 8 U.S.C. 1229a(c)(7).37 While the changes require that a party comply with the statutory requirements for a motion to reopen in order to submit such evidence, the rule does not impact motions to reopen. To the contrary, the rule recognizes that motions to remand are generally considered analogous to motions to reopen or reconsider and that due to the inconsistent treatment of allegedly new evidence on appeal through the lens of a motion to remand, it is both more efficient and more likely to promote uniformity and consistency—and also more likely to reduce gamesmanship on appeal—to simply rely on the established motion to reopen procedure. Thus, because the sole statutorily created process to consider new evidence is still available, the Department finds that aliens’ rights regarding the submission of new evidence, including evidence of criminal-related issues, remain intact. Cf. Sankoh, 539 F.3d at 466 (‘‘As we have held many times, however, administrative notice does not violate the alien’s due process rights because an alien can challenge any factual finding through a motion to reopen.’’ (citing Kaczmarczyk v. INS, 933 F.2d 588, 594 (7th Cir. 1991))). Additionally, to the extent that the Board makes an error of law or fact in its decision, the rule does not affect the ability of a party to file a 37 The Department notes that at least one commenter appears to have misunderstood the procedural posture at which a respondent would file a motion to reopen, expressing concern that it would not be sensible for the alien to file a motion to reopen while removal proceedings were still pending. The Department clarifies that, as contemplated by the statute, an alien would file a motion to reopen to submit new evidence after proceedings have concluded. Otherwise, there is no removal order or proceeding to, in fact, reopen. VerDate Sep<11>2014 18:46 Dec 15, 2020 Jkt 253001 motion to reconsider. 8 CFR 1003.2(b). In short, the rule does not alter the availability of established mechanisms for addressing new evidence or new issues; instead, it simply eliminates an inconsistently applied and confusing procedural avenue that is redundant given those clearer, established mechanisms. For reasons stated, supra, the Department rejects the assertion that the rule would have a singular effect on aliens who are unrepresented, unfamiliar with the law, and nonEnglish speaking. These concerns are speculative, unsupported by evidence, and contrary to decades of experience adjudicating appeals in immigration cases. Such aliens already participate in BIA procedures under existing regulations—and have done so for many years—including through the submission of motions to reopen, and nothing in the rule treats them in a categorically different manner. Further, commenters did not explain why such aliens would be able to file a motion to remand but not a motion to reopen nor how such aliens would be able to comprehend the BIA’s confusing and inconsistent standards for new evidence, 85 FR at 52500–01, if they were retained. To the extent that commenters’ concerns are, thus, unfounded or internally inconsistent, the Department declines to incorporate them into this final rule. With respect to commenter concerns that the BIA would be unable to remand a decision even where presented with superseding or intervening case law, including litigation surrounding regulations or precedential decisions that were the basis for denying relief, the Department rejects such comments because they are based on either a deliberately obtuse or wholly incorrect reading of the rule. Nothing in the rule prohibits the BIA from remanding a case when an immigration judge has made an error of law, a legal question of jurisdiction has arisen, or an alien is no longer removable, subject to other requirements. 8 CFR 1003.1(d)(7)(ii). Thus, to the extent that superseding or intervening law caused the immigration judge to make an error of law, raised a question of jurisdiction, or caused an alien to no longer be removable, the Board can still remand on those bases under this final rule. If the superseding or intervening legal development did not raise a question of jurisdiction, cause the immigration judge’s decision to be an error of law, or affect an alien’s removability, then the BIA may not remand the case on that basis; however, commenters did not persuasively argue why an irrelevant PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 81611 change in law should form the basis for a remand. To the extent that commenters focus solely on changes in law related to applications for relief or protection, the Department believes that the majority of superseding intervening law would be relevant to legal arguments that had already been presented below, thus mooting commenter concerns for the vast majority of cases.38 In the rare case in which intervening law categorically established an alien’s eligibility for relief on a basis that the alien did not address below and the intervening law did not state how it should be applied to pending cases,39 an alien remains eligible to file a motion to reopen to have that claim considered. See INA 240(c)(7), 8 U.S.C. 1229a(c)(7). The Department disagrees that requiring the alien to utilize statutorybased methods for presenting new evidence after an immigration judge has rendered a decision, rather than motions to remand, would lead to delays or conflict with the purpose of the rule. As discussed in the NPRM, the BIA’s treatment of new evidence on appeal is confusing and inconsistently applied. 85 FR at 52500–01. An additional principal concern of the rule is to reduce unnecessary remands and ensure the BIA is able to move forward independently with adjudicating as many appeals as possible. As noted in the NPRM, id. at 52501, motions to remand created confusion, inconsistent results, gamesmanship, and an operational burden on the immigration judge, who has already used significant judicial resources during the underlying 38 The Department also notes that in the asylum context, which appears to the principal area of concern for commenters, superseding or intervening law that indisputably affects an alien’s claim will likely be rare because each asylum application is adjudicated based on its own facts and evidentiary support. In the asylum context, case law does not establish categorical bases for granting or denying asylum claims. See, e.g., SER.L. v. Att’y Gen., 894 F.3d 535, 556 (3d Cir. 2018) (‘‘Consequently, it does not follow that because the BIA has accepted that one society recognizes a particular group as distinct that all societies must be seen as recognizing such a group. . . . Thus, as a matter of logic, it is invalid to assert that proof in one context is proof in all contexts.’’). Consequently, intervening case law that categorically renders an alien eligible for relief in the asylum context—but does not affect the alien’s removability—will be rare. 39 The Department notes that statutory changes providing opportunities for relief typically include provisions regarding application of the changes to existing cases, and those changes would be applicable on their own terms. See, e.g., EOIR, Policy Memorandum 20–06: Section 7611 of the National Defense Authorization Act of 2020, Public Law 116–92 (Jan. 13, 2020), available at https:// www.justice.gov/eoir/page/file/1234156/download (explaining the application of the availability of a new statutory form of relief for certain Liberian nationals to cases before EOIR, including cases at the BIA). E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81612 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations proceeding. After reviewing commenters’ concerns, weighing alternatives, including retaining the status quo, and assessing the significance of the operational burdens imposed by motions to remand, the availability of more uniform treatment of new evidence than currently exists, and the importance of encouraging the presentation of all available and probative evidence at the trial level, the Department has determined that the burden of potential motions to reopen based on new evidence—which are also already routinely filed independently of the rule and have generally increased in recent years, EOIR, Adjudication Statistics: Motions, Oct. 13, 2020, available at https://www.justice.gov/ eoir/page/file/1060896/download—is ultimately less than the burden of addressing motions to remand through unclear and inconsistent practices, including practices that create downstream burdens on immigration judges due to improper remands or gamesmanship by aliens who have received unfavorable decisions from immigration judges and merely seek a second bite at the apple with the concomitant delay in the resolution of proceedings that such a request entails. Commenters are incorrect that BIA members would not have the authority to remand in instances where they observe unjust or incorrect immigration judge decisions. The rule generally authorizes the BIA to remand a case where, applying the appropriate standard of review, it has identified an error of law or fact. 8 CFR 1003.1(d)(7)(ii). The regulation specifies some limitations to this general authority in order to ensure that remands are only ordered where legally appropriate to ensure the fair disposition of the case, but none of these exceptions would prevent the BIA from ordering a remand, in an appropriate case, where the immigration judge has committed reversible error on a dispositive issue in the case. The first limitation states that the BIA cannot remand a case where it has not first specified the standard of review that it applied and identified the specific error or errors made by the adjudicator below in order to ensure that the BIA’s order to remand is based upon the correct legal standards and provides the immigration judge below and the parties with clarity over the basis for a finding of reversible error. See 8 CFR 1003.1(d)(7)(ii)(A). To the extent commenters objected to this provision, they did not persuasively explain why it is inappropriate to require an appellate body to specify the standard of review it employed when VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 remanding a case, and the Department is unaware of any such reason. Such specification assists the parties, the immigration judge, and potentially a Federal court, and commenters did not persuasively explain why it should not be a part of a BIA remand decision. The second limitation provides that the BIA cannot remand based upon a ‘‘totality of the circumstances’’ standard, which, as noted in the NPRM, is not a standard authorized by the governing law and regulations. See 8 CFR 1003.1(d)(7)(ii)(B). The Department discusses comments on this provision in more detail, infra. Third, the BIA may not remand a decision based upon a legal argument that was not presented below, unless it pertains to jurisdiction or a material change in fact or law underlying a removability ground that arose after the date of the immigration judge’s decision and where substantial evidence indicates that change vitiated all grounds of removability applicable to the alien. See 8 CFR 1003.1(d)(7)(ii)(C). Such a limitation is consistent with long-standing requirements that appealing parties must have preserved the issue for appeal below. Matter of J– Y–C–, 24 I&N Dec. at 261 n.1 (‘‘Because the respondent failed to raise this claim below, it is not appropriate for us to consider it for the first time on appeal.’’); Matter of Edwards, 20 I&N Dec. at 196 n.4 (‘‘We note in passing, however, that because the respondent did not object to the entry of this document into evidence at the hearing below, it is not appropriate for him to object on appeal.’’). This is also consistent with other appellate court standards, which are instructive. See Arsdi v. Holder, 659 F.3d 925, 928 (9th Cir. 2011) (‘‘As we have often reiterated, it is a well-known axiom of administrative law that if a petitioner wishes to preserve an issue for appeal, he must first raise it in the proper administrative forum.’’) (internal quotations omitted). Again, commenters did not explain why the Department should abandoned these wellestablished principles, and the Department is unaware of any persuasive reason for doing so. Fourth, the BIA may not remand a decision through an exercise of sua sponte authority, for reasons discussed below at Part II.C.3.k. See 8 CFR 1003.1(d)(7)(ii)(D). Fifth, the BIA may not remand a decision solely to consider a request for voluntary departure or failure to issue advisals following a grant of voluntary departure where other parts of this rulemaking authorize the BIA to issue final decisions in such matters. See 8 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 CFR 1003.1(d)(7)(ii)(E), (d)(7)(iv). The Department further discusses this provision, infra. Sixth, the BIA may generally not remand the case for further factfinding unless the following criteria are met: the party seeking remand preserved the issue below; the party seeking remand, if it bore the initial burden of proof, attempted to adduce the additional facts below, additional factfinding would alter the outcome or disposition of the case, the additional factfinding would not be cumulative of the evidence already presented or contained in the record; and either the immigration judge’s factual findings were clearly erroneous or remand to DHS is warranted following de novo review. 8 CFR 1003.1(d)(3)(iv)(D). The Department addresses commenters’ concerns on this provision in more detail, supra. The Department disagrees with commenters’ concerns that limiting the BIA’s authority to order remands to exclude issues that were not raised below, with specified exceptions, would not permit parties to request a remand based on legal issues that arose during a hearing, such as the immigration judge conducting the hearing in an unfair manner. Commenters did not explain why such an example would not be raised on appeal in the normal course, and existing waiver principles independent of this rule would currently preclude its consideration if it were not raised on appeal. In short, if a party believes that the immigration judge’s decision should be vacated on the basis that the immigration judge conducted the hearing in an unfair manner, it is unclear why the party would not be able to raise that issue when filing his or her appeal, as the facts upon which the party based his or her decision would have clearly been available to the party at that time. See 8 CFR 1003.3(b) (‘‘The party taking the appeal must identify the reasons for the appeal in the Notice of Appeal (Form EOIR–26 or Form EOIR–29) or in any attachments thereto, in order to avoid summary dismissal pursuant to § 1003.1(d)(2)(i). The statement must specifically identify the findings of fact, the conclusions of law, or both, that are being challenged.’’). Comment: Commenters were opposed to the rule’s prohibition on the BIA remanding cases based on the ‘‘totality of the circumstances.’’ 8 CFR 1003.1(d)(7)(ii)(B). One commenter noted that the ‘‘totality of the circumstances’’ standard inherently includes clearly erroneous findings of fact or prejudicial errors of law. Specifically, the commenter stated, E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations that on a record where no findings of fact were clearly erroneous, and if no errors of law occurred, then a totality of the circumstances review would never permit remand. Commenters asserted that the Department did not consider relevant precedential case law from the Supreme Court and Federal courts of appeals which, the commenter claims, impose a ‘‘totality of the circumstances’’ standard in a variety of circumstances, many of which are applicable to immigration removal proceedings. For example, one commenter cites Jobe v. INS, which stated that legislative history of that provision of the Act reflected Congress’s concern with fairness and required the Attorney General to ‘‘look at the totality of circumstances to determine whether the alien could not reasonably have expected to appear’’ 212 F.3d 674 (1st Cir. 2000) (quoting H.R. Conf. Rep. 101– 955 (1990)) (withdrawn at request of court). The commenter noted that the BIA has previously recognized that the statute’s legislative history requires an adjudicator to evaluate the totality of the circumstances to resolve this issue, citing Matter of W–F–, 21 I&N Dec. 503, 509 (BIA 1996). The commenter also stated that the rule was contrary to decades of past precedent, citing, inter alia, Matter of Miranda-Cordiero, 27 I&N Dec. 551, 554 (BIA 2019); Matter of W–F–, 21 I&N Dec. at 509; Jobe, 212 F.3d 674; and Alrefae v. Chertoff, 471 F.3d 353, 360–61 (2d Cir. 2006) (Sotomayor, J.). At least one commenter noted that the rule mentioned that there is no statutory or regulatory basis for the totality of the circumstances standard but failed to acknowledge that statutes and regulations are not the only types of law applicable in removal proceedings or other proceedings reviewed by the BIA. Accordingly, the commenter stated, the Department’s failure to consider other sources of law, many of which utilize the ‘‘totality of the circumstances’’ standard of review, renders the rule’s allegation—that remands justified by review of a totality of the circumstances are without merit—highly questionable. Another commenter further stated that the totality of the circumstances standard was particularly important for the BIA’s review of in absentia motions, in order to resolve whether exceptional circumstances exist pursuant to section 240(b)(5)(C)(i) of the Act, 8 U.S.C. 1229a(b)(5)(C)(i). The commenter also disagreed with the Department’s position that there was no statutory or regulatory basis for the ‘‘totality of the circumstances’’ standard. One commenter criticized the Department for proposing such a rule VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 change where it did not allege that the ‘‘totality of the circumstances’’ standard had resulted in incorrect or unfair case outcomes. Another commenter stated that the ‘‘totality of the circumstances’’ standard should be maintained because decisions should not be permitted on a single factor or on some factors, without taking into account the totality of the circumstances because it would allow adjudicators to pick the facts that they wish to use to make a decision that could be based upon pre-existing prejudices, which would violate fairness and justice. A commenter stated that, without the totality of the circumstances standard, parties could not provide details that were not apparent in the initial case, either through misinterpretation or misunderstanding, or through recently obtained documents. Response: As an initial point, the Department notes that many, if not all, commenters confused an appellate standard of review with a trial-level determination of ‘‘totality of the circumstances.’’ Neither the INA nor applicable regulations has ever authorized a ‘‘totality of the circumstances’’ standard of review by the BIA. Prior to 2002, the BIA reviewed all aspects of immigration judge decisions de novo. Regulatory changes in 2002 authorized the Board to review immigration judge factual findings for clear error and all other aspects of such decisions de novo. 8 CFR 1003.1(d)(3); Matter of S–H–, 23 I&N Dec. 462 (BIA 2002); See 67 FR at 54902. Accordingly, the BIA has never been authorized to review decisions based on the ‘‘totality of the circumstances,’’ and the rule merely codifies that principle. Further, the Department is unaware of any appellate court—and commenters did not provide an example—employing a ‘‘totality of the circumstances’’ standard of review for questions of law, fact, discretion, judgment or other appellate issues similar to those considered by the BIA. 8 CFR 1003.1(d)(3). The Department agrees that ‘‘totality of the circumstances’’ may be a relevant trial-level consideration in various situations and that an appellate body may review an underlying determination by the trial entity of the ‘‘totality of the circumstances’’; however, that is not the same as using ‘‘totality of the circumstances’’ as a standard for appellate review. See, e.g., Cousin v. Sundquist, 145 F.3d 818, 832 (6th Cir. 1998) (‘‘We therefore undertake de novo review of the district court’s analysis of the totality of the circumstances[.]’’). To the commenter’s point about the BIA’s review of in absentia motions and PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 81613 the totality of the circumstances standard, the Department notes again that the commenter misapprehends a distinction between the legal standard that an adjudicator should apply in making determinations about whether an individual has been properly ordered removed in absentia and the standard for review of an appeal. Although the question of whether ‘‘exceptional circumstances’’ have been established for purposes of considering a motion to reopen an in absentia removal order may involve a consideration of the totality of the circumstances, that question is distinct from the standard of review employed by the BIA in reviewing the immigration judge’s resolution of such a question on appeal. In other words, the BIA should evaluate the immigration judge’s decision under the appropriate standard of review, but that standard is not one of ‘‘totality of the circumstances.’’ More specifically, assuming arguendo that an individual seeking remand on the basis that the immigration judge wrongly applied a totality of the circumstances standard, the motion to remand would not be, itself, based on a totality of the circumstances standard, but rather based on the immigration judge’s alleged error of law in applying that standard.40 Although the Department recognizes that the BIA may have suggested or intimated that it was using such a standard of review in individual cases in the past, its lack of clarity clearly supports the change in this rule. Whether the Board previously failed to apply a correct or appropriate standard of review when remanding a case based on the totality of the circumstances or whether it merely was unclear about the standard it was actually applying, the rule ensures that all parties are now aware that there is no such standard of review and that the Board will be clearer in the future on this issue. Contrary to commenters’ suggestions, neither the lack of clarity nor the potential to apply an incorrect standard 40 This distinction is best illustrated by the Board’s decision in Matter of Miranda-Cordiero, 27 I&N Dec. at 554 which was cited by at least one commenter. In that decision, the Board noted that ‘‘[w]hether proceedings should be reopened sua sponte is a discretionary determination to be made based on the totality of circumstances presented in each case,’’ but it did not apply or purport to apply such a standard on appellate review. Matter of Miranda-Cordiero, 27 I&N Dec. at 554–55. Rather, it appropriately applied a de novo standard of review to that question of discretion, consistent with 8 CFR 1003.1(d)(3)(ii). Id. at 555 (‘‘Upon our de novo review, we find that the respondent’s case does not present an exceptional situation that warrants the exercise of discretion to reopen sua sponte, regardless of the availability of a provisional waiver.’’ (emphasis added)). E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81614 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations of review are persuasive reasons to continue the Board’s occasional prior practice on this issue in perpetuity. Rather, the Department believes it is important to reiterate the BIA’s commitment to adhering to regulatory standards in order to ensure consistent adjudication of similarly situated cases. Commenters’ suggestions that, without a ‘‘totality of the circumstances’’ standard of review, adjudicators would specifically select facts that would allow them to deny remands for otherwise meritorious cases is both contrary to the existing regulations—which do not permit such a standard—and unsupported by any evidence. Members of the BIA will consider whether remand for any of the permitted purposes would be appropriate after an impartial examination of the record and applying the correct standard of review, without reference to a regulatory atextual—and almost wholly subjective—totality of the circumstances standard of review. See 8 CFR 1003.1(d)(1) (‘‘The Board shall resolve the questions before it in a manner that is timely, impartial, and consistent with the Act and regulations.’’). Indeed, the Department believes that the nebulous and vague ‘‘totality of the circumstances’’ standard that the BIA may have previously applied is itself ripe for exactly the kind of unfair ‘‘cherry picking’’ that the commenter fears. Regarding commenters’ discussion of case law and the totality of the circumstances standard, the Department first notes that the BIA and Federal appellate courts do not necessarily employ parallel standards of review. Compare Sandoval-Loffredo v. Gonzales, 414 F.3d 892, 895 (8th Cir. 2005) (applying ‘‘deferential substantial evidence standard’’ to review agency findings of fact), with, e.g., 8 CFR 1003.1(d)(3)(i) (establishing a clear error standard for reviewing immigration judge findings of fact). Nevertheless, as discussed, supra, the Department is unaware of any Federal appellate court that uses a ‘‘totality of the circumstances’’ standard of review, and commenters did not provide any such examples. The Department disagrees with commenter concerns regarding whether the ‘‘totality of the circumstances’’ standard has resulted in incorrect or unfair case outcomes. Regardless of whether this putative standard of review, which is not authorized by statute or regulation, results in ‘‘incorrect’’ or ‘‘unfair’’ case outcomes, which are subjective determinations made by commenters, the Department is issuing this rule to make clear that there VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 is no existing statutory or regulatory basis for applying this standard of review even though the BIA, arguably, may have utilized it in the past without authority. 85 FR at 52501. In short, the risk of continued confusion over whether the Board applied the correct standard of review—and whether there exists a standard of review outside of the regulatory text that is applied only as the BIA subjectively sees fit in individual cases—significantly outweighs commenters’ concerns that it should remain as a nebulous quasiequitable authority whose provenance is unknown and whose application approaches an ad hoc basis. Nonetheless, in light of the confusion evidenced by commenters, the Department in this final rule is making clear that the Board cannot remand a case following a totality of the circumstances standard of review, though an immigration judge’s consideration of the totality of the circumstances may be a relevant subject for review under an appropriate standard. Finally, to the extent that commenters objected to the specific prohibition on the Board’s ability to remand cases in the ‘‘totality of circumstances’’ solely because they perceived such remands as being beneficial only to respondents, the Department finds that an unpersuasive basis for declining to issue this rule. Rather, those comments support the Department’s concern about the inappropriate use of such a putative standard of review and its decision to codify the inapplicability of such a standard to the extent that it has been applied in a manner that benefits one party over the other and, thus, raises questions regarding the Board’s impartiality. See 8 CFR 1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA Ethics and Professionalism Guide at sec. V. i. Issues With Respect to Limiting Scope of Remand to Immigration Court Comment: Commenters also raised concerns regarding the Department’s proposed changes that would limit the scope of a remand to the immigration court. For example, commenters suggested, the rule would unfairly impact individuals who had been subject to ineffective assistance of counsel before the immigration court but whose cases had been wrongly decided for other reasons. Such individuals, the commenter suggested, should not be limited to their prior, poorly developed record on remand when they might be represented by new counsel. One commenter suggested that limiting the scope of a remand does not improve efficiency because once the PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 case is back before the immigration judge, he or she may take new evidence and engage in fact finding to resolve issues that may later have to be addressed in a motion to reopen. Commenters also suggested that an individual should not be bound to the record before the immigration judge where a new avenue of relief had become available in the intervening period of time when he or she was waiting for their new individual hearing. One commenter stated that they opposed what they characterized as the Department’s attempt to force immigration judges to improperly issue removal orders for the purposes of eliminating confusion for immigration judges. The commenter suggested that this rule would harm both respondents and immigration judges. Commenters stated that the rule change arbitrarily precluded the immigration judge from considering new facts or law and would not improve efficiency because it would force litigation of such issues to be contemplated upon a separate motion to reopen, after the conclusion of proceedings, when it could be more efficiently addressed on remand. The commenter also suggested that there would be increased litigation about the constitutionality of the rule which would also decrease efficiency and increase inconsistent outcomes. Another commenter stated that issues that could have previously been resolved with a ‘‘simple remand’’ and straightforward adjudication in immigration court would now require the BIA to produce a transcripts, order briefing, and review briefing by both sides before rendering a decision. Response: The Department disagrees with commenter concerns regarding limiting the scope of remand to the immigration court. The rule is intended to alleviate confusion for immigration judges regarding the scope of a remand. ‘‘[E]ven where the [BIA] clearly intends a remand to be for a limited purpose[,]’’ an immigration judge interpreting the remand as a ‘‘general remand’’ would allow consideration, litigation, or relitigation, of the myriad of issues that had either already been addressed or were unrelated to the initial proceedings. See 85 FR at 52502. Commenters did not explain why an immigration judge should not be bound by the intent of a Board remand nor why the Board should not adopt the same principle used by Federal appellate courts distinguishing between general and limited remands. See, e.g., United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999) (‘‘Remands, however, can be either general or limited in scope. E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations Limited remands explicitly outline the issues to be addressed by the district court and create a narrow framework within which the district court must operate. General remands, in contrast, give district courts authority to address all matters as long as remaining consistent with the remand.’’ (internal citations omitted)). As the NPRM explained, all Board remands are currently de facto general remands, even when the intent of the remand is clearly limited. 85 FR at 52496; see BermudezAriza v. Sessions, 893 F.3d 685, 688–89 (9th Cir. 2018) (‘‘We think it likely that the BIA limited the scope of remand to a specific purpose in this case by stating that it was remanding ‘for further consideration of the respondent’s claim under the Convention Against Torture.’ That said, the BIA’s remand order nowhere mentioned jurisdiction, much less expressly retained it. Thus, irrespective of whether the BIA qualified or limited the scope of remand, the IJ had jurisdiction to reconsider his earlier decisions under 8 CFR 1003.23.’’). However, the Department sees no basis to retain such an anomalous system or to continue to preclude the BIA from exercising its appellate authority to issue limitedscope remands. Commenters did not explain why such an inefficient limitation—and one that encourages the re-litigation of issues already addressed by an immigration judge and the Board— should be retained. Requiring every remand to constitute a general remand both increases inefficiency—by requiring the parties to potentially reargue issues previously addressed—and undermines finality by allowing a second chance to argue and appeal issues to the Board that the Board has already ruled upon once. Additionally, it is not appropriate for the immigration court to, without explicit directive, expand the scope of its decision beyond that which is desired by its reviewing court. Cf. 8 CFR 1003.1(d)(1) (‘‘The Board shall function as an appellate body charged with the review of those administrative adjudications under the Act that the Attorney General may by regulation assign to it.’’). The Department notes that, should a respondent disagree with the immigration judge’s determinations made on remand, he or she may appeal that determination to the BIA. Thus, the respondent would not be prejudiced by limiting the scope of the remand to issues as directed by the appellate body. To the extent that new relief becomes available in the intervening time while a case is being rescheduled before the immigration court on remand, the VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 respondent may file a motion to reconsider the scope of the BIA’s remand decision. Alternatively, the respondent may file a motion to reopen or reconsider with the immigration judge after the judge enters a new decision following the remand. The Department further notes that such issues may generally be appealed to the Federal circuit courts of appeals. Commenters are correct that aliens would submit motions to reopen after the BIA’s adjudications, but the Department disagrees that this procedure would lead to delays or conflict with the purpose of the rule. Instead, one of the main animating purposes of the rule is to reduce unnecessary and inefficient remands and to ensure the BIA is able to move forward independently with as many appeals as possible, and maintaining a general remand rule erodes both of those goals. The Department disagrees with the commenter’s concerns that limiting the scope of remand would unfairly impact individuals who have been subject to ineffective assistance of counsel. As an initial point, the commenter did not explain how such a claim would arise in either a general or limited remand situation, as claims of ineffective assistance of counsel on direct appeal are relatively rare; nevertheless, such claims could be considered by the Board as with any other appellate argument. Moreover, individuals who have been subjected to ineffective assistance of counsel may pursue reopening of their proceedings pursuant to Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). In short, nothing in this final rule affects an alien’s ability to raise claims of ineffective assistance of counsel through established channels. The Department agrees with commenters that administrative appellate review is an important part of removal proceedings; however, the Department believes that at least some commenters have mischaracterized the role of administrative appeals as maintaining ‘‘court[] checks and balances and separation of powers.’’ Rather, the BIA exists to review immigration court decisions for accuracy and adherence to the law, as well as providing guidance to adjudicators. See 8 CFR 1003.1(d)(1). This role is unrelated to the concepts of checks and balances and separation of powers as they exist between separate, coequal branches of government. To the extent that commenters objected to the codification of the Board’s authority to issue limited remands solely because they perceived such remands as being beneficial only to PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 81615 respondents, the Department finds that an unpersuasive basis for declining to issue this rule. First, to reiterate, the rule applies to both parties, and general remands may benefit or hinder either party. It is just as likely that DHS may acquire additional evidence or submit additional arguments following a general remand as the respondent would. Consequently, the Department focuses on the efficiency aspects of eliminating the current ‘‘only general remands’’ principle, rather than its use to obtain any specific results. Second, to the extent that there is a misperception that the general remand rule aids only aliens, those comments support the Department’s decision to authorize the Board to issue both limited and general remands in order to ensure that the Board remains impartial in its treatment of both parties. See 8 CFR 1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA Ethics and Professionalism Guide at sec. V. Overall, after weighing the potential burdens and commenters’ concerns, as well as the Board’s position as an impartial appellate body, the Department has concluded that the benefits of expressly allowing the Board to issue limited remands, including increased efficiency and better alignment with the Board’s status as an appellate authority, outweigh concerns raised by commenters that parties should continue to be able to raise all issues again on remand, even if they have previously been litigated. h. New Evidence on Appeal (8 CFR 1003.1(d)(7)(v)) Comment: Numerous commenters expressed general concerns about the amendments at 8 CFR 1003.1(d)(7)(v) regarding the BIA’s consideration of new evidence on appeal. For example, at least one commenter characterized the change as ‘‘banning the submission of new evidence.’’ Other commenters expressed that the changes were a ‘‘blatant power grab’’ and offensive to the constitution, principles of basic decency, and fundamental fairness. Commenters explained that motions to reopen are inadequate substitutes for motions to remand for consideration of new evidence due to the strict time and number limitations that apply. See INA 240(c)(7)(C)(i), 8 U.S.C. 1229a(c)(7)(C)(i). Commenters stated that motions to remand on account of new evidence are critical to protecting aliens’ due process rights in immigration proceedings and that, by banning motions to remand for new evidence, the rule would violate aliens’ rights at section 240(b)(4)(B) of the Act, 8 U.S.C. 1229a(b)(4)(B), to present evidence on their behalf. Commenters explained that these E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81616 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations motions to remand allow aliens to account for situations when evidence that is material was formerly unavailable. Commenters noted that new evidence may be necessary for consideration due to intervening changes in the law. Similarly, commenters disagreed with the Department’s characterization of the basis for these changes as gamesmanship by the parties, noting that it frequently takes time for an alien to obtain evidence from other sources. Commenters also noted that the Department did not provide concrete evidence or citations in support of these characterizations. See 85 FR at 52501. In general, commenters expressed concern that this provision would allow the BIA to remand a case when there is derogatory information about an alien as a result of the identity, law enforcement, or security investigations or examinations but prevent aliens from seeking a remand for new and favorable evidence. This difference, according to commenters, gives ‘‘the appearance of impropriety and favoritism toward one party in the beginning.’’ Another commenter alleged that such an appearance ‘‘damages the public trust in the neutral adjudication process.’’ Extending the allegations, a commenter claimed that these changes resulted in the decision makers no longer being neutral or unbiased, a constitutional requirement, according to the commenter, that was established in Mathews v. Eldridge, 424 U.S. 319 (1976). Commenters noted that allowing remands due to information uncovered in the investigations without restrictions conflicts with the Department’s efficiency-based justification for the rule. Commenters similarly stated that the rule favors DHS because all three exceptions to remands for consideration of new evidence at 8 CFR 1003.1(d)(7)(v)(B) relate to types of evidence more likely to benefit DHS’s case or arguments than the alien’s. Other commenters warned that this change would increase the backlog at the immigration courts, the BIA, and the circuit courts. For example, at least one commenter argued that the change would lead to unnecessary delays by requiring the BIA to affirm a removal order that would be subsequently reopened since the BIA could not grant a remand to account for new evidence while the case is still pending. Similarly, commenters stated that forcing cases to first have a removal order before evidence could be considered with a motion to reopen unnecessarily starts the removal process and creates complications. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 Other commenters voiced concern that pro se aliens who improperly label their motion to the BIA as a motion to remand rather than a motion to reopen will have their motions dismissed and their new evidence would be ‘‘foreclosed from consideration.’’ Another commenter echoed this concern and noted that the government, which will always be represented by counsel, would not be required to meet the same motion formalities as aliens in order for the BIA to remand due to derogatory information. Concerned about refoulement, a commenter stated that the Department should not make it more difficult for asylum seekers, who often have limited access to evidence due to harms from abusers or traffickers or post-traumatic stresses, to submit whatever evidence they are able to procure. Similarly, at least one commenter noted the difficulties faced by children in proceedings. Commenters described a range of situations when they believe the rule would prevent aliens from submitting new evidence that is relevant or needed. Examples include when an alien has been approved for a U-visa but has not actually received it and when an immigration judge unreasonably limited the record and the alien needs to establish that the immigration judge abused her discretion in a prejudicial manner. Response: The Department has addressed many of these comments regarding the submission of new evidence on appeal, supra, and incorporates and reiterates its previous response here. Further, the Department notes that the rule does not ban the submission or consideration of new evidence following the completion of immigration court proceedings. Instead, the changes require that a party comply with the statutory requirements for a motion to reopen to submit such evidence.41 A motion to remand, which is an administratively created concept 42 that was later codified into the regulations, was never imagined as part of the statutory scheme. However, the statutory scheme of the INA included an avenue to address new evidence—a 41 The Department recognizes commenters’ concerns that motions to reopen are limited by statute to certain time and number requirements. See INA 240(c)(7)(C)(i), 8 U.S.C. 1229a(c)(7)(C)(i). Such limitations are the product of congressional judgment and otherwise outside the Department’s authority to set or amend. Nevertheless, the Department also recognizes that equitable tolling, which commenters generally did not acknowledge, may also be available in certain circumstances to ameliorate time limitations. 42 See Matter of Coelho, 20 I&N Dec. 464, 470– 71 (BIA 1992). PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 motion to reopen—and the NPRM does not impact motions to reopen. Because the sole statutorily created process to consider new evidence is still available, the Department finds that aliens’ due process rights regarding the submission of new evidence remain intact. Commenters mischaracterize the Department’s basis for these changes. While the Department noted that the procedures and availability of motions to remand create opportunities for gamesmanship, such possible gamesmanship was not alone the reason for the changes. 85 FR at 52501. Instead, as the Department noted, such motions have resulted in inconsistent applications of the law, particularly given the general prohibition on the BIA’s consideration of new evidence on appeal. 85 FR at 52500–01. Further, prohibiting the BIA from considering new evidence on appeal is in keeping with the immigration judge’s authority to manage the filing of applications and collection of relevant documents. Under 8 CFR 1003.31(c), a party who fails to file an application or document within the time set by the immigration judge is deemed to have waived the opportunity to file that application or document. Further, commenters are incorrect that the rule demonstrates bias or particular aid to DHS. The NPRM contains three exceptions: New evidence that (1) is the result of identity, law enforcement, or security investigations or examination; (2) pertains to an alien’s removability under the provisions of 8 U.S.C. 1182 and 1227; or (3) calls into question an aspect of the jurisdiction of the immigration courts. These are the three situations in which the Department determined that the need for remand ‘‘overrides any other consideration because the new evidence calls into question the availability or scope of proceedings in the first instance.’’ 85 FR at 52501. Only the first basis applies solely to DHS, and as the Department has discussed, supra, that basis is consistent with statutes and regulations that are beyond the scope of this rule. 8 CFR 1003.47; INA 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i). The second and third bases apply equally to both parties and allow, for example, a respondent to submit new evidence of United States citizenship (which would call into question the jurisdiction of the proceedings) or new evidence that suggests the respondent is no longer removable. Both parties have vested interests in ensuring that removal proceedings do not occur in circumstances when a respondent is not amenable to removal, and the Department accordingly disagrees with E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations commenters that these circumstances are in any way one-sided or beneficial solely or primarily to DHS. Further, it is a mischaracterization to isolate the first exception, remands for evidence that is the result of the alien’s identity, law enforcement, or security investigations or examinations, as particular evidence that the provision is biased in favor of the government. As discussed in the NPRM, by statute, no alien may be granted asylum ‘‘until the identity of the applicant has been checked against all appropriate records or databases maintained by the Attorney General and by the Secretary of State, including the Automated Visa Lookout System, to determine any grounds on which the alien may be inadmissible to or deportable from the United States, or ineligible to apply for or be granted asylum.’’ INA 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i). As such, the BIA must be able to remand on account of unfavorable findings resulting from identity and security investigations or the BIA would not be complying with the statutory requirements, and aliens would not have an opportunity to present relevant evidence in response. Commenters are correct that aliens may submit motions to reopen after the BIA’s adjudication, but the Department disagrees that this procedure, compared with the submission of new evidence on appeal, would lead to delays or conflict with the purpose of the rule. As discussed in the NPRM, 85 FR at 52500– 01, and reiterated, supra, the BIA’s inconsistent treatment of new evidence submitted on appeal warrants a change in the regulations, and commenters suggestions to the contrary are unpersuasive. After weighing the relevant equities—including the need for clarity and consistency, the availability of alternatives such as motions to reopen, the burden of immigration judges caused by improper consideration of new evidence on appeal, and the importance of encouraging parties to submit all available and probative evidence at the trial level—the Department decided that the benefits of the rule outweigh the concerns raised by commenters, particularly due to the availability of motions to reopen.43 As to the commenters’ concerns regarding the risk of unrepresented aliens submitting improperly titled motions, the issue is not novel, and the BIA is familiar in handling such 43 To the extent commenters are concerned about removal pending a motion to reopen given these changes, the Department notes that aliens may seek stays of removal from DHS or, as appropriate, the BIA. 8 CFR 241.6 and 1241.6. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 matters.44 The BIA reviews each submission for its substance. In addition, EOIR provides reference materials to the public regarding procedures before EOIR, which provide pro se aliens with assistance when engaging in self-representation. See generally BIA Practice Manual; see also EOIR, Immigration Court Online Resource, supra; EOIR, Self-Help Materials (Aug. 1, 2019), available at https://www.justice.gov/eoir/self-helpmaterials. Thus, the Department does not find that mistitled or mischaracterized motions will be an undue burden on the BIA or present a particular risk that aliens’ opportunity to have new evidence considered will be denied due to formalities. The Department finds that the various scenarios when motions to remand for consideration of new evidence would be used do not compel reconsideration of the rule. The three exceptions provide safeguards that allow for the consideration of evidence when it calls into question the availability or scope of proceedings, and motions to reopen remain the appropriate recourse for aliens with newly discovered or previously unavailable evidence. Similarly, a motion to reopen provides the proper avenue for newly acquired evidence for asylum seekers or others concerned about refoulement; thus, aliens in that situation are not ‘‘arbitrarily blocked’’ from presenting such evidence. i. BIA Timelines (8 CFR 1003.1(e)(1), (8)) i. Issues With Respect to Screening Panel Deadlines Comment: Commenters expressed concern that the rule’s 14-day timeframe for the BIA to conduct its initial screening for summary dismissal and 30-day timeframe for the BIA to issue a decision would lead to erroneous dismissals in light of the number of cases pending before the BIA. Specifically, the commenters stated that BIA staff conducting the initial screening would not know whether the case could be summarily dismissed until after they have screened the case, and that the ‘‘mandatory adjudicatory timeframes’’ would pressure screeners to review cases quickly rather than accurately. Another commenter stated that the ‘‘screening panel’’ consisted of only one BIA member, who would not 44 Nevertheless, the Department reiterates that approximately 86 percent of aliens are represented upon appeal. EOIR Workload and Adjudication Statistics, Current Representation Rates, Oct. 13, 2020, available at https://www.justice.gov/eoir/ page/file/1062991/download. PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 81617 have sufficient time to meaningfully review the appeal. Commenters similarly expressed concern that the rule’s requirement that a single BIA member decide whether to issue a single-member decision or refer the case for three-member review will cause BIA members to emphasize speed over fairness in reviewing case records, which could result in erroneous denials. The commenters suggested that these timelines were arbitrary. One commenter stated that it supported extending the existing regulatory deadlines, rather than shortening them. One commenter cited several Ninth Circuit cases that determined that the BIA had erred in its summary dismissal of an appeal. See, e.g., Vargas-Garcia v. INS, 287 F.3d 882, 885–86 (9th Cir. 2002) (holding that the BIA Notice of Appeal form was inadequate for an unrepresented respondent given the BIA’s standards of specificity and lack of notice in summarily dismissing the appeal); Casas Chavez v. INS, 300 F.3d 1088, 1090 & n.2 (9th Cir. 2002) (holding that the notice of the reasons for appeal sought by the summary dismissal regulation can be met either in the Notice of Appeal or in the brief and ‘‘there is an underlying assumption in the regulation that both requirements need not be satisfied as long as sufficient notice is conveyed to the BIA’’ and reasoning that ‘‘[i]f this were not true, the constitutionality of the regulation would be called into question on the basis of denial of due process. . . . In the context of deportation proceedings, due process requires that aliens who seek to appeal be given a fair opportunity to present their cases.’’) (internal citations and quotations omitted); Response: Most, if not all, of the commenters’ concerns appear to be based on a tacit assertion that either Board members are incompetent and cannot screen an incoming case within two weeks or Board members are incompetent or unethical and will issue summary dismissal orders for reasons unrelated to the merits or the law. The Department categorically rejects those assertions and any comments based on such presumptions. Chem. Found., Inc., 272 U.S. at 14–15 (‘‘The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’’). There is no evidence—and commenters did not provide any—that establishing a 14-day timeframe within which the BIA must conduct its initial screening for summary dismissal and 30-day timeframe for issuing a decision E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81618 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations will result in erroneous denials. The BIA has already established such internal requirements by policy, see PM 20–01 at 2 without any known degradation in the quality of its screening or issuance of summary dismissals. Contrary to the suggestion of at least one commenter, the screening panel is comprised of multiple Board members, not just one, and the panel consists of a ‘‘sufficient number of Board members’’ to carry out screening functions. 8 CFR 1003.1(e). The rule does not alter the existence or composition of the screening panel. Further, commenters did not provide any evidence—and the Department is unaware of any—that the screening panel is insufficient to carry out its functions under the rule. As noted in the NPRM, 85 FR at 52507, the regulations currently direct the BIA to screen and ‘‘promptly’’ identify cases subject to summary dismissal, 8 CFR 1003.1(d)(2)(ii), and few commenters acknowledged that promptness requirement nor explained why an undefined promptness requirement is preferable to a clear one set at 30 days. These regulatory timelines will both improve efficiency at the BIA, so that there is more time for BIA members and staff to devote to cases involving more substantive, dispositive issues. They will also benefit the parties by offering more expedient resolution of appeals amenable to summary dismissal allowing more time to be devoted to meritorious cases. The Department believes that 14 and 30 days are ample periods of time to both screen and issue decisions, respectively, on such limited matters, and these timelines will not negatively affect the quality or accuracy of such adjudications. Finally, the Department notes the commenter’s citation to cases regarding incorrect usage of the BIA’s summary dismissal procedures. The BIA may dismiss an appeal summarily without reaching its merits in the following circumstances: Failure to adequately inform the BIA of the specific reasons for the appeal on either the Notice of Appeal (Form EOIR–26) or any brief or attachment; failure to file a brief if the appealing party has indicated that a brief or statement would be filed; the appeal is based on a finding of fact or conclusion of law that has already been conceded by the appealing party; the appeal is from an order granting the relief requested; the appeal is filed for an improper purpose; the appeal does not fall within the BIA’s jurisdiction; the appeal is untimely; the appeal is barred by an affirmative waiver of the right of appeal; the appeal fails to meet VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 essential statutory or regulatory requirements; or the appeal is expressly prohibited by statute or regulation. See 8 CFR 1003.1(d)(2)(i). The cases identified by commenters, however, are inapposite to this rule, which does not amend the circumstances under 8 CFR 1003.1(d)(2)(i) when the BIA may summarily dismiss a case. ii. Issues With Respect to Other Appeals Comment: One commenter asserted that the changes to the BIA’s timelines were designed to codify an October 2019 EOIR policy memo, but the commenter stated that the Department did not point to any increased efficiency or productivity since those new casemanagement procedures were implemented. Other commenters similarly criticized the Department for not adequately explaining how its objectives to achieve higher consistency, efficiency, and quality of decisions would be furthered by limiting BIA discretion to manage its own caseload. Commenters likened their concerns with the new timelines to concerns with the BIA’s procedures for affirmances without opinion. Commenters stated that the rule would lead the BIA to issue rushed, not quality, decisions. For example, commenters stated that BIA decisions would be inconsistent since achieving consistency requires reviewing previous decisions and understanding important distinctions between different cases. Commenters stated that decisions made without sufficient consideration of the facts and law would be more likely to be overturned for errors, which decreases efficiency. The commenters also stated that this rule would incentivize BIA members to decide and deny cases themselves rather than determine that a case requires three-member review, which is required to reverse an immigration judge’s decision, because it is faster for a single member to affirm an immigration judge’s decision. Commenters criticized that the Department did not explain why the BIA would benefit from such adjudication timelines when other courts can issue rulings only when they are prepared to do so. One commenter stated that the time period proposed for EOIR adjudicators is much less than many other administrative tribunals. The commenter listed, as examples, the Board of Veterans Appeals, which the commenter alleged took an average of 247 days to decide an appeal in FY 2017, and the Social Security Administration Appeals Council, which the commenter alleged had an average PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 processing time for an appeal of 364 days in FY 2016. Response: Again, many, if not all, of the commenters’ concerns appear to be based on a tacit underlying assertion that Board members are either incompetent or unethical and, thus, cannot or will not perform their duties properly in a timely manner, notwithstanding the longstanding regulatory directive for them to ‘‘resolve the questions before [them] in a manner that is timely, impartial, and consistent with the Act and regulations.’’ 8 CFR 1003.1(d)(1). The Department categorically rejects those assertions and any comments based on such presumptions. Chem. Found., Inc., 272 U.S. at 14–15 (‘‘The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’’). Although aspects of PM 20–01 informed this rule, it was not the sole consideration nor the basis of authority for the rulemaking. The Attorney General is statutorily authorized to issue regulations to carry out his authority in the INA. INA 103(g)(2), 8 U.S.C. 1101(g)(2). Further, the Director exercises delegated authority from the Attorney General to ensure the ‘‘efficient disposition of all pending cases, including the power, in his discretion, to set priorities or time frames for the resolution of cases.’’ 8 CFR 1003.0(b)(1)(i). Additionally, the Director may ‘‘[e]valuate the performance of the Board of Immigration Appeals . . . and take corrective action where needed[.]’’ Id. § 1003.0(a)(1)(iv). The Department notes that this rulemaking, and other recent rulemakings, designed to improve efficiencies at the BIA, in addition to the measures outlined in the policy memorandum, to the extent that they are not included in the rulemaking will work in conjunction to improve efficiencies at the BIA. See, e.g., Organization of the Executive Office for Immigration Review, 84 FR 44537 (Aug. 26, 2019); 85 FR 18105. The Department also notes that the Board has already demonstrated improved efficiency by completing over 40,000 cases in the first full fiscal year (FY) after PM 20–01 was issued, which was its highest completion total since FY 2008. EOIR, Adjudication Statistics: All Appeals Filed, Completed, and Pending, Oct. 13, 2020, available at https:// www.justice.gov/eoir/page/file/1248506/ download. Contrary to commenters’ assertions, this rule does not encourage any E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 particular result of an appellate adjudication; rather, the outcome of an appeal remains wholly dependent on the merits of the appeal and the applicable law. This rule does not encourage the denial of appeals or the issuance of legally deficient decisions, and the Department again rejects the insinuation that its adjudicators would abdicate their duties or are too incompetent to perform them correctly. Further, this provision regarding the BIA’s timelines are intended to improve efficiency and encourage the timeliness of appeals, not to affect the disposition of appeals. The NPRM clearly states that ‘‘this delegation of authority to the Director does not change the applicable law that the Board or the Director must apply in deciding each appeal[.]’’ 85 FR at 52508. BIA members are directed by regulation to ‘‘exercise independent judgment and discretion in considering and determining the cases coming before the [BIA.]’’ 8 CFR 1003.1(d)(1)(ii). Such determinations must be made in accordance with applicable statutes, regulations, and binding case law. Additionally, BIA members receive ‘‘comprehensive, continuing training,’’ administered by the Director, in order to promote adjudicative quality. Id. § 1003.0(b)(1)(vi), (vii). Furthermore, BIA members, who are adjudicators within EOIR, were hired to serve EOIR’s mission to adjudicate cases in a fair, expeditious, and uniform manner. See EOIR, About the Office, Aug. 14, 2018, available at https://www.justice.gov/ eoir/about-office. The Department rejects commenters’ insinuations that BIA members would act outside of that mission by affirming an immigration judge’s decision solely to dispose of an appeal more expediently due to the timelines.45 The Department disagrees 45 Because an alien may appeal a BIA decision to Federal court, this asserted behavior would not be efficient or rational—and, thus, would be unlikely to occur, contrary to commenters’ allegations— because improper adjudications will simply lead to more cases being remanded from Federal court. Moreover, although commenters did not acknowledge it, the Department is cognizant that DHS cannot petition a Federal court for review of a BIA decision. Thus, if BIA adjudicators were to ignore their ethical obligations, disregard the law and evidence in each case, and adjudicate cases based solely on regulatory timelines in the manner alleged by commenters, they would actually have an incentive to rule in favor of aliens—contrary to the assertions of commenters—because there is little likelihood of a subsequent reversal. Thus, if commenters were correct about an asserted relationship between efficiency and outcomes, then that relationship would logically favor aliens, which is, paradoxically, a result favored by most commenters opposing the rule. Nevertheless, the Department reiterates that the improved efficiency created by the rule is outcome-neutral, and it expects that all Board members will carry out their duties in an impartial and professional manner consistent with the regulations. See 8 CFR VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 with commenters’ concerns that, given the number of cases pending before the BIA, it would not be possible for BIA members to adjudicate appeals within the given timeframes or other allegations that the 335-day time period is insufficient. As noted in the NPRM, most appeals are already decided within the given parameters. 85 FR at 52508. Accordingly, commenters’ comparisons to other courts or administrative bodies with different processing timelines and averages are inapposite, though the Department notes that the BIA’s timeline falls between the two examples given, which actually supports the rule. For such cases that are atypical, and for which it would be appropriate for the BIA to devote additional time to completing adjudication, the regulations provide for an extension of the adjudication time period. 8 CFR 1003.1(e)(8)(ii) (‘‘[I]n exigent circumstances . . . in those cases where the panel is unable to issue a decision within the established time limits, as extended, the Chairman shall either assign the case to himself or a Vice Chairman for final decision within 14 days or shall refer the case to the Director for decision.’’); 1003.1(d)(6)(ii)(B) (allowing BIA to place a case on hold while it awaits the completion or updating of all identity, law enforcement, or security investigations or examinations); 1003.1(e)(8)(iii) (permitting BIA Chief Appellate Immigration Judge to hold a case pending a decision by the U.S. Supreme Court or a U.S. Court of Appeals, in anticipation of a BIA en banc decision, or in anticipation of an amendment to the regulations). Therefore, as noted in the NPRM, the Department expects few, if any, appeals to not be resolved within the regulatory time frames. 85 FR at 52508. In short, commenters simply did not persuasively explain why it would be neither feasible nor desirable for the BIA to adjudicate cases within 11 months, subject to certain exceptions contained in the rule. iii. Issues With Respect to Referral to the Director Comment: Commenters also expressed a range of disagreements with the rule’s procedures for the referral of appeals that have been pending for more than 335 days 46 to the Director. The 1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA Ethics and Professionalism Guide at sec. V. 46 Numerous comments refer to a 355 day deadline which appears to be a typographical error, as the time period set forth in the NPRM was 335 days, and there is no discussion of a 355 day time period in the NPRM. See 8 CFR 1003.1(e)(8)(v) (proposed). The Department has reviewed and PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 81619 commenters asserted that this would promote the denial of appeals. The commenters also expressed concerns that this would consolidate final decision-making authority with one allegedly politically appointed person, the Director, whom, the commenters alleged, would not have the necessary information or knowledge of the case to issue a decision. Commenters alleged that the Director’s decision in referred cases would be made based on the rules, without taking the appropriate time to evaluate the case. Further, commenters objected that the rule would undermine the perception of neutrality, politicize the appellate process and violate substantive Due Process by allowing the Director, a political appointee, rather than a career adjudicator to adjudicate hundreds or thousands of cases. One commenter asserted that it is not the role of the Director to adjudicate decisions, and that the position is a non-adjudicatory position that is meant to run EOIR operations and does not have expertise, training, or impartiality necessary to decide cases. The commenter stated that, as an executive position, the Director would make decisions based on the priorities of the executive branch rather than the requirements of the law. Numerous commenters opposed the 335-day period before referrals because it is not much longer than the 323-day median case appeal time period. One commenter criticized the rulemaking because the Department did not address how the Director would have time to personally write decisions or, alternatively, who would write them under the Director’s name. The commenter further criticized that the NPRM did not discuss what kind of training and oversight such individuals would receive or what metrics they would use. Some commenters offered anecdotal evidence about appeals that were pending for more than 335 days and noted that such delays have become even increasingly common in light of the COVID–19 epidemic. One commenter stated that every nondetained BIA appeal filed under the current administration had been pending for well over 335 days, and that, accordingly, the rule would result in the Director issuing decisions for every respondent. One commenter asserted that referring decisions to the Director would undermine rule’s efficiency purpose because it would introduce a third level addressed such comments for substance as if they had correctly stated that there was a 335 day deadline. E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81620 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations of administrative review. Instead, commenters asserted that it would be more efficient to allow the BIA member or BIA panel that has already reviewed the case and the record to make the ultimate disposition in the case. At least one commenter alleged that the rule would result in increased appeals to the Federal courts. Commenters asserted that it would not be possible for the BIA to adequately review the number of pending BIA cases in the given timeframe to avoid referrals to the EOIR Director. For example, commenters stated, based on DOJ statistics, that there were over 70,000 cases pending before the BIA at the end of FY 2019, and that for a 23-member BIA, each BIA member would have to complete 3,043 cases per year to comply with the 335-day deadline. Commenters also raised concerns with imposing quotas on judicial processes, and stated that the same concerns apply to both BIA adjudicators and immigration judges. Response: As an initial point, the Director is not a political appointee. A political appointee is a full-time, noncareer presidential or vice-presidential appointee, a non-career Senior Executive Service (‘‘SES’’) (or other similar system) appointee, or an appointee to a position that has been excepted from the competitive service by reason of being of a confidential or policy-making character (Schedule C and other positions excepted under comparable criteria) in an executive agency. See, e.g., E.O. 13770, sec. 2(b) (Jan. 28, 2017) (‘‘Ethics Commitments by Executive Branch Appointees’’); see also Edward ‘Ted’ Kaufman and Michael Leavitt Presidential Transitions Improvements Act of 2015, Public Law 114–136, sec. 4(a)(4), (5), Mar. 18, 2016, 130 Stat. 301. No employee currently at EOIR, including the Director, falls within these categories. See Organization of the Executive Office for Immigration Review, 85 FR 69465, 69467 (Nov. 3, 2020) (‘‘In short, all of EOIR’s federal employees, including the Director and the Assistant Director for Policy, are career employees chosen through merit-based processes, and none of EOIR’s employees are political appointees.’’). EOIR has no Schedule C positions or positions requiring appointment by the President or Vice President. The Director is a career appointee within the SES. SES positions are specifically designed to ‘‘provide for an executive system which is guided by the public interest and free from improper political interference.’’ 5 U.S.C. 3131(13). Although the Director and Deputy Director are general SES positions, they VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 have traditionally been filled only by career appointees, and the incumbent Director serves through a career appointment. In short, all of EOIR’s Federal employees, including the Director, are career employees chosen through merit-based processes, and contrary to commenters’ assertions, none of EOIR’s employees, including the Director, are political appointees.47 Similarly, some commenters objected to the NPRM by asserting that the Director is merely an administrator with no adjudicatory role and no subject matter expertise regarding immigration law. Longstanding regulations make clear, however, that the Director must have significant subject matter expertise in order to issue instructions and policy, including regarding the implementation of new legal authorities. See 8 CFR 1003.0(b)(1)(i). The position of Director requires a significant amount of subjectmatter expertise regarding immigration laws. The Director is charged with, inter alia, directing and supervising each EOIR component in the execution of its duties under the Act, which include adjudicating cases; evaluating the performance of the adjudicatory components and taking corrective action as necessary; providing for performance appraisals for adjudicators, including a process for reporting adjudications that reflect poor decisional quality; ‘‘[a]dminister[ing] an examination for newly appointed immigration judges and Board members with respect to their familiarity with key principles of immigration law before they begin to adjudicate matters, and evaluat[ing] the temperament and skills of each new immigration judge or Board member within 2 years of appointment’’; and, 47 Most, if not all, of the comments opposing the NPRM because the Director is an alleged political appointee assume that any employee appointed to an agency position by an agency head, such as the Attorney General, is necessarily a political appointee. By statute, regulation, policy, or to comply with the Appointments Clause of the Constitution, approximately 545 positions at EOIR currently require appointment by the Attorney General, including Board members, immigration judges, and administrative law judges. The fact that the Attorney General, who is a political appointee, appoints an individual to a position does not convert that position to a political position. Moreover, even if the Director position were filled by a political appointment, that fact alone would not render the individual a biased adjudicator incapable of adjudicating cases under the regulations. Cf. Matter of L-E-A-, 27 I&N Dec. at 585 (rejecting arguments that the Attorney General is a biased adjudicator of immigration cases in the absence of any personal interest in the case or public statements about the case). After all, the functions of EOIR are vested in the Attorney General, who is a political appointee, and the INA specifically provides that determinations in immigration proceedings are subject to the Attorney General’s review. 28 U.S.C. 503, 509, 510; INA 103(g), 8 U.S.C. 1103(g). PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 ‘‘[p]rovid[ing] for comprehensive, continuing training and support for Board members, immigration judges, and EOIR staff in order to promote the quality and consistency of adjudications.’’ Id. § 1003.0(b)(1). Each of these responsibilities necessarily requires some manner of subject-matter expertise to carry out effectively. Moreover, the Director was given explicit adjudicatory review authority involving recognition and accreditation (‘‘R&A’’) cases in January 2017, well before the NPRM was promulgated. See Recognition of Organizations and Accreditation of Non-Attorney Representatives, 81 FR 92346, 92357 (Dec. 19, 2016) (‘‘Additionally, the final rule provides that organizations whose requests for reconsideration are denied may seek administrative review by the Director of EOIR. See final rule at 8 CFR 1292.18. This provision responds to concerns that [the Office of Legal Access Programs (‘‘OLAP’’)] would be the sole decision-maker regarding recognition and accreditation and that another entity should be able to review OLAP’s decisions.’’). In short, existing regulations already require some level of subject-matter knowledge by the Director and provide for the Director to have an adjudicatory role in addition to administrative duties. See, e.g., Matter of Bay Area Legal Services, 27 I&N Dec. 837 (Dir. 2020) (decision by the Director in R&A proceedings). Accordingly, to the extent that commenters’ objections to this provision are based on an inaccurate understanding of the Director position, the Department finds those objections unsupported and unpersuasive. Further, the Director, like members of the BIA, exercises independent judgment and discretion in accordance with the statutes and regulations to decide any case before him for a final decision pursuant to 8 CFR 1003.1(e)(8)(v) due to the BIA’s failure in that case to meet the established timelines. See 8 CFR 1003.0(c) (‘‘When acting under authority [to adjudicate cases], the Director shall exercise independent judgment and discretion in considering and determining the cases and may take any action consistent with the Director’s’s authority as is appropriate and necessary for the disposition of the case.’’); cf. 8 CFR 1003.1(d)(1)(ii) (‘‘Board members shall exercise their independent judgment and discretion in considering and determining the cases coming before the Board[.]’’). Further, the Director’s decisions are subject to review by the Attorney General, either at the Director’s or Attorney General’s request. Id. § 1003.1(e)(8)(v). And as the final E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations agency decision, such decisions would be subject to further review in Federal court. INA 242, 8 U.S.C. 1252. Thus, the Director’s authority on such cases would not necessarily be ‘‘final’’ to any extent greater than BIA’s authority is ‘‘final.’’ Regarding the commenters’ concerns about the lack of information in the rule regarding the particular support staff or other internal procedures that the EOIR Director would utilize for issuing decisions referred under the rule, the Department notes that such details regarding internal staffing models are not generally the topic of regulations. Nevertheless, the regulations do make clear that the Director may employ sufficient staff as needed to carry out EOIR’s functions, 8 CFR 1003.0(a) (‘‘EOIR shall include . . . such . . . staff as the Attorney General or the Director may provide.’’); 28 CFR 0.115(a) (same), just as they make clear that the Director is integral to ensuring the Board itself has sufficient staff, 8 CFR 1003.1(a)(6) (‘‘There shall also be attached to the Board such number of attorneys and other employees as the Deputy Attorney General, upon recommendation of the Director, shall from time to time direct.’’). The Department further notes that it is not uncommon for someone other than the adjudicator to prepare a decision draft for the adjudicator’s review and signature and that EOIR has, for many years, hired judicial law clerks to assist with drafting decisions. See Dept. of Justice, Honors Program Participating Components, Aug. 25, 2020, available at https:// www.justice.gov/legal-careers/honorsprogram-participating-components (‘‘EOIR Honors Program hires serve 2 year judicial clerkships . . . .’’). It is a common practice for both BIA and immigration court adjudicators to have supporting staff prepare decision drafts. Such decisions are still ultimately issued by the adjudicator, which in the case of untimely adjudications that have been referred is the Director—not the staff who prepared the draft. Moreover, the Department notes that the Director has the power to ‘‘[p]rovide for comprehensive, continuing training and support for Board members, immigration judges, and EOIR staff in order to promote the quality and consistency of adjudications[,]’’ including adjudications that are referred to him. See 8 CFR 1003.0(b)(1)(vii). Contrary to the commenters’ concerns, the proposed changes would not undermine due process. The essence of due process in an immigration proceeding is notice and an opportunity to be heard. LaChance, 522 U.S. at 266 VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 (‘‘The core of due process is the right to notice and a meaningful opportunity to be heard.’’). Nothing in the rule eliminates notice of charges of removability against an alien, INA 239(a)(1), 8 U.S.C. 1229(a)(1), or the opportunity for the alien to make his or her case to an immigration judge, INA 240(a)(1), 8 U.S.C. 1229a(a)(1), or on appeal, 8 CFR 1003.38. Further, although due process requires a fair tribunal, In re Murchison, 349 U.S. 133, 136 (1955), generalized, ad hominem allegations of bias or impropriety are insufficient to ‘‘overcome a presumption of honesty and integrity in those serving as adjudicators.’’ Withrow v. Larkin, 421 U.S. 35, 47 (1975). Commenters identified no reason—other than ad hominem dislike, crude suppositions, and unfounded, tendentious accusations of bias—why it would be inappropriate for a career, non-political SES official with no pecuniary or personal interest in the outcome of immigration proceedings and with both subjectmatter expertise and adjudicatory experience, such as the Director, to adjudicate appeals in limited, specific circumstances. Cf. Matter of L-E-A-, 27 I&N Dec. 581, 585 (A.G. 2019) (rejecting arguments that the Attorney General is a biased adjudicator of immigration cases in the absence of any personal interest in the case or public statements about the case). Additionally, the Department notes that the Attorney General oversees EOIR and has statutory authority to, among other responsibilities, review administrative determinations in immigration proceedings; delegate authority; and perform other actions necessary to carry out the Attorney General’s authority over EOIR. INA 103(g), 8 U.S.C. 1103(g). Over time, the Attorney General has promulgated regulations pursuant to this statutory authority that reflect the full range of his authority and oversight in section 103(g) of the Act, 8 U.S.C. 1103(g). Among many examples, in 8 CFR 1003.1(h), the Attorney General codified the authority to review BIA decisions, and in 8 CFR 1003.0(a), the Attorney General delegated authority to the Director to head EOIR. Despite this delegated authority, EOIR remains subject to the Attorney General’s oversight, and it is reasonable and proper that the Attorney General continue to exercise that oversight by way of such delegations of administrative review. In accordance with 8 CFR 1003.0(a), the Director, who is appointed by the Attorney General, exercises delegated authority from the Attorney General related to oversight and supervision of EOIR. See also INA 103(g)(1), 8 U.S.C. PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 81621 1103(g)(1); 28 CFR 0.115(a). The Director may only act in accordance with the statutes and regulations and within the authority delegated to him by the Attorney General; put differently, the statute and regulations provide the Attorney General with the authority to act, and the Attorney General, in turn, determines the extent of the Director’s authority. The Attorney General, by regulation, provides a list of the Director’s authority and responsibilities at 8 CFR 1003.0(b), which includes the authority to ‘‘[e]xercise such other authorities as the Attorney General may provide.’’ 8 CFR 1003.0(b)(1)(ix). Such delegation supersedes the restrictions related to adjudication outlined in 8 CFR 1003.0(c) due to that paragraph’s deference to 8 CFR 1003.0(b). The Director’s authority provided in the rule to adjudicate BIA cases that have otherwise not been timely adjudicated constitutes ‘‘such other authorities’’ provided to the Director by the Attorney General, based on the powers to delegate and conduct administrative review under section103(g) of the Act, 8 U.S.C. 1103(g). See 8 CFR 1003.0(c), 1003.1(e)(8). To reiterate, the Attorney General’s authority to review administrative determinations does not violate due process; thus, the proper delegation of that authority to the Director pursuant to statute and preexisting regulations does not violate due process—specifically in light of the fact that those decisions ultimately remain subject to the Attorney General’s review under 8 CFR 1003.1(e)(8). To the extent that commenters are concerned about such an appearance, the Department emphasizes the clear, direct intent of Congress in statutorily authorizing such delegations, and the Attorney General is acting within the bounds of his statutory authority by issuing the rule. INA 103(g)(2), 8 U.S.C. 1103(g)(2); see also Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 842 (1984). In issuing the rule, the Attorney General properly delegates adjudicatory authority to the Director to review certain administrative decisions that are otherwise untimely. 8 CFR 1003.1(e)(8). This delegation aligns with the Attorney General’s longstanding authority to issue regulations and delegate that authority, in line with principles of due process. The Department disagrees that these procedures would introduce inefficiency or a third level of review. Under this rulemaking, the Director would not review appeals that the BIA had adjudicated in a timely fashion. Rather, the Director will, acting with the same authority as a BIA adjudicator would have, issue decisions on appeals E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81622 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations that have been pending for longer than the prescribed regulatory period. Id. § 1003.1(e). Commenters are also incorrect that the referral of appeals that have not been timely decided could be characterized as an improper consolidation of power under one individual. Cases would be referred to the Director only where the BIA has taken more than 335 days to adjudicate an appeal, in order to ensure timely disposition of a case. As noted by the NPRM, ‘‘absent a regulatory basis for delay, there is no reason for a typical appeal to take more than 335 days to adjudicate—including time for transcription, briefing, and adherence to the exiting 90- or 180- day time frames for decision.’’ 85 FR at 52508. Moreover, commenters did not explain why aliens with meritorious appeals should have to wait more than 335 days for a decision, and the Department is unaware of any reason for doing so. To the contrary, allowing the Director to adjudicate appeals which have languished for almost a year without adjudication will help ensure that aliens with meritorious claims receive the decision they warrant in a timely manner. Additionally, for such cases that are atypical, and for which it would be appropriate for the BIA to devote additional time to completing adjudication, the regulations provide for an extension of the adjudication time period. 8 CFR 1003.1(e)(8)(ii) (‘‘[I]n exigent circumstances . . . in those cases where the panel is unable to issue a decision within the established time limits, as extended, the Chairman shall either assign the case to himself or a Vice Chairman for final decision within 14 days or shall refer the case to the Director for decision.’’); 1003.1(d)(6)(ii)(B) (allowing BIA to place a case on hold while it awaits the completion or updating of all identity, law enforcement, or security investigations or examinations); 1003.1(e)(8)(iii) (permitting BIA Chairman to hold a case pending a decision by the U.S. Supreme Court or a U.S. Court of Appeals, in anticipation of a BIA en banc decision, or in anticipation of an amendment to the regulations). The Attorney General has delegated decision-making authority to the Director pursuant to 8 CFR 1003.1(e)(8)(ii), subject to possible further review by the Attorney General. The Director may only adjudicate cases that have surpassed the articulated deadlines, and the rule is clear that the Director’s scope of review is limited to only a narrow subset of EOIR cases. Nevertheless, the Department recognizes commenters’ concerns VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 regarding the potential volume of cases that could conceivably be subject to referral, as well as the interaction between the referral procedures and other changes to the rule. To that end, the final rule adds four further exceptions to 8 CFR 1003.1(e)(8)(v) in which cases would not be referred. Cases on hold pursuant to 8 CFR 1003.1(d)(6)(ii) to await the results of identity, law enforcement, or security investigations or examinations will not be subject to referral if the hold causes the appeal to remain pending beyond 335 days. Cases whose adjudication has been deferred by the Director pursuant to 8 CFR 1003.0(b)(1)(ii) will not be subject to referral if the deferral causes the appeal to remain pending beyond 335 days. Cases remanded by the Director under 8 CFR 1003.1(k) will not be subject to referral if the case remains pending beyond 335 days after the referral. Cases that have been administratively closed pursuant to a regulation promulgated by the Department of Justice or a previous judicially approved settlement that expressly authorizes such an action will not be subject to referral if the administrative closure occurred prior to the elapse of 335 days and causes the appeal to remain pending beyond 335 days. These changes, which are incorporated through a stylistic restructuring of 8 CFR 1003.1(e)(8)(v) for clarity, recognize additional situations in which a case may appropriately remain pending beyond 335 days without adjudication or when referral back to the Director would be incongruent because the Director had remanded the case immediately prior to the referral. They also recognize, in response to commenters’ concerns, that the Director may defer adjudication of BIA cases, consistent with authority under 8 CFR 1003.0(b)(1)(ii), in order to avoid needing to have those cases referred to himself. In short, although most commenters’ concerns are inaccurate, unfounded, or hyperbolic, the Department recognizes that the BIA should exercise default appellate adjudicatory authority in immigration cases and that referral of cases to the Director should be the exception, rather than the rule. Finally, in response to comments about the clarity and scope of the NPRM’s changes to the BIA’s case management procedures, the final rule also makes edits to eliminate confusion over the scope of 8 CFR 1003.1(e). As both the title of that paragraph (‘‘Case management system’’) and its general introductory language (‘‘The Chairman shall establish a case management PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 system to screen all cases and to manage the Board’s caseload.’’) make clear, the provisions of the paragraph apply to ‘‘cases.’’ 8 CFR 1003.1(e) (emphasis added). In turn, ‘‘the term case means any proceeding arising under any immigration or naturalization law.’’ 8 CFR 1001.1(g). At the Board, cases may be initiated in one of three ways: the filing of a Notice of Appeal, the filing of a motion directly with the Board (e.g., a motion to reconsider or a motion to reopen), or the receipt of a remand from a Federal court, the Attorney General, or—under this rule—the Director. In other words, the Board adjudicates multiple types of cases, not just appeals. Although the existing language of 8 CFR 1003.1(e) is clear that it applies to all types of cases at the Board, regardless of how they are initiated, the inconsistent, subsequent use of ‘‘appeals’’ throughout that paragraph creates confusion as to its scope since appeals are not the only type of case the Board considers. See, e.g., 8 CFR 1003.1(e)(3) (in describing the Board’s merits review process, using ‘‘case’’ in the first sentence, ‘‘case’’ and ‘‘appeal’’ in the second sentence, and ‘‘appeal’’ in the third sentence, all is describing a unitary process). To avoid continued confusion and to ensure that the scope of the other changes in the final rule regarding the Board’s case management process are clear, the final rule makes edits to 8 CFR 1003.1(e) to ensure that it is clearly applicable to all cases before the Board, not solely cases arising through appeals.48 iv. Other Issues Comment: One commenter objected to the rule’s limitation of the Board Chairman’s authority to hold a decision in anticipation of a pending decision by a U.S. Court of Appeals or an amendment to the regulations. The commenter stated that such a change was not necessary and irrational because the Board Chairman’s existing authority to place cases on hold is permissive. The commenter stated that the proposed change would eliminate the Board Chairman’s discretion to hold cases when changes to the case law or regulations would benefit immigrants. The commenter stated that making the Board Chairman’s determination to hold a case subject to the concurrence by the Director was intended to enhance the Director’s influence over appellate 48 For similar reasons, the final rule also makes changes to 8 CFR 1003.1(d)(3)(iv) to clarify that 8 CFR 1003.1(d)(3)(iv)(A) applies to all cases at the Board, whereas 8 CFR 1003.1(d)(3)(iv)(D) applies only to direct appeals of immigration judge decisions. None of these changes effect any substantive alteration of the applicable regulations governing the BIA’s functioning. E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations decision making and ensure that cases are held only when it would further the administration’s political agenda, and not in the administration of justice. Response: The Department disagrees with this comment and finds it unpersuasive for several reasons. First, the regulatory process is unpredictable, and both the timing and final substance of any given regulation cannot be predicted with sufficient accuracy to warrant holding adjudications for future regulations. Similarly, there is no reliable method of predicting how long an adjudication at a circuit court of appeals will take or when, precisely, a circuit court will render a decision.49 Moreover, the proliferation of immigration litigation in recent years has increased the likelihood both that a circuit court panel’s decision may not be the last word on the issue—due to the possibility of rehearing en banc or a petition for certiorari filed with the Supreme Court—and that multiple circuits may reach different conclusions. Thus, there is little reason to place cases on hold to await an individual circuit court decision since the timing of that decision is unknown, it may not be the final decision, and it may conflict with other circuit courts causing the Board to pause some cases but not others even though the cases raise the same issues. Additionally, requiring the Director to concur with the BIA Chairman about whether to hold cases is not irregular, and the Department rejects the insinuation that the concurrence process would be used for nefarious, political, or otherwise inappropriate ends. The Chairman is, by regulation, generally subject to the supervision of the Director. 8 CFR 1003.1(a)(2); 28 CFR 0.115(a). As explained above, the Director is not a political appointee, and the Director’s decisions regarding EOIR procedures, including whether an appeal is of such a nature so as to warrant further delay in adjudication, will be made in accordance with his general supervisory authority. Moreover, both the Director and the Board Chairman already possess longstanding authority to defer adjudication of Board cases, 8 CFR 1003.0(b)(1)(ii) and 1003.1(a)(2)(i)(C), and there is no evidence either has used that authority inappropriately. Accordingly, there is no basis to expect that they would apply the hold authority in 8 CFR 1003.1(e)(8)(iii) inappropriately. 49 In contrast, the term of the Supreme Court is well-established, and decisions for a particular term are ordinarily expected by the end of June. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 Comment: One commenter asserted that the NPRM improperly characterized the BIA’s decreased efficiency as paradoxical. Rather, the commenter asserted, this resulted from ‘‘massive changes that the current administration has wrought in immigration proceedings.’’ The commenter stated that there have been constant and repeated changes to the law, as well as national, regional, and local injunctions of such changes, making it difficult to keep track of the current law and causing appeals adjudications to take longer as adjudicators research the current state of the law. Another commenter offered as a specific example, the Attorney General’s decision in Matter of Castro-Tum, 27 I&N Dec. 271, which, the commenter alleged, added 330,211 previously completed cases back on to the pending caseload. One commenter asserted, without providing further detail, that the Department’s claim about the length of time that it takes to adjudicate most appeals is ‘‘patently false’’ and a factual misrepresentation. Commenters also raised concerns with imposing quotas on judicial processes, and stated that the same concerns apply to both BIA adjudicators and immigration judges. At least one commenter asserted that the Department had failed to consider other alternatives to improving efficiencies and offered alternative suggestions to the timeline-related changes. For example, at least one commenter suggested the preparation of reports concerning longstanding cases, akin to the reports submitted to Congress concerning district court motions and cases that have been pending adjudication for a long time. This alternative, the commenter suggested, would explain why specific cases required longer-than-usual adjudication times. The commenter also proposed, as another alternative, recommended timelines that required brief explanations when such timelines were exceeded. The commenter proposed a third alternative where, as part of the initial screening, the BIA could subcategorize cases assigned to single BIA members or three-member panels based upon their apparent complexity, with different timelines assigned to each subcategory. At least one commenter expressed support for the 30-day interlocutory appeal timeline but asserted that the rule would be meaningless without an enforcement method. The commenter suggested that the Department consider adding a privately enforceable cause of action against the BIA if it failed to PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 81623 adjudicate appeals in the timespan proposed in the rule. The commenter stated that, if expediency of adjudications was the administration’s priority, subjecting adjudicators to such lawsuits would give adjudicators the extra incentive to meet applicable deadlines. Commenters suggested that survivors of gender-based violence, children, and detained individuals without representation might be particularly negatively impacted by the rule’s timelines. One commenter compared criticism from the BIA’s practice of issuing affirmances without opinion (‘‘AWOs’’) to the NPRM because ‘‘[e]ncouraging even quicker and more opaque decisionmaking from an overworked, underresourced, and now highly politicized appellate body’’ was both arbitrary and capricious and result in legally erroneous, and possibly biased, decision making. Response: With respect to criticism of the rule pertaining to the Department setting new regulatory case-management procedures, the Department maintains that it has acted with the appropriate authority do so. Case management procedures have been in place regarding Board adjudications for many years, including 90-day and 180-day timelines for the adjudication of appeals, and the Department’s authority to maintain such procedures is not seriously subject to question. As discussed in the NPRM, 85 FR at 52493, the case-management procedures also respond to concerns raised by the Department’s Office of the Inspector General (‘‘OIG’’) regarding how EOIR manages the timely adjudication of cases at the BIA. Nor were the Department’s decisions about the timelines arbitrary. Rather, they were based on experience and consideration of the average amount of time that it has taken the BIA to adjudicate appeals. See 85 FR at 52508 n.38. Moreover, as noted supra, commenters have not seriously questioned why it is impossible or improper to expect the BIA to be able to complete a case within 11 months. To the contrary, the cases of delayed adjudication cited by commenters provide support for the rule’s timeline, and the Department agrees that the provisions of this final rule will respond to commenters’ concerns about any excessive delays in case adjudications. The Department shares a commenter’s concern regarding the Board’s decreased efficiency. To the extent that the Board’s efficiency decreased even as its number of adjudicators increased or held steady prior to FY 2020, the Department does find that paradoxical. Nevertheless, E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81624 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations regardless of the precise basis for the Board’s decreased efficiency, the Department believes it must be addressed and that the NPRM sets forth well-supported ways of doing so. Regarding the commenter who asserted that the decision in Matter of Castro-Tum added 330,211 previously completed cases back to the pending caseload, the Department notes first that an administratively closed cases is not a completed case. Thus, the assertion that the cases mentioned were ‘‘completed’’ is erroneous. See Matter of Lopez-Barrios, 20 I&N Dec. 203, 204 (BIA 1990) (‘‘[A]dministrative closing is merely an administrative convenience. . . . However, it does not result in a final order.’’); HernandezSerrano, 2020 WL 6883420 at *3 (‘‘Administrative closure typically is not an action taken ‘[i]n deciding’ a case before an IJ; instead, as shown above, it is typically a decision not to decide the case. Nor is administrative closure typically an action ‘necessary for the disposition’ of an immigration case. Administrative closure is not itself a ‘disposition’ of a case, as HernandezSerrano concedes in this appeal.’’). Second, the Department notes that cases that have been administratively closed remain pending even while they are closed; thus, those cases never went away and, accordingly, were not added by Matter of Castro-Tum. The Department is unable to respond to the commenter who alleged that the median time to complete an appeal represented by the Department was false without providing further detail. The Department maintains that its calculation was accurate. Further, most commenters, who have experience practicing before the Board and are familiar with its timelines, did not dispute the idea that, on average, the Board takes, roughly, just over 10 months to adjudicate cases. The rule does not impose any ‘‘quotas’’ on Board members, nor does it establish any type of case completion goal for BIA members. To the extent that commenters believe that the 90-day and 180-day timelines establish a quota, those timeframes have existed for many years, and the rule does not alter them, though it harmonizes when they begin in response to criticism and confusion over the years, including by the Department’s OIG, 85 FR at 52493. Regarding proposed alternatives, the Department finds that preparing a report would not address issues with the Board’s efficiency. To the contrary the regulations already require the Board Chairman to prepare a report ‘‘assessing the timeliness of the disposition of cases by each Board member on an annual VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 basis,’’ 8 CFR 1003.1(e)(8)(v), and that existing requirement, which does not appear to have been followed with any diligence prior to 2019, has not aided the Board’s efficiency. Similarly, explanations for why timelines have been exceeded are useful for understanding why cases may move at different speeds, and the regulations already contemplate situations in which case processing may be delayed due to specific explanations. See id. § 1003.1(e)(8)(i)–(iii). Explanations themselves, however, do not ensure that cases are processed in a timely and fair manner, which is the Board’s goal. Finally, the commenter’s suggestion of subcategorization is already built into the screening process and the differential timelines for single-member versus panel decisions. Although the Department appreciates the commenter’s suggestions and has fully considered them, it believes they are either already contemplated by the regulations or would not otherwise improve the efficiency of the Board’s adjudications. The Department appreciates one commenter’s support for a 30-day interlocutory appeal timeline but notes that it does not possess the legal authority to establish a cause of action in Federal court to ensure that timeline is met. Although commenters suggested that survivors of gender-based violence, children, and detained individuals without representation might be particularly negatively impacted by the rule’s timelines, they did not explain how or why that would be the case. The timelines are not case-specific and do not depend on the facts of any particular case. The Department has explained, supra, that the rule would not have a deleterious impact on individuals without representation, and there is no basis to believe that the rule will apply differently to children or survivors of violence. To the extent that commenters are concerned about cases of detained aliens, existing regulations already prioritize such cases, 8 CFR 1003.1(e) (prioritizing ‘‘cases or custody appeals involving detained aliens’’), and the Department maintains a longstanding goal developed pursuant to the Government Performance and Results Act, Public Law 103–62, Aug. 3, 1993, 107 Stat. 285, of completing 90 percent of detained appeals within 150 days of filing. PM 20–01 at 6. In short, the rule has no impact on the efficiency of adjudicating appeals of detained aliens, as such cases are already adjudicated expeditiously in the normal course under existing principles. PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 Commenter criticisms of AWOs, comparison with other agency adjudication timelines, which involve completely different factors for consideration, and concerns over ‘‘flooding’’ the circuit courts of appeals, are outside of the scope of this rulemaking, although the Department reiterates that it does not believe that this rulemaking would encourage speed over quality of decisions, but rather believes that it strikes an appropriate balance. The Department acknowledges commenter anecdotes about appeals that have been pending for longer than the 335-day regulatory period for various stated reasons and notes that stating a median, by definition, will include cases that have been pending for longer. Nevertheless, the Department acknowledges that these anecdotes further support the Department’s efforts to resolve cases more expeditiously through this rule. j. Immigration Judge Quality Assurance Certification (8 CFR 1003.1(k)) Comment: Some commenters expressed concern regarding the establishment of new quality assurance procedures that allow immigration judges to certify cases, in certain limited circumstances, to the Director. 8 CFR 1003.1(k). Commenters opined the quality assurance procedures would undermine the BIA in a variety of manners. For example, at least one commenter stated that quality assurance certifications undermine the BIA’s integrity by dispossessing it of its full appellate authority. Other commenters stated that the procedures will erode a fundamental purpose of the BIA: National consistency. Commenters further opined that the NPRM would undermine the adversarial nature of BIA proceedings. Others claimed that the procedures would remove discretion from the BIA, which the commenter likened to other changes by the Department that the commenter felt have removed discretion from immigration judges. Commenters further alleged that the rule would have a chilling effect on the BIA as it would heighten their concerns about job security over fairness and impartiality. At least one commenter expressed a belief that quality assurance certifications are not needed because every opinion the commenter received from the BIA was ‘‘highly professional [and] based on the Board members’ evaluation of the law and the facts of the particular case.’’ Another commenter opined that there were easier ways to change a typographical error. According to commenters, the bases for the quality assurance certifications E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations are so broad that an immigration judge who simply disagrees with the BIA’s decision—or the decision’s impact on the immigration judge’s performance metrics—can certify the case to the Director. See id. § 1003.1(k)(1)(i)–(iv). Commenters expressed concerns regarding the appropriateness of the Director receiving such quality assurance certifications and the Director’s ability to appropriately respond to and manage the certifications he would receive. For example, commenters predicted that the Director could receive thousands of cases from the BIA due to other changes in the rule as well as the cases certified from immigration judges. Due to the caseload, a commenter claimed that the Director would simply ‘‘rubber stamp denials.’’ Commenters described the position of the Director as managerial and nonadjudicatory and accordingly opined that the individual appointed to it does not necessarily possess the ‘‘expertise, training, or impartiality necessary to decide cases.’’ Others expressed concern about the Director’s role reviewing and responding to quality assurance certifications due to the commenters’ perception that the Director is a political appointee or otherwise is politically motivated. Some commenters alleged that the Director is not subject to the same the ethics and professionalism guidelines applicable to BIA members and the decisions of the Director cannot be remedied through EOIR’s procedure for addressing complaints against EOIR adjudicators. Other commenters requested that the neutral arbiter be other experts in immigration law or another body. Other commenters worried that regardless of the Director’s decision, it would be unreviewable by any adjudicator, while another commenter claimed that appeals would flood the circuit courts. Commenters claimed that the Department mischaracterized HALLEX I–3–6–10. For example, one commenter stated that the cited section allows for clarity but not for Administrative Law Judges to ‘‘protest’’ or question decisions on their cases in the same manner immigration judges would be allowed to do for BIA decisions. Other commenters were concerned with procedural issues. Some commenters claimed that the parties and the BIA should receive notice that the immigration judge certified a case. Commenters requested that parties be allowed to object to certification and file briefs accordingly and noted that the non-moving party has a chance to respond in the current scheme to address BIA errors. At least one VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 commenter expressed concern about the implications on the immigration judge’s posture in the proceedings and claimed that immigration judges who issue certifications would have to recuse themselves in case of remand because the certification is in effect an appeal by the judge that equates the judges to an advocate in the proceedings. Other commenters expressed concern that the certification procedures curtail aliens’ due process rights. Commenters opined that the quality assurance certifications, when combined with the restriction on the BIA considering new evidence, will result in numerous certifications because the BIA will fail to consider a material factor pertinent to the issue(s) before the immigration judge. Some commenters claimed that the rule would increase inefficiency because, in order for the case to be resolved, the Director must refer the case to a different adjudicator. Response: As an initial point, the Department notes that many of the same commenters who criticized other parts of this final rule because it would allegedly allow the BIA to deny meritorious appeals for inappropriate reasons also criticized this provision by claiming it would undermine the professionalism and expertise of the BIA in deciding cases. To the extent that commenters inconsistently asserted that the BIA is both unprofessional and professional—depending solely on which view allowed the commenter to oppose a particular provision of this final rule—the Department finds such tendentious criticism insufficient to warrant changes to the final rule. Further, any implication that these quality assurance certifications divests the BIA of its appellate jurisdiction and role in the immigration system is incorrect. The new procedures at 8 CFR 1003.1(k) do not create a higher secondary appellate review body. Rather, they provide a quality control measure to ensure that the BIA’s decisions consistently provide appropriate and sufficient direction to immigration judges. The distinction is evident in the certification process and the actions available to the Director. Cases may only be certified to the Director if they fall within limited, and specifically delineated, circumstances: (1) The BIA decision contains a typographical or clerical error affecting the outcome of the case; (2) the BIA decision is clearly contrary to a provision of the INA, any other immigration law or statute, any applicable regulation, or a published, binding decision; (3) the BIA decision is vague, ambiguous, internally PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 81625 inconsistent, or otherwise did not resolve the basis for the appeal; or (4) a material factor pertinent to the issue(s) before the immigration judge was clearly not considered in the BIA decision. 8 CFR 1003.1(k)(1)(i)–(iv). These narrow situations are all tailored to quality control—not to express disagreement with the BIA’s wellfounded legal analysis, which is how another layer of appellate review would function. Further, the Director only has a limited number of options available upon certification. The Director may: (1) Dismiss the certification and return the case to the immigration judge; (2) remand the case back to the BIA for further proceedings; (3) refer the case to the Attorney General; (4) or issue a precedent decision that does not include an order of removal, a request for voluntary departure, or the grant or denial of an application for relief or protection from removal. Id. § 1003.1(k)(3). Thus, the quality assurance procedures do not vest the Director with any final adjudicatory power of cases that have been certified, and the Director must return the case to either the BIA or the immigration judge in order for the case to be resolved. Accordingly, commenters are incorrect that the rule creates an additional level of appellate review. The Department appreciates the commenter’s compliments that the decisions that they have received from the BIA have been faithful to the law and highly professional, though it notes that other commenters insinuated that the BIA’s decisions are not always faithful to the law. Regardless, the Department cannot rely on anecdotal evidence to maintain quality control in all cases in the context of the evergrowing BIA with a mounting caseload, see 85 FR at 52492; EOIR, Adjudication Statistics: Case Appeals Filed, Completed, and Pending, Oct. 23, 2019, available at https://www.justice.gov/ eoir/page/file/1198906/download, and the Department is aware of examples from immigration judges raising questions about the quality or accuracy of BIA decisions. The Department believes that the rule creates a clear and efficient mechanism to ensure that the commenter’s remarks that the BIA’s decisions are accurate and dispositive are, and remain, true. The Department does not believe that a quality control process that is aimed toward full and accurate decisions would have any other substantial impact that to cause increased attention to the accuracy and completeness of decisions. Overall, the Department finds that the certification process as laid out in the rule will, in E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81626 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations a timely manner, ensure that BIA decisions are accurate and dispositive, which is the purpose of the changes. In regards to commenters’ allegations that immigration judges could simply certify cases with which they disagree, particularly for political or other personal reasons, the Department specifically reiterates that merely disagreeing with decisions or objecting to specific legal interpretations is not a basis for certification. 85 FR at 52503. Some commenters worried that the bases for certification are so broad that an immigration judge could solely object to a particular legal interpretation and still certify the case by sweeping it into one of the four criteria, specifically that the decision is ‘‘vague.’’ To this, the Department notes that vagueness is included in the criteria in order to address a specific problem: Immigration judges receiving orders that are confusing and need additional clarification or explanation. See 85 FR at 52496. ‘‘Vagueness’’ is not so broad as to contain within it a myriad of legal objections to specific legal interpretations; certainly, it cannot be stretched to contain personal or political objections to such legal interpretations. Moreover, although few commenters acknowledged it, immigration judges already possess the authority to certify a case to the BIA following a remand and the issuance of another decision, 8 CFR 1003.7, and some immigration judges have used that procedure in order to seek clarification of the BIA’s decision. That indirect process, however, is both burdensome to the parties, who must wait until the immigration judge issues another decision (even if the immigration judge considers the Board’s decision unclear or vague), and inefficient in that it results in a case being sent back to the same body which remanded it in the first instance without further clarification. The Department’s quality assurance process will ensure clearer and more timely resolution of disagreements, within four narrow categories, between immigration judges and the BIA by a neutral third-party who supervises each. As far as the authority of the Director, the Attorney General is authorized to decide the Director’s authority. INA 103(g)(1), 8 U.S.C. 1103(g)(1); 28 CFR 0.115(a). Reviewing certified cases falls within the ‘‘such other authorities’’ provided to the Director by the Attorney General, based on the powers to delegate and conduct administrative review under INA 103(g) (8 U.S.C. 1103(g)). See 8 CFR 1003.0(b)(1)(ix) and (c), 1003.1(e)(8)(ii). This delegation supersedes the restrictions related to VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 adjudication outlined in 8 CFR 1003.0(c) due to that paragraph’s deference to 8 CFR 1003.0(b). Moreover, the Director is responsible for the supervision of the immigration judges and the BIA members and already possesses the authority to ensure that adjudications are conducted in a timely manner. See id. § 1003.0(b)(1)(ii). Accordingly, the Director is in a well-positioned to address errors made by the BIA and to remedy them in a timely manner. The Director is also in a direct position to implement changes to address repeat errors. Because the delegation of authority is proper, the process requires notice, and the process involves a neutral decisionmaker who lacks authority to issue a final order, it does not violate due process. In response to commenters concerns that the delegation of authority, even if proper, will appear improper, the Department responds that Congress’ intent is clear and explicit in statutorily authorizing such delegations, and the Attorney General is acting within the bounds of his statutory authority when by issuing the rule. INA 103(g)(2), 8 U.S.C. 1103(g)(2); see also Chevron, 467 U.S. at 842. In issuing the rule, the Attorney General properly delegates the Director the authority to review certified cases from the immigration judges. This delegation aligns with the Attorney General’s longstanding authority to issue regulations and delegate that authority, in line with principles of due process. Regarding commenters concerns about perceived political influence or politicization of the Director position, the Department reiterates its response to similar concerns raised and discussed, supra. The Department again notes that the Director is a career appointee, who is selected based on merit, independent of any political influence, and a member of the SES. The position requires a significant amount of subject-matter expertise regarding immigration laws as demonstrated by various duties of the Director: ‘‘[a]dminister an examination for newly-appointed immigration judges and Board members with respect to their familiarity with key principles of immigration law before they begin to adjudicate matters, . . . [p]rovide for comprehensive, continuing training and support for Board members, immigration judges, and EOIR staff[, and] [i]mplement a process for receiving, evaluating, and responding to complaints of inappropriate conduct by EOIR adjudicators.’’ 8 CFR 1003.0(b)(1)(vi)–(viii). Additionally, reviewing certified cases would require no more expertise than administratively PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 reviewing certain types of decisions in recognition and accreditation cases, which the Director has been tasked with the authority to do since 2017 with no noted objection at that time. See id. § 1292.18(a). Further, the Director is held to the same professionalism and ethical standards as all Department employees. In short, commenters’ concerns appear to be rooted in either a personal dislike for the incumbent Director or disagreement with the overall policies of the Department, rather than any specific or genuine concern about the Director position itself. In response to commenters’ concerns over the workload for the Director that quality assurance certifications may cause, the Director may utilize all appropriate support staff to assist with his responsibility. Nevertheless, because of the narrow scope of issues subject to certification and the procedural requirements which will dissuade filing frivolous or meritless certifications— particularly because immigration judges already have generally full dockets of cases to adjudicate—the Department expects that these procedures will be employed infrequently. Accordingly, although the Department appreciates commenters’ concerns about the Director’s workload, the rule already anticipates and limits the number of cases expected to be subject to this process. In regards to the reviewability of the Director’s decision, the Department notes first that the Director’s decision is not final and that, regardless of what action the Director does take, the ultimate, underlying final EOIR administrative decision may be appealed to the circuit court. See INA 242, 8 U.S.C. 1252. Regarding commenters’ accusations of the mischaracterization of HALLEX I–3– 6–10, the Department notes that it referenced Social Security’s protest criteria for decisions by administrative law judges or its administrative appeals body, the Appeals Council, in the context of explaining the narrow set of criteria for certification set out in the rule. 85 FR at 52502 (‘‘These criteria are used in similar circumstances at other adjudicatory agencies.’’) The Department was not attempting to claim that the two processes exactly mirror one another, nor was it attempting to claim that it structured the certification procedure to directly mimic the Social Security Administration. The Department believes although the two procedures are not identical, the degree of similarity—as well as the underlying purpose, i.e., to ensure correct, quality E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations decisions by adjudicators—is enough to warrant analogy. Regarding commenters’ requests that the various parties should receive notice at the time of certification, the Department notes that the rule, in fact, requires the immigration judge to provide notice of certification to both parties. 8 CFR 1003.1(k)(2)(iii). However, the Department disagrees with commenters’ argument that the parties should have opportunities for objections and additional briefing at the time of certification, particularly because the case was likely already briefed to the Board prior to the certification to the Director. The certification procedures allow immigration judges to quickly determine a potential error by the BIA and to timely seek a remedy to that error, all without placing an additional burden on the parties. The Department determined that the current incomplete and piecemeal system of various parties filing various motions or appeals was cumbersome, time consuming, and may not fully address the error. 85 FR at 52502. Adding time for objections and briefs, as suggested by some commenters, would morph the process in the rule into a portion of what it was created to avoid: A cumbersome and time consuming process. Moreover, regardless of whether the Director returns the case to the immigration judge or to the Board, the parties will have an opportunity to raise appropriate arguments or issues before a final decision is rendered. Nevertheless, the Department recognizes that in discrete cases, additional briefing or filings may be helpful to the Director in reviewing a certified case. Accordingly, the final rule provides that the Director, in his or her discretion, may request additional briefs or filings from the parties when reviewing a certified case through the quality-control process. Additionally, the Department rejects any claim that the immigration judges are acting as advocates and would thus have to recuse themselves. Again, this assertion suggests that immigration judges will behave unethically or partially in violation of regulations and their code of conduct. 8 CFR 1003.10 (‘‘In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.’’) (emphasis added)); 5 CFR 2635.101(b)(8) (‘‘Employees [of the federal government] shall act impartially and not give preferential treatment to any private organization or individual.’’); IJ Ethics and Professionalism Guide at sec. V (‘‘An Immigration Judge shall act impartially and shall not give preferential treatment VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 to any organization or individual when adjudicating the merits of a particular case.’’); see also Chem. Found., Inc., 272 U.S. at 14–15 (‘‘The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’’). The Department categorically rejects this suggestion. In the context of the quality assurance process, the immigration judge is flagging an issue and relaying it to the Director for examination. While the immigration judge is required to ‘‘specify the regulatory basis for the certification and summarize the underlying procedural, factual, or legal basis,’’ this is necessary to relay the immigration judge’s determination of error by the BIA to the Director in order to both qualify for certification and to expedite the process. Moreover, this process is substantively similar to the existing certification process utilized by immigration judges for many years, 8 CFR 1003.7. Commenters did not provide any evidence that this existing process has raised questions about immigration judges becoming advocates, and the Department is unaware of any. Regarding commenters’ concerns about the Department not supporting the rule with data, the Department notes that such quality assurance issues are not subject to tracking or amenable to particular data points. For instance, commenters did not indicate how the Department would measure the ‘‘correctness’’ of Board remand decisions in order to calculate the data they sought, and the Department is unaware of any metric for measuring the ‘‘correctness’’ or ‘‘appropriateness’’ of remand decisions by an appellate court.50 Further, since no quality assurance system is currently in place, there is no baseline for data to provide. Moreover, even without specific further data, the Department is still well within its authority to create a certification process that ensures the quality of BIA decisions. 8 CFR 1003.0(b)(1)(ii). 50 Whether the result of a case is ‘‘correct’’—e.g., whether an application or appeal should have been granted or denied—is often solely based on the narrative seeking to be advanced by the evaluator, and there is no accepted way of determining whether an adjudicator’s decision is normatively ‘‘correct.’’ See Barry C. Edwards, Why Appeals Courts Rarely Reverse Lower Courts: An Experimental Study to Explore Affirmation Bias, 68 Emory L.J. On. 1035, 1046 (2019) (‘‘Given a sample of . . . court cases, no researcher could practically determine what the courts got ‘right’ and what they got ‘wrong.’ There is no reliable method of coding how cases ‘‘should’’ have been decided and, thus, no reliable way of assessing whether the [decision] rate is ‘too high’ using observational data.’’). PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 81627 Commenters are incorrect that the quality assurance certification procedures are incompatible with the restriction on the BIA’s consideration of new evidence. In order for a case to be certified, the BIA decision must have clearly not considered ‘‘a material factor pertinent to the issue(s) before the immigration judge.’’ Id. § 1003.1(k)(1)(iv). The only such material factors would be those that were already before the judge and, accordingly, not new evidence before the BIA only at the appeal. Thus, no new evidence that the BIA was barred from considering based on the regulations would amount to a ‘‘material factor’’ before an immigration judge. As to a commenter’s assertion that there must be an easier way to correct typographical errors, the Department notes that the certification process involves more than just typographical errors. The quality assurance provisions are designed to address wider examples of quality concerns at the BIA level, of which typographical errors are just one kind.51 Further, while the Department appreciates commenters suggestions for other methods to meet the Department’s quality assurance goals, such as suggestions that the Department make BIA decisions public,52 increase threemember panel decisions, or increase the number of detailed and reasoned precedential decisions, the Department finds that they would not provide an efficient and accurate process to ensure that BIA decisions are dispositive and accurate. Instead, such suggestions represent a continuation of the status quo rather than the real introduction of new procedures for immigration judges to bring issues to the forefront for consideration. Moreover, commenters did not explain how increased threemember panel decisions or an increased number of precedential decisions, both actions by the BIA, would improve quality in each individual BIA adjudication or how such actions 51 Further to the commenter’s point, the Department notes that because the BIA retains sua sponte authority to reconsider a decision to correct a typographical error under this rule, 8 CFR 1003.2, situations in which an immigration judge may use this quality assurance process on that basis alone should be extremely rare. 52 The Department notes that this suggestion suffers from an additional infirmity. Due to privacy restrictions and confidentiality regulations, e.g., 8 CFR 1208.6, the Department cannot simply make all BIA decisions public without redactions, and the requirement for redactions would necessarily inhibit the ability to determine whether those decisions were of appropriate quality. Further, the Department notes that many BIA decisions are already available through commercial databases, but that availability has not ensured that the Board issues a quality or correct decision in every case. E:\FR\FM\16DER3.SGM 16DER3 81628 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations address immigration judge concerns about the quality of BIA decisions. Finally, to the extent that most, if not all, commenters focused on how this process would affect cases of aliens, the Department reiterates that it would affect both parties equally. Moreover, many commenters appear to not have recognized that the process is primarily designed for EOIR’s adjudicators and to improve quality decisionmaking at both the trial and appellate levels, rather than being a process designed to favor one party over another. k. Removal of Sua Sponte Motion To Reopen Authority (8 CFR 1003.2(a), 1003.23(b)(1)) khammond on DSKJM1Z7X2PROD with RULES3 i. Due Process Concerns Comment: Commenters opposed the rule’s removal of the BIA and immigration judge’s authority to sua sponte reopen proceedings. Commenters alleged that the Department failed to consider due process and explained that sua sponte authority was a ‘‘vital tool’’ for ‘‘curing errors and injustices’’ that may have occurred during removal proceedings. Further, commenters explained that even if a BIA member saw good reason to reopen a case, such as in the case of an untimely or numberbarred motion to reopen, the member would be unable to do so without the sua sponte authority. Response: As an initial point, the Department notes that several courts have acknowledged that sua sponte reopening (or the lack thereof) cannot implicate due process rights because it is entirely discretionary, so there is no liberty interest in it that would implicate any of an alien’s rights in proceedings. See, e.g., Mejia v. Whitaker, 913 F.3d 482, 490 (5th Cir. 2019); Gyamfi v. Whitaker, 913 F.3d 168 (1st Cir. 2019); Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013); see also Matter of G-D-, 22 I&N Dec. 1132, 1137 (BIA 1999) (‘‘We see no procedural due process concerns arising from our discretionary decision declining to exercise our independent reopening powers on behalf of the respondent. The respondent’s right to a full and fair hearing on his asylum claim has not been compromised.’’). As explained in the NPRM, sua sponte authority is entirely a creature of regulation based on a delegation of authority from the Attorney General. 8 CFR 1003.2(a), 1003.23(b)(1); see also 85 FR at 52504. It is also not the only tool available to address possible errors in immigration proceedings; thus, removal of sua sponte authority, in and of itself, does not constitute a violation of due process. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 In addition, commenters confuse sua sponte authority with motions to reopen. Filing a motion to reopen, regardless of whether it is time or number-barred as commenters describe, does not invite the BIA to exercise sua sponte authority; it requests the BIA to reopen a proceeding in response to the motion. See Malukas v. Barr, 940 F.3d 968, 969 (7th Cir. 2019) (‘‘Reopening in response to a motion is not sua sponte; it is a response to the motion and thus subject to the time-and-number limits.’’). Thus the rule’s removal of sua sponte authority does not itself preclude the BIA from reopening a case in accordance with applicable law. See, e.g., 8 CFR 1003.2(c)(3)(iii), 1003.23(b)(4)(iv). Rather, it ensures that reopening occurs in meritorious situations authorized by statute or regulation, rather than through the BIA’s subjective and largely unchecked view of what constitutes an exceptional circumstance. Accordingly, contrary to commenters’ assertions, the rule promotes fairness due to ‘‘the lack of a meaningful standard to guide a decision whether to order reopening or reconsideration of cases through the use of sua sponte authority, the lack of a definition of ‘exceptional situations’ for purposes of exercising sua sponte authority, the resulting potential for inconsistent application or even abuse of this authority, the inherent problems in exercising sua sponte authority based on a procedurally improper motion or request, and the strong interest in finality’’ by withdrawing an authority subject to inconsistent and potentially abusive usage. 85 FR at 52505. Further, as discussed in the NPRM, the Department recognizes that the BIA has, in the past, exercised what it termed ‘‘sua sponte authority’’ in response to a motion and, arguably, contrary to law. 85 FR at 52504 n.31 (‘‘Despite this case law to the contrary, the Board has sometimes granted motions using what it erroneously labels as ‘sua sponte’ authority.’’). To the extent that the commenters oppose the change in this practice—particularly based on the perception that it favors aliens—the Department has acknowledged that the rule would no longer provide an avenue for the Board to use its sua sponte authority to grant a motion to use such authority. Indeed, one of the reasons stated for the rule was ‘‘the inherent problems in exercising sua sponte authority based on a procedurally improper motion or request.’’ Id. at 52505. The rule seeks to end the practice of the Board taking allegedly sua sponte action in response to a motion and to thereby reduce the PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 incentive for filing such procedurally improper motions. Id. In short, the rule returns the focus on motions to reopen to the merits of the motions themselves and the applicable law, rather than the BIA’s subjective and inconsistent invocation of its sua sponte authority. Finally, as discussed, supra, and noted in the NPRM, the Supreme Court has recognized that ‘‘the BIA is simply a regulatory creature of the Attorney General, to which he has delegated much of his authority under the applicable statutes.’’ Id. at 52492 n.1 (quoting Doherty, 502 U.S. at 327 (1992)). Accordingly, to the extent that the Attorney General can delegate authority to the BIA, he can also unquestionably remove that delegation. The removal of such authority, which is solely the Attorney General’s to delegate, does not violate due process. Comment: Similarly, commenters were concerned that the rule would foreclose reopening the cases of respondents who later became eligible for relief, providing some of the following examples: An approved immediate immigrant relative petition, an approved application for SIJ status, an approved application for U visa status, or derivative asylum status through a spouse or parent. Commenters noted that these applications typically take years to adjudicate. Commenters were also concerned that the rule would deny protection to the most vulnerable populations in immigration proceedings, such as by foreclosing reopening the cases of respondents who were victims of fraud or ineffective assistance of counsel, non-English speakers or others with language barriers, and children who failed to appear for their hearings by no fault of their own. One commenter further described the effects on unaccompanied alien children (‘‘UAC’’) generally, explaining that sua sponte authority was an important safeguard to protect children because critical details and information in children’s cases typically emerge over time. At least one commenter alleged that the Department purposefully promulgated these provisions as an ‘‘attack’’ on asylum seekers and migrants. As with other provisions of the rule, commenters explained that the Department should not remove the sua sponte authority because ‘‘fairness is more important than finality’’ or quick removals. Response: As an initial point, the Department notes that many of its responses to comments regarding the withdrawal of the BIA’s certification authority discussed, supra, are equally E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations applicable to comments regarding the withdrawal of sua sponte reopening authority. On balance, the inconsistent application of such authority, even with a well-established standard, and the existence of equally functional alternatives, particularly as equitable tolling has advanced as a doctrine to extend filing deadlines for motions to reopen, militate in favor of removing the Attorney General’s delegation of such authority. The Department did not promulgate this rule as an attack on anyone. As discussed herein, the rule applies equally to DHS and respondents, it applies to all types of cases (not just asylum cases), and it addresses significant issues of inconsistent adjudications and efficiency, among others. Commenters generalized policy disagreements with the rule do not effectively engage with its provisions and, thus, do not provide a useful basis for the Department to respond. In general, commenters’ concerns that respondents will be unable to reopen their cases without the BIA’s sua sponte authority are based on an erroneous understanding or assumption that respondents are entitled to such a reopening. The Department emphasizes that the vehicle by which such respondents should seek reopening is a motion to reopen. See Malukas, 940 F.3d at 969 (‘‘Reopening in response to a motion is not sua sponte; it is a response to the motion and thus subject to the time-and-number limits.’’). The Attorney General has already determined that sua sponte authority may not be used to circumvent timing and numerical limits, see Doherty, 502 U.S. at 323; INS v. Abudu, 485 U.S. 94, 107 (1988). Further, Congress included such limitations to promote finality in proceedings. Matter of Monges-Garcia, 25 I&N Dec. 246, 250 (BIA 2010) (explaining that, by requiring the Department to promulgate motion time and number limits by regulation as part of the Immigration Act of 1990, ‘‘Congress clearly intended that the time and number limitations on motions would further the statute’s purpose of bringing finality to immigration proceedings’’). Nevertheless, aliens who reach agreement with DHS regarding the validity of their changed claim may jointly file a motion to reopen with DHS regardless of the amount of time that has passed since the underlying final order. 8 CFR 1003.2(c)(3)(iii), 1003.23(b)(4)(iv). The rule does not affect that pre-existing exception to the time and number limitations on motions to reopen. In addition, the deadline for filing a motion to reopen by aliens who have VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 been the victim of fraud, ineffective assistance of counsel, and other harms may be subject to equitable tolling. Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th Cir. 2015) (stating that the deadline for filing a motion to reopen is subject to equitable tolling). Regarding commenters’ concerns for UAC, the Department has considered whether there would be any specific impacts of the rule on UAC in particular—as distinguished from other categories of aliens—but has identified none. As discussed, supra, there is no right to a motion to reopen sua sponte for any classification of aliens, many aliens (not just UAC) are subject to remote visa priority dates, and many aliens (not just UAC) may become putatively eligible for relief well after their immigration proceedings have concluded. Commenters also did not identify any specific impacts on UAC that would not also fall on the general population of aliens in immigration proceedings. Moreover, even if the rule did have particular impacts on UAC, the Department finds that those impacts are far outweighed by the benefits provided the rule, namely more consistent application of the law, more efficient adjudication of cases, and a more appropriate emphasis on the importance of finality in immigration proceedings. The Department further emphasizes that safeguards for UAC seeking asylum remain in place under provisions on motions to reopen that are premised on changed country conditions, see INA 240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii); 8 CFR 1003.2(c)(3)(ii), 1003.23(b)(4)(i). Further, nothing in the rule singles out UAC for adverse treatment, and available avenues for untimely motions to reopen—e.g., joint motions and motions based on equitable tolling—continue to exist independent of the rule. The law does not guarantee UAC a right to sua sponte reopening, just as it does not guarantee any particular alien such a right for the reasons stated in this rule, and commenters did not point to any provision claiming such a right. For similar reasons, commenters’ allegation that the generally applicable provision is specifically targeted at asylumseekers, is without merit. The withdrawal of sua sponte authority applies to all cases and all parties, and it is well within the Attorney General’s authority to withdraw a delegation of authority that he alone has provided. Underlying many of the comments on this provision is a tacit claim that an alien who establishes eligibility for relief long after immigration proceedings have concluded—e.g., aliens whose visa numbers become PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 81629 current or who obtain the potential for derivative status—should be granted reopening sua sponte as a matter of right and that, accordingly, the rule will deprive such aliens of a ‘‘right’’ to reopen their cases and obtain relief from removal. This view, however, is unsupported by law in multiple ways and, thus, unpersuasive. First, as discussed, supra, there is no right to reopening of a removal proceeding, and the Board may even deny a motion to reopen when the alien establishes a prima facie claim for relief. 8 CFR 1003.2(a) (‘‘The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.’’). Second, as also discussed, supra, a motion to reopen sua sponte is an ‘‘oxymoron’’ and represents an improper filing that should ordinarily be rejected. Third, Board case law makes clear that untimely motions to reopen to pursue adjustment of status should ordinarily be denied, indicating that it ordinarily would not exercise sua sponte reopening authority in such situations either. See Matter of Yauri, 25 I&N Dec. 103, 105 (BIA 2009) (‘‘We emphasize that untimely motions to reopen to pursue an application for adjustment of status, even for cases that do not involve an ‘arriving alien,’ do not fall within any of the statutory or regulatory exceptions to the time limits for motions to reopen before the Board and will ordinarily be denied.’’ (emphasis added)); cf. Vithlani v. Att’y Gen., 823 F. App’x 104, 105–06 (11th Cir. Aug. 10, 2020) (‘‘The BIA denied the motion [to reopen based on asserted eligibility for adjustment of status], finding that it was untimely and number-barred, and that it did not demonstrate an exceptional situation warranting sua sponte reopening. The BIA later also denied her motion to reconsider, stating that becoming eligible for adjustment of status was not an exceptional situation warranting the grant of an untimely motion to reopen. In 2019, Vithlani . . . . sought sua sponte reopening, again seeking to apply for adjustment of status. . . . The IJ denied Vithlani’s motion to reopen . . . . stat[ing] that becoming eligible to adjust status was not uncommon. . . . [and finding] that the motion did not demonstrate an exceptional situation to warrant sua sponte reopening.’’). The Department emphasizes that, as stated throughout this final rule, the changes to Board procedures are intended to promote consistency and efficiency in proceedings. To the extent that commenters assert as a policy matter that the Board should retain sua sponte authority solely as a vehicle for aliens to file motions seeking to evade E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81630 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations the usual time and number limitations and possibly delay removal, cf. Doherty, 502 U.S. at 323 (‘‘[A]s a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.’’), or that the Department should not seek to correct the inconsistent and potentially inappropriate usage of that authority, the Department finds such policy arguments unpersuasive for the reasons given in the NPRM and this final rule. Further, commenters are incorrect that the respondents whom they alleged would be unable to reopen their cases if the BIA can no longer exercise sua sponte authority. As discussed in the NPRM, 85 FR at 52504–05 and supra, those respondents are not truly requesting that the BIA exercise sua sponte authority; in actuality, they seek a response to their filed motion. See Salazar-Marroquin v. Barr, 969 F.3d 814, 816 n.1 (7th Cir. 2020) (‘‘Describing the motion as seeking a ‘sua sponte’ reopening is a common but unfortunate misnomer and even an oxymoron. Board action on a motion would not be sua sponte.’’). Nothing in the rule prohibits the BIA from adjudicating motions to reopen filed by aliens in accordance with well-established principles of law. Further, the Attorney General has already determined that sua sponte authority may not be used to circumvent timing and numerical limits. Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997). Thus, to the extent that commenters assert sua sponte authority has been used to circumvent those limits previously, the BIA’s prior failure to follow the law in individual cases is not a compelling or persuasive reason to retain such authority. To the contrary, it would further reinforce the Department’s decision to remove the delegation of such authority. Additionally, contrary to commenters’ concerns, regulations at 8 CFR 1003.2(c)(3), 1003.23(b)(4)(iv), 214.11(d)(9)(ii), and 214.14(c)(5)(i)—in addition to the ability to file a joint motion to reopen, 8 CFR 1003.2(c)(3)(iii)—would continue to provide exceptions to the time and numerical limits in appropriate cases, and none of those are affected by this rulemaking. Similarly, the availability of equitable tolling in particular cases, which many commenters did not acknowledge, would also allow aliens the ability to evade strict adherence to statutory time limitations. Other than highlighting its incorrect usage to evade time and number limitations contrary to Matter of J-J-, commenters did not explain how the withdrawal of sua sponte authority would affect any discrete populations, VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 particularly when those populations could not file a putative motion to reopen sua sponte in the first instance. As a delegation of procedural authority, sua sponte reopening authority does not apply differently to different types of cases; accordingly, its withdrawal will not affect any specific populations. Finally, to the extent commenters alleged that the withdrawal of sua sponte authority would impact aliens with in absentia removal orders, the Department notes there is already no time limit on such motions if they are based on a lack of notice. INA 240(b)(5)(C)(ii), 8 U.S.C. 1229a(b)(5)(C)(ii). Thus, the withdrawal of sua sponte authority would not affect the ability of an alien to file a motion to reopen an in absentia removal order based on a lack of notice. Similarly, an alien who fails to appear due to exceptional circumstances may file a motion to reopen any resulting in absentia removal order within 180 days. INA 240(b)(5)(C)(i), 8 U.S.C. 1229a(b)(5)(C)(i). Commenters did not explain why an alien who failed to appear due to exceptional circumstances would wait longer than 180 days to file such a motion, and the Department declines to speculate as to such reasons. Nevertheless, the Department notes that even in that unlikely situation, an alien may seek to have the 180-day deadline equitably tolled. In short, the withdrawal of sua sponte reopening authority has no impact on existing and well-established avenues for aliens to reopen in absentia removal orders. ii. Limited Current Use and Abuse of Authority Comment: Commenters generally opposed the Department’s removal of sua sponte authority, stating that the Department did not provide any specific examples of abuse in the rule and that immigration judges or BIA members do not need much time to consider requests to reopen. Commenters explained that immigration judges and BIA members currently use sua sponte authority sparingly and only for the most compelling cases. Accordingly, the commenter believes that the authority is neither abused by adjudicators nor evidence of finality issues as the rule suggested. Commenters stated further that there was no reason to believe that adjudicators could not properly apply the appropriate standards for sua sponte reopening. Response: As the Departments explained in the NPRM, use of sua sponte authority facilitates inconsistent PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 application and possible abuse, due to the lack of a meaningful standard to evaluate the use of sua sponte authority, see 85 FR at 52505 (collecting cases); the lack of a definition for ‘‘exceptional circumstances’’ required to exercise such authority; and, the problems resulting from a procedurally improper motion or request. Contrary to commenters’ assertions, the Department did provide examples of cases in which sua sponte authority appears to have been improperly used. Id. Considering all of those reasons together, the Department determined that use of sua sponte authority severely undermines finality in immigration proceedings, see 85 FR at 52493, in which there lies a strong public interest in bringing litigation to a close, consistent with providing a fair opportunity to the parties to develop and present their cases. See Abudu, 485 U.S. at 107. Comment: Commenters alleged that immigration judges and the BIA ‘‘frequently have unfettered discretion in deciding when to order removal proceedings.’’ Accordingly, the commenters explained that removing sua sponte authority due to concerns of abuse of such authority was ‘‘laughable.’’ The commenters further explained that removing such authority would exacerbate the backlog because BIA members would be unable to remand a case to further develop the facts, which another commenter asserted would conflict with Congress and the Attorney General’s trust in the BIA and immigration judges ‘‘to intervene in cases where fundamental fairness and the interests of justice so warrant.’’ Similarly, commenters alleged that the Department failed to explain in the rule why speed in this context was not favored, given that sua sponte action would be faster than waiting for a motion to reopen. Commenters explained that removing such authority would increase the number of appeals and the BIA’s workload. Response: The Department does not have ‘‘unfettered discretion’’ in regard to removal proceedings. As an initial matter, EOIR’s jurisdiction in proceedings is bound by the INA and the regulations. See, e.g., INA 240, 8 U.S.C. 1229a. Second, immigration judges exercise independent judgement and discretion in applying applicable law and regulations. See 8 CFR 1003.10(b), 1240.1(a). Likewise, BIA members resolve issues before them in a manner that is timely, impartial, and consistent with applicable law and regulations, in an exercise of their independent judgment and discretion. See 8 CFR 1003.1(d)(1) introductory E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations text, (d)(1)(ii). Nevertheless, the authority of immigration judges and Board members to reopen cases is circumscribed by law, and neither class of adjudicator possesses free-floating authority to reopen cases in contravention of established law or in the absence of clear legal authority. The Department’s decision to withdraw sua sponte authority would not exacerbate the backlog, and the Department finds this particular comment somewhat illogical. By definition, sua sponte authority to reopen a case would apply only to cases that are already administratively final and, thus, not part of the pending caseload. In fact, also by definition, the continued use of sua sponte authority would necessarily increase the pending caseload because it would allow the Board to reopen proceedings even in cases in which there was otherwise no legal basis to do so. Similarly, there is no basis to believe that withdrawing sua sponte reopening authority would increase the number of appeals to the Board because, again, that authority would only be used for a case that is already final and, thus, not subject to further appeal. The commenter’s concern about speed is also misplaced. The Department’s withdrawal of sua sponte authority does not indicate that the Department favored speed in this context. Rather, the Department explained the multitude of reasons, considered together, that prompted its decision. See generally 85 FR at 52505–06. These reasons invoke concerns over finality and consistency, which are distinct from speed. Further, regardless of whether sua sponte reopening or a motion to reopen is ‘‘faster’’ to adjudicate in the abstract— a question for which the Department does not believe an appropriate metric exists—the need to manage the inappropriate and inconsistent use of sua sponte reopening authority would outweigh whatever marginal ‘‘speed’’ benefits may be obtained from its usage. In other words, the expediency of the usage of sua sponte authority does not outweigh the need to ensure its correct and consistent application. khammond on DSKJM1Z7X2PROD with RULES3 iii. Standard of Review Comment: Commenters disagreed with the rule’s assertion that Federal circuit courts had no meaningful standard of review with which to review an exercise of sua sponte authority. Rather, the commenters, citing Lenis v. United States, 525 F.3d 1291, 1292 (11th Cir. 2008), explained that the Federal circuit courts declined to review because they lacked jurisdiction. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 Commenters nevertheless disagreed that the Department was unable to check inconsistencies or abuses that may result from the exercise of sua sponte because they asserted that the Attorney General could review BIA decisions regarding whether to exercise sua sponte authority instead. Response: The Department agrees with the commenters that the court in Lenis declined to review for lack of jurisdiction; however, that court explained that it lacked such jurisdiction under 5 U.S.C. 701(a)(2), which prohibits judicial review of decisions ‘‘committed to agency discretion.’’ Lenis, 525 F.3d at 1293. The court explained this exception was extremely narrow, applicable only where ‘‘statutes are drawn in such broad terms that in a given case there is no law to apply.’’ Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)). The court explained that: [n]either the statute nor the regulation at issue today provides any ‘‘meaningful standard against which to judge the agency’s exercise of discretion.’’ Indeed, no statute expressly authorizes the BIA to reopen cases sua sponte; rather, the regulation at issue derives from a statute that grants general authority over immigration and nationalization matters to the Attorney General, and sets no standard for the Attorney General’s decision-making in this context. Id. Accordingly, that case supports the Department’s position that no meaningful standard exists, which prompted, in part, the Department’s decision to withdraw this authority. Further, as discussed, supra, regarding the Board’s certification authority, precedential decisions, including by the Attorney General, e.g., Matter of J-J-, 21 I&N Dec. at 984, have been ineffective at checking inconsistent or abusive usages of sua sponte authority. Thus, the Department finds that further Attorney General review of such authority would not necessarily address the concerns regarding its use. Moreover, the current—and comparatively inefficient—case-by-case nature of determining ‘‘exceptional circumstances,’’ the inconsistent application of that standard and its consideration through an open-ended and largely subjective lens by Board members and immigration judges, and the lack of an effective and efficient corrective measure for addressing improper reopenings under that authority (e.g., in response to a motion or to cure filing defects or circumvent regulations), all make the subject of sua sponte reopening authority both ripe for rulemaking and, ultimately, withdrawal PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 81631 of such authority. See Lopez v. Davis, 531 U.S. 230, 244 (2001) (observing that ‘‘a single rulemaking proceeding’’ may allow an agency to more ‘‘fairly and efficiently’’ address an issue than would ‘‘case-by-case decisionmaking’’); MarinRodriguez v. Holder, 612 F.3d 591, 593 (7th Cir. 2010) (‘‘An agency may exercise discretion categorically, by regulation, and is not limited to making discretionary decisions one case at a time under open-ended standards.’’). Comment: Commenters explained that, under Ekimian v. INS, 303 F.3d 1153, 1158 (9th Cir. 2002), sua sponte decisions are not reviewable simply as a result of their discretionary nature, which the commenter alleged was not a reasonable or sufficient justification to retract the authority since other discretionary matters were not so scrutinized. Response: Sua sponte authority is distinct from other discretionary forms of relief. As aptly explained in Lenis, sua sponte authority is subject to an exception prohibiting judicial review, 5 U.S.C. 701(a)(2), because the statute from which it derives is ‘‘drawn in such broad terms that in a given case there is no law to apply.’’ 525 F.3d at 1293 (quoting Citizens to Preserve Overton Park, Inc., 401 U.S. at 410). Other forms of discretionary relief, such as asylum, do not meet this exception. Accordingly, the commenters’ comparison of sua sponte authority to any other discretionary form of relief is incorrect; moreover, the Department did not justify withdrawing sua sponte authority based solely on its discretionary nature, though that nature has contributed to inconsistent application. Comment: Commenters explained that the Department’s citations to circuit court decisions upholding the denial of a request for sua sponte reopening does not support the Department’s concern that the sua sponte authority is being abused; instead, the commenters contend that those cases demonstrate that immigration judges and the BIA are applying the BIA’s precedents limiting the use of that authority to truly exceptional situations. Commenters further explained that courts have only limited jurisdiction to review the BIA’s decision not to use its sua sponte authority to reopen a case based on legal or constitutional errors. Accordingly, the commenters asserted that the BIA’s decision on sua sponte authority is generally final and thus does not contribute to inefficiencies in the immigration courts or the BIA. Response: The Department’s reference to circuit court decisions in the NPRM, 85 FR at 52505, was not meant to E:\FR\FM\16DER3.SGM 16DER3 81632 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations demonstrate abuse of the authority. Instead, the Department collected cases to underscore the fact that, generally, ‘‘no meaningful standards exist to evaluate the BIA’s decision not to reopen or reconsider a case based on sua sponte authority.’’ Id. Moreover, commenters did not acknowledge that DHS lacks authority to appeal BIA decisions to Federal court; accordingly, there necessarily will be few circuit court decisions holding that the BIA abused its sua sponte authority in reopening a case in which reopening inured to the benefit of the alien.53 Commenters are correct that some courts have held that there is jurisdiction to review the BIA’s denial of a motion to reopen sua sponte for constitutional or legal error. However, the Department’s finality and consistency concerns still stand—absent the rule, sua sponte authority may still be exercised by either immigration judges or the BIA in an inconsistent or inappropriate manner, which undermines the importance of decisional finality. Moreover, the acknowledged lack of meaningful standards invites inconsistent application which is at odds with both decisional finality and principle of treating similar cases in a similar manner. Given all of these issues and understanding commenters’ concerns, the Department maintains that withdrawing sua sponte authority, on balance, represents an appropriate course of action. khammond on DSKJM1Z7X2PROD with RULES3 iv. Obligations Under International and Domestic Law and Treaties Comment: Various commenters stated that removing sua sponte authority violated the United States’ obligations under international law, specifically the American Declaration, to ‘‘protect and preserve the rights of individuals (both U.S. citizens and noncitizens) to establish a family.’’ Commenters explained that ‘‘refugee law’’ provides for a ‘‘ ‘refugee sur place,’ meaning that something has changed to create a fear 53 Consistent with the general tenor of comments focusing only on the rule’s alleged impact on aliens, commenters also failed to acknowledge that the Board has exercised sua sponte authority in response to motions filed by DHS. See, e.g., Chehazeh v. Att’y Gen., 666 F.3d 118, 124 (3d Cir. 2012). In such circumstances at least one circuit court has questioned whether the Board’s decision to exercise sua sponte authority was an abuse of that authority. Id. at 140 (‘‘The BIA has plainly stated that its sua sponte authority is not designed to ‘circumvent the regulations.’ Matter of J-J-, 21 I&N Dec. at 984. That authority may, of course, have the effect of circumventing the regulations when an exceptional situation calls for it, but wherever the line between an unexceptional situation and an exceptional situation lies, we wonder whether—on this record—this case is near it.’’). VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 of return to the country of origin.’’ Commenters stated that sua sponte authority allowed for reopening such cases and other related circumstances. Commenters explained that sua sponte authority facilitates compliance with the UN Protocol and Convention Relating to the Status of Refugees, the UN Convention Against Torture (CAT), and the TVPRA because adjudicators may reopen cases in which newly discovered or previously unavailable material evidence relevant to a persecution claim is discovered more than 90 days after a decision becomes administratively final. Accordingly, the commenters alleged that refoulement would increasingly occur. Commenters also explained that removing sua sponte authority conflicted with UNHCR guidelines that provide that an applicant should ‘‘not be prohibited from presented new evidence at the appeals stage.’’ Commenters reasoned that sua sponte authority may be an alien’s only way to present new evidence on appeal, thus, removal of such authority would conflict with the UNHCR guidelines. Response: As an initial point, as discussed, supra, an alien has no right to file a ‘‘motion to reopen sua sponte,’’ and such a motion is an ‘‘oxymoron.’’ See Malukas, 940 F.3d at 970. To the extent that commenters assert that the withdrawal of sua sponte authority infringes upon such a right, they are simply mistaken as a matter of law. Further, no domestic law or international convention enshrines a right to sua sponte reopening, and the withdrawal of such authority, which exists solely through a delegation from the Attorney General, does not contravene any binding body of law. Further, because the rule does not foreclose other mechanisms that may be used as exceptions to time and number limits, as discussed, supra, withdrawal of sua sponte authority does not constitute denial of protection for particular populations, nor does it contradict the United States’ obligations under international and domestic law and various treaties. The United States continues to fulfill its obligations under international and domestic law, including the 1967 Protocol, the CAT, the TVPRA, and any other applicable treaties. This rulemaking does not violate those obligations. Moreover, this rule does not affect the ability of aliens to file a motion to reopen to apply for asylum or statutory withholding of removal based on changed country conditions and supported with new, material evidence. INA 240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii). Further, the Department continues to provide all aliens, including refugees and children, PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 a meaningful opportunity to resolve their claims, in accordance with applicable law, regulations, and obligations under international law. In short, this rule does nothing to restrict an alien’s ability to seek asylum, statutory withholding of removal, or other protections as permitted by statute and regulation. v. Alternatives to Sua Sponte Authority Comment: Commenters disagreed with the rule’s assertion that a joint motion to reopen was a viable alternative to sua sponte authority because, as commenters explained, DHS and immigrants are ‘‘rarely in agreement’’ in regard to motions to reopen. The commenters explained that the joint motion process places ultimate authority to reopen or reconsider a case on DHS, which is not the case with sua sponte requests; thus, the joint motion was not an equitable alternative. Commenters explained that removing sua sponte reopening while at the same time removing the BIA’s ability to remand a case for consideration of new evidence presented by the respondent, instead instructing the respondent to file a motion to reopen, was particularly ‘‘harsh.’’ Further, commenters averred that the Department could not claim there were ‘‘sufficient avenues available’’ to present claims for relief when the Department had both restricted the BIA’s ability to remand a case and had eliminated sua sponte reopening. Commenters explained that although the rule mentions the ability to toll the time and number limitations on motions to reopen, equitable tolling and the Department’s procedures for motions to reopen are difficult for lawyers, much less pro se parties, to understand. Accordingly, commenters claimed that equitable tolling and motions to reopen were not viable avenues for relief. Commenters suggested that instead of removing sua sponte authority, the Department should define ‘‘exceptional circumstances.’’ The commenters explained that this would preserve the flexibility associated with sua sponte action while also providing the circuit courts with a meaningful standard of review to review sua sponte reopening or reconsideration. Commenters explained that although exercising sua sponte authority should be rare, it was ‘‘worthy of consideration,’’ especially in cases where DHS does not oppose the motion to reopen. Commenters suggested that the BIA and the immigration judges could reject ‘‘improper invitations’’ to invoke sua sponte authority, rather than remove the authority altogether. One commenter E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations explained that the rule’s failure to consider these alternatives renders the rule arbitrary and capricious in violation of the APA. Response: The Department maintains that the rule does not disturb various viable alternatives to sua sponte authority. Indeed, the Department reiterates that respondents have no right to an adjudicator’s sua sponte exercise of authority and that a motion to reopen sua sponte is an ‘‘oxymoron.’’ See Malukas, 940 F.3d at 970. Although the contours of such alternatives may differ to some extent from sua sponte authority, the alternatives noted remain viable alternatives for aliens, both with and without representation. 85 FR at 52505–06. Aliens may seek a motion to reopen under well-established statutory and regulatory procedures, including to submit a new application for relief or protection. They may seek a joint motion with DHS. They may seek equitable tolling of time limitations, as appropriate, based on case law. The rule itself codifies new exceptions to time and number limitations for motions to reopen. 8 CFR 1003.1(c)(3)(v). Thus, there remain multiple, significant avenues for an alien to have his or her case reopened as appropriate. Regarding commenters’ assertion that removing sua sponte reopening while at the same time removing the BIA’s ability to remand a case for consideration of new evidence presented by the respondent, instead instructing the respondent to file a motion to reopen, was particularly ‘‘harsh,’’ the Department again reiterates both that an alien has no right to sua sponte reopening and that the concept of a motion to reopen sua sponte is an oxymoron. Thus, the withdrawal of the delegation of the BIA’s sua sponte reopening authority is not ‘‘harsh’’— regardless of any other changes— because there is no right to the exercise of such authority in the first instance. Moreover, as discussed, supra, multiple avenues remain for an alien to have his or her case reopened as appropriate. Further, an alien who wished to submit additional evidence during the pendency of an appeal would presumably be able to submit that evidence with a motion to reopen within the applicable time period for such a motion and, thus, would have no need to avail himself of the BIA’s sua sponte authority. In short, the Department disagrees with commenters that it changes are ‘‘harsh’’ and further notes that any alleged ‘‘harshness’’ is outweighed by the benefits provided by the rule discussed herein. The rule does not affect the alien’s ability to argue for equitable tolling of VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 a time limit or to seek a joint motion with DHS. The alleged difficulty of arguments for equitable tolling is belied by the frequency with which it has been argued before the BIA and Federal courts, and every Federal court to have considered the issue has found it to be applicable to deadlines for motions to reopen. See, e.g., Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1364 (11th Cir. 2013) (per curiam) (collecting cases). Furthermore, one commenter’s suggestion that sua sponte authority should be used when DHS does not oppose a motion to reopen—though, as noted, supra, sua sponte authority is not exercised in response to a motion— actually suggests that a joint motion with DHS would be a viable alternative, at least in the case identified by the commenter. The Department also considered the alternatives advanced by commenters. As discussed elsewhere, a standard for ‘‘exceptional circumstances’’ has existed since 1997, Matter of J-J-, 21 I&N Dec. at 984, but that standard has not prevented inconsistent or improper usage of sua sponte authority. Thus, the Department does not believe that further elaboration of that standard would address the concern. Because sua sponte authority is not properly exercised in response to a motion or ‘‘invitation,’’ 85 FR at 52504–05, the Department does not see how limiting the use of such authority to only ‘‘proper’’ invitations would be appropriate, even if it could devise a workable and consistently applied distinction between ‘‘proper’’ and ‘‘improper’’ invitations. Similarly, situations in which DHS does not oppose a motion to reopen are not appropriate for the exercise of sua sponte authority because such authority is not exercised in response to a motion. Id. Rather, such situations appear amenable to a joint motion which the rule does not alter. 8 CFR 1003.2(c)(3)(iii). In short, the Department has considered commenters’ concerns about the available alternatives to the exercise of sua sponte authority, but finds them unpersuasive or legally inapposite for the reasons given. Finally, to the extent that commenters’ concerns are based on a belief that sua sponte authority should be retained because it allows aliens to file motions to reopen sua sponte in order to circumvent time and number bars to motions to reopen, the Department reiterates that the exercise of sua sponte authority is not proper in response to a motion and that its use to circumvent regulatory or statutory deadlines contravenes established case law and, accordingly, supports the PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 81633 Department’s decision to withdraw that authority. vi. Other Concerns Comment: Commenters alleged that although the Department addressed the use of sua sponte authority in precedential decisions, the Department failed to address whether the BIA’s use of sua sponte authority in nonprecedential decisions forms the vast majority of its docket. The commenters claimed that EOIR was in the ‘‘better position’’ to address this issue but that it failed to analyze the issue. Response: The extent to which sua sponte authority is used in nonprecedential decisions did not and would not affect the Department’s conclusion that such authority is no longer appropriate. As described in the NPRM, the Department withdrew sua sponte authority for several reasons: ‘‘the exceptional nature of a situation required to invoke sua sponte authority in the first instance, the general lack of use of genuine sua sponte authority since 2002, and the availability of multiple other avenues to reopen or reconsider cases and to alleviate the hardships imposed by time and number deadlines.’’ 85 FR at 52506. Although the Department noted the extremely limited use of sua sponte authority in precedential decisions, the Department did not withdraw sua sponte authority based on that consideration alone. The Department’s conclusion, was multifaceted, and regardless of the nature of cases in which sua sponte authority is exercised, the Department has determined that it is appropriate to withdraw sua sponte authority because, inter alia, there are multiple viable alternatives for both parties, its use undermines efficiency by encouraging improper motions, and its potentially inconsistent and borderline ad hoc usage is both inappropriate and inefficient to the extent that it is used to reopen cases contrary to law. Comment: Without further explanation, one commenter alleged that removing sua sponte authority would violate principles of ‘‘equal protection under the law for all.’’ Also without further explanation, a commenter stated that limiting sua sponte motions to reopen would continue the family separation policy. One commenter disagreed with the rule, stating that its fixation on the phrase sua sponte ‘‘converts an important issue of fairness and justice into a debate over semantics.’’ Commenters explained that removing sua sponte authority violated the APA because Congress did not enact limits on such authority, thereby E:\FR\FM\16DER3.SGM 16DER3 81634 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 infringing on congressional authority to create laws. Response: The Department disagrees with commenters that these provisions generally violate equal protection. The Department continues to equally apply applicable law and regulations to all aliens in proceedings before the agency. In addition, the Department rejects allegations, which contained no further explanation, that the rule furthers any family separation ‘‘policy.’’ To the extent the commenter was referring to the prosecution of criminal aliens along the southwest border in late spring 2018 which involved the separation of alien criminal defendants from their families while those defendants were being prosecuted—consistent with the treatment of most criminal defendants subject to arrest in the United States— there is no identifiable linkage between this rule and that situation. As previously explained, sua sponte authority is a product of regulation; Congress has not statutorily established this authority. Accordingly, withdrawing this authority does not violate the APA or infringe on congressional authority. To the contrary, preventing the Attorney General from withdrawing authority that is his alone to delegate in the first instance would infringe upon his statutory authority. INA 103(g), 8 U.S.C. 1103(g). Further, courts afford broad deference to an agency’s policy changes. ‘‘Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change.’’ Encino Motor Cars v. Navarro, 136 S. Ct. 2117, 2125 (2016) (citing Nat’l Cable & Telecomm. Assn. v. Brand X internet Services, 545 U.S. 967, 981–982 (2005)). The Department provided an extensive discussion in the NPRM, supplemented by this final rule, to explain its reasoning for withdrawing sua sponte authority. 85 FR at 52504–06. This discussion did not ‘‘fixate’’ on semantics or any one reason to justify withdrawing sua sponte authority. Rather, the Department provided a fulsome discussion, supplemented by this final rule, of the many reasons that, considered together, prompted withdrawal of sua sponte authority.54 54 The text of 8 CFR 1003.2(a) in the NPRM inadvertently removed the phrase ‘‘or reconsider’’ from the first sentence of that paragraph. This final rule reinserts that phrase to ensure that parties and the BIA are clear that the Board can reconsider a decision sua sponte in order to correct a typographical error or defect in service. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 l. DHS Motions To Reopen Time and Number Limitations (8 CFR 1003.2(c)(3)(vii)) Comment: Commenters expressed concern that the NPRM’s proposed changes regarding the time and number limitation for DHS motions to reopen before the BIA are unfair and would create different rules for the government and for aliens in proceedings, noting that both aliens and the government at times have good cause to file motions to reopen that exceed the normal time and number limitations. Commenters were concerned that the change would give DHS favorable or preferential treatment. Commenters noted that allowing DHS to file motions to reopen without regard to any time or number limitations would prevent aliens who have been in proceedings from ever feeling confident that the decision in their case is final. At least one commenter stated the Department should restrict DHS’s ability to file motions to reopen before the BIA and create parity between the parties rather than have the same unequal procedures before both the immigration courts and the BIA. Response: In 1996, Congress amended the INA and provided specific restrictions regarding motions to reopen filed by aliens in proceedings. See INA 240(c)(7), 8 U.S.C. 1229a(c)(7). The INA restricts aliens to file one motion to reopen proceedings within 90 days of the date of the entry of a final order of removal, subject to time and number exceptions based on lack of notice and when the motion to reopen is premised on changed country conditions in support of an application for asylum. Id. Notably, however, Congress did not provide any similar restriction on motions to reopen filed by the government. Accordingly, the Department previously removed the time and number limitation on motions to reopen filed by the government as part of the regulatory changes implemented following the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (‘‘IIRIRA’’), Public Law 104–208, Sept. 30, 1996, 108 Stat. 1796. See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 10312, 10321 (Mar. 6, 1997) (explaining, in response to public comments that the same limitations on motions to reopen should apply to all parties, that ‘‘IIRIRA specifically mandates that ‘[a]n alien may only file one motion to reopen’ in removal proceedings. Congress has imposed limits on motions to reopen, where none existed by statute before, PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 and specifically imposed those limits on the alien only.’’).55 Here, the rule’s amendment to 8 CFR 1003.2(c)(3)(vii) regarding motions to reopen filed by DHS similarly aligns the BIA’s regulations with the INA’s limitation only on alien-filed motions to reopen. By ensuring that EOIR’s regulations provide clarity for the public regarding the requirements and restrictions set out by Congress in the INA, commenters are incorrect that the Department is providing DHS with any favorable or preferential treatment. To the extent that commenters are concerned that aliens will be unable to have confidence that their cases will be subject to an infinite number of motions to reopen for an indefinite amount of time, the Department first emphasizes that any motion to reopen filed by DHS is not automatically granted by the BIA. Instead, like all motions to reopen, DHS must ‘‘state the new facts that will be proven at a hearing to be held if the motion is granted,’’ support the motion with ‘‘affidavits or other evidentiary material,’’ and demonstrate that the ‘‘evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.’’ 8 CFR 1003.2(c)(1). As with all motions and appeals, the BIA considers the merits of each motion to reopen individually. Moreover, DHS has possessed the authority to file motions to reopen at the immigration court level without being subject to the general time and number bars since 1997, and there is no evidence that it has engaged in a practice of filing infinite motions over an indefinite period. Accordingly, the Department finds that commenters’ concerns are overstated, if not wholly unfounded, in light of the applicable regulatory requirements and DHS’s practice before the immigration courts. Finally, apart from being statutorily atextual and ahistorical regarding DHS practice, commenters’ suggestion that the rule provides DHS with preferable treatment fails to acknowledge the various exceptions to time and number limitations afforded motions to reopen filed by aliens. First, there is not a limitation when the motion to reopen is 55 Notably, although the regulatory changes in 1997 only explicitly codified the exception to the time and number limitations filed by the government in removal proceedings before the immigration court, commenters at the time understood the changes to apply to motions to reopen filed by the government before the BIA and the immigration courts. See 62 FR at 10321 (‘‘A number of commenters pointed out that §§ 3.2(d) and 3.23(b) subject all parties to time and numerical limits for motions to reopen in deportation and exclusion proceedings, but apply those limits only to aliens in removal proceedings.’’). E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations for the purpose of applying or reapplying for asylum or withholding of removal based on changed country conditions ‘‘if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.’’ 8 CFR 1003.2(c)(3)(ii). Second, as discussed, supra, aliens may rely on equitable tolling in certain circumstances to avoid a strict application of the time deadlines for motions to reopen. Third, the rule itself provides a new avenue for aliens to file a motion to reopen when a ‘‘material change in fact or law . . . vitiates all grounds of removability applicable to the alien.’’ 8 CFR 1003.2(c)(3)(v). In short, the rule retains significant options for aliens to file motions to reopen which offset the unsupported allegations of allegedly favorable treatment, even if such treatment were not rooted in statutory text. m. Briefing Schedule Changes (8 CFR 1003.3(c)) khammond on DSKJM1Z7X2PROD with RULES3 i. General Concerns Comment: Commenters raised concerns with the rule’s changes to the briefing schedule process, claiming that the changes favor speed over fairness and that the limited time savings does not sufficiently outweigh the disadvantages to the parties. Response: The Department expects the Board to adjudicate cases fairly and efficiently, 8 CFR 1003.1(d)(1) (noting that Board members will resolve cases in both a ‘‘timely’’ and ‘‘impartial’’ manner (emphasis added)), and does not view ‘‘speed’’ and ‘‘fairness’’ as mutually exclusive objectives. Consequently, the rule not favor one goal over the other, and commenters’ suggestion amounts to a false dichotomy that cases cannot be handled both fairly and efficiently. As explained in the NPRM, due to the growing BIA caseload, the Department finds it necessary to implement these briefing schedule reforms to ensure that appeals are adjudicated in a timely manner. 85 FR at 52492–93. In doing so, the Department disagrees with commenters’ unsubstantiated alleged potential difficulties caused by the briefing schedule changes outweigh the benefits of more prompt adjudication. Further discussion of commenters concerns with specific briefing-related changes follows below. ii. Simultaneous Briefing Comment: Regarding the rule’s change to require simultaneous briefing in all cases, commenters noted that almost every appellate adjudication system in VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 the United States uses sequential briefing in order to allow the parties to respond to each other’s arguments. By contrast, commenters claimed that under this rule, the non-appealing party will not receive sufficient notice of which arguments to focus on in their brief, as the appealing party may include multiple issues in the Notice of Appeal but only brief a few of those issues. Commenters allege that this will result in briefs with cursory coverage of every topic rather than focused arguments on the few key issues raised in the appellant’s brief. Commenters stated this would be particularly problematic in cases with difficult legal issues, such as unaccompanied children or gender-based asylum claims. Commenters also claimed that simultaneous briefing would require the BIA to expend additional effort in reviewing the appeal record, as the parties would no longer be vetting each other’s arguments through sequential briefing and instead may focus on different issues. Commenters further argued that non-detained cases have larger administrative records due to non-detained persons generally having greater relief eligibility and do not invoke the same liberty interests as detained cases, which makes simultaneous briefings less appropriate. Commenters also noted that briefing every potential issue would also inevitably conflict with the BIA’s page limit requirements.56 As a result, one commenter recommended changing all briefing, including detained cases, to non-simultaneous sequential briefing. Response: Commenters generally failed to engage the specific reasons put forth by the Department—both in the NPRM and previously when it proposed simultaneous briefing in 2002, 85 FR at 52498–99—for adopting simultaneous briefing in all cases or to acknowledge that a change to simultaneous briefing falls principally on DHS because the vast majority of Board appeals are filed by respondents whose initial brief timing as an appellant is unchanged by this rule.57 To the extent that 56 See BIA Practice Manual at Ch. 3.3(c)(iii) (limiting briefs to 25 pages absent a motion to increase the page limit). 57 In FY 2019, respondents filed 50,129 appeals from immigration judge decisions, compared to 5,636 appeals filed by DHS and 116 cases in which both parties filed an appeal. Preliminary data from FY 2020 paints a similar picture: Respondents filed 45,117 appeals from immigration judge decisions, compared to 5,965 appeals filed by DHS and 117 cases in which both parties filed an appeal. Because the appellant filed the initial brief under the prior regulation, in approximately 90 percent of appeals in FY 2019 and approximately 88 percent of appeals in FY 2020, the change to simultaneous briefing would have had no impact on the timing of the brief filed by a respondent. PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 81635 commenters simply disagree as a policy matter that Board cases should be completed in a timely manner, see 8 CFR 1003.1(d); cf. Doherty, 502 U.S. at 323 (‘‘as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States’’), or that the Department should take measures, consistent with due process, to ensure the timely completion of such cases, the Department finds such policy disagreements unpersuasive for the reasons given in the NPRM and this final rule. The BIA has used simultaneous briefing for detained appeals for nearly 20 years,58 with no apparent issues for the parties or the BIA.59 Conforming non-detained appeals to the same simultaneous briefing schedules will provide consistency across all appeals while helping to more efficiently process the growing appeals caseload. As such, the Department disagrees with commenters requesting that all appeal move to non-simultaneous briefing. Commenters’ suggestion that the nonappealing party will not receive sufficient notice of which arguments to focus on in their brief because the appealing party may include multiple issues in the Notice of Appeal but only brief a few of those issues is both conjectural and illogical, as party who fails to raise an issue in a brief risks having that issue deemed waived. Thus, the Department would expect that all issues raised in the Notice of Appeal will be briefed. The Department also disagrees with commenters that the non-appealing party will have difficulty drafting a simultaneous brief without first having the appealing party’s brief to review. To reiterate, this system already occurs in the context of appeals of detained cases, and commenters did not explain why that system has not experienced the problems alleged to necessarily result 58 67 FR 54878. an analogous situation, EOIR’s Office of the Chief Administrative Hearing Officer (OCAHO) also utilizes a simultaneous 21-day briefing schedule for cases reviewed by the CAHO following the decision of an administrative law judge. 28 CFR 68.54(b)(1) (‘‘In any case in which administrative review has been requested or ordered pursuant to paragraph (a) of this section, the parties may file briefs or other written statements within twenty-one (21) days of the date of entry of the Administrative Law Judge’s order.’’). OCAHO cases under the provisions of INA 274A and 274C, 8 U.S.C. 1324a and 1324c, involve violations of worksite enforcement laws, including violations related to completion of Form I–9, and document fraud, and they are just as complex or involved as cases in immigration court, if not more so. Yet, the Department is unaware of any challenge to OCAHO’s simultaneous 21-day briefing schedule for administrative reviews or any reason why it is not an appropriate model or analogy for such a schedule before the BIA. 59 In E:\FR\FM\16DER3.SGM 16DER3 81636 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations from utilizing the same system for nondetained cases on appeal. Further, as explained in the NPRM, the appealing party must identify the reasons for the appeal in the Notice of Appeal (Form EOIR–26 or Form EOIR–29) or in any accompanying attachments. 8 CFR 1003.3(b). In doing so, the appealing party must already comply with the following well-established requirements which are unaltered by the final rule: • The party taking the appeal must identify the reasons for the appeal in the Notice of Appeal (Form EOIR–26 or Form EOIR–29) or in any attachments thereto, in order to avoid summary dismissal pursuant to § 1003.1(d)(2)(i). • The statement must specifically identify the findings of fact, the conclusions of law, or both, that are being challenged. • If a question of law is presented, supporting authority must be cited. • If the dispute is over the findings of fact, the specific facts contested must be identified. • Where the appeal concerns discretionary relief, the appellant must state whether the alleged error relates to statutory grounds of eligibility or to the exercise of discretion and must identify the specific factual and legal finding or findings that are being challenged. khammond on DSKJM1Z7X2PROD with RULES3 Id. Commenters did not generally address why this information, which should already be contained in the Notice of Appeal, is insufficient to apprise the opposing party of the issues on appeal.60 See also BIA Practice Manual at Ch. 4.4(b)(iv)(D) (‘‘The statement of appeal is not limited to the space on the form but may be continued on additional sheets of paper . . . Parties are advised that vague generalities, generic recitations of the law, and general assertions of Immigration Judge error are unlikely to apprise the Board of the reasons for appeal.’’). As a result, the Department believes these statements provide the non-appealing party with ample information to draft a simultaneous brief in non-detained cases, just as it has in detained cases for many years. Finally, the Department also has no concerns that appellees will be unable to follow the page limit requirements for briefs, and such concerns are unsupported by any evidence and wholly speculative. Moreover, increases are available by motion at the BIA’s 60 Commenters did not challenge 8 CFR 1003.3(b), which has been in effect for many years, or suggest that its requirements were inappropriate. To the extent that commenters assert that parties do not comply with this regulatory requirement, such regulatory noncompliance is not a persuasive basis to adopt commenters’ objections. The Department expects both parties to comply with all regulatory requirements regarding appeals adjudicated at the Board. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 discretion. See BIA Practice Manual at Ch. 3.3(c)(iii). iii. Briefing Extensions Comment: Commenters were also concerned about the shortened timeframe for briefing extensions, explaining that by the time a filer receives a response as to whether or not the extension is granted, the 14 days would be nearly expired. Moreover, commenters were concerned with limiting the briefing extension to a single 14-day period, noting that there may be issues that prevent filing within the 14-day extension period, including serious medical issues or a death in the family. Commenters were also concerned that the shortened briefing extension timeframe would lead to less legal representation before the BIA. Commenters stated that if newly retained counsel, including pro bono counsel, cannot receive a reasonable extension to review the record and prepare a brief, it is unlikely the counsel would accept representation in order prevent the possibility of providing ineffective representation. As a result, commenters were concerned that this rule would make pursuing appeals even more difficult for pro se respondents. One commenter stated that requiring the BIA to make individualized good cause determinations for briefing extensions would create a significant burden for the BIA. Commenters also raised issues with the NPRM’s reference to preventing ‘‘gamesmanship’’ as a reason to shorten the briefing extension time period, stating that the Department did not provide support for this claim. Commenters claimed that the shortened briefing schedule changes would also create institutional bias against women, such as due to timing issues surrounding child birth and child care responsibilities. Another commenter stated that shortening the briefing extension period during the COVID–19 pandemic was improper. Response: As an initial matter, the Department notes that underlying most commenter objections was a tacit suggestion that there is an entitlement to briefing extensions and that they should be granted by the Board as a matter of right. That view is incorrect. Briefing extensions are generally disfavored, as parties, including newly retained counsel, should be completing their briefs in the original allotted time, particularly in cases where the briefing period only begins once transcripts are complete. See BIA Practice Manual at Ch. 4.7(c)(i), (‘‘In the interest of fairness PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 and the efficient use of administrative resources, extension requests are not favored.’’). Further, there is no entitlement to a briefing extension, and to the extent that commenters opposed the NPRM because they believe parties have a right to an extension—e.g., for newly retained counsel—they are mistaken. Id. at ch. 4.7(c) (‘‘The Board has the authority to set briefing deadlines and to extend them. The filing of an extension request does not automatically extend the filing deadline, nor can the filing party assume that a request will be granted. Until such time as the Board affirmatively grants an extension request, the existing deadline stands.’’). Additionally, few commenters acknowledged that notwithstanding the existing language of 8 CFR 1003.3(c)(1), the Board’s longstanding policy has been to limit briefing extensions to 21 days. BIA Practice Manual at Ch. 4.7(c)(i). Nor did commenters generally acknowledge that the Board already possesses the authority to shorten the overall briefing period to less than 21 days. 8 CFR 1003.3(c)(1). Consequently, the final rule merely codifies timelines that the Board itself could choose to adopt, and commenters did not persuasively explain why it would preferable for the Board to adopt those changes through policy or case-by-case adjudication rather than through rulemaking. See Lopez, 531 U.S. at 244 (observing that ‘‘a single rulemaking proceeding’’ may allow an agency to more ‘‘fairly and efficiently’’ address an issue than would ‘‘case-by-case decisionmaking’’); Marin-Rodriguez, 612 F.3d at 593 (‘‘An agency may exercise discretion categorically, by regulation, and is not limited to making discretionary decisions one case at a time under open-ended standards.’’). To the extent that commenters assert as a policy matter that the Board should always grant a briefing extension for a maximum amount of time because such extensions inherently delay adjudication in the case to the benefit of aliens, cf. Doherty, 502 U.S. at 323 (‘‘as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States’’), or that the Department should not take measures, consistent with due process, to ensure the timely completion of cases, the Department finds such policy disagreements unpersuasive for the reasons given in the NPRM and this final rule. Moreover, few, if any, commenters acknowledged that this rule applies equally to DHS, which will also have to comply with the timelines, or that this rule will benefit aliens with meritorious claims for relief E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations or protection by allowing them to receive a decision sooner. To the extent that commenters did not fully assess the implication of the rule—and, thus, provided comments without a complete foundation—the Department finds those comments unpersuasive. The briefing extension time period in this rule is sufficient for parties to file their briefs, and commenters have not persuasively explained why a total of up to 35 days is an insufficient amount of time to file a brief. Moreover, few commenters acknowledged that the BIA can ask for supplemental briefing if it finds that the briefs submitted are inadequate, which allows an additional opportunity for parties to submit arguments if the BIA believes such additional argument is necessary. The Board, rather than the parties, is ultimately in the best position to determine whether briefing is sufficient in a particular case, and this rule does not restrict the Board’s ability to request supplemental briefing if it believes such briefing is helpful. 8 CFR 1003.3(c)(1). In short, the procedures and time provided by this rule are sufficient to ensure that the Board receives appropriate information through briefing in order to aid its adjudication. Further, as noted in the NPRM, 85 FR at 52498–99, the parties need not wait until a briefing schedule is actually issued to begin drafting the brief, and they can use any extension to complete the brief, as appropriate. The Departments disagree with commenters’ supposition that shortened briefing extension time periods will lead to less representation at the BIA. As an initial point, commenters did not explain why a respondent would wait until a briefing schedule has been issued or a brief is due before retaining representation. The Department expects that most aliens whose cases are on appeal will obtain representation as quickly as possible, especially in the cases in which the respondent files the Notice of Appeal. Commenters did not explain what incentive an alien would have to wait until an appeal has been pending for a notable length of time before engaging representation, and the Department is aware of none. Moreover, in any litigation, newly retained counsel takes a client as he or she finds him, and as discussed above, there is no entitlement to a briefing extension in any circumstance, even for newly retained counsel. Consequently, the same concerns advanced by commenters already exist under the present system— i.e., a new representative may be unsuccessful at obtaining an extension VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 of the briefing schedule—and are unaltered by the rule.61 Further, the Department’s BIA Pro Bono Project is not tied to the issuance of a briefing schedule. The Department reviews cases for referral through that Project upon the filing of a Notice of Appeal, not upon the issuance of a briefing schedule. Moreover, under current practice, pro bono volunteers who accept a case typically receive a copy of the alien’s file before a briefing schedule is issued and, like all representatives, may request an extension if appropriate. Consequently, there is no evidence that shortening the length of a briefing extension, which is already a disfavored practice and not guaranteed to any representative, will have any negative impact on representation before the BIA, particularly pro bono representation. Regarding commenters’ concerns with requiring the BIA to make individualized good cause determinations for briefing extensions, commenters are incorrect that this requirement will significantly burden the BIA. Indeed, such good cause determinations are already incorporated into the regulations, 8 CFR 1003.3(c)(1), and, thus, also into the current BIA practice. Accordingly, the final rule does alter the need for the Board to find good cause in order to grant a briefing extension. With regards to ‘‘gamesmanship,’’ the Department notes that the shortened briefing extension period may help to reduce any possible future gamesmanship attributable to lastminute extension requests in two respects. First, in the Board’s experience, it is not uncommon to receive a briefing extension request filed just before or on the date a brief is due, suggesting that many extension requests are merely last-minute delay tactics rather than genuine representations of unforeseen circumstances preventing adherence to the original schedule. Second, such last-minute requests often occur after the opposing party has already served its brief, as a party submitting a brief by mail will often do so several days in advance of the deadline to ensure that it is timely received. In such situations, if the extension request is granted, the party who sought the extension would then 61 The Department reiterates that approximately 86 percent of aliens are represented upon appeal under the existing system which is largely condified in this rule. EOIR, Adjudication Statistics: Current Representation Rates, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/ 1062991/download. Thus, there is even less basis to assert that this rule will increase the number of pro se cases before the Board. PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 81637 have at least a full 21 days to review the opposing party’s brief and tailor its arguments accordingly in filing an initial brief. The Department acknowledges that eliminating briefing extensions altogether would also eliminate these risks of dilatory tactics and gamesmanship. However, after considering that alternative, the Department does not believe it is necessary at the present time. Although the final rule will not end either dilatory tactics or gamesmanship, shortening the period for a briefing extension will reduce both the incentive to engage in such tactics and the impact on both the BIA’s efficiency and the opposing party when such tactics are employed.62 In response to comments about COVID–19, the Department recognizes the challenges caused by the pandemic. However, those challenges are largely inapplicable to the BIA which has maintained generally regular operations during the COVID–19 outbreak because it typically receives briefs by mail or expedited courier service, and it began accepting briefs by email during the pandemic until after it was cleared to enter Phase Two of the Department’s plan for returning to normal operations.63 Moreover, the BIA is scheduled to adopt ECAS in early 2021. Consequently, these challenges do not warrant maintaining the regulatory maximum length for a briefing extension, particularly since the BIA has shortened that length already by policy—which has remained in effect during the COVID–19 outbreak—with no noted adverse effects or challenges. Lastly, in response to one commenter, the briefing extension changes do not and are not intended to reflect any bias or adverse treatment toward women. To the extent that the commenter suggests that women are incapable of addressing both childbirth or childcare 64 concerns and professional obligations as a representative, the Department categorically rejects such a suggestion. 62 Although the Department is aware of anecdotal examples of gamesmanship and dilatory tactics occurring, it did not state that such activity occurs in every case. Rather, one of the principles animating this provision of the rule, as well as the provision related to simultaneous briefing, is to ensure that the risk of such activity occurring is reduced and, concomitantly, ensuring that the BIA’s regulations provide for as efficient and orderly an appeals system as possible. 85 FR at 52498. 63 The BIA holds oral argument infrequently and has not held any oral argument sessions since before March 2020. 64 The Department notes, contrary to the commenter’s suggestion, that men may also have childcare responsibilities. Nevertheless, the rule imposes no burden on any caregiver any greater than that which already exists for any representative caring for another individual. E:\FR\FM\16DER3.SGM 16DER3 81638 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations Female attorneys routinely practice before the Board without any particular difficulties—as they do before all types of courts and administrative agencies. Nothing in the rule singles out any particular gender nor suggests that certain genders are inherently incapable of compliance with generally applicable and established procedural rules for representation before a tribunal. Finally, the Department notes that as the Board received briefs from both parties in fewer than half of the cases in which it issued briefing schedules in FY 2019—and received no brief from either party in approximately 18 percent of such cases—the impact of changes to briefing procedures, including a change to simultaneous briefing and the reduction in the maximum time allowable for a briefing extension, is far less than what many commenters speculated based on supposition and unsubstantiated anecdotes.65 85 FR at 52498. The Department has considered the issues and concerns raised by commenters but finds them ultimately unpersuasive for the reasons noted. In short, weighing the need for additional operational efficiency, the ability of the Board to request additional briefing in any case if it believes such briefing is necessary, the importance of reducing opportunities for gamesmanship, the actual number of briefs filed and the party identity of most appeals, and the largely speculative or anecdotal issues raised by commenters, the Department finds that, on balance, the benefits of the changes in the final rule significantly outweigh the purported drawbacks. khammond on DSKJM1Z7X2PROD with RULES3 iv. Reply Briefs Comment: Commenters raised concerns that the rule would, in practice, prohibit the filing of reply briefs. Commenters stated that the parties would have much less than 14 days to file a reply brief because the time period would be shortened by the length of time required to request and have the BIA grant leave to file the reply brief and by the amount of time it takes the opposing parties’ brief to be served by mail, which commenters stated routinely takes approximately five days to receive. Commenters also noted that the Department should take into 65 Preliminary data from FY 2020 indicates that the Board set a briefing schedule in approximately 30,000 cases; the respondent filed a brief in roughly 21,000 cases (69 percent), and DHS filed a brief in roughly 11,500 cases (38 percent). In approximately 5200 cases (17 percent), neither party filed a brief. As noted in the NPRM, 85 FR at 52498, n.15, these numbers treat the filing of a motion to summarily affirm the decision below as the filing of a brief and do not exclude cases in which a party indicated on the Notice of Appeal that it did not intend to file a separate brief. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 account the fact that the BIA does not have electronic filing, which would allow the parties to immediately receive opposing briefs and grants of leave to file reply briefs. Response: The Departments first note that reply briefs are generally disfavored. See BIA Practice Manual at Ch. 4.6(h) (explaining that the BIA ‘‘does not normally accept briefs outside the time set in the briefing schedule’’ such as reply briefs, but that the BIA may accept reply briefs in limited circumstances). Further, there is no right to file a reply brief, and the Board must accept it through the granting of a motion. Id. Most significantly, ‘‘[t]he Board will not suspend or delay adjudication of the appeal in anticipation of, or in response to, the filing of a reply brief.’’ Id. Commenters did not persuasively explain why shortening the time to file a brief that is already disfavored, not guaranteed to be accepted, and does not suspend the adjudication of an appeal would have any additional impact on such briefs beyond those already established. Moreover, parties that are allowed to file reply briefs should not require significant time to file such briefs as all issues should have already been covered in the Notice of Appeal and the initial simultaneous briefs; thus, any reply briefs should only be clarifications on existing issues. In short, the rule does not prohibit the submission of reply briefs, but its shortened submission timeline recognizes both their alreadydisfavored status and the reality of the likelihood that they will have a substantive impact on the adjudication of the case. The Department again notes that EOIR is currently in the process of a staggered nationwide deployment of the EOIR Court & Appeals System (‘‘ECAS’’), which will allow registered attorneys and accredited representatives to view electronic records of proceeding and electronically file against them. See EOIR Electronic Filing Pilot Program, 83 FR 29575 (June 25, 2018); EOIR, EOIR Launches Electronic Filing Pilot Program (July 19, 2018), available at https://www.justice.gov/eoir/pr/eoirlaunches-electronic-filing-pilotprogram. Once ECAS is deployed at the BIA, which is expected in early 2021, registered attorneys and accredited representatives will be able to immediately view and download documents for cases with electronic records of proceeding, which will mitigate commenters’ concerns about mail service and its potential effect on briefing schedule timing. PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 n. Changes to Immigration Judge Transcript Review Process and Forwarding of Record (8 CFR 1003.5) Comment: At least one commenter opposed the rule’s transcript review provisions, stating that immigration judges are best positioned to determine the accuracy of a transcript of a decision. Technology and human error, the commenter alleged, result in routine transcription errors, which the commenter asserted required correction by the immigration judge. Moreover commenters pointed to the following common transcription errors: Punctuation errors, which can drastically change the meaning of a sentence; mis-transcribed legal language, which can also change the meaning of a sentence; and, errors in names, locations, and other issues. Commenters disagreed with the BIA’s need to ‘‘guess’’ what the immigration judge said or listen to the audio decision to determine what the transcriber incorrectly typed, and the commenter alleged that without the immigration judge’s approval of the ultimate decision and transcript, the BIA would have ‘‘no idea if what was transcribed is what was actually ultimately decided by the immigration judge.’’ Commenters explained that the rule lacked any mechanism for the BIA to return the case to the immigration judge to clarify confusion resulting from a hastily made decision. Further, commenters alleged that sending a case back to the immigration judge after a briefing schedule has been issued would result in adjudication delays. The commenter predicted that a significant increase in remands from the Federal courts would result. Commenters alleged that the current 14-day time period in which an immigration judge must review the transcript and make corrections is too short, given that, as the commenter alleged, it takes more than a year to get a copy of the transcript. The commenter suggested that hiring more transcribers with appropriate training to produce transcriptions in a timely manner or procuring new technology to produce transcriptions with fewer errors would increase efficiency more so than the provisions of the rule. Other commenters opposed elimination of the 14-day review process because they stated that it sacrificed quality in favor of speed, risking the possibility that errors that could have been corrected at an early stage in the appeal process absent the rule would now require a remand and further delay. The commenters alleged E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 that subsequent efficiencies to be gained were minimal. Response: The Department appreciates a commenter’s supportive suggestion—and tacit support for additional resources—to hire more transcribers and obtain new technology to improve the quality and timeliness of transcript production. Transcription at the Board may occasionally become an issue, e.g., PM 20–01 at 3 & n.6, and the Department is always looking for additional ways in which to make the process more efficient and accurate. To that end, the Department, through this rulemaking, adopts the NPRM’s provisions on this issue without change because it believes such provisions properly balance efficiency in the transcription review process while facilitating the development and distribution of accurate transcripts. Nevertheless, further changes to internal transcription technologies or contracts are outside the scope of this rule. Regarding other commenters’ statements, in general, they did not explain precisely which errors immigration judge review would be able to correct. Immigration judges should not make substantive corrections to a transcript, 85 FR at 52508–09, and there is no operational or legal need for an immigration judge to correct minor typographical errors.66 To the extent that commenters identified examples of substantive errors, those are generally not the type immigration judges should correct, particularly since the parties are not able to argue whether they are genuinely errors before the immigration judge makes an edit. Id.; see also Mamedov v. Ashcroft, 387 F.3d 918, 920 (7th Cir. 2004) (‘‘[I]n general it is a bad practice for a judge to continue working 66 Since 1993, immigration judges have been prohibited from correcting any part of a transcript other than minor typographical errors. EOIR, Operating Policies and Procedures Memorandum 93–1: Immigration Judge Decisions and Immigration Judge Orders at 2 (May 6, 1993), available at https:// www.justice.gov/sites/default/files/eoir/legacy/ 2002/07/31/93-1.pdf (‘‘The ‘clean-up’ of an oral decision must be limited to the review of the transcript for corrections in punctuation, grammar and syntax.’’). There is no need, however, for an immigration judge to correct such minor errors, and commenters did not identify one. Moreover, there is also no consistent practice among immigration judges in reviewing transcripts of decisions. Some review for style and substance, whereas others review only for substance; some review with the record of proceedings at hand, whereas others do not. Inconsistent practices breed inefficiency and risk inadvertent errors. Thus, ‘‘there is simply no reason to retain the requirement that immigration judges continue to review transcripts, and removing this requirement will also eliminate the possibility of the transcript being amended incorrectly, even inadvertently, after a decision has been rendered.’’ 85 FR at 52508–09. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 on his opinion after the case has entered the appellate process . . . .’’). Many commenters also did not appear to appreciate the distinction in the existing regulation that immigration judges review only the transcript of their decision, not the entire transcript of proceedings. 8 CFR 1003.5(a) (2019). Thus, many potential issues identified by commenters regarding errors in the full transcript of proceedings are inapposite to the change made by this rule. Additionally, an immigration judge’s primary role is to adjudicate cases expeditiously and impartially, not to review transcripts for errors. As explained in the NPRM, the Department uses ‘‘reliable digital audio recording technology,’’ 85 FR at 52508, and maintains a procedure through which parties may address defective or inaccurate transcripts, including the errors cited by commenters. See BIA Practice Manual at Ch. 4.2(f)(iii) (instructing parties that believe a transcript contains an error that is significant to their argument or the appeal to identify such defect in briefing). Moreover, pursuant to 8 CFR 1003.1(e)(2), the BIA may also remedy defective transcripts through a remand for clarification or correction. Accordingly, the BIA need not ‘‘guess,’’ as commenters alleged, at what the transcript said or what the decision held. Further, the NPRM did not neglect to provide or overlook the need for a mechanism through which defective or inaccurate transcripts could be addressed. The BIA Practice Manual already provides such process; thus, concerns that litigation would proliferate based on the absence of such processes are purely speculative and unfounded. Despite this speculation, the Department reiterates the importance of accurate transcripts and will continue to have procedures, as described in the BIA Practice Manual and 8 CFR 1003.1(e)(2), available to ensure that end. Circuit courts have affirmed EOIR’s current procedures through which parties may address defective or inaccurate transcripts in accordance with the BIA Practice Manual and regulations, and courts have criticized the practice of immigration judgereview of a transcript following the filing of an appeal. See Witjaksono v. Holder, 573 F.3d 968, 976 (10th Cir. 2009); Mamedov, 387 F.3d at 920. Practically, removing the immigration judge-review period will eliminate the possibility that a transcript is incorrectly or inadvertently amended after the decision has been issued. See PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 81639 85 FR at 52508. Given these safeguards and circuit court considerations, the Department disagrees with commenters that immigration judges should continue to use scarce judicial resources to review transcripts of their decisions. The Department disagrees that the rule sacrifices quality for speed. As noted, supra, immigration judges should not make substantive corrections, and there is no operational need for them to make minor typographical corrections. Consequently, the current regulation serves little, if any, purpose and certainly not one that promotes either quality or speed. Moreover, given the quality of EOIR’s audio recording technology systems and the protections to ensure accuracy set out in the BIA Practice Manual and available remands to address defective transcripts, the Department finds removing the inefficiencies resulting from the immigration judge-review period will not affect the quality of transcriptions. Comment: At least one commenter stated that the Department should not end the practice of forwarding physical records to the BIA until ECAS is fully implemented nationwide. Response: The rule amends 8 CFR 1003.5(a) in relevant part to provide that the immigration court shall promptly forward the record of proceeding to the BIA, ‘‘unless the Board already has access to the record of proceeding in electronic format.’’ Accordingly, this change does not end the practice of immigration courts forwarding the record of proceeding, but instead provides the immigration courts and the BIA with flexibilities as ECAS is implemented. It is illogical to require the immigration court to create a physical record of an otherwise electronic record simply for the purposes of sending it to the BIA in case of an appeal if the BIA has the capability of accessing the record electronically. o. BIA Authority To Grant Voluntary Departure in the First Instance (8 CFR 1003.1(d)(7)(iv), 1240.26(k)) Comment: Commenters raised concerns about the rule’s changes requiring the BIA to adjudicate voluntary departure requests rather than remand them back to the immigration courts, explaining that the changes raised significant due process and fairness concerns. Commenters were concerned about allowing the BIA to adjudicate voluntary departure requests without allowing aliens to submit evidence to the BIA supporting their request. For example, commenters stated that required travel documents filed with the E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81640 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations immigration court may have expired by the time the case reaches the BIA. Similarly, commenters stated that the alien may not have submitted all necessary evidence before the immigration court, particularly in cases where the immigration judge grants relief and does not reach the merits of an alternative voluntary departure request. Commenters also raised concerns that the BIA would not have a sufficient record on which to determine which conditions would be necessary to ensure the alien’s timely departure from the United States. In addition, commenters were concerned that the BIA will not have the immigration judge’s ability to view the alien’s credibility, which may go towards the voluntary departure determination. Separately, commenters claimed the rule did not provide an ability to challenge any BIA denial of voluntary departure under the rule. Commenters also stated that there was no mechanism to remedy an improperly served voluntary departure grant from the BIA, which would prevent the alien from being able to comply with the voluntary departure requirements and conditions and, in turn, result in an alternate order of removal. Commenters were concerned about the requirement that the voluntary departure bond must be posted within five business days, which commenters argued was too short due to the mail delivery time. Commenters were concerned that the rule only requires the conditions and consequences to be provided in writing to the alien, rather than in person like the voluntary departure regulations for the immigration courts. Commenters explained that many aliens would have difficulty understanding an Englishlanguage voluntary departure order, which could result in significant adverse consequences if they were unable to comply with the order’s requirements or conditions. Commenters noted that, in cases where an immigration judge grants another form of relief or protection, and DHS appeals the decision to the BIA, the rule would prevent the BIA from alternatively considering the alien’s voluntary departure request because, as written, the rule requires the immigration judge to have denied the voluntary departure request and the alien to have appealed that denial. However, in granting another form of relief or protection, the immigration judge would not have reached voluntary departure. One commenter requested clarification on the rule’s change VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 allowing the BIA to grant voluntary departure. First, the commenter asked if noncitizens can apply for voluntary departure in the first instance with the BIA. Second, the commenter questioned whether the rule conflicts with existing regulations prohibiting the BIA from making findings of fact. Similarly, another commenter raised concerns about cases where DHS opposes a voluntary departure grant and whether such cases require a merits hearing and fact-finding before an immigration judge. Lastly, a commenter raised concerns that this authority would shift the workload of adjudicating voluntary departure requests from immigration courts to the BIA. Response: In general, most commenters’ concerns on this issue reflected a misunderstanding of immigration court procedures and relevant law. An alien who seeks voluntary departure as a form of relief from removal must apply for it in the first instance before the immigration judge; otherwise, the alien’s opportunity to seek such relief will be deemed waived, both by the immigration judge and by the Board on appeal. 8 CFR 1003.31(c); Matter of J–Y–C–, 24 I&N Dec. at 261 n.1 (‘‘Because the respondent failed to raise this claim below, it is not appropriate for us to consider it for the first time on appeal’’); Matter of Edwards, 20 I&N Dec. at 196 n.4 (‘‘We note in passing, however, that because the respondent did not object to the entry of this document into evidence at the hearing below, it is not appropriate for him to object on appeal.’’). Thus, the alien will have necessarily already raised the issue to the immigration judge and, particularly for requests for voluntary departure under section 240B(b) of the Act,67 introduced evidence or a proffer of evidence regarding the alien’s eligibility for voluntary departure. Similarly, if the alien appeals the immigration judge’s decision, the alien must raise the issue of voluntary departure eligibility on appeal; otherwise, it would be waived. See Matter of Cervantes, 22 I&N Dec. at 561 67 Because voluntary departure pursuant to INA 240B(a), 8 U.S.C. 1229c(a), requires that the alien waives appeal of all issues, 8 CFR 1240.26(b)(1)(i)(D), the Board is unlikely to see many appeals related to that provision. Nevertheless, an alien who appeals the denial of a request for voluntary departure under INA 240B(a), 8 U.S.C. 1229c(a), will have necessarily raised that issue to the immigration judge. Similarly, by definition, in cases in which DHS appeals a grant of voluntary departure under INA 240B(a), 8 U.S.C. 1229c(a), the alien will have raised the issue and offered evidence of eligibility before the immigration judge. PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 n.1 (expressly declining to address an issue not raised by party on appeal). Thus, for the Board to even consider an alien’s eligibility for voluntary departure, the alien must have already raised the issue with the immigration judge—and with the Board if appealing the immigration judge’s adverse decision—and the record must already contain evidence—or at least a proffer of evidence—of the alien’s eligibility. Assuming that an alien did not waive the issue by failing to raise it with the immigration judge, there are no operational impediments to the Board making its own voluntary departure determination. The requirements for such relief under either 8 CFR 1240.26(b) or (c) are straightforward and involve determinations that the Board routinely already makes, e.g., whether an alien has been convicted of an aggravated felony, has good moral character, and is not deportable on national security grounds. Further, the Board routinely reviews credibility determinations made by immigration judges and is well-prepared in assessing the credibility of an alien’s assertion or proffer on appeal that he or she possesses ‘‘the means to depart the United States and . . . the intention do so.’’ 8 CFR 1240.26(c)(1)(iv).68 Most significantly, the Board already routinely reviews immigration judge decisions about voluntary departure on appeal and possesses the authority to reinstate an immigration judge’s grant of such relief. 8 CFR 1240.26(c)(3)(ii). It further already provides advisals, which are required to be in writing, related to voluntary departure if it does reinstate that relief. E.g., 8 CFR 1240.26(i) (‘‘The Board shall advise the alien of the condition provided in this paragraph in writing if it reinstates the immigration judge’s grant of voluntary departure.’’). In short, the Board already serves as a de facto adjudicator of requests for voluntary departure, and commenters did not identify a particular, realistic scenario in which the Board would be unable to discern from the record whether an alien was eligible for voluntary departure and warranted a grant of such relief as a matter of discretion, especially in cases in which an alien maintains on appeal—and, thus, necessarily asserts eligibility 68 In a case in which DHS appeals an immigration judge’s decision granting another form of relief, that the alien applied for and the immigration judge adjudicated such relief necessarily means that the alien was seeking voluntary departure under INA 240B(b) at the conclusion of proceedings. Therefore, the record below will contain evidence regarding the alien’s eligibility for voluntary departure—or else the alien would have waived the issue before the immigration judge—allowing the Board to make a determination on that application on appeal. E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations through reference to evidence already in the record—that he or she warrants voluntary departure. The purpose of the changes to allow the Board to grant voluntary departure are to increase operational efficiency by allowing the BIA to grant voluntary departure rather than first requiring remand to the immigration court. With regard to the ability of aliens to submit evidence in support of their voluntary departure requests, the Department notes that the alien must submit all relevant voluntary departure evidence to the immigration court. The BIA will then adjudicate the voluntary departure request like any other appeal by reviewing the record developed at the immigration court. See 8 CFR 1003.1(d)(7)(iv) (requiring the BIA to adjudicate voluntary departure requests ‘‘based on the record’’). Likewise, the BIA will only impose necessary conditions to ensure the alien’s timely departure based on the record on appeal. See 8 CFR 1240.26(k)(4). Responding to a commenter’s concerns about the inability to challenge a BIA denial of voluntary departure, the Department first notes that existing statutory provisions already preclude appeals of voluntary departure decisions to Federal court, and this rule does not—and could not—change those provisions. INA 242(a)(2)(B)(i), 8 U.S.C. 1252(a)(2)(B)(i) (stripping jurisdiction to review most discretionary determinations in immigration proceedings, including voluntary departure under INA 240B, 8 U.S.C. 1229c); see also INA 240B(f), 8 U.S.C. 1229c(f) (precluding judicial review of denials of voluntary departure under INA 240B(b), 8 U.S.C. 1229c(b)). Moreover, cases in which aliens seek only voluntary departure before an immigration judge—and not another form of relief such as asylum, which is commonly appealed to Federal court— require the waiver of appeal and are, thus, unlikely to be appealed to the Board in the first instance. 8 CFR 1240.26(b)(1)(i)(D). Further, where the Board has denied voluntary departure aliens are not prevented from filing motions to reopen or reconsider if applicable. See generally 8 CFR 1003.2; cf. 8 CFR 1240.26(e)(1) (providing that such a motion prior to the expiration of the voluntary departure period terminates a ‘‘grant of voluntary departure’’). In short, the rule has no impact on an alien’s existing ability to challenge the denial of a request for voluntary departure through an appeal to Federal court or a motion to reopen, and commenters’ concerns on those points are, accordingly, unpersuasive. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 With regards to commenter’s concerns about being able to post a voluntary departure bond within five days of the BIA’s decision, the Department notes that the five-day requirement remains unchanged from the existing regulations regarding the immigration courts. See 8 CFR 1240.26(c)(3)(i). It further notes that immigration judges may issue voluntary departure orders in written decisions that are mailed to aliens, and it is unaware of any noted problems with that process. Moreover, once ECAS is deployed to the BIA, registered attorneys and accredited representatives will be able to immediately view and download documents for cases with electronic records of proceeding, which will mitigate commenters’ concerns about mail service and its potential effect on complying with voluntary departure requirements. See generally EOIR, EOIR Courts & Appeals System (ECAS)—Online Filing (Oct. 5, 2020), available at https://www.justice.gov/ eoir/ECAS. Nevertheless, in recognition of the fact that Board orders are generally served by mail—unlike orders of immigration judges which are more often served in person—the final rule states that aliens will have ten business days, rather than five, to post a voluntary departure bond if the Board’s order of voluntary departure was served by mail. Further, as the Board is currently transitioning to an electronic filing system and expects to fully deploy that system within the next year, the final rule retains a period of five business days to post a voluntary departure bond if the Board’s order was served electronically. In response to commenters’ concerns about aliens being unable to understand English-language voluntary departure orders, the Department first notes that all orders, decisions, and notices issued by EOIR—including written decisions issued by an immigration judge granting voluntary departure—are in English and, likewise, all documents filed with EOIR must be in English or accompanied by an English-language translation. See, e.g., 8 CFR 1003.3(a)(3), 1003.33. Moreover, the Department does not believe that an English-language voluntary departure order, which is already used in thousands of cases every year with no noted concerns, raises any due process issues, as a reasonable recipient would be on notice that further inquiry is required. See OjedaCalderon v. Holder, 726 F.3d 669, 675 (5th Cir. 2013) (citing Nazarova v. INS, 171 F.3d 478, 483 (7th Cir. 1999) (explaining that due process does not require notices to be in a language the alien can understand)). Additionally, PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 81641 the Department notes that under longstanding practice, a BIA order reinstating voluntary departure—which is, in all material parts, an order granting voluntary departure—is already issued in English with appropriate warnings. Commenters raised no particular issues with this existing process, and the Department is unaware of any. In response to commenters’ concerns about cases in which DHS appeals a separate grant of relief or protection, the Department is making edits from the NPRM to clarify the Board’s procedure in that situation. Although cases in which an alien made multiple applications for relief or protection (including voluntary departure), an immigration judge granted at least one application but did not address the request for voluntary departure, DHS appealed the immigration judge’s decision, the BIA determined that the immigration judge’s decision was in error and that the alien’s application(s) should be denied, and the BIA found a basis to deny all other applications submitted by the respondent without needing to remand the case, leaving only the request for voluntary departure unadjudicated, should be uncommon, the Department nevertheless makes clarifying edits to 8 CFR 1240.26(k)(2) and (3) 69 to indicate that the BIA may grant voluntary departure in cases in which DHS appeals provided that the alien requested voluntary departure from the immigration judge and is otherwise eligible. In response to at least one commenter’s concern regarding the expiration of an alien’s travel documents, the Department notes that current regulations do not require the presentation of an unexpired travel document in every case. See, e.g., 8 CFR 1240.26(b)(3)(i) (presentation of a travel document for voluntary departure is not required when ‘‘[a] travel document is not necessary to return to [the alien’s] native country or to which country the alien is departing . . . [or] [t]he document is already in the possession of the [DHS].’’) Moreover, ‘‘[i]f such documentation is not immediately available to the alien, but the immigration judge is satisfied that the alien is making diligent efforts to secure it, voluntary departure may be granted for a period not to exceed 120 days, subject to the condition that the alien within 60 days must secure such 69 The Department also notes that 8 CFR 1240.26(k)(2) and (3) were duplicative in the NPRM and has further edited the provisions to remove the duplication since they apply to both types of voluntary departure under INA 240B, 8 U.S.C. 1229c. E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81642 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations documentation and present it to [DHS].’’ 8 CFR 1240.26(b)(3)(ii). The rule adopts those provisions by reference and, thus, already addresses this concern to some extent. Nevertheless, the Department is making changes to the final rule to make clear that if the record does not contain evidence of travel documentation sufficient to assure lawful entry into the country to which the alien is departing—and the alien otherwise has both asserted a request for voluntary departure and established eligibility under the other requirements—the Board may nevertheless grant voluntary for a period not to exceed 120 days, subject to the condition that the alien within 60 days must secure such documentation. In response to one commenter’s question, the Department notes that respondents cannot apply for voluntary departure in the first instance with the BIA because they would have waived that opportunity on appeal by not raising it before the immigration judge below. 8 CFR 1003.31(c); Matter of J–Y– C–, 24 I&N Dec. at 261 n.1 (‘‘Because the respondent failed to raise this claim below, it is not appropriate for us to consider it for the first time on appeal’’); Matter of Edwards, 20 I&N Dec. at 196 n.4 (‘‘We note in passing, however, that because the respondent did not object to the entry of this document into evidence at the hearing below, it is not appropriate for him to object on appeal.’’). In addition, the rule does not conflict with 8 CFR 1003.1(d)(3)(iv), which generally prohibits the BIA from engaging in fact finding. As explained in the NPRM, the rule does not allow the BIA to engage in additional fact finding if granting voluntary departure, but rather the grant ‘‘would continue to be a legal determination based upon the facts as found by the immigration judge during the course of the underlying proceedings . . . .’’ See 85 FR at 52500. Similarly, in cases where DHS opposed voluntary departure at the immigration court, the record will contain evidence of all necessary facts, or else the application would have been deemed waived or abandoned. In response to concerns about BIA workload, the Department notes that immigration judges will continue to adjudicate voluntary departure requests in the first instance. This rule merely gives the BIA the authority to grant voluntary departure if certain requirements are met, rather than inefficiently remanding the case back to the immigration judge solely to grant voluntary departure. Moreover, as noted, supra, as the BIA already reviews appeals related to voluntary departure VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 requests and possesses the authority to reinstate voluntary departure, which is the functional equivalent of granting it, simply authorizing the BIA to grant voluntary departure rather than remanding a case back to an immigration judge to take the same action imposes minimal operational burden on the Board but reduces operational inefficiency for EOIR as a whole. 4. Administrative Procedure Act: Sufficiency of 30-Day Comment Period Comment: Many commenters objected to the Department’s allowance of a 30day comment period instead of a 60-day or longer period. Commenters cited Executive Order 12866 and stated that a 60-day comment period is the standard period of time that should be provided for a complex rule like the NPRM. Commenters also stated that the 30-day comment period is insufficient in the context of the COVID–19 pandemic, which, commenters explained, has strained commenters’ ability to prepare comments due to unique childcare, work-life, and academic difficulties. In addition, commenters stated that there was insufficient time to prepare responses to this rule due to other items that were published or released during the comment period, such as the Department’s NPRM related to asylum procedures that the Department published in the final days of the comment period 70 and the Attorney General’s decision in Matter of A–C–A– A–, 28 I&N Dec. 84 (A.G. 2020). Similarly, commenters cited an NPRM that the Department jointly published with DHS in June 71 as an example of the complexity of recent rulemaking for which commenters need adequate time to prepare responses. Some commenters stated that there is no need for urgency and a short comment period given recent drops in asylum seekers at the border. Commenters argued that the Department should withdraw the rule and republish it with a longer period for public comment. Response: As an initial point, the Department notes that a far more sweeping regulatory change to the BIA’s procedures also had only a 30-day comment period, 67 FR at 54879, but that there is no evidence that period was insufficient. Further, commenters did not suggest or indicate what additional issues the comment period precluded them from addressing; to the contrary, the comments received reflect both a 70 Procedures for Asylum and Withholding of Removal, 85 FR 59692 (Sept. 23, 2020). 71 Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 36264 (June 15, 2020). PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 breadth and a level of detail which suggests that the period was more than sufficient. Cf. City of Waukesha v. EPA, 320 F.3d 228, 246 (D.C. Cir. 2003) (‘‘In [showing prejudice] in the context of a violation of notice-and-comment requirements, petitioners may be required to demonstrate that, had proper notice been provided, they would have submitted additional, different comments that could have invalidated the rationale for the revised rule.’’). Additionally, to the extent that commenters referred to other proposed rulemakings as a basis for asserting the comment period should have been longer, their comparisons are inapposite. No other proposed rulemaking cited by commenters addressed a small, discrete set of procedures which are already wellestablished and with which aliens and practitioners have been quite familiar with for decades. In short, the Department acknowledges and has reviewed commenters’ concerns about the 30-day comment period, but those comments are unavailing for all of the reasons given herein. The Department believes the 30-day comment period was sufficient to allow for meaningful public input, as evidenced by the 1,284 public comments received, including numerous detailed comments from interested organizations.72 The APA does not require a specific comment period length, see generally 5 U.S.C. 553(b)–(c), and although Executive Order 12866 recommends a comment period of at least 60 days, a 60-day period is not required. Instead, Federal courts have presumed 30 days to be a reasonable comment period length. For example, the D.C. Circuit has stated that ‘‘[w]hen substantial rule changes are proposed, a 30-day comment period is generally the shortest time period sufficient for interested persons to meaningfully review a proposed rule and provide informed comment.’’ Nat’l Lifeline Ass’n v. Fed. Commc’ns Comm’n, 921 F.3d 1102, 1117 (D.C. Cir. 2019) (citing Petry v. Block, 737 F.2d 1193, 1201 (D.C. Cir. 1984)). Further, litigation has mainly focused on the reasonableness of comment 72 The Department notes for comparison that the most significant regulatory change to the BIA’s case management process had a 30-day comment period, and the Department received comments from 68 commenters. 67 FR at 54879. Although commenters objected to the 30-day period then as they do now, there is no evidence either then or now that such a window is insufficient. To the contrary, the significant increase in comments regarding a less comprehensive change to the BIA’s case management process during a comment period of identical length strongly suggests that the 30-day period was appropriate. E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 periods shorter than 30 days, often in the face of exigent circumstances. See, e.g., N. Carolina Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755, 770 (4th Cir. 2012) (analyzing the sufficiency of a 10-day comment period); Florida Power & Light Co. v. United States, 846 F.2d 765, 772 (D.C. Cir. 1988) (15-day comment period); Northwest Airlines, Inc. v. Goldschmidt, 645 F.2d 1309, 1321 (8th Cir. 1981) (7day comment period). Here, the significant number of detailed public comments is evidence that the 30-day period was sufficient for the public to meaningfully review and provide informed comment. See, e.g., Little Sisters of the Poor Saints Peter and Paul Home, 140 S. Ct. at 2385 (‘‘The object [of notice and comment], in short, is one of fair notice.’’ (citation omitted)). The Department also believes that the COVID–19 pandemic has no effect on the sufficiency of the 30-day comment period. Employers around the country have adopted telework flexibilities to the greatest extent possible, and the Department believes that interested parties can use the available technological tools to prepare their comments and submit them electronically. Indeed, nearly every comment was received in this manner. Further, some of the issues identified by commenters—e.g., childcare—would apply regardless of the length of the comment period and would effectively preclude rulemaking by the Department for the duration of the COVID–19 outbreak. The Department finds no basis to suspend all rulemaking while the COVID–19 outbreak is ongoing. The Department acknowledges that particular commenters may have faced individual personal circumstances which created challenges to commenting, but that assertion is true of every rulemaking. Further, there is no evidence of a systemic inability of commenters to provide comments based on personal circumstances, and commenters’ assertions appear to reflect a desire to slow the rulemaking due to policy disagreements rather than an actual inability to comment on the rule.73 73 The Department also notes that several portions of the rule, e.g., the changes to 8 CFR 1003.1(e)(8) and (k), reflect either internal delegations of authority and assignment of responsibility or matters of agency management, personnel, organization, procedure, or practice, making those portions a rule exempt from any period of notice and comment under the APA. 5 U.S.C. 553(a)(2), (b)(A). An internal delegation of administrative authority does not adversely affect members of the public and involves an agency management decision that is exempt from the notice-andcomment rulemaking procedures of the APA. See United States v. Saunders, 951 F.2d 1065, 1068 (9th VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 Overall, based on the breadth and detail of the comments received, the Department’s prior experience with a 30-day comment period for a much more sweeping change to BIA procedures, the rule’s codification of established law with which practitioners and aliens are already familiar, the discrete and clear nature of the issues presented in the NPRM, the electronic receipt of most comments, and the essential nature of legal services even during the outbreak of COVID–19, the Department maintains that a 30-day comment period was ample for the public to comment on this rule. In short, none of the circumstances alleged by commenters appears to have actually limited the public’s ability to meaningfully engage in the notice and comment period, and all available evidence provided by commenters indicates that the comment period was sufficient. 5. Concerns With Regulatory Requirements Comment: Commenters generally expressed concern that the Department did not comply with Executive Orders 12866 and 13563 because the Departments did not adequately consider the costs and possible alternatives to the provisions in the rule due to the significance of many of the rule’s provisions. For example, one commenter asserted that removing the ability to reopen or reconsider cases via sua sponte authority constitutes ‘‘significant regulatory action’’ that would trigger a cost and benefits analysis, as required by Executive Order 13563. The commenter stated that the Department should have conducted a cost and benefits analysis for alternatives to the rule, including preserving the current system and defining ‘‘exceptional circumstances.’’ The commenter Cir. 1991) (delegations of authority have ‘‘no legal impact on, or significance for, the general public,’’ and ‘‘simply effect[] a shifting of responsibilities wholly internal to the Treasury Department’’); Lonsdale v. United States, 919 F.2d 1440, 1446 (10th Cir. 1990) (‘‘APA does not require publication of [rules] which internally delegate authority to enforce the Internal Revenue laws’’); United States v. Goodman, 605 F.2d 870, 887–88 (5th Cir. 1979) (unpublished delegation of authority from Attorney General to Acting Administrator of the Drug Enforcement Agency did not violate APA); Hogg v. United States, 428 F.2d 274, 280 (6th Cir. 1970) (where taxpayer would not be adversely affected by the internal delegations of authority from the Attorney General, APA does not require publication). Thus, to the extent that commenters complained about the sufficiency of the comment period regarding those provisions not subject to the APA’s notice-and-comment requirements, such complaints are also unavailing because commenters were not entitled to a comment period in the first instance. PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 81643 predicted that the costs would be lower and the benefits higher if the Departments simply defined ‘‘exceptional circumstances’’ rather than entirely remove sua sponte authority.’’ Similarly, commenters claimed that the rule does not comply with Executive Orders 12866 and 13563 because EOIR did not assess the costs and benefits of available alternatives to prohibiting the general use of administrative closure, including better tracking of administratively closed cases or regulatory changes requiring the parties to notify the court when ancillary relief is adjudicated. Commenters also noted that EOIR did not weigh the costs of unnecessary removal orders that the administrative closure prohibition will cause and the effect on applicants and their families or the costs from the rule’s effects on eligibility for unlawful presence waivers before DHS. Similarly, commenters stated that EOIR should consider the reliance interests of adjustment of status applicants who were relying on a grant of administrative closure in order to apply for a provisional unlawful presence waiver. Likewise, a commenter stated that EOIR should consider the effect on legal representation agreements since the rule would render agreements to pursue administrative closure in order to apply for provisional unlawful presence waivers moot. The commenter also claimed that the rule violates Executive Order 13563’s requirement to harmonize rules because it contravenes 8 CFR 212.7(e)(4)(iii). Response: As an initial point, the Department has addressed many of these comments, supra, particularly regarding proposed alternatives, and it reiterates and incorporates those discussions by reference here. Additionally, commenters assume or conjecture, without evidence, that cases which are administratively closed would otherwise necessarily result in removal orders. As each case is adjudicated on its own merits in accordance with the evidence and applicable law, the Department declines to accept such a sweeping unsubstantiated generalization and finds comments based on such a generalization unpersuasive accordingly. The Department agrees with the commenter that the NPRM constitutes a ‘‘significant regulatory action.’’ 85 FR at 52509. The Department drafted the rule consistent with the principles of Executive Orders 12866 and 13563 and submitted the rule to the Office of Management and Budget. Id. Nevertheless, because the Department believes associated costs will be E:\FR\FM\16DER3.SGM 16DER3 81644 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 negligible, if any, the Department determined that no numeric cost benefit analysis was necessary. As most of the rule is directed at internal case processing, it would substantially improve the quality and efficiency of the BIA appellate procedure while not imposing new costs on the public.74 In response to administrative closurerelated concerns regarding compliance with Executive Orders 12866 and 13563, the Departments have weighed the relevant costs and benefits of the rule’s administrative closure change in accordance with Executive Orders 12866 and 13563. The Department does not believe that the administrative closure changes will have a significant impact on the public, as most immigration courts—all but those in Arlington, Baltimore, Charlotte, and Chicago 75—currently follow either Matter of Castro-Tum itself or an applicable Federal court decisioning affirming it, e.g., Hernandez-Serrano, 2020 WL 6883420 at *5 (‘‘In summary, therefore, we agree with the Attorney General that §§ 1003.10 and 1003.1(d) do not delegate to IJs or the Board ‘the general authority to suspend indefinitely immigration proceedings by administrative closure.’ ’’ (quoting Matter of Castro-Tum, 27 I&N Dec. at 272)). Therefore, the effect of this rule 74 The Department notes that a prior, more comprehensive revision of the BIA’s case management process did not contain a numeric cost-benefit analysis of the type suggested by commenters. 67 FR at 54900. Moreover, commenters did not identify what metrics would be appropriate to use to measure, for example, whether the BIA granted a motion to reopen sua sponte in contravention of Matter of J–J– or the predictive outcome of a case that has been administratively closed. The Department is unaware of any established measures of adherence to the law by adjudicators or for case processing questions that turn on the specific facts of each case. In the absence of such measures—and granular data which could be utilized to fulfill them—the Department asserts that its qualitative assessment of the costs and benefits of the rule in the NPRM and in the final rule, in concert with the rule’s review by OMB, satisfies the requirements of the relevant Executive Orders. 75 The Department notes that Matter of CastroTum did not incorporate all of the legal arguments presented in the NPRM regarding whether immigration judges and Board members have freefloating authority to defer adjudication of cases. E.g., 85 FR at 52503 (discussing tension created by interpreting 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to allow free-floating authority to administratively close cases with references in those provisions to the ‘‘disposition’’ of cases and with the provisions of 8 CFR 1003.1(a)(2)(i)(C) and 1003.9(b)(3) which assign authority to defer case adjudications to the Board Chairman and the Chief Immigration Judge rather than to all Board members and all immigration judges). Thus, circuit court decisions abrogating Matter of Castro-Tum did not necessarily address those arguments. Accordingly, independent of Matter of Castro-Tum, immigration judges and Board members may still come to the conclusion that they generally lack free-floating authority to administratively close cases. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 would simply codify the existing limitations on immigration judges’ general authority to grant administrative closure. For those courts that are not bound by Matter of Castro-Tum, the Department disagrees that the change will result in unnecessary removal orders, as immigration judges are tasked with resolving the proceedings before them, including determining removability and issuing removal orders if required. See, e.g., 8 CFR 1003.10(b) (‘‘In all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the Act and regulations.’’). The Department cannot credit commenters’ counter-factual speculation as to the likely outcomes of cases that have been administratively closed, for as the Department discussed, supra, aliens have opposed administrative closure in individual cases because it interfered with their ability to obtain relief. As the Department asserted, freefloating authority to unilaterally administratively close cases is in significant tension with existing law, including regulations and longstanding Board case law. 85 FR at 52503–05. To the extent that commenters suggested the Department should consider alternatives to the rule that retain that tension with existing law, the Department finds those suggestions unpersuasive. See Hernandez-Serrano, 2020 WL 6883420 at *1, *4 (‘‘A regulation delegating to immigration judges authority to take certain actions ‘[i]n deciding the individual cases before them’ does not delegate to them general authority not to decide those cases at all. Yet in more than 400,000 cases in which an alien was charged with being subject to deportation or (after April 1, 1997) removal, immigration judges or the Board of Immigration Appeals have invoked such a regulation to close cases administratively—meaning the case was removed from the IJ’s docket without further proceedings absent some persuasive reason to reopen it. As of October 2018, more than 350,000 of those cases had not been reopened. An adjudicatory default on that scale strikes directly at the rule of law. . . . [N]o one—neither Hernandez-Serrano, nor the two circuit courts that have rejected the Attorney General’s decision in Castro-Tum—has explained how a general authority to close cases administratively can itself be lawful while leading to such facially unlawful results.’’). Further, in addition to not resolving the legal issues raised by the view that immigration judges and Board members PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 possess some intrinsic, freestanding authority to administratively close cases, commenters’ proposed alternatives suffer from other infirmities or do not otherwise address the problem identified. For example, commenters did not explain why additional tracking of administratively closed cases and a requirement that parties notify the court of a situational change would effectively resolve the legal or policy issues presented. In fact, the Department already tracks administratively closed cases, EOIR, Adjudication Statistics: Administratively Closed Cases [hereinafter Administratively Closed Cases], Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/ 1061521/download, and the parties should already be notifying an immigration court or the Board if the basis for an order of administrative closure changes; 76 yet, those items have not resolved the problems with administrative closure identified in the NPRM. The question of unlawful presence waivers was already addressed by Matter of Castro-Tum, 27 I&N Dec. at 278 n.3, 287 n.9, and this final rule does not impact such waivers accordingly. Moreover, the regulation identified by commenters, 8 CFR 212.7(e)(4)(iii), has no analogue in chapter V of title 8, and that regulation is not binding on the Department. Further, such a waiver is both ‘‘provisional’’ and ‘‘discretionary,’’ 8 CFR 212.7(e)(2)(i), and like administrative closure itself, an alien has no right to such a waiver. Further, although aliens in removal proceedings (unless administratively closed) and aliens with administratively final orders of removal are barred from obtaining the waiver, 8 CFR 212.7(e)(4)(iii) and (iv), an alien with an administratively final order of voluntary departure is not, and by definition, aliens must voluntarily depart the United States in order to receive the benefit of such a waiver. Although the Department has considered the link between such waivers and administrative closure— just as the Attorney General did in Matter of Castro-Tum—that link is too attenuated to outweigh the significant legal and policy concerns raised by the Department regarding administrative closure.77 76 As representatives are officers of an immigration court and have professional responsibility obligations of candor toward the immigration court, parties with representation should already be notifying an immigration court of a relevant change that would affect the grant of administrative closure. 77 For similar reasons, the Department finds that this rule does not violate Executive Order 13563 regarding harmonization. To the contrary, the final E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 Similarly, concerns about putative reliance interests are misplaced. First, as discussed, infra, the rule applies, in general, only prospectively, so it does not disturb cases that have already been administratively closed. Second, and relatedly, all changes in the law may impact matters of attorney strategy in interactions with clients, but that is an insufficient basis to decline to change the law.78 To find otherwise would effectively preclude any law from ever being changed. Third, nothing in the rule prohibits a practitioner from seeking administrative closure; rather, it more clearly delineates the situations in which administrative closure is legally authorized. Fourth, a representative may not ethically guarantee any result in a particular case; thus, to the extent commenters suggest that the final rule restricts or interferes with an attorney’s ability to guarantee an alien both a grant of administrative closure and the approval of a provisional waiver, the Department finds such a suggestion unavailing. See Model Rules Prof’l Conduct R. 7.1 cmt. 3 (2020) (‘‘A communication that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.’’), cmt. 4 (‘‘It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’’) (quoting r. 8.4(c)), and r.8.4(e) (‘‘It is professional misconduct for a lawyer to . . . state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law’’). In short, the Department appropriately considered potential alternatives as well as the relevant interests and alleged costs in issuing the rule promotes regulatory harmonization because it establishes consistency—and eliminates superfluousness—with the authority of the Board Chairman and the Chief Immigration Judge to defer case adjudications as established in 8 CFR 1003.1(a)(2)(i)(C) and 8 CFR 1003.9(b)(3). As discussed, supra, it also harmonizes briefing schedules between detained and non-detained appeals and harmonizes the starting point for the adjudicatory deadlines for appeals heard by single BIA members and by three-member panels. In short, the rule promotes harmonization of regulatory requirements in multiple ways. 78 Furthermore, as Matter of Castro-Tum was issued in 2018, aliens and their representatives in jurisdictions following Castro-Tum should not be currently relying on the expectation of administrative closure to pursue provisional unlawful presence waivers. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 final rule regarding administrative closure. On balance, however, the alternatives are either unavailing or would not resolve the issues identified by the Department, and the concerns raised by commenters are far outweighed by both the significant legal and policy issues raised by the Department in the NPRM regarding administrative closure and the increased efficiency and consistency that a formal clarification of its use will provide. With regards to the costs to persons in removal proceedings who may no longer be eligible to obtain a provisional unlawful presence waiver without administrative closure, the Department believes that the strong interest in the efficient adjudication of cases and the legal and policy issues identified in the NPRM outweigh the potential inability of these persons to obtain provisional unlawful presence waivers, something to which they are not entitled to in the first instance. The Department notes that these persons may still apply for an unlawful presence waiver from outside the United States, and that DHS may choose, as a matter of policy, to amend their regulations to remove the administrative closure requirement for persons in removal proceedings applying for a provisional waiver. Moreover, as Matter of Castro-Tum was issued in 2018, aliens and their representatives in jurisdictions following Castro-Tum should not be currently relying on the expectation of administrative closure to pursue provisional unlawful presence waivers. The Department also disagrees that the general prohibition on administrative closure does not harmonize with DHS regulations regarding provisional unlawful presence waivers. The Department considered the interplay of EOIR and DHS’s regulations and, due to the strong equities in favor of limiting administrative closure, decided to continue with a general prohibition on administrative closure in immigration proceedings before EOIR. DHS chose to limit the eligibility for provisional unlawful presence waivers as a matter of policy, and DHS may choose to update their more specific regulations accordingly as a result of this rule. In sum, the Department’s analysis fully complied with all relevant Executive Orders, and OMB has appropriately reviewed the rule.79 79 The Department notes that in formulating the NPRM, it also considered other alternatives as well to promote more efficient BIA processing of appeals. For example, the BIA reviewed prior suggestions to charge respondents filing and transcript fees more commensurate with the actual costs of the proceedings or to make all appeals to PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 81645 Comment: At least one commenter stated that the Department failed to adequately consider the costs of the rule on small entities, particularly immigration practitioners, under the Regulatory Flexibility Act (RFA). The commenter predicted that the rule would have a variety of effects of the finances of these practitioners, such as the need for additional appeals in Federal courts or limits on the number of cases a practitioner can ethically accept due to shortened filing deadlines. Response: As the Department stated in the proposed rule, this rule ‘‘does not limit the fees [practitioners] may charge, or the number of cases a representative may ethically accept under the rules of professional responsibility.’’ 85 FR at 52509. Moreover, the comments assume, without evidence, that the rule will lead only to adverse outcomes for aliens and, thus, more appeals to Federal court. As noted, supra, that unsubstantiated generalization presumes that cases will be adjudicated either unethically or incompetently, and the Department declines to engage in such unfounded conjecture. As also noted, supra, the change in filing deadlines falls principally on DHS, and commenters neither acknowledged that point nor explained why a change in filing deadlines that affects few nongovernment practitioners would have a widespread effect of limiting many practitioners’ caseloads. Additionally, although the shortened filing deadlines may change when a particular brief is due to the BIA, the Department disagrees with the commenter’s speculation that it would change the overall amount of time required to prepare that brief or related filings, which is determined by the relative complexity of the case. The rule sets no limits on how many cases an ethical and competent attorney may accept, all courts set filing deadlines, and all ethical and competent attorneys will adjust their practices as needed accordingly. Contrary to an implicit assertion by commenters, the intent of the Board’s current practices is not to provide or ensure a minimum level of employment for practitioners; rather, the intent is to provide a fair and efficient system for adjudicating appeals. Consequently, any effects on employment of practitioners due to changes in those procedures are both minimal and incidental or ancillary at most; moreover, to the extent that an ancillary effect would be the provision the BIA discretionary. 67 FR at 54900. Although the Department may revisit those proposals in the future, they were not incorporated into the NPRM and are not being included in the final rule accordingly. E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81646 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations of representation by a larger cohort of practitioners, as logically intimated by commenters who claim that the rule will limit cases handled by individual practitioners, commenters did not explain why such an effect is necessarily unwelcome. In short, despite commenters’ unfounded speculation, the Department finds that further analysis under the RFA is not warranted. The Department has reviewed this rule in accordance with the RFA, 5 U.S.C. 601–612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104– 121, tit. II, Mar. 29, 1996, 110 Stat. 847, and has determined that this rule would not have a significant economic impact on a substantial number of small entities. The rule will not economically impact representatives of aliens in immigration proceedings. It does not limit the fees they may charge or the number of cases a representative may ethically accept under the rules of professional responsibility. Moreover, this determination is consistent with the Department’s prior determination regarding much more sweeping changes to procedures before the Board. See 67 FR at 54900 (‘‘The Attorney General, in accordance with 5 U.S.C. 605(b), has reviewed this rule and, by approving it, certifies that it affects only Departmental employees, aliens, or their representatives who appear in proceedings before the Board of Immigration Appeals, and carriers who appeal decisions of [DHS] officers. Therefore, this rule does not have a significant economic impact on a substantial number of small entities.’’). The Department is unaware of any challenge to that determination regarding its 2002 rulemaking which significantly streamlined Board operations and made greater changes to Board procedures, including altering the Board’s standard of review for credibility determinations, than this final rule. The Department thus believes that the experience of implementing that prior, broader rule also supports its conclusion that there is no evidence that this final will have a significant impact on small entities as contemplated by the RFA. Additionally, the portions of the rule related to administrative closure would not regulate ‘‘small entities’’ as that term is defined in 5 U.S.C. 601(6). That portion of the rule applies to aliens in immigration proceedings, who are individuals, not entities. See 5 U.S.C. 601(6). Nothing in that portion of the rule in any fashion regulates the legal representatives of such individuals or the organizations by which those VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 representatives are employed, and the Departments are unaware of cases in which the RFA’s requirements have been applied to legal representatives of entities subject to its provisions, in addition to or in lieu of the entities themselves. See 5 U.S.C. 603(b)(3) (requiring that an RFA analysis include a description of and, if feasible, an estimate of the number of ‘‘small entities’’ to which the rule ‘‘will apply’’). To the contrary, case law indicates that indirect effects on entities not regulated by a proposed rule are not subject to an RFA analysis. See, e.g., Mid-Tex Elec. Co-op, Inc. v. FERC, 773 F.2d 327, 342–43 (D.C. Cir. 1985) (‘‘[W]e conclude that an agency may properly certify that no regulatory flexibility analysis is necessary when it determines that the rule will not have a significant economic impact on a substantial number of small entities that are subject to the requirements of the rule . . . . Congress did not intend to require that every agency consider every indirect effect that any regulation might have on small businesses in any stratum of the national economy. That is a very broad and ambitious agenda, and we think that Congress is unlikely to have embarked on such a course without airing the matter.’’); Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 869 (D.C. Cir. 2001) (‘‘Contrary to what [petitioner] supposes, application of the RFA does turn on whether particular entities are the ‘targets’ of a given rule. The statute requires that the agency conduct the relevant analysis or certify ‘no impact’ for those small businesses that are ‘subject to’ the regulation, that is, those to which the regulation ‘will apply.’. . . The rule will doubtless have economic impacts in many sectors of the economy. But to require an agency to assess the impact on all of the nation’s small businesses possibly affected by a rule would be to convert every rulemaking process into a massive exercise in economic modeling, an approach we have already rejected.’’ (citing Mid-Tex, 773 F.2d 327 at 343)); see also White Eagle Co-op Ass’n v. Conner, 553 F.3d 467, 480 (7th Cir. 2009) (‘‘The rule that emerges from this line of cases is that small entities directly regulated by the proposed [rulemaking]—whose conduct is circumscribed or mandated—may bring a challenge to the RFA analysis or certification of an agency . . . . However, when the regulation reaches small entities only indirectly, they do not have standing to bring an RFA challenge.’’). Further, the Department has consistently maintained this position PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 regarding immigration regulations aimed at aliens, rather than practitioners who represent aliens, including much broader and more sweeping rulemakings. See, e.g., Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 FR 444, 453 (Jan. 3, 1997) (certifying that the rule would not have a significant impact on a substantial number of small entities because it ‘‘affects only Federal government operations’’ by revising the procedures for the ‘‘examination, detention, and removal of aliens’’). That conclusion was reiterated in the interim rule, 62 FR at 10328, which was adopted with no noted challenge or dispute. The parts of this final rule related to administrative closure are similar, in that they, too, affect only the operations of the Federal government. In short, the Department reiterates its determination that there is no evidence that this final will have a significant impact on small entities as contemplated by the RFA. 6. Miscellaneous a. Retroactivity Concerns Comment: Some commenters expressed concerns that the rule will have an impermissible retroactive effect. First, at least one commenter argued that making the provisions regarding changes to administrative closure and sua sponte reopening authority effective on the date of publication to pending cases would have impermissible retroactive effect because doing so would impair the rights that asylum applicants have under current law. Second, at least one other commenter noted that even making changes applicable only to new appellate filings fails to account for downstream effects of the rule that could influence a respondent’s filings or other decisions before the immigration judge. Finally, at least one commenter stated that the Department has not sufficiently considered the costs to respondents of the retroactive elements of the rule. Response: As noted, supra, the Department is clarifying the generally prospective temporal application of the rule. The provisions of the rule applicable to appellate procedures and internal case processing at the BIA apply only to appeals filed, motions to reopen or reconsider filed, or cases remanded to the Board by a Federal court on or after the effective date of the final rule. As the withdrawal of a delegation of authority by the Attorney General, the provisions of the rule related to the restrictions on sua sponte E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 reopening authority are effective for all cases, regardless of posture, on the effective date.80 The provisions of the rule related to restrictions on the BIA’s certification authority are effective for all cases in which an immigration judge issues a decision on or after the effective date. The provisions of the rule regarding administrative closure are applicable to all cases initiated by a charging document filed by DHS, reopened, or recalendared on or after the effective date.81 Commenters are incorrect that the rule’s amendments regarding authority over administrative closure and sua sponte reopening authority would have impermissible retroactive effect. First, as noted supra, the change regarding administrative closure generally applies prospectively and merely codifies the status quo for all but four immigration courts nationwide. Second, there is no right to sua sponte reopening or even to file such a cognizable motion. There is similarly no right to administrative closure. Thus, these changes do not remove any ‘‘vested rights’’ from aliens. In addition, in the context of the changes regarding administrative closure, the Department emphasizes that the alien may continue to proceed with their relief applications before USCIS and seek continuances before EOIR, see Matter of L–A–B–R–, 27 I&N Dec. 405. Similarly, aliens may continue to utilize motions to reopen, including those filed as joint motions or those based on equitable tolling, in lieu of filing improper motions to reopen sua sponte. Commenters broad and generalized concerns about alleged downstream effects are wholly speculative and do 80 As discussed, supra, neither party possesses a right to file a ‘‘motion to reopen sua sponte,’’ and such a motion is, in fact, an ‘‘oxymoron.’’ Thus, the restrictions on the use of that authority have no impact on the parties’ ability to seek use of that authority, regardless of the current status of a case. 81 To the extent that the rule merely codifies existing law or authority, however, nothing in the rule precludes adjudicators from applying that existing authority to pending cases independently of the generally prospective application of the rule. For example, the Department notes that independent of the final rule, the Attorney General’s decision in Matter of Castro-Tum, 27 I&N Dec. 271, remains binding and applicable to all pending cases, except in the Fourth and Seventh Circuits. See INA 103(a)(1), 8 U.S.C. 1103(a)(1) (‘‘[D]etermination and ruling by the Attorney General with respect to all questions of law [as to the INA and other laws relating to the immigration and naturalization of aliens] shall be controlling’’); INA 103(g)(2), 8 U.S.C. 1103(g)(2) (‘‘The Attorney General shall . . . review such administrative determinations in immigration proceedings . . . as the Attorney General determines to be necessary for carrying out [his authorities].’’); 8 CFR 1003.1(g)(1) (‘‘[D]ecisions of the Attorney General are binding on all officers and employees of DHS or immigration judges in the administration of the immigration laws of the United States.’’). VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 not account for either the case-by-case nature of adjudication or the factintensive nature of many cases. Hypothetical effects on procedural choices and tactical decisions related to an alien’s claims in future cases, including those that have not even been filed or reopened, are not impositions on an alien’s legal rights in a manner that has retroactivity concerns. Finally, as commenters’ concerns about retroactivity of the rule are unfounded for the reasons given, their concerns about alleged costs imposed by such ‘‘retroactivity’’ are similarly unfounded.82 b. Creation of Independent Immigration Courts Comment: Multiple commenters stated that the rule highlighted the need for the immigration courts and immigration judges to be ‘‘independent’’ and outside the Executive branch and political influence. Response: These commenters’ recommendations are both beyond the scope of this rulemaking and the Department’s authority. Congress has provided for a system of administrative hearings for immigration cases, which the Departments believe should be maintained. See generally INA 240, 8 U.S.C. 1229a (laying out administrative procedures for removal proceedings); cf. Strengthening and Reforming America’s Immigration Court System: Hearing before the Subcomm. On Border Sec. & Immigration of the S. Comm. on the Judiciary, 115th Cong. (2018) (written response to Questions for the Record of James McHenry, Director, Executive Office for Immigration Review) (‘‘The financial costs and logistical hurdles to implementing an Article I immigration court system would be monumental and would likely delay pending cases even further.’’). Only Congress has the authority to create a new Article I court or other changed framework for the adjudication of immigration cases. Finally, the Department reiterates that immigration judges and Board members already exercise ‘‘independent judgment and discretion’’ in deciding cases, 8 CFR 1003.1(d)(1)(ii) and 1003.10(b), and are prohibited from considering political influences in their decision-making, BIA Ethics and Professionalism Guide at sec. VIII (‘‘A Board Member should not be swayed by partisan interests or public 82 In addition, the Department notes that the commenter cited INS v. St. Cyr, 533 U.S. 289, 316 (2001) in support of the argument that the Department failed to consider costs, but the relevant discussion by the Supreme Court in that case is dicta surrounding the reasons that courts must first consider if Congress intended for legislative to have retroactive effect. PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 81647 clamor.’’), IJ Ethics and Professionalism Guide at sec. VIII (‘‘An Immigration Judge should not be swayed by partisan interests or public clamor.’’). Thus, contrary to commenters’ assertions, immigration judges and Board members are already independent adjudicators who do not render decisions based on political influence or political interests. As commenters’ claims are unfounded in law or practice—and beyond the scope of this rulemaking—the Department declines to address them further. c. Transactional Records Access Clearinghouse (TRAC) Report Comment: Several commenters objecting to the NPRM’s provisions regarding administrative closure pointed to a press announcement and web page by TRAC, issued on September 10, 2020, during the comment period.83 See TRAC, What’s New: The Life and Death of Administrative Closure, Sept. 10, 2020, available at https://trac.syr.edu/ whatsnew/email.200910.html (last visited Nov. 25, 2020), and TRAC, The Life and Death of Administrative Closure, Sept. 10, 2020, available at https://trac.syr.edu/immigration/ reports/623/ (last visited Nov. 25, 2020) (‘‘TRAC Report’’). Commenters asserted that TRAC’s analysis undermined the Department’s bases for the rule related to administrative closure. Response: The Department has reviewed the TRAC Report referenced by commenters but finds it both unpersuasive as a basis for commenters’ suggestions to revise the final rule and largely inapposite to the issue overall. As an initial point, the TRAC Report does not address any of the legal issues surrounding administrative closure raised by the NPRM. 85 FR at 52503–05. Thus, for example, it does not address the existing regulations’ references to the ‘‘disposition’’ of a case, the superfluousness issue raised by existing regulations for the Board Chairman and the Chief Immigration Judge allowing them to defer adjudication of cases, or the propriety of authorizing an immigration judge or Board Member to infringe upon the prosecutorial discretion of DHS. Without engaging the Department’s legal concerns, the utility and persuasiveness of the TRAC Report are inherently limited. TRAC’s broader claims regarding administrative closure, framed by commenters as a policy challenge to the 83 Although several commenters cited the TRAC report, TRAC itself did not submit a comment on the NPRM and appears not to have taken a position on it. E:\FR\FM\16DER3.SGM 16DER3 81648 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 Department’s position, also provide little support for revising the rule. TRAC listed four conclusions it derived from data analysis on EOIR data 84 regarding administratively closed cases. Those conclusions, however, are of limited probative value and do not undermine the Department’s foundations for the rule. TRAC’s first conclusion is that ‘‘administrative closure has been routinely used by Immigration Judges to manage their growing caseloads as well as manage the unresolved overlapping of jurisdictions between the EOIR and other immigration agencies.’’ TRAC Report, supra. No one, including the Department, has disputed that immigration judges previously used administrative closure. See, e.g., Administratively Closed Cases. There is no evidence, however, that it was used effectively to manage caseloads—in the sense of resolving cases more efficiently—or used to resolve issues of overlapping jurisdiction,85 and TRAC does not provide evidence to the contrary. TRAC merely states the historical frequency of the usage of administrative closure, which is a statement not in dispute or of particular relevance to the rule. Moreover, TRAC’s conclusory observation that ‘‘[a]dministrative closures have allowed judges to temporarily close cases and take them off their active docket either because judges wish to focus limited resources on higher priority removal cases or because jurisdictional issues were prolonging the case’’ is doubtful for several reasons. See Hernandez-Serrano, 2020 WL 6883420 at *4 (‘‘To the contrary, the regulations expressly limit their delegation to actions ‘necessary for the disposition’ of the case. And that more restricted delegation cannot support a decision not to decide the case for reasons of administrative ‘convenience’ or the ‘efficient management of the resources of the immigration courts and the BIA.’ ’’ (cleaned up, emphasis in original)). As both TRAC and the Department have noted, administratively closed cases are not ‘‘temporarily’’ closed in any realistic sense of the word; rather, they are taken off the docket for either at least three years (according to TRAC) or at least 10 84 The Department does not know what analytics TRAC performed or the precise methods and definitions it employed. Accordingly, the Department cannot speak to the accuracy of TRAC’s results. Even assuming the results are accurate, however, TRAC’s assertions—and commenters’ reliance on them—are unpersuasive for the reasons given. 85 TRAC does not explain what it means by ‘‘overlapping jurisdiction’’ and does not elaborate further on the point in its Report. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 years (Administratively Closed Cases). See id. at *1, *4 (‘‘A regulation delegating to immigration judges authority to take certain actions ‘[i]n deciding the individual cases before them’ does not delegate to them general authority not to decide those cases at all. Yet in more than 400,000 cases in which an alien was charged with being subject to deportation or (after April 1, 1997) removal, immigration judges or the Board of Immigration Appeals have invoked such a regulation to close cases administratively—meaning the case was removed from the IJ’s docket without further proceedings absent some persuasive reason to reopen it. As of October 2018, more than 350,000 of those cases had not been reopened. An adjudicatory default on that scale strikes directly at the rule of law. . . [N]o one. . . has explained how a general authority to close cases administratively can itself be lawful while leading to such facially unlawful results.’’). Further, administrative closure does not resolve legal questions of jurisdiction, and even if it did, TRAC does not explain why prolonging a case through administrative closure would address the issue of cases already prolonged due to jurisdictional questions. Further, TRAC does not explain why it is appropriate for an immigration judge to choose which cases are a ‘‘priority’’ rather than DHS, who—unlike EOIR and immigration judges—is statutorily tasked by Congress with ‘‘[e]stablishing national immigration enforcement policies and priorities.’’ Homeland Security Act of 2002, Public Law 107–296, sec. 402(5), Nov. 25, 2002, 116 Stat. 2135, 2178 (codified at 6 U.S.C. 202(5)). For all of these reasons, TRAC’s first conclusion, to the extent it is relied on by commenters, does not provide a persuasive basis for altering the rule. TRAC’s second conclusion, ‘‘administrative closure has helped reduce the backlog,’’ is patently incorrect, as both the Department and TRAC’s own data establishes. TRAC Report, supra. As TRAC acknowledges, ‘‘[a]dministrative closure does not terminate a case, it does not provide permanent relief from deportation, and it does not confer lawful status of any kind.’’ TRAC Report, supra; see also Matter of Amico, 19 I&N Dec. 652, 654 n.1 (BIA 1988) (‘‘The administrative closing of a case does not result in a final order.’’); Matter of Lopez-Barrios, 20 I&N Dec. at 204 (‘‘However, [administrative closure] does not result in a final order.’’). Consequently, because administrative closure is not a disposition of a case and does not result in a final order, the case remains PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 pending, albeit inactive. In other words, the removal of the case from an active docket does not make the case disappear; thus, administratively closed cases contribute to the overall tally of pending cases—colloquially called a ‘‘backlog’’—just as much as active cases do. Both TRAC’s data and the Department’s data, EOIR, Adjudication Statistics: Active and Inactive Pending Cases, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/ 1139516/download, show that the pending caseload, including both active and inactive cases, has grown considerably in recent years.86 This growth has occurred for reasons other than administrative closure, particularly since 2017. Nevertheless, the increase in the use of administrative closure beginning in FY 2012 did not reduce the overall pending caseload, contrary to the assertions of TRAC and commenters. TRAC’s third conclusion, ‘‘data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status,’’ is both arguable as an assertion of fact and, ultimately of little relevance to the rule. TRAC Report, supra. According to TRAC’s data, only 16 percent of aliens were awarded relief after their cases were administratively closed, whereas 40 percent were ordered removed or received an order of voluntary departure.87 Id. Those numbers belie the 86 TRAC itself has issued reports since at least 2009 noting the annual growth in the pending caseload which it terms a backlog. TRAC Immigration Reports, Immigration Courts, available at https://trac.syr.edu/phptools/reports/ reports.php?layer=immigration&report_type=report (last visited Nov. 24, 2020). TRAC also noted this increase in the pending caseload even at the height of the use of administrative closure between 2012 and 2018. Compare TRAC Immigration Reports, Once Intended to Reduce Immigration Court Backlog, Prosecutorial Discretion Closures Continue Unabated (Jan. 15, 2014), available at https:// trac.syr.edu/immigration/reports/339/ (last visited Nov. 25, 2020) (use of administrative closure was intended ‘‘as a program to clear cases from the accumulated court backlog’’) with TRAC Immigration Reports, Immigration Court Backlog Keeps Rising (May 15, 2015), available at https:// trac.syr.edu/immigration/reports/385/ (last visited Nov. 25, 2020) (caseload still increasing in 2015) and TRAC Immigration Reports, Immigration Backlog Still Rising Despite New Judge Investitures (July 19, 2016), available at https://trac.syr.edu/ immigration/reports/429/ (last visited Nov. 25, 2020) (caseload still increasing in 2016). 87 TRAC reports that 44 percent of cases resulted in the termination of proceedings after being administratively closed, which TRAC intuits to mean there was no longer a valid ground to remove the alien. As terminations may result from different bases, however, it is not clear that every termination resulted from the vitiation of grounds of removal against an alien. Moreover, TRAC’s analysis does not consider whether the terminations were proper under the law, which was recently clarified by the Attorney General. See Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 468 (A.G. 2018) (‘‘As discussed E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 assertion that aliens whose cases have been administratively closed are likely to obtain lawful status.88 Moreover, whatever outcomes may or may not result following the administrative closure of a case, those outcomes, which are based on specific evidence in each case and applicable law and may cut both for and against the parties, do not effectively outweigh the concerns noted by the Department in issuing the rule. TRAC’s fourth conclusion, ‘‘the EOIR significantly misrepresented the data it used to justify this rule,’’ is simply wrong. TRAC Report, supra. TRAC bases its claim primarily on the fact that EOIR does not include administrative closure decisions as completed cases; however, TRAC itself acknowledges that administratively closed cases are not final and, thus, not complete. Id. (‘‘Administrative closure does not terminate a case, it does not provide permanent relief from deportation, and it does not confer lawful status of any kind.’’); cf. Hernandez-Serrano, 2020 WL 6883420 at *3 (‘‘Administrative closure typically is not an action taken ‘[i]n deciding’ a case before an IJ; instead, as shown above, it is typically a decision not to decide the case. Nor is administrative closure typically an action ‘necessary for the disposition’ of an immigration case. Administrative closure is not itself a ‘disposition’ of a case, as Hernandez-Serrano concedes in this appeal.’’). Moreover, TRAC does not explain why an administratively closed case should be considered completed in light of longstanding BIA case law that such cases are not, in fact, completed. See Matter of Amico, 19 I&N Dec. at 654 n.1 (‘‘The administrative closing of a case does not result in a final order.’’); Matter of Lopez-Barrios, 20 I&N Dec. at 204 (‘‘However, [administrative closure] does not result in a final order.’’). above, however, immigration judges have no inherent authority to terminate removal proceedings even though a particular case may pose sympathetic circumstances.’’). Accordingly, it is not clear that the data, even if it is accurate, supports the assertion that aliens whose cases have been terminated ‘‘followed legal requirements and obtain[ed] lawful status.’’ TRAC Immigration Reports, The Life and Death of Administrative Closure (Sept. 10, 2020) available at https:// trac.syr.edu/immigration/reports/623/ (last visited 11/25/2020). 88 TRAC did not distinguish cases that would remain eligible for administrative closure under the final rule. Nevertheless, the Department notes that because an appropriate exercise of administrative closure under the rule includes regulations and settlement agreements that allow aliens to seek different types of relief from removal, Matter of Castro-Tum, 27 I&N Dec. at 276–78, the fact that only 16 percent of aliens overall obtain relief after their cases are administratively closed is further evidence that the impact of the rule is much less than commenters assert. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 Similarly, TRAC asserts that EOIR that did not consider the average number of completed cases by immigration judges over time which TRAC asserts has declined in recent years. As an initial point, the Department notes that TRAC includes decisions of administrative closure as ‘‘completions’’ in its analysis which is contrary to both TRAC’s own view and the relevant case law, as discussed above. Nevertheless, even if administratively closed cases were included as completed cases, TRAC’s analysis presents an additional flaw. The Department does not generally provide average, per-immigration judge completion numbers and did not rely on any such statistics in the rule. Further, TRAC’s reliance on the raw number of immigration judges to calculate its own average—suggesting that perimmigration judge completions have declined from 737 to 657—illustrates the problem with calculating such an average. Immigration judges are hired throughout the year, they may be promoted at different times in the year, and they may retire, separate, or die during the year. Further, new immigration judges do not begin hearing full dockets of cases immediately upon hire, and immigration judges may also be off the bench for extended periods due to leave, military obligations, or disciplinary action. Thus, the number of immigration judges frequently fluctuates throughout the year and is not static. Consequently, using the snapshot number of immigration judges at the beginning or end of the fiscal year—as TRAC does—does not account for those changes, particularly for newly hired or supervisory immigration judges who are not hearing full or regular dockets. In other words, due to retirements, promotions, and new hires, the actual number of immigration judges who adjudicated cases during a fiscal year— and whose cases are included in the end-of-the-year completion totals—is necessarily different than the end-ofthe-year total. TRAC’s data does not appear to have controlled for immigration judges who were not or no longer hearing full dockets, including those not hearing full dockets but counted in EOIR’s overall total and, thus, the Department finds its assertions unsupported.89 89 In contrast, when the Department does calculate a per-immigration judge completion average, it controls for judges who did not hear regular dockets of cases throughout the fiscal year. See, e.g., EOIR, Executive Office for Immigration Review Announces Case Completion Numbers for Fiscal Year 2019, Oct. 10, 2019, available at https:// www.justice.gov/opa/pr/executive-officeimmigration-review-announces-case-completion- PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 81649 Additionally, even if TRAC’s analysis were accurate, the implications of it for the rule are not apparent.90 To the extent that TRAC asserts that immigration judge productivity has declined over time—at least until FY 2019—the Department generally agrees with that assertion, but its relevance to the rule is unclear. Although the Department acknowledges TRAC’s tacit suggestion that the limitation of administrative closure by Matter of Castro-Tum in FY 2018 contributed to an increase in immigration judge productivity in FY 2019, the Department has not investigated that link explicitly. Moreover, the rule was proposed to address multiple legal and policy concerns with the use of administrative closure, to provide clearer delineation regarding the appropriateness of its usage, and to address inefficiency issues that it has wrought, particularly to the extent that it has contributed to docket churning and unnecessary delays in adjudicating cases. 85 FR at 52503–04. Thus, although decreased immigration judge productivity, which may result from multiple causes including the inappropriate use of administrative closure, may undermine the Department’s ability to efficiently adjudicate cases, the rule was not promulgated solely to increase productivity. In short, to the extent that commenters relied on the TRAC Report as a basis for opposing the rule, the Department finds that Report unpersuasive for the many reasons noted. Consequently, the Department also declines to accept the comments based on it. III. Regulatory Requirements A. Administrative Procedure Act Portions of this final rule state a rule of agency organization, procedure, or practice and reflect matters of agency management or personnel, e.g., the provisions of 8 CFR 1003.1(e)(8) and (k), because they reflect internal numbers-fiscal-year-2019 (‘‘On average, immigration judges who performed over the whole year completed 708 cases each in FY19.’’) (emphasis added)). 90 The Department notes in passing two additional concerns about TRAC’s analysis on this point. First, TRAC divides its analysis by Presidential administration even though the ability of an immigration judge to administratively close a case continued for over a year into the current administration. Second, TRAC does not acknowledge that even under its methodology, perimmigration judge case completions increased in FY 2019. Thus, it is not clear that its overall assertion—a clear decline in per-immigration judge productivity under the current administration—is even factually accurate. E:\FR\FM\16DER3.SGM 16DER3 81650 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations management directives or delegations of authority by the Attorney General. Thus, those portions of the rule are exempt from the requirements for notice-andcomment rulemaking and a 30-day delay in effective date. 5 U.S.C. 553(a)(2), (b)(A). Nevertheless, rather than attempting to parse out different sections of the rule with different effective dates, the Department has elected to publish the entire final rule with a 30-day effective date under the APA. 5 U.S.C. 553(d). B. Regulatory Flexibility Act The Department has reviewed this rule in accordance with the RFA (5 U.S.C. 605(b)) and has determined that this rule will not have a significant economic impact on a substantial number of small entities. The Department’s discussion of the RFA in section II.C.5, supra, in response to RFA-related comments received on the rule is incorporated in full herein by reference. khammond on DSKJM1Z7X2PROD with RULES3 C. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted annually for inflation), and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. D. Executive Orders 12866, 13563, and 13771 Portions of this rule involve agency organization, management, or personnel matters and would, therefore, not be subject to review by the Office of Management and Budget (OMB) pursuant to section 3(d)(3) of Executive Order 12866. For similar reasons, those portions would not be subject to the requirements of Executive Orders 13563 or 13771. Nevertheless, rather than parse out individual provisions to determine whether OMB review is warranted for discrete provisions of the rule, the Department has determined that this rule, as a whole, is a ‘‘significant regulatory action’’ under section 3(f) of Executive Order 12866, Regulatory Planning and Review. Accordingly, this rule has been submitted to OMB for review. The Department certifies that this regulation has been drafted in accordance with the principles of Executive Orders 12866, 13563, and 13771. Executive Orders 12866 and 13563 direct agencies to assess the costs VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. As noted in the NPRM, 85 FR at 52509, the Department believes that the rule will help more efficiently adjudicate cases before the BIA allowing for a reduction in the number of cases pending before EOIR overall and an increase in the BIA adjudicating more appeals annually. The Department believes the costs to the public will be negligible, if any, because the basic briefing procedures will remain the same (and any notable changes fall principally on DHS rather than the public), because current BIA policy already disfavors multiple or lengthy briefing extension requests, because the use of administrative closure has already been restricted subsequent to the decision in Matter of Castro-Tum, 27 I&N Dec. 271, because no party has a right to sua sponte reopening authority and a motion to exercise such authority is already not cognizable under existing law, and because the BIA is generally already prohibited from considering new evidence on appeal. Further, the Department notes that the most significant regulatory change to the BIA’s case management process—and a more comprehensive one than the one in the final rule—was promulgated without the type of numeric analysis commenters suggested is warranted with no noted concerns or challenges on that basis. 67 FR at 54900. In short, the rule does not impose any new costs, and most, if not all, of the proposed rule is directed at internal case processing. Any changes contemplated by the rule would have little, if any, apparent impact on the public but would substantially improve both the quality and efficiency of BIA appellate adjudications. The Department has complied with the relevant Executive Orders. The Department did find the rule to be a significant regulatory action and, as such, performed an analysis under Executive Order 13771. In applying Executive Order 13771, the Department determined that this final rule will substantially improve BIA appellate procedure with the result of negligible new costs to the public. As such, no budget implications will result from this PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 final rule, and no balance is needed from the repeal of other regulations. E. Executive Order 13132—Federalism This rule will not have substantial direct effects on the states, on the relationship between the Federal government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section six of Executive Order 13132, it is determined that this rule would not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. F. Executive Order 12988—Civil Justice Reform This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. G. Paperwork Reduction Act This rule does not propose new ‘‘collection[s] of information’’ as that term is defined under the Paperwork Reduction Act of 1995, Public Law 104– 13, 109 Stat. 163 (codified at 44 U.S.C. 3501–3521) (‘‘PRA’’), and its implementing regulations, 5 CFR part 1320. H. Congressional Review Act This proposed rule is not a major rule as defined by section 804 of the Congressional Review Act. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreignbased enterprises in domestic and export markets. List of Subjects 8 CFR Part 1003 Administrative practice and procedure, Aliens, Immigration, Legal services, Organization and functions (Government agencies). 8 CFR Part 1240 Administrative practice and procedure, Aliens. Accordingly, for the reasons set forth in the preamble, and by the authority vested in the Director, Executive Office for Immigration Review, by the Attorney General Order Number 4910–2020, the Department amends 8 CFR parts 1003 and 1240 as follows: E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 1. The authority citation for part 1003 continues to read as follows: ■ Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002; section 203 of Pub. L. 105–100, 111 Stat. 2196–200; sections 1506 and 1510 of Pub. L. 106–386, 114 Stat. 1527–29, 1531–32; section 1505 of Pub. L. 106–554, 114 Stat. 2763A– 326 to –328. 2. Amend § 1003.1 by: a. Revising paragraph (c), (d)(1)(ii), and (d)(3)(iv); ■ b. Adding paragraph (d)(3)(v); ■ c. Revising paragraph (d)(6)(ii), (iii), and (iv) and (d)(7); ■ d. In pargraph (e) introductory text: ■ i. Removing ‘‘this paragraph’’ and adding ‘‘this paragraph (e)’’ in its place; and ■ ii. Adding a sentence at the end of the paragraph; ■ e. Revising paragraphs (e)(1), (e)(8) introductory text, and (e)(8)(i) and (iii); ■ f. Removing and reserving paragraph (e)(8)(iv); ■ g. Adding five sentences at the end of paragraph (e)(8)(v) and adding paragraphs (e)(8)(v)(A) through (F); and ■ h. Adding paragraph (k). The additions and revisions read as follows: ■ ■ § 1003.1 Organization, jurisdiction, and powers of the Board of Immigration Appeals. khammond on DSKJM1Z7X2PROD with RULES3 * * * * * (c) Jurisdiction by certification. The Secretary, or any other duly authorized officer of DHS, or an immigration judge may in any case arising under paragraph (b) of this section certify such case to the Board for adjudication. (d) * * * (1) * * * (ii) Subject to the governing standards set forth in paragraph (d)(1)(i) of this section, Board members shall exercise their independent judgment and discretion in considering and determining the cases coming before the Board, and a panel or Board member to whom a case is assigned may take any action consistent with their authorities under the Act and the regulations as is appropriate and necessary for the disposition of the case. Nothing in this paragraph (d)(1)(ii) shall be construed as authorizing the Board to administratively close or otherwise defer adjudication of a case unless a regulation promulgated by the Department of Justice or a previous VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 judicially approved settlement expressly authorizes such an action. Only the Director or Chief Appellate Immigration Judge may direct the deferral of adjudication of any case or cases by the Board. * * * * * (3) * * * (iv)(A) The Board will not engage in factfinding in the course of deciding cases, except that the Board may take administrative notice of facts that are not reasonably subject to dispute, such as: (1) Current events; (2) The contents of official documents outside the record; (3) Facts that can be accurately and readily determined from official government sources and whose accuracy is not disputed; or (4) Undisputed facts contained in the record. (B) If the Board intends to rely on an administratively noticed fact outside of the record, such as those indicated in paragraphs (d)(3)(iv)(A)(1) through (3) of this section, as the basis for reversing an immigration judge’s grant of relief or protection from removal, it must provide notice to the parties of its intent and afford them an opportunity of not less than 14 days to respond to the notice. (C) The Board shall not sua sponte remand a case for further factfinding unless the factfinding is necessary to determine whether the immigration judge had jurisdiction over the case. (D) Except as provided in paragraph (d)(6)(iii) or (d)(7)(v)(B) of this section, the Board shall not remand a direct appeal from an immigration judge’s decision for additional factfinding unless: (1) The party seeking remand preserved the issue by presenting it before the immigration judge; (2) The party seeking remand, if it bore the burden of proof before the immigration judge, attempted to adduce the additional facts before the immigration judge; (3) The additional factfinding would alter the outcome or disposition of the case; (4) The additional factfinding would not be cumulative of the evidence already presented or contained in the record; and (5) One of the following circumstances is present in the case: (i) The immigration judge’s factual findings were clearly erroneous; (ii) The immigration judge’s factual findings were not clearly erroneous, but the immigration judge committed an error of law that requires additional factfinding on remand; or PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 81651 (iii) Remand to DHS is warranted following de novo review. (v) The Board may affirm the decision of the immigration judge or the Department of Homeland Security on any basis supported by the record, including a basis supported by facts that are not reasonably subject to dispute, such as undisputed facts in the record. * * * * * (6) * * * (ii) Except as provided in paragraph (d)(6)(iv) of this section, if identity, law enforcement, or security investigations or examinations have not been completed or DHS reports that the results of prior investigations or examinations are no longer current under the standards established by DHS, and the completion of the investigations or examinations is necessary for the Board to complete its adjudication of the appeal, the Board will provide notice to both parties that, in order to complete adjudication of the appeal, the case is being placed on hold until such time as all identity, law enforcement, or security investigations or examinations are completed or updated and the results have been reported to the Board. Unless DHS advises the Board that such information is no longer necessary in the particular case, the Board’s notice will notify the alien that DHS will contact the alien to take additional steps to complete or update the identity, law enforcement, or security investigations or examinations only if DHS is unable to independently update the necessary investigations or examinations. If DHS is unable to independently update the necessary investigations or examinations, DHS shall send the alien instructions that comply with the requirements of § 1003.47(d) regarding the necessary procedures and contemporaneously serve a copy of the instructions with the Board. The Board’s notice will also advise the alien of the consequences for failing to comply with the requirements of this section. DHS is responsible for obtaining biometrics and other biographical information to complete or update the identity, law enforcement, or security investigations or examinations with respect to any alien in detention. (iii) In any case placed on hold under paragraph (d)(6)(ii) of this section, DHS shall report to the Board promptly when the identity, law enforcement, or security investigations or examinations have been completed or updated. If a non-detained alien fails to comply with necessary procedures for collecting biometrics or other biographical information within 90 days of the DHS’s instruction notice under paragraph E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 81652 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations (d)(6)(ii) of this section, if applicable, the Board shall deem the application abandoned unless the alien shows good cause before the 90-day period has elapsed, in which case the alien should be given no more than an additional 30 days to comply with the procedures. If the Board deems an application abandoned under this section, it shall adjudicate the remainder of the appeal within 30 days and shall enter an order of removal or a grant of voluntary departure, as appropriate. If DHS obtains relevant information as a result of the identity, law enforcement, or security investigations or examinations, including civil or criminal investigations of immigration fraud, DHS may move the Board to remand the record to the immigration judge for consideration of whether, in view of the new information, any pending applications for immigration relief or protection should be denied, either on grounds of eligibility or, where applicable, as a matter of discretion. If DHS fails to report the results of timely completed or updated identity, law enforcement, or security investigations or examinations within 180 days of the Board’s notice under paragraph (d)(6)(ii) of this section, the Board shall remand the case to the immigration judge for further proceedings under § 1003.47(h). (iv) The Board is not required to hold a case pursuant to paragraph (d)(6)(ii) of this section if the Board decides to dismiss the respondent’s appeal or deny the relief or protection sought. * * * * * (7) Finality of decision—(i) In general. The decision of the Board shall be final except in those cases reviewed by the Attorney General in accordance with paragraph (h) of this section. In adjudicating an appeal, the Board possesses authority to issue an order of removal, an order granting relief from removal, an order granting protection from removal combined with an order of removal as appropriate, an order granting voluntary departure with an alternate order of removal, and an order terminating or dismissing proceedings, provided that the issuance of any order is consistent with applicable law. The Board may affirm the decision of the immigration judge or DHS on any basis supported by the record. In no case shall the Board order a remand for an immigration judge to issue an order that the Board itself could issue. (ii) Remands. In addition to the possibility of remands regarding information obtained as a result of the identity, law enforcement, or security investigations or examinations under paragraph (d)(6)(iii) of this section, after VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 applying the appropriate standard of review on appeal, the Board may issue an order remanding a case to an immigration judge or DHS for further consideration based on an error of law or fact, subject to any applicable statutory or regulatory limitations, including paragraph (d)(3)(iv)(D) of this section and the following: (A) The Board shall not remand a case for further action without identifying the standard of review it applied and the specific error or errors made by the adjudicator in paragraphs (d)(7)(ii)(B) through (E) of this section. (B) The Board shall not remand a case based on the application of a ‘‘totality of the circumstances’’ standard of review. (C) The Board shall not remand a case based on a legal argument not presented in paragraphs (d)(7)(ii)(D) through (E) of this section unless that argument pertains to an issue of jurisdiction over an application or the proceedings, or to a material change in fact or law underlying a removability ground or grounds specified in section 212 or 237 of the Act that occurred after the date of the immigration judge’s decision, and substantial evidence indicates that change has vitiated all grounds of removability applicable to the alien. (D) The Board shall not sua sponte remand a case unless the basis for such a remand is solely a question of jurisdiction over an application or the proceedings. (E) The Board shall not remand a case to an immigration judge solely to consider or reconsider a request for voluntary departure nor solely due to the failure of the immigration judge to provide advisals following a grant of voluntary departure. In such situations, the Board shall follow the procedures in § 1240.26(k) of this chapter. (iii) Scope of the remand. Where the Board remands a case to an immigration judge, it divests itself of jurisdiction of that case, unless the Board remands a case due to the court’s failure to forward the administrative record in response to the Board’s request. The Board may qualify or limit the scope or purpose of a remand order without retaining jurisdiction over the case following the remand. In any case in which the Board has qualified or limited the scope or purpose of the remand, the immigration judge shall not consider any issues outside the scope or purpose of that order, unless such an issue calls into question the immigration judge’s continuing jurisdiction over the case. (iv) Voluntary departure. The Board may issue an order of voluntary departure under section 240B of the Act, with an alternate order of removal, if the alien requested voluntary departure PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 before an immigration judge, the alien’s notice of appeal specified that the alien is appealing the immigration judge’s denial of voluntary departure and identified the specific factual and legal findings that the alien is challenging, and the Board finds that the alien is otherwise eligible for voluntary departure, as provided in § 1240.26(k) of this chapter. In order to grant voluntary departure, the Board must find that all applicable statutory and regulatory criteria have been met, based on the record and within the scope of its review authority on appeal, and that the alien merits voluntary departure as a matter of discretion. If the Board does not grant the request for voluntary departure, it must deny the request. (v) New evidence on appeal. (A) Subject to paragraph (d)(7)(v)(B), the Board shall not receive or review new evidence submitted on appeal, shall not remand a case for consideration of new evidence received on appeal, and shall not consider a motion to remand based on new evidence. A party seeking to submit new evidence shall file a motion to reopen in accordance with applicable law. (B) Nothing in paragraph (d)(7)(v)(A) of this section shall preclude the Board from remanding a case based on new evidence or information obtained after the date of the immigration judge’s decision as a result of identity, law enforcement, or security investigations or examinations, including civil or criminal investigations of immigration fraud, regardless of whether the investigations or examinations were conducted pursuant to § 1003.47(h) or paragraph (d)(6) of this section, nor from remanding a case to address a question of jurisdiction over an application or the proceedings or a question regarding a ground or grounds of removability specified in section 212 or 237 of the Act. * * * * * (e) * * * The provisions of this paragraph (e) shall apply to all cases before the Board, regardless of whether they were initiated by filing a Notice of Appeal, filing a motion, or receipt of a remand from Federal court, the Attorney General, or the Director. (1) Initial screening. All cases shall be referred to the screening panel for review upon the filing of a Notice of Appeal or a motion or upon receipt of a remand from a Federal court, the Attorney General, or the Director. Screening panel review shall be completed within 14 days of the filing or receipt. Appeals subject to summary dismissal as provided in paragraph (d)(2) of this section, except for those E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations subject to summary dismissal as provided in paragraph (d)(2)(i)(E) of this section, shall be promptly dismissed no later than 30 days after the Notice of Appeal was filed. Unless referred for a three-member panel decision pursuant to paragraph (e)(6) of this section, an interlocutory appeal shall be adjudicated within 30 days of the filing of the appeal. * * * * * (8) Timeliness. The Board shall promptly enter orders of summary dismissal, or other miscellaneous dispositions, in appropriate cases consistent with paragraph (e)(1) of this section. In all other cases, the Board shall promptly order a transcript, if appropriate, within seven days after the screening panel completes its review and shall issue a briefing schedule within seven days after the transcript is provided. If no transcript may be ordered due to a lack of available funding or a lack of vendor capacity, the Chairman shall so certify that fact in writing to the Director. The Chairman shall also maintain a record of all such cases in which transcription cannot be ordered and provide that record to the Director. If no transcript is required, the Board shall issue a briefing schedule within seven days after the screening panel completes its review. The case shall be assigned to a single Board member for merits review under paragraph (e)(3) of this section within seven days of the completion of the record on appeal, including any briefs or motions. The single Board member shall then determine whether to adjudicate the appeal or to designate the case for decision by a three-member panel under paragraphs (e)(5) and (6) of this section within 14 days of being assigned the case. The single Board member or three-member panel to which the case is assigned shall issue a decision on the merits consistent with this section and with a priority for cases or custody appeals involving detained aliens. (i) Except in exigent circumstances as determined by the Chairman, subject to concurrence by the Director, or as provided in paragraph (d)(6) of this section or as provided in §§ 1003.6(c) and 1003.19(i), the Board shall dispose of all cases assigned to a single Board member within 90 days of completion of the record, or within 180 days of completion of the record for all cases assigned to a three-member panel (including any additional opinion by a member of the panel). * * * * * (iii) In rare circumstances, when an impending decision by the United VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 States Supreme Court or an impending en banc Board decision may substantially determine the outcome of a group of cases pending before the Board, the Chairman, subject to concurrence by the Director, may hold the cases until such decision is rendered, temporarily suspending the time limits described in this paragraph (e)(8). The length of such a hold shall not exceed 120 days. * * * * * (v) * * * The Chairman shall notify the Director of all cases in which an extension under paragraph (e)(8)(ii) of this section, a hold under paragraph (e)(8)(iii) of this section, or any other delay in meeting the requirements of paragraph (e)(8) of this section occurs. For any case still pending adjudication by the Board more than 335 days after the appeal was filed, the motion was filed, or the remand was received and not described in paragraphs (e)(8)(v)(A) through (E) of this section, the Chairman shall refer that case to the Director for decision. For a case referred to the Director under this paragraph (e)(8)(v), the Director shall exercise delegated authority from the Attorney General identical to that of the Board as described in this section, including the authority to issue a precedential decision and the authority to refer the case to the Attorney General for review, either on his own or at the direction of the Attorney General. The Director may not further delegate this authority. For purposes of this paragraph (e)(8)(v), the following categories of cases pending adjudication by the Board more than 335 days after the appeal was filed, the motion was filed, or the remand was received will not be referred by the Chairman to the Director: (A) Cases subject to a hold under paragraph (d)(6)(ii) of this section; (B) Cases subject to an extension under paragraph (e)(8)(ii) of this section; (C) Cases subject to a hold under paragraph (e)(8)(iii) of this section; (D) Cases whose adjudication has been deferred by the Director pursuant to § 1003.0(b)(1)(ii); (E) Cases remanded by the Director under paragraph (k) of this section in which 335 days have elapsed following the remand; and, (F) Cases that have been administratively closed prior to the elapse of 335 days after the appeal was filed pursuant to a regulation promulgated by the Department of Justice or a previous judicially approved settlement that expressly authorizes such an action and the administrative PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 81653 closure causes the pendency of the appeal to exceed 335 days. * * * * * (k) Quality assurance certification. (1) In any case in which the Board remands a case to an immigration judge or reopens and remands a case to an immigration judge, the immigration judge may forward that case by certification to the Director for further review only in the following circumstances: (i) The Board decision contains a typographical or clerical error affecting the outcome of the case; (ii) The Board decision is clearly contrary to a provision of the Act, any other immigration law or statute, any applicable regulation, or a published, binding precedent; (iii) The Board decision is vague, ambiguous, internally inconsistent, or otherwise did not resolve the basis for the appeal; or (iv) A material factor pertinent to the issue(s) before the immigration judge was clearly not considered in the decision. (2) In order to certify a decision under paragraph (k)(1) of this section, an immigration judge must: (i) Issue an order of certification within 30 days of the Board decision if the alien is not detained and within 15 days of the Board decision if the alien is detained; (ii) In the order of certification, specify the regulatory basis for the certification and summarize the underlying procedural, factual, or legal basis; and (iii) Provide notice of the certification to both parties. (3) For a case certified to the Director under this paragraph (k), the Director shall exercise delegated authority from the Attorney General identical to that of the Board as described in this section, except as otherwise provided in this paragraph (k), including the authority to request briefing or additional filings from the parties at the sole discretion of the Director, the authority to issue a precedent decision, and the authority to refer the case to the Attorney General for review, either on the Director’s own or at the direction of the Attorney General. For a case certified to the Director under this paragraph (k), the Director may dismiss the certification and return the case to the immigration judge or the Director may remand the case back to the Board for further proceedings. In a case certified to the Director under this paragraph (k), the Director may not issue an order of removal, grant a request for voluntary departure, or grant or deny an application for relief or protection from removal. E:\FR\FM\16DER3.SGM 16DER3 81654 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations (4) The quality assurance certification process shall not be used as a basis solely to express disapproval of or disagreement with the outcome of a Board decision unless that decision is alleged to reflect an error described in paragraph (k)(1) of this section. ■ 3. Amend § 1003.2 by: ■ a. In paragraph (a), revising the first sentence and adding a sentence following the first sentence; ■ b. Revising paragraph (b)(1); ■ c. Removing the word ‘‘or’’ in paragraph (c)(3)(iii); ■ d. Removing the period at the end of paragraph (c)(3)(iv) and adding a semicolon in its place; ■ e. Adding paragraph (c)(3)(v), (vi), and (vii); and ■ f. Removing paragraph (c)(4). The revision and additions read as follows: khammond on DSKJM1Z7X2PROD with RULES3 § 1003.2 Reopening or reconsideration before the Board of Immigration Appeals. (a) General. The Board may at any time reopen or reconsider a case in which it has rendered a decision on its own motion solely in order to correct a ministerial mistake or typographical error in that decision or to reissue the decision to correct a defect in service. In all other cases, the Board may only reopen or reconsider any case in which it has rendered a decision solely pursuant to a motion filed by one or both parties. * * * (b) * * * (1) A motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority. * * * * * (c) * * * (3) * * * (v) For which a three-member panel of the Board agrees that reopening is warranted when the following circumstances are present, provided that a respondent may file only one motion to reopen pursuant to this paragraph (c)(3): (A) A material change in fact or law underlying a removability ground or grounds specified in section 212 or 237 of the Act that occurred after the entry of an administratively final order that vitiates all grounds of removability applicable to the alien; and (B) The movant exercised diligence in pursuing the motion to reopen; (vi) Filed based on specific allegations, supported by evidence, that the respondent is a United States citizen or national; or (vii) Filed by DHS in removal proceedings pursuant to section 240 of VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 the Act or in proceedings initiated pursuant to § 1208.2(c) of this chapter. * * * * * ■ 4. Amend § 1003.3 by revising paragraphs (a)(2) and (c)(1) and (2) to read as follows: § 1003.3 Notice of appeal. (a) * * * (2) Appeal from decision of a DHS officer. A party affected by a decision of a DHS officer that may be appealed to the Board under this chapter shall be given notice of the opportunity to file an appeal. An appeal from a decision of a DHS officer shall be taken by filing a Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer (Form EOIR–29) directly with DHS in accordance with the instructions in the decision of the DHS officer within 30 days of the service of the decision being appealed. An appeal is not properly filed until it is received at the appropriate DHS office, together with all required documents, and the fee provisions of § 1003.8 are satisfied. * * * * * (c) * * * (1) Appeal from decision of an immigration judge. Briefs in support of or in opposition to an appeal from a decision of an immigration judge shall be filed directly with the Board. In those cases that are transcribed, the briefing schedule shall be set by the Board after the transcript is available. In all cases, the parties shall be provided 21 days in which to file simultaneous briefs unless a shorter period is specified by the Board. Reply briefs shall be permitted only by leave of the Board and only if filed within 14 days of the deadline for the initial briefs. The Board, upon written motion and a maximum of one time per case, may extend the period for filing a brief or, if permitted, a reply brief for up to 14 days for good cause shown. If an extension is granted, it is granted to both parties, and neither party may request a further extension. Nothing in this paragraph (c)(1) shall be construed as creating a right to a briefing extension for any party in any case, and the Board shall not adopt a policy of granting all extension requests without individualized consideration of good cause. In its discretion, the Board may consider a brief that has been filed out of time. In its discretion, the Board may request supplemental briefing from the parties after the expiration of the briefing deadline. All briefs, filings, and motions filed in conjunction with an appeal shall include proof of service on the opposing party. (2) Appeal from decision of a DHS officer. Briefs in support of or in PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 opposition to an appeal from a decision of a DHS officer shall be filed directly with DHS in accordance with the instructions in the decision of the DHS officer. The applicant or petitioner and DHS shall be provided 21 days in which to file a brief, unless a shorter period is specified by the DHS officer from whose decision the appeal is taken, and reply briefs shall be permitted only by leave of the Board and only if filed within 14 days of the deadline for the initial briefs. Upon written request of the alien and a maximum of one time per case, the DHS officer from whose decision the appeal is taken or the Board may extend the period for filing a brief for up to 14 days for good cause shown. After the forwarding of the record on appeal by the DHS officer the Board may, solely in its discretion, authorize the filing of supplemental briefs directly with the Board and may provide the parties up to a maximum of 14 days to simultaneously file such briefs. In its discretion, the Board may consider a brief that has been filed out of time. All briefs and other documents filed in conjunction with an appeal, unless filed by an alien directly with a DHS office, shall include proof of service on the opposing party. * * * * * ■ 5. Revise § 1003.5 to read as follows: § 1003.5 Forwarding of record on appeal. (a) Appeal from decision of an immigration judge. If an appeal is taken from a decision of an immigration judge, the record of proceeding shall be promptly forwarded to the Board upon the request or the order of the Board, unless the Board already has access to the record of proceeding in electronic format. The Director, in consultation with the Chairman and the Chief Immigration Judge, shall determine the most effective and expeditious way to transcribe proceedings before the immigration judges. The Chairman and the Chief Immigration Judge shall take such steps as necessary to reduce the time required to produce transcripts of those proceedings and to ensure their quality. (b) Appeal from decision of a DHS officer. If an appeal is taken from a decision of a DHS officer, the record of proceeding shall be forwarded to the Board by the DHS officer promptly upon receipt of the briefs of the parties, or upon expiration of the time allowed for the submission of such briefs, unless the DHS officer reopens and approves the petition. E:\FR\FM\16DER3.SGM 16DER3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations § 1003.7 [Amended] 6. Amend § 1003.7 by removing ‘‘Service’’ and ‘‘the Service’’ each place they appear and adding in their place the acronym ‘‘DHS’’. ■ 7. Amend § 1003.10(b) by: ■ a. Removing ‘‘governing standards’’ and adding ‘‘governing standards set forth in paragraph (d) of this section’’ in its place; and ■ b. Adding two sentences at the end of the paragraph. The additions reads as follows: ■ § 1003.10 Immigration judges. * * * * * (b) * * * Nothing in this paragraph (b) nor in any regulation contained in part 1240 of this chapter shall be construed as authorizing an immigration judge to administratively close or otherwise defer adjudication of a case unless a regulation promulgated by the Department of Justice or a previous judicially approved settlement expressly authorizes such an action. Only the Director or Chief Immigration Judge may direct the deferral of adjudication of any case or cases by an immigration judge. * * * * * ■ 8. Amend § 1003.23 by: ■ a. In paragraph (b)(1) introductory text: ■ i. Revising the first sentence and adding a sentence following the first sentence; and ■ ii. Removing ‘‘this paragraph’’ and adding ‘‘this paragraph (b)(1)’’ in its place; ■ b. Adding paragraphs (b)(4)(v) and (vi). The revision and additions read as follows: § 1003.23 Reopening or reconsideration before the Immigration Court. khammond on DSKJM1Z7X2PROD with RULES3 * * * * * (b) * * * (1) In general. Unless jurisdiction is vested with the Board of Immigration Appeals, an immigration judge may at any time reopen a case in which he or she has rendered a decision on his or her own motion solely in order to correct a ministerial mistake or typographical error in that decision or to reissue the decision to correct a defect in service. Unless jurisdiction is vested with the Board of Immigration Appeals, in all other cases, an immigration judge may only reopen or reconsider any case in which he or she has rendered a decision solely pursuant to a motion filed by one or both parties. * * * * * * * * (4) * * * (v) Exceptions to time and numerical limitations. The time and numerical VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 limitations set forth in paragraph (b)(1) of this section shall not apply to a motion to reopen proceedings filed when each of the following circumstances is present, provided that a respondent may file only one motion to reopen pursuant to this paragraph (b)(4): (A) A material change in fact or law underlying a removability ground or grounds specified in section 212 or 237 of the Act occurred after the entry of an administratively final order that vitiates all grounds of removability applicable to the alien; and (B) The movant exercised diligence in pursuing the motion to reopen. (vi) Asserted United States citizenship or nationality. The time limitations set forth in paragraph (b)(1) of this section shall not apply to a motion to reopen proceedings filed based on specific allegations, supported by evidence, that the respondent is a United States citizen or national. PART 1240—PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES 9. The authority citation for part 1240 continues to read as follows: ■ Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226, 1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202 and 203, Pub. L. 105–100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105–277 (112 Stat. 2681). 10. Amend § 1240.26 by: a. Redesignating paragraph (j) as paragraph (l); ■ b. Adding a new reserved paragraph (j); and ■ c. Adding paragraph (k). The addition reads as follows: ■ ■ § 1240.26 Voluntary departure—authority of the Executive Office for Immigration Review. * * * * * (k) Authority of the Board to grant voluntary departure in the first instance. The following procedures apply to any request for voluntary departure reviewed by the Board: (1) The Board shall not remand a case to an immigration judge to reconsider a request for voluntary departure. If the Board first finds that an immigration judge incorrectly denied an alien’s request for voluntary departure or failed to provide appropriate advisals, the Board shall consider the alien’s request for voluntary departure de novo and, if warranted, may enter its own order of voluntary departure with an alternate order of removal. (2) In cases which an alien has appealed an immigration judge’s PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 81655 decision or in which DHS and the alien have both appealed an immigration judge’s decision, the Board shall not grant voluntary departure under section 240B of the Act unless: (i) The alien requested voluntary departure under that section before the immigration judge, the immigration judge denied the request, and the alien timely appealed; (ii) The alien’s notice of appeal specified that the alien is appealing the immigration judge’s denial of voluntary departure and identified the specific factual and legal findings that the alien is challenging; (iii) The Board finds that the immigration judge’s decision was in error; and (iv) The Board finds that the alien meets all applicable statutory and regulatory criteria for voluntary departure under that section. (3) In cases in which DHS has appealed an immigration judge’s decision, the Board shall not grant voluntary departure under section 240B of the Act unless: (i) The alien requested voluntary departure under that section before the immigration judge and provided evidence or a proffer of evidence in support of the alien’s request; (ii) The immigration judge either granted the request or did not rule on it; and, (iii) The Board finds that the alien meets all applicable statutory and regulatory criteria for voluntary departure under that section. (4) The Board may impose such conditions as it deems necessary to ensure the alien’s timely departure from the United States, if supported by the record on appeal and within the scope of the Board’s authority on appeal. Unless otherwise indicated in this section, the Board shall advise the alien in writing of the conditions set by the Board, consistent with the conditions set forth in paragraphs (b), (c), (d), (e), (h), and (i) of this section (other than paragraph (c)(3)(ii) of this section), except that the Board shall advise the alien of the duty to post the bond with the ICE Field Office Director within 10 business days of the Board’s order granting voluntary departure if that order was served by mail and shall advise the alien of the duty to post the bond with the ICE Field Office Director within five business days of the Board’s order granting voluntary departure if that order was served electronically. If documentation sufficient to assure lawful entry into the country to which the alien is departing is not contained in the record, but the alien continues to assert a request for voluntary departure E:\FR\FM\16DER3.SGM 16DER3 81656 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 under section 240B of the Act and the Board finds that the alien is otherwise eligible for voluntary departure under the Act, the Board may grant voluntary departure for a period not to exceed 120 days, subject to the condition that the alien within 60 days must secure such documentation and present it to DHS and the Board. If the Board imposes conditions beyond those specifically enumerated, the Board shall advise the alien in writing of such conditions. The VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 alien may accept or decline the grant of voluntary departure and may manifest his or her declination either by written notice to the Board within five days of receipt of its decision, by failing to timely post any required bond, or by otherwise failing to comply with the Board’s order. The grant of voluntary departure shall automatically terminate upon a filing by the alien of a motion to reopen or reconsider the Board’s decision, or by filing a timely petition PO 00000 Frm 00070 Fmt 4701 Sfmt 9990 for review of the Board’s decision. The alien may decline voluntary departure if he or she is unwilling to accept the amount of the bond or other conditions. * * * * * James R. McHenry III, Director, Executive Office for Immigration Review, Department of Justice. [FR Doc. 2020–27008 Filed 12–11–20; 8:45 am] BILLING CODE 4410–30–P E:\FR\FM\16DER3.SGM 16DER3

Agencies

[Federal Register Volume 85, Number 242 (Wednesday, December 16, 2020)]
[Rules and Regulations]
[Pages 81588-81656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27008]



[[Page 81587]]

Vol. 85

Wednesday,

No. 242

December 16, 2020

Part III





 Department of Justice





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Executive Office for Immigration Review





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8 CFR Parts 1003 and 1240





Appellate Procedures and Decisional Finality in Immigration 
Proceedings; Administrative Closure; Final Rule

Federal Register / Vol. 85 , No. 242 / Wednesday, December 16, 2020 / 
Rules and Regulations

[[Page 81588]]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003 and 1240

[Docket No. EOIR 19-0022; Dir. Order No. 05-2021]
RIN 1125-AA96


Appellate Procedures and Decisional Finality in Immigration 
Proceedings; Administrative Closure

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Final rule.

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SUMMARY: On August 26, 2020, the Department of Justice (``Department'') 
published a notice of proposed rulemaking (``NPRM'' or ``proposed 
rule'') that would amend the regulations of the Executive Office for 
Immigration Review (``EOIR'') regarding the handling of appeals to the 
Board of Immigration Appeals (``BIA'' or ``Board'').
    The Department proposed multiple changes to the processing of 
appeals to ensure the consistency, efficiency, and quality of its 
adjudications.
    The Department also proposed to amend the regulations to make clear 
that there is no freestanding authority of line immigration judges or 
BIA members to administratively close cases. Finally, the Department 
proposed to delete inapplicable or unnecessary provisions regarding the 
forwarding of the record of proceedings on appeal. This final rule 
responds to comments received in response to the NPRM and adopts the 
NPRM with minor changes as described below.

DATES: This rule is effective on January 15, 2021.

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, 
Office of Policy, Executive Office for Immigration Review, 5107 
Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-
0289.

SUPPLEMENTARY INFORMATION:

I. Background

A. Proposed Rule

    On August 26, 2020, the Department published an NPRM that would 
amend EOIR's regulations regarding the BIA's handling of appeals. 
Appellate Procedures and Decisional Finality in Immigration 
Proceedings; Administrative Closure, 85 FR 52491 (Aug. 26, 2020). 
Through the NPRM, the Department proposed a number of changes to EOIR's 
regulations in 8 CFR parts 1003 and 1240 to ensure that cases heard at 
the BIA are adjudicated in a consistent and timely manner.

B. Authority

    The Department issued this final rule pursuant to section 1103(g) 
of the Immigration and Nationality Act (``INA'' or ``the Act,''), 8 
U.S.C. 1103(g).

C. Final Rule

    Following careful consideration of the public comments received, 
which are discussed in detail below in section II, the Department has 
determined to publish the provisions of the proposed rule as final with 
the following changes as noted below in sections I.C.3, I.C.4, I.C.5, 
I.C.8, I.C.9, and I.C.11 below.
    The Department is also clarifying the generally prospective 
temporal application of the rule.\1\ The provisions of the rule 
applicable to appellate procedures and internal case processing at the 
BIA apply only to appeals filed, motions to reopen or reconsider filed, 
or cases remanded to the Board by a Federal court on or after the 
effective date of the final rule. The provisions of the rule related to 
the restrictions on sua sponte reopening authority are effective for 
all cases, regardless of posture, on the effective date. The provisions 
of the rule related to restrictions on the BIA's certification 
authority are effective for all cases in which an immigration judge 
issues a decision on or after the effective date. The provisions of the 
rule regarding administrative closure are applicable to all cases 
initiated by a charging document, reopened, or recalendared after the 
effective date.
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    \1\ The Department notes that the NPRM confusingly indicated 
that some changes would apply ``on or after the effective date of 
publication,'' 85 FR at 52498 even though the effective date is 30 
days after the date of publication. To correct any confusion from 
that statement and to provide additional clarity, the Department 
offers a more delineated explanation of the temporal application of 
this rule herein.
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    The rationale provided in the background of the proposed rule 
remains valid. Accordingly, the major provisions of the final rule are 
as follows:
1. Briefing Extensions
    The final rule will reduce the maximum allowable time for an 
extension of the briefing schedule for good cause shown from 90 days to 
14 days. 8 CFR 1003.3(c). Consistent with current BIA policy ``not to 
grant second briefing extension requests,'' the rule expressly limits 
the parties to one possible extension. EOIR, Board of Immigration 
Appeals Practice Manual, Ch. 4.7(c) (hereinafter BIA Practice Manual) 
(last updated Oct. 5, 2020).
2. Simultaneous Briefing
    The rule adopts simultaneous briefing schedules instead of 
consecutive briefing schedules for all cases. 8 CFR 1003.3(c). 
Previously, the BIA used consecutive briefing for cases involving 
aliens who are not in custody. The rule does not affect the BIA's 
ability to permit reply briefs in certain cases, but it does establish 
a 14-day deadline for their submission.
3. BIA Remands for Identity, Law Enforcement, or Security 
Investigations or Examinations
    The rule revises 8 CFR 1003.1(d)(6)(ii) to provide that, when a 
case before the BIA requires completing or updating identity, law 
enforcement, or security investigations or examinations in order to 
complete adjudication of the appeal, the exclusive course of action 
would be for the BIA to place the case on hold while identity, law 
enforcement, or security investigations or examinations are being 
completed or updated, unless DHS reports that identity, law 
enforcement, or security investigations or examinations are no longer 
necessary or until DHS does not timely report the results of completed 
or updated identity, law enforcement, or security investigations or 
examinations.
    Additionally, the rule authorizes the BIA to deem an application 
abandoned when the applicant fails, after being notified by DHS, to 
comply with the requisite procedures for DHS to complete the identity, 
law enforcement, or security investigations or examinations within 90 
days of the BIA's notice that the case is being placed on hold for the 
completion of the identity, law enforcement, or security investigations 
or examinations. The rule also retains from the NPRM the exception to 
abandonment when the immigration judge determines that the alien 
demonstrates good cause for exceeding the 90-day allowance. Upon such a 
good cause finding, the immigration judge may grant the alien no more 
than 30 days to comply with the requisite procedures.
    Following the review of public comments received,\2\ the final rule 
makes two changes from the proposed rule on this point. First, this 
rule contains an additional requirement that, if DHS is unable to 
independently update any required identity, law enforcement, or 
security investigations, DHS shall provide a notice to the alien with 
appropriate instructions, as DHS does before the immigration courts 
under 8 CFR 1003.47(d), and

[[Page 81589]]

simultaneously serve a copy of the notice with the BIA. Second, while 
the NPRM would have begun the alien's 90-day timeline for compliance 
with the biometrics update procedures began at the time the Board 
provided notice to the alien, the final rule aligns the 90-day time 
period to begin running at the time DHS submits the instructions notice 
to the alien, if such notice is applicable. The Department agrees with 
the commenters' concerns that without these changes, the provisions of 
the proposed rule could have resulted in situations where the alien may 
be unable to effectively comply with the biometrics requirements due to 
possible delays by DHS or lack of sufficient notice.
---------------------------------------------------------------------------

    \2\ See section II.C.3.e for a summary and response to the 
comments received on this topic.
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4. Finality of BIA Decisions and Voluntary Departure Authority
    In addition, the rule amends 8 CFR 1003.1(d)(7) to provide further 
guidance regarding the finality of BIA decisions. To begin with, the 
rule adds a new paragraph (d)(7)(i) to clarify that the BIA has 
authority to issue final orders when adjudicating an appeal, including 
final orders of removal when a finding of removability has been made by 
an immigration judge and an application for protection or relief from 
removal has been denied; grants of relief or protection from removal; 
and, orders to terminate or dismiss proceedings.
    The rule further adds new Sec.  1003.1(d)(7)(ii) to provide 
instructions for the BIA regarding when the BIA may order a remand, 
rather than issuing a final order, after applying the appropriate 
standard of review to an immigration judge's decision. For example, the 
rule requires the BIA to first identify the standard of review that was 
applied and the specific error made by the immigration judge before 
remanding the proceeding. 8 CFR 1003.1(d)(7)(ii)(A). The final rule has 
one update from the same paragraph in the proposed rule to include a 
cross-reference to 8 CFR 1003.1(d)(6)(iii), which allows for BIA 
remands regarding information obtained as a result of the identity, law 
enforcement, or security investigations or examinations. The Department 
has included this cross-reference to prevent any unintended confusion 
that the remand procedures and options under 8 CFR 1003.1(d)(7)(ii) are 
the sole ones for the BIA.
    Next, the rule adds new paragraph (d)(7)(iii) to 8 CFR 1003.1 to 
delegate clear authority to the BIA to consider issues relating to the 
immigration judge's decision on voluntary departure de novo and, within 
the scope of the BIA's review authority on appeal, to issue final 
decisions on requests for voluntary departure based on the record of 
proceedings. Additionally, the rule directly states that the BIA may 
not remand a case to the immigration court solely to consider a request 
for voluntary departure under section 240B of the Act, 8 U.S.C. 1229c.
    The final rule makes three additional changes from the NPRM in 
response to public comments. First, in recognition of the fact that 
Board orders are generally served by mail--unlike orders of immigration 
judges which are frequently served in person--the final rule states 
that aliens will have 10 business days to post a voluntary departure 
bond if the Board's order of voluntary departure was served by mail. 
Further, as the Board is currently transitioning to an electronic 
filing system and expects to fully deploy that system within the next 
year, the final rule retains a period of five business days to post a 
voluntary departure bond if the Board's order is served electronically.
    Second, in response to commenters' concerns about cases in which 
DHS appeals a separate grant of relief or protection, the Department is 
making edits from the NPRM to clarify the Board's procedure in that 
situation. Although cases in which an alien made multiple applications 
for relief or protection (including voluntary departure), an 
immigration judge granted at least one application but did not address 
the request for voluntary departure, DHS appealed the immigration 
judge's decision, the BIA determined that the immigration judge's 
decision was in error and that the alien's application(s) should be 
denied, and the BIA found a basis to deny all other applications 
submitted by the respondent without needing to remand the case, leaving 
only the request for voluntary departure unadjudicated, should be 
uncommon, the Department nevertheless makes clarifying edits to 8 CFR 
1240.26(k)(2) and (3) \3\ to indicate that the BIA may grant voluntary 
departure in cases in which DHS appeals provided that the alien 
requested voluntary departure from the immigration judge and is 
otherwise eligible.
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    \3\ The Department also notes that 8 CFR 1240.26(k)(2) and (3) 
were duplicative in the NPRM and has further edited the provisions 
to remove the duplication since they apply to both types of 
voluntary departure under section 240B of the Act, 8 U.S.C 1229c.
---------------------------------------------------------------------------

    Third, in response to at least one commenter's concern regarding 
the expiration of an alien's travel documents, the Department is making 
changes to the final rule to make clear that if the record does not 
contain evidence of travel documentation sufficient to assure lawful 
entry into the country to which the alien is departing--and the alien 
otherwise has both asserted a request for voluntary departure and 
established eligibility under the other requirements--the Board may 
nevertheless grant voluntary for a period not to exceed 120 days, 
subject to the condition that the alien within 60 days must secure such 
documentation. This additional provision is consistent with similar 
authority already contained in 8 CFR 1240.26(b)(3)(ii).\4\
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    \4\ This provision was, arguably, already incorporated by 
reference in the NPRM through 8 CFR 1240.26(k)(4) which adopts the 
provisions of 8 CFR 1240.26(c), (d), (e), (h), and (i) (with one 
exception) regarding voluntary departure requests before an 
immigration judge and makes them applicable to requests before the 
Board. Nevertheless, the Department is specifically incorporating it 
into the text of the final rule to be applicable to a grant of 
voluntary departure under either section 240B(a) or 240B(b) of the 
Act, 8 U.S.C. 1229c(a) or 1229c(b).
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5. Prohibition on Consideration of New Evidence, Limitations on Motions 
To Remand, Factfinding by the BIA, and the Standard of Review
    The rules make several changes to clarify the BIA's ability to take 
certain actions in adjudicating an appeal to ensure that appeals are 
adjudicated in a timely fashion without undue remands and consistent 
with the applicable law.
    First, the rule limits the scope of motions to remand that the BIA 
may consider. Under new paragraph (d)(7)(v) to 8 CFR 1003.1, the BIA is 
prohibited from receiving new evidence on appeal, remanding a case for 
the immigration judge to consider new evidence in the course of 
adjudicating an appeal, or considering a motion to remand based on new 
evidence. Parties who wish to have new evidence considered in other 
circumstances may file a motion to reopen in accordance with the 
standard procedures for such motions, i.e., compliance with the 
substantive requirements for such a motion at 8 CFR 1003.2(c). These 
prohibitions have three exceptions for new evidence: (1) The result of 
identity, law enforcement, or security investigations or examinations, 
including civil or criminal investigations of immigration fraud; (2) 
pertaining to a respondent's removability under the provisions of 
sections 212 and 237 of the Act, 8 U.S.C. 1182 and 1227; and (3) that 
calls into question an aspect of the jurisdiction of the immigration 
courts, such as evidence pertaining to alienage \5\ or

[[Page 81590]]

EOIR's authority vis-[agrave]-vis DHS regarding an application for 
immigration benefits.\6\
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    \5\ For example, EOIR has no jurisdiction over United States 
citizens with respect to removal proceedings; thus, evidence 
submitted on appeal regarding whether a respondent is a United 
States citizen may be a basis for a remand in appropriate cases. See 
Matter of Fuentes-Martinez, 21 I&N Dec. 893, 898 (BIA 1997).
    \6\ As the NPRM noted, there are multiple situations in which a 
question of EOIR or DHS jurisdiction over an application may arise. 
See 85 FR at 52500.
---------------------------------------------------------------------------

    Second, the rule clearly delineates the circumstances in which the 
BIA may engage in factfinding on appeal. 8 CFR 1003.1(d)(3)(iv)(A) and 
(B). Although the rule maintains the general prohibition on factfinding 
by the BIA, the rule allows the BIA to take administrative notice of 
facts that are not reasonably subject to dispute, such as current 
events, the contents of official documents outside the record, or facts 
that can be accurately and readily determined from official government 
sources and whose accuracy is not disputed. If the BIA intends to 
administratively notice any such fact outside the record that would be 
the basis for overturning a grant of relief or protection issued by an 
immigration judge, the BIA must give notice to the parties and an 
opportunity for them to respond.
    Third, the rule more clearly delineates the situations in which it 
is appropriate for the BIA to remand a case for further factfinding. 8 
CFR 1003.1(d)(3)(iv)(C) and (D). Specifically, the BIA may not sua 
sponte remand a case for further factfinding unless doing is necessary 
to determine whether the immigration judge had jurisdiction. Id. Sec.  
1003.1(d)(3)(iv)(C). Further, the BIA may not grant a motion to remand 
for further factfinding unless the party seeking the remand preserved 
the issue and previously attempted to provide such information to the 
immigration judge, the factfinding would alter the case's outcome and 
would not be cumulative of other evidence already in the record, and 
either the immigration judge's factual findings were clearly erroneous 
or remand to DHS is warranted. Id. Sec.  1003.1(d)(3)(iv)(D). Nothing 
in the rule, however, prohibits the BIA from remanding a case based on 
new evidence or information obtained after the date of the immigration 
judge's decision as a result of identity, law enforcement, or security 
investigations or examinations, including investigations occurring 
separate from those required by 8 CFR 1003.47.
    Following review of public comments and in recognition of possible 
confusion regarding a situation in which additional factfinding would 
be a necessary adjunct of a remand due to an error of law, the final 
rule clarifies that, subject to other requirements, the Board may 
remand a case for additional factfinding in cases in which the 
immigration judge committed an error of law and that error requires 
additional factfinding on remand. For example, the Board may order 
additional factfinding on remand if it determines an immigration judge 
erred as a matter of law by not sufficiently developing the factual 
record for an alien proceeding without representation.
    The rule also directly allows the BIA to affirm the decision of the 
immigration judge or DHS on any basis supported by the record, 
including a basis supported by facts that are not disputed. Id. Sec.  
1003.1(d)(3)(v).
    Finally, the rule makes clear that the BIA cannot remand a case 
based solely on the ``totality of the circumstances'' as such a 
standard of review has never been contemplated by either the Act or the 
regulations. Id. Sec.  1003.1(d)(7)(ii)(B). Nonetheless, in light of 
the confusion evidenced by commenters regarding that point, the 
Department in the final rule is making clear that the Board cannot 
remand a case following a totality of the circumstances standard of 
review, though an immigration judge's consideration of the totality of 
the circumstances may be a relevant subject for review under an 
appropriate standard.
6. Scope of a BIA Remand
    The rule provides that the BIA may limit the scope of a remand 
while simultaneously divesting itself of jurisdiction on remand. Id. 
Sec.  1003.1(d)(7)(iii). Thus, a remand for a limited purpose--e.g., 
the completion of identity, law enforcement, or security investigations 
or examinations--would be limited solely to that purpose consistent 
with the BIA's intent, and the immigration judge may not consider any 
issues beyond the scope of the remand.
7. Immigration Judge Quality Assurance Certification of a BIA Decision
    Additionally, to ensure the quality of BIA decision-making, the 
rule establishes a procedure for an immigration judge to certify BIA 
decisions reopening or remanding proceedings for further review by the 
Director in situations in which the immigration judge alleges that the 
BIA made an error. Id. Sec.  1003.1(k).
    The certification process is limited only to cases in which the 
immigration judge believes the BIA erred in the decision by: (1) A 
typographical or clerical error affecting the outcome of the case; (2) 
a holding that is clearly contrary to a provision of the INA, any other 
immigration law or statute, any applicable regulation, or a published, 
binding precedent; (3) failing to resolve the basis for appeal, 
including being vague, ambiguous, internally inconsistent; or, (4) 
clearly not considering a material factor pertinent to the issue(s) 
before the immigration judge. Id. Sec.  1003.1(k)(1)(i)-(iv). In 
addition, in order to certify a BIA decision for review, the 
immigration judge must: (1) Issue the certification order, (a) within 
30 days of the BIA decision if the alien is not detained, and (b) 
within 15 days of the BIA decision if the alien is detained; (2) 
specify in the order the regulatory basis for the certification and 
summarize the underlying procedural, factual, or legal basis; and (3) 
provide notice of the certification to both parties. Id. Sec.  
1003.1(k)(2)(i)-(iii).
    To ensure a neutral arbiter between the immigration judge and the 
BIA, the Director will review any such certification orders. Id. Sec.  
1003.1(k)(3). In reviewing such orders, the Director's delegated 
authority from the Attorney General permits him to dismiss the 
certification and return the case to the immigration judge or remand 
the case back to the BIA for further proceedings. The Director may not, 
however, issue an order of removal, grant a request for voluntary 
departure, or grant or deny an application for relief or protection 
from removal. Id. In response to a concern raised by at least one 
commenter, the final rule will allow the Director, in his or her 
discretion, to request briefs or filings from the parties when 
considering a case under this quality-control certification process.
    This quality assurance certification process is a mechanism to 
ensure that BIA decisions are accurate and precise--not a mechanism 
solely to express disagreements with BIA decisions or to lodge 
objections to particular legal interpretations. Id. Sec.  1003.1(k)(4).
8. Administrative Closure Authority
    The rule amends 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to make clear 
that those provisions--and similar provisions in 8 CFR part 1240--
provide no freestanding authority for immigration judges or Board 
members to administratively close immigration cases absent an express 
regulatory or judicially approved settlement basis to do so. For 
example, the rule amends 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to 
provide explicitly, for clarity, that the existing references in those 
paragraphs to ``governing standards'' refer to the applicable governing 
standards as set forth in the existing provisions of

[[Page 81591]]

Sec. Sec.  1003.1(d)(1)(i) and 1003.10(d), respectively and do not 
refer to some more general, free-floating administrative closure 
authority.
    The final rule makes non-substantive change to 8 CFR 
1003.1(d)(1)(ii) and 1003.10(b) from the proposed rule by inserting the 
word ``defer'' in place of the word ``suspend'' in both paragraphs and 
by making conforming stylistic changes to ensure that the language is 
clear that an administrative closure of a case is a type of deferral of 
adjudication of that case. The Department has made this change to 
prevent any unintended confusion regarding whether there is a 
distinction between cases whose adjudication is deferred and those 
whose adjudication is suspended and to make clear that an 
administrative closure is not the only type of deferral of 
adjudication.\7\ The Department intended no distinctions and is 
clarifying that point by ensuring that the description of 
administrative closure as a type of deferral of adjudication is 
consistent throughout the rule.
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    \7\ Administrative closure is not the only procedural mechanism 
for deferring adjudication of cases. For instance, EOIR deferred all 
non-detained removal hearings between March 17, 2020, and June 12, 
2020, due to the outbreak of COVID-19 but did not administratively 
close the cases.
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9. Sua Sponte Authority
    The rule removes the Attorney General's previous general delegation 
of sua sponte authority to the BIA and immigration judges to reopen or 
reconsider cases and instead limit such sua sponte reopenings only to 
correct minor mistakes, such as typographical errors or defects in 
service. 8 CFR 1003.2(a), 1003.23(b)(1).\8\ These changes do not 
preclude parties from filing joint motions, including in situations in 
which there has been a relevant change in facts or law. Moreover, 
nothing in the rule precludes the ability of a respondent to argue, in 
an appropriate case, that a time limit is inapplicable due to equitable 
tolling.
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    \8\ The text of 8 CFR 1003.2(a) in the NPRM inadvertently 
removed the phrase ``or reconsider'' from the first sentence of that 
paragraph. This final rule reinserts that phrase to ensure that 
parties and the BIA are clear that the Board can reconsider a 
decision sua sponte in order to correct a typographical error or 
defect in service.
---------------------------------------------------------------------------

    In addition, to ensure that aliens whose removability is vitiated 
in toto prior to the execution of the removal order retain a mechanism 
for reopening their proceedings, the rule amends the regulations to 
allow the filing of a motion to reopen, notwithstanding the time and 
number bars, when an alien claims that an intervening change in law or 
fact renders the alien no longer removable at all and the alien has 
exercised diligence in pursuing his or her motion.\9\ Id. Sec. Sec.  
1003.2(c)(3)(v), 1003.23(b)(4)(v). Similarly, the rule amends the 
regulations to allow the filing of a motion to reopen, notwithstanding 
the time and number bars, when an individual claims that he or she is a 
United States citizen or national in recognition that the law provides 
jurisdiction only in removal proceedings for aliens. See INA 240(a)(1), 
8 U.S.C. 1229a(a)(1); see also 8 CFR 1003.2(c)(3)(vi), 
1003.23(b)(4)(v).
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    \9\ This provision would apply only when the intervening change 
vitiated the alien's removability completely--an alien charged with 
multiple removability grounds would remain subject to the time and 
number bars unless the intervening change vitiated each removability 
ground. Additionally, this provision would apply only to grounds of 
removability. Aliens arguing that an intervening change in law or 
fact affected their eligibility for relief or protection from 
removal would remain subject to existing regulatory provisions on 
such motions.
---------------------------------------------------------------------------

    Finally, to address the effects of removal of sua sponte reopening 
authority on DHS, the rule clarifies that the filing of a motion to 
reopen with the BIA by DHS in removal proceedings or in proceedings 
initiated pursuant to 8 CFR 1208.2(c) is not subject to the time and 
numerical limits applicable to such motions. 8 CFR 1003.2(c)(3)(vii).
10. Certification Authority
    The rule also withdraws the BIA's delegated authority to review 
cases by self-certification, id. Sec.  1003.1(c), due to concerns over 
the lack of standards for such certifications, the lack of a consistent 
application of the ``exceptional'' situations criteria for purposes of 
utilizing self-certification, the potential for lack of notice of the 
BIA's use of certification authority, the overall potential for 
inconsistent application and abuse of this authority, and the strong 
interest in finality,
11. Timeliness of Adjudication of BIA Appeals
    The rule makes a variety of changes to ensure the timely 
adjudication of appeals. For example, the rule amends 8 CFR 
1003.1(e)(8)(i) to harmonize the time limits for adjudicating cases so 
that both the 90- and 180-day deadlines are set from the same starting 
point--when the record is complete.\10\ In addition, the rule 
established specific time frames for review by the screening panel, 
processing of transcripts, issuance of briefing schedules, and review 
by a single BIA member to determine whether a single member or a three-
member panel should adjudicate the appeal, none of which were 
previously considered via regulation or tracked effectively to prevent 
delays. Id. Sec.  1003.1(e)(1), (8). It also adds tracking and 
accountability requirements for the Board Chairman, also known as the 
Chief Appellate Immigration Judge, in cases where the adjudication of 
appeals must be delayed to ensure that no appeals are overlooked or 
lost in the process. Id. Sec.  1003.1(e)(8)(v). Similarly, the rule 
establishes specific time frames for the adjudication of summary 
dismissals, providing substance to the current requirement at 8 CFR 
1003.1(d)(2)(ii) that such cases be identified ``promptly'' by the 
screening panel, and for the adjudication of interlocutory appeals, 
which are not currently addressed in the regulations, except insofar as 
they may be referred to a three-member panel for review. Id. Sec.  
1003.1(e)(1).
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    \10\ For appeals, the record is complete upon the earlier of the 
filing of briefs by both parties or the expiration of the briefing 
schedule. For motions, the record is complete upon the filing of a 
response to the motion or the expiration of the response period. For 
remands, the record is complete upon either the date the remand is 
received by the BIA or, if the BIA elects to order briefing 
following the remand, the earlier of the filing of briefs by both 
parties or the expiration of the briefing schedule.
---------------------------------------------------------------------------

    Additionally, with two exceptions for cases subject to an extension 
under 8 CFR 1003.1(e)(8)(ii) or a hold under 8 CFR 1003.1(e)(8)(iii), 
the rule instructs the Board Chairman to refer appeals pending beyond 
335 days to the Director for adjudication. Id. Sec.  1003.1(e)(8)(v). 
Following the review of public comments received, including comments 
about the potential volume of cases subject to referral and the impact 
of other provisions of the rule, the final rule makes two changes from 
the NPRM.
    First, it adds four further exceptions to 8 CFR 1003.1(e)(8)(v). 
Cases on hold pursuant to 8 CFR 1003.1(d)(6)(ii) to await the results 
of identity, law enforcement, or security investigations or 
examinations will not be subject to referral if the hold causes the 
appeal to remain pending beyond 335 days. Cases whose adjudication has 
been deferred by the Director pursuant to 8 CFR 1003.0(b)(1)(ii) will 
not be subject to referral if the deferral causes the appeal to remain 
pending beyond 335 days. Cases remanded by the Director under 8 CFR 
1003.1(k) will not be subject to referral if the case remains pending 
beyond 335 days after the referral. Cases that have been 
administratively closed pursuant to a regulation promulgated by the 
Department of Justice or a previous judicially approved settlement that 
expressly authorizes such an action will not be subject to referral if 
the administrative closure occurred prior to the elapse of 335 days and 
causes the appeal to remain pending beyond 335 days. These changes, 
which are incorporated through a stylistic

[[Page 81592]]

restructuring of 8 CFR 1003.1(e)(8)(v) for clarity, recognize 
additional situations in which a case may appropriately remain pending 
beyond 335 days without adjudication or when referral back to the 
Director would be incongruous because the Director had remanded the 
case in the first instance.
    Second, the final rule makes edits to eliminate confusion over the 
scope of 8 CFR 1003.1(e). As both the title of that paragraph (``Case 
management system'') and its general introductory language (``The 
Chairman shall establish a case management system to screen all cases 
and to manage the Board's caseload.'') make clear, the provisions of 
the paragraph apply to ``cases.'' Id. Sec.  1003.1(e) (emphasis added). 
In turn, ``the term case means any proceeding arising under any 
immigration or naturalization law.'' Id. Sec.  1001.1(g). At the Board, 
cases may be initiated in one of three ways: (1) The filing of a Notice 
of Appeal, (2) the filing of a motion directly with the Board (e.g., a 
motion to reconsider or a motion to reopen), or (3) the receipt of a 
remand from a Federal court, the Attorney General, or--under this 
rule--the Director. In other words, the Board adjudicates multiple 
types of cases, not just appeals. Although the existing language of 8 
CFR 1003.1(e) is clear that it applies to all types of cases at the 
Board, regardless of how they are initiated, the inconsistent, 
subsequent use of ``appeals'' throughout that paragraph creates 
confusion as to its scope since appeals are not the only type of case 
the Board considers. See, e.g., id. Sec.  1003.1(e)(3) (in describing 
the Board's merits review process, using ``case'' in the first 
sentence, ``case'' and ``appeal'' in the second sentence, and 
``appeal'' in the third sentence, all is describing a unitary process). 
To avoid continued confusion and to ensure that the scope of the other 
changes in the final rule regarding the Board's case management process 
are clear, the final rule makes edits to 8 CFR 1003.1(e) to ensure that 
it is clearly applicable to all cases before the Board, not solely 
cases arising through appeals.\11\
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    \11\ For similar reasons, the final rule also makes changes to 8 
CFR 1003.1(d)(3)(iv) to clarify that 8 CFR 1003.1(d)(3)(iv)(A) 
applies to all cases at the Board, whereas 8 CFR 1003.1(d)(3)(iv)(D) 
applies only to direct appeals of immigration judge decisions.
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12. Forwarding the Record on Appeal
    The rule revises 8 CFR 1003.5(a) regarding the forwarding of the 
record of proceedings in an appeal to ensure that the transcription 
process and the forwarding of records do not cause any unwarranted 
delays. Specifically, the rule clarifies that the immigration judge 
does not need to forward the record of the proceedings to the BIA if 
the BIA already has access to the record electronically and removes the 
process for immigration judge review of the transcript. Id. Sec.  
1003.5(a).
    In addition, the rule removes language in 8 CFR 1003.5(b), which 
describes procedures regarding appeals from DHS decisions that are 
within the BIA's appellate jurisdiction, that is not applicable to 
EOIR's adjudicators and replaces outdated references to the former 
Immigration and Naturalization Service. These changes do not 
substantively affect the BIA's adjudication of any appeals from DHS 
officers that are within the BIA's jurisdiction.

II. Public Comments on the Proposed Rule

A. Summary of Public Comments

    The comment period for the NPRM ended on September 25, 2020, with 
1,284 comments received. The majority of comments were from individual 
and anonymous commenters, including coordinated campaigns. Other 
commenters included non-profit organizations, law firms, and members of 
Congress. While some commenters supported the NPRM, the majority of 
commenters expressed opposition to the rule, either in whole or part.
    Many, if not most, comments opposing the NPRM either misunderstood 
what it actually provides, proceed from erroneous legal or factual 
premises--e.g., that the rule applies only to aliens and not DHS or 
that its changes apply more heavily to aliens than to DHS--are founded 
in policy disagreements, or simply repeat tendentious or spurious 
claims about the Department's motivations in issuing the rule. Further, 
many commenters opposing the rule failed to engage with the specific 
reasons and language put forth by the Department in lieu of broad 
generalizations or hyperbolic, unsupported presumptions. Additionally, 
many comments appeared rooted in a belief that EOIR's adjudicators are 
incompetent or unethical and are either incapable or unwilling to 
adhere to applicable law. Finally, most, if not all, commenters in 
opposition to the rule viewed its procedural changes wholly through a 
results-oriented lens such that a proposal that commenters 
speculatively believed would cause aliens to ``win'' fewer cases was 
deemed objectionable, even without evidence that such a result would 
follow. In other words, any change perceived to lead to aliens 
``winning'' fewer cases was deemed unfair, arbitrary and capricious, 
biased, a violation of due process, or otherwise inappropriate, 
regardless of the Department's justification for the change or the 
relevant law. Such a results-oriented view both misapprehended the 
procedural nature of the changes and appeared to have been based on a 
tacit belief that aliens were entitled to specific outcomes in specific 
cases, notwithstanding the relevant evidence or law applicable to a 
case, and that the rule inappropriately required adjudicators to 
maintain partiality in adjudicating cases rather than continuing to 
provide what commenters viewed as favorable treatment toward aliens.
    To the extent that commenters simply disagree as a policy matter 
that Board cases should be completed in a timely manner, see id. 
1003.1(d); cf. INS v. Doherty, 502 U.S. 314, 323 (1992) (``[A]s a 
general matter, every delay works to the advantage of the deportable 
alien who wishes merely to remain in the United States.''), or that the 
Department should take measures, consistent with due process, to ensure 
the timely completion of such cases, the Department finds such policy 
disagreements unpersuasive for the reasons given in the NPRM and 
throughout this final rule.
    Similarly, the Department also categorically rejects any comments 
suggesting that adjudicators should provide favorable treatment to one 
party over another, e.g., by granting a sua sponte motion to reopen 
contrary to well-established law. The Department expects all of its 
adjudicators to treat both parties fairly and to maintain impartiality 
when adjudicating cases. 8 CFR 1003.1(d)(1) (``The Board shall resolve 
the questions before it in a manner that is timely, impartial, and 
consistent with the Act and regulations.'' (emphasis added)); 8 CFR 
1003.10(b) (``In all cases, immigration judges shall seek to resolve 
the questions before them in a timely and impartial manner consistent 
with the Act and regulations.'') (emphasis added)); 5 CFR 
2635.101(b)(8) (``Employees [of the Federal Government] shall act 
impartially and not give preferential treatment to any private 
organization or individual.''); EOIR, Ethics and Professionalism Guide 
for Members of the Board of Immigration Appeals sec. V (May 4, 2011) 
[hereinafter BIA Ethics and Professionalism Guide] (``A Board Member 
shall act impartially and shall not give preferential treatment to any 
organization or individual when adjudicating the merits of a particular 
case.''), available at https://

[[Page 81593]]

www.justice.gov/eoir/page/file/992726/download; EOIR, Ethics and 
Professionalism Guide for Immigration Judges sec. V (Jan. 26, 2011) 
[hereinafter IJ Ethics and Professionalism Guide] (``An Immigration 
Judge shall act impartially and shall not give preferential treatment 
to any organization or individual when adjudicating the merits of a 
particular case.''), available at https://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/EthicsandProfessionalismGuideforIJs.pdf. Further, the Department also 
rejects unsupported and almost ad hominem comments based on a belief 
that its adjudicators are incompetent or unethical, that they will fail 
to follow the law, or that they have some results-oriented view that 
will cause them to adjudicate cases in an inappropriate manner. See 
United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926) (``The 
presumption of regularity supports the official acts of public 
officers, and, in the absence of clear evidence to the contrary, courts 
presume that they have properly discharged their official duties.'').
    In sum, the Department issued the NPRM for the reasons given in 
order to bring needed clarity to certain areas of law, improve 
efficiency at the BIA, ensure authority is appropriately exercised, 
reduce the risk of gamesmanship by parties, and promote impartial and 
timely adjudications consistent with the law. It did not do so for any 
nefarious purpose, nor did it intend for its procedural changes to have 
any substantive bearing on the outcomes of additional cases, which flow 
from the evidence and the law, not the Department's process. As 
discussed herein, nothing in the NPRM singles out specific populations 
of aliens, including unrepresented aliens,\12\ nor do any of its 
changes fall disproportionately upon such groups in an inappropriate 
manner. To the extent that commenters did not engage with the NPRM 
itself, provided unsupported assertions of fact or law, attacked--
tacitly or explicitly--the motivations of the Department's 
adjudicators, or otherwise put forward suggestions based on their 
preferred results rather than an impartial process, the Department has 
nevertheless considered those comments but finds them unavailing. See 
Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 n.58 (D.C. Cir. 1977) (per 
curiam) (``In determining what points are significant, the `arbitrary 
and capricious' standard of review must be kept in mind. Thus only 
comments which, if true, raise points relevant to the agency's decision 
and which, if adopted, would require a change in an agency's proposed 
rule cast doubt on the reasonableness of a position taken by the 
agency. Moreover, comments which themselves are purely speculative and 
do not disclose the factual or policy basis on which they rest require 
no response. There must be some basis for thinking a position taken in 
opposition to the agency is true.''). Further, to the extent that 
commenters provided substantive analysis and raised important issues, 
the Department has considered all of them; however, on balance, except 
for changes noted below, it has determined that the policy and 
operational benefits of the rule expressed above--including 
consistency, impartiality, and efficiency--outweigh all of the issues 
raised by commenters. Accordingly, although the Department has reviewed 
all comments received, the vast majority of them fall into the 
groupings outlined above, and few of them are persuasive for reasons 
explained in more detail in Part II.C below.
---------------------------------------------------------------------------

    \12\ The Department has fully considered the possible impacts of 
this rule on the relatively small pro se population of aliens with 
cases before the Board. As discussed below, however, the rule 
neither singles such aliens out for particular treatment under the 
Board's procedures, nor does it restrict or alter any of the many 
procedural avenues such aliens already have available to them in 
advancing their cases. Further, nothing in the rule inhibits the 
availability of pro bono counsel to assist such aliens as 
appropriate.
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B. Comments Expressing Support for the Proposed Rule

    Comment: Commenters expressed general support for the rule and 
immigration reform. These commenters supported all aspects of the rule, 
which they stated would ``streamline'' BIA processes to help reduce the 
backlog and the number of frivolous appeals. One commenter stated that 
the rule ``will have a positive impact on immigration, especially 
limiting the burden placed on the system by pro se immigrants.''
    Response: The Department appreciates the commenters' support for 
the rule.

C. Comments Expressing Opposition to the Proposed Rule

1. General Opposition
    Comment: Many Commenters expressed general opposition to the 
rule.\13\ Several commenters asserted that the rule was motivated by 
politics and would ``enable politicized and biased decision-making.'' 
Various commenters raised concerns that the rule would give the EOIR 
Director ``consolidated power over appeals.'' Similarly, several 
commenters voiced concern that the rule would turn the BIA into a 
``political tool'' or that the changes would turn the BIA into a rubber 
stamp for deportation orders. Others were concerned that the rule would 
put increased pressure on immigration judges to decide cases quickly.
---------------------------------------------------------------------------

    \13\ Commenters' specific concerns regarding different 
provisions of the rule are discussed separately below in section 
II.C.3.
---------------------------------------------------------------------------

    Some commenters expressed concerns that the rule was an attempt to 
end legal immigration. Other commenters alleged that the rule was 
motivated by an attempt to foreclose respondents' access to relief from 
removal.
    Many commenters were concerned that the rule would eliminate a 
robust and meaningful appeal process. For example, one commenter stated 
that ``[a]ny individual facing judicial decision making deserves to 
have a full and fair right to appeal.'' The commenter went on to claim 
that the rule seeks ``to erode that right by making it more difficult 
for individuals to actualize the right to appeal to the BIA.'' Another 
commenter was concerned that the rule would completely strip 
respondents of ``their right to meaningfully contest a poorly reasoned 
or legally invalided decision.''
    Several commenters expressed concern about the rule's impact on 
respondents' safety and security. One commenter claimed that the rule 
``would greatly reduce the rights of noncitizens appearing before EOIR 
and would result in . . . the potential death of asylum seekers who are 
removed to their home countries to be killed.'' Another commenter noted 
that taking away a respondent's ability to appeal their case ``exposes 
them to more violence and risk of death if they are deported.'' Other 
commenters were concerned that the rule would lead to permanent family 
separations.
    A number of commenters also made the generalized claim that the 
rule would entirely reshape the immigration system. Others stated that 
the rule would create significant administrative burdens. Several other 
commenters alleged that the rule would lead to an increased case 
backlog and make EOIR less efficient. Multiple commenters raised 
concerns regarding the impact of the intersection of the rule with 
other rules recently promulgated by the Department and by DHS, 
particularly the Department's proposed rule to increase fees for 
motions to reopen and appeals.
    Response: Commenters are incorrect that the rule is the product of 
political or biased decision-making or that the rule would turn the BIA 
into a ``political tool.'' As noted in the NPRM, the BIA has seen 
recent significant increases in

[[Page 81594]]

its pending caseload. 85 FR at 52492. The number of appeals pending is 
currently at a record high, with 84,673 case appeals pending as of the 
end of FY 2020. EOIR, Adjudication Statistics: Case Appeals Filed, 
Completed, and Pending, Oct. 13, 2020, available at https://
www.justice.gov/eoir/page/file/1248501/download. Accordingly, the 
Department has reviewed EOIR's regulations regarding the procedures for 
BIA appeals to determine what changes can be implemented to promote 
increased efficiencies and taken steps to address the BIA's growing 
caseload. In this manner, this rule builds on prior similar procedural 
reviews and amendments to the BIA's regulations. See, e.g., Board of 
Immigration Appeals: Procedural Reforms To Improve Case Management, 67 
FR 54878 (Aug. 26, 2002) (final rule that revised the structure and 
procedures of the BIA, provided for an enhanced case management 
procedure, and expanded the number of cases referred to a single Board 
member for disposition).\14\
---------------------------------------------------------------------------

    \14\ In addition, the Department notes that it and EOIR have 
taken numerous steps, both regulatory and sub-regulatory, to 
increase EOIR's efficiencies and address the pending caseload. See, 
e.g., Expanding the Size of the Board of Immigration Appeals, 85 FR 
18105 (Apr. 1, 2020) (interim final rule expanding the size of the 
BIA from 21 to 23 members); EOIR, Policy Memorandum 20-01: Case 
Processing at the Board of Immigration Appeals [hereinafter PM 20-
01] (Oct. 1, 2019), available at https://www.justice.gov/eoir/page/file/1206316/download (explaining various agency initiatives, 
including an improved BIA case management system, issuance of 
performance reports, and a reiteration of EOIR's responsibility to 
timely and efficiently decide cases in serving the national 
interest); EOIR, Policy Memorandum 19-11: No Dark Courtrooms (Mar. 
29, 2019), available at https://www.justice.gov/eoir/file/1149286/download (memorializing policies to reduce and minimize the impact 
of unused courtrooms and docket time).
---------------------------------------------------------------------------

    Similarly, commenters are incorrect that the rule is intended to 
have an effect on immigration rates or an alien's opportunity to be 
heard. As part of the Department of Justice, EOIR's mission remains to 
``to adjudicate immigration cases by fairly, expeditiously, and 
uniformly interpreting and administering the Nation's immigration 
laws.'' EOIR, About the Office, Aug. 14, 2018, available at https://www.justice.gov/eoir/about-office. Instead, as part of the Department's 
intention to increase efficiencies, the Department believes that the 
rule will have the effect of reducing the time required for the 
adjudication of appeals by DHS in cases where the immigration judge or 
the BIA has found the alien merits relief or protection from removal. 
In short, the changes to the rule should help both meritorious claims 
be adjudicated more quickly, which will benefit aliens, and meritless 
claims adjudicated more quickly, which will benefit the public and the 
government.
    Commenters' statements regarding possible effects on aliens who are 
denied relief or who may be subject to removal are purely speculative. 
Moreover, such speculative effects exist currently and independently of 
the rule, as alien appeals may be denied or dismissed under current 
procedures. Further, nothing in the rule prevents or inhibits case-by-
case adjudication by the Board in accordance with the evidence and 
applicable law for each such case. Accordingly, the Department finds 
commenters' concerns on this point unpersuasive.
    Finally, the Department acknowledges that it has published multiple 
proposed rules in 2020, including one that would increase the fee for 
an appeal to the BIA and for certain motions to reopen for the first 
time in over 30 years. See Executive Office for Immigration Review; Fee 
Review, 85 FR 11866 (Feb. 28, 2020). The Department also acknowledges 
that DHS has imposed a $50 fee for asylum applications, U.S. 
Citizenship and Immigration Services Fee Schedule and Changes to 
Certain Other Immigration Benefit Request Requirements, 85 FR 46788, 
46791 (Aug. 3, 2020),\15\ that would also be applicable in EOIR 
proceedings, 8 CFR 1103.7(b)(4)(ii), though that rule has been 
enjoined.\16\ Immigrant Legal Resource Ctr. v. Wolf, --F.Supp.3d--, 
2020 WL 5798269 (N.D. Cal. 2020); Nw. Immigrants Rights Proj. v. U.S. 
Citizenship & Immigration Servs., No. 19-3283 (RDM), 2020 WL 5995206 
(D.D.C. Oct. 8, 2020).
---------------------------------------------------------------------------

    \15\ The DHS rule did not impose a fee for an asylum application 
filed by a genuine UAC who is in removal proceedings conducted by 
EOIR. 85 FR 46788 at 46809 (``Notably, unaccompanied alien children 
in removal proceedings who file an application for asylum with USCIS 
are exempt from the Form I-589 fee.''). Thus, contrary to some 
commenters' concerns, a genuine UAC who files a motion to reopen 
based exclusively on an asylum application is not subject to a fee 
for that motion. 8 CFR 1003.8(a)(2)(ii), 1003.24(b)(2)(i), (ii).
    \16\ While the injunction of DHS's rule assessing a $50 fee for 
asylum applications is in effect, EOIR cannot charge a fee for 
asylum applications in its proceedings. Relatedly, while that 
injunction is in effect, it cannot charge a fee for a motion to 
reopen based exclusively on an asylum application. 8 CFR 
1003.8(a)(2)(ii), 1003.24(b)(2)(i), (ii). Because the ultimate 
resolution of that litigation is unknown--and, thus, there is a 
possibility that DHS's rule may never take effect--commenters' 
concerns about the potential relationship between that rule and this 
final rule are even more speculative. Nevertheless, as discussed, 
even if all of the relevant rules were in effect, the Department has 
concluded that the benefits of the final rule outweigh any 
substantiated costs identified by commenters.
---------------------------------------------------------------------------

    The Department rejects any assertions, however, that it is 
proposing multiple rules for any sort of nefarious purpose. Each of the 
Department's rules stands on its own, includes explanations of their 
basis and purpose, and allows for public comment, as required by the 
APA. See Little Sisters of the Poor Saints Peter & Paul Home v. 
Pennsylvania, 140 S. Ct. 2367, 2385 (2020) (explaining that the APA 
provides the ``maximum procedural requirements'' that an agency must 
follow in order to promulgate a rule). Further, the interplay and 
impact of all of these rules is speculative at the present time due to 
both ongoing and expected future litigation--which may allow all, some, 
or none of the rules to ultimately take effect--and the availability of 
fee waivers, 8 CFR 1103.7(c), which may offset the impact of some of 
the increases. Nevertheless, to the extent commenters noted some 
potential overlap or joint impacts, the Department regularly considers 
the existing and potential legal framework when a specific rule is 
proposed or implemented. Moreover, even if all rules were in effect, 
the Department has concluded that the benefits of the instant rule 
discussed in the NPRM, e.g., 85 FR at 52509 and herein--as well as the 
benefits discussed in the other rules, e.g., 85 FR at 11870 \17\--
ultimately outweigh any combined impact the rules may have on aliens, 
particularly vis-[agrave]-vis fee increases for appeals and motions to 
reopen.\18\
---------------------------------------------------------------------------

    \17\ In issuing its proposed rule regarding fees for 
applications administered by EOIR, the Department acknowledged the 
balance between the costs of increased fees and the public benefit 
associated with such fees, in addition to the need to comply with 
applicable law and policy in conducting more regular fee reviews. 85 
FR at 11870 (``Although EOIR is an appropriated agency, EOIR has 
determined that it is necessary to update the fees charged for these 
EOIR forms and motions to more accurately reflect the costs for 
EOIR's adjudications of these matters. At the same time, however, 
EOIR recognizes that these applications for relief, appeals, and 
motions represent statutorily provided relief and important 
procedural tools that serve the public interest and provide value to 
those who are parties to the proceedings by ensuring accurate 
administrative proceedings. . . . As DHS is the party opposite the 
alien in these proceedings, EOIR's hearings provide value to both 
aliens seeking relief and the Federal interests that DHS represents. 
Given that EOIR's cost assessment did not include overhead costs or 
costs of non-salary benefits (e.g., insurance), recovery of the 
processing costs reported herein is appropriate to serve the 
objectives of the IOAA and the public interest. The proposed fees 
would help the Government recoup some of its costs when possible and 
would also protect the public policy interests involved. EOIR's 
calculation of fees accordingly factors in both the public interest 
in ensuring that the immigration courts are accessible to aliens 
seeking relief and the public interest in ensuring that U.S. 
taxpayers do not bear a disproportionate burden in funding the 
immigration system.'').
    \18\ The Department also reiterates that the availability of fee 
waivers for appeals and motions to reopen, 8 CFR 1003.8(a)(3) and 8 
CFR 1003.24(d), addresses the principal concern raised by commenters 
regarding the instant rule's asserted impact on filing motions to 
reopen and the Department's proposed fee increase for motions to 
reopen.

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[[Page 81595]]

    Comment: At least one commenter stated that the rule is pretext for 
restrictions on aliens' access to asylum or related relief. In support, 
the commenter argued that the rule provides preferential treatment to 
DHS versus aliens in proceedings and that the Department selectively 
compares the BIA at times to either Federal courts or other 
administrative tribunals, whichever best supports the restriction at 
issue. In addition, the commenter highlighted comments disparaging of 
immigrants or the immigration system by President Trump and the 
Attorney General.
    Response: The rule is not a pretext for any nefarious motive 
targeting aliens for any reason, and it is appropriately supported by 
applicable law and examples. As discussed, supra, the rule generally 
applies to aliens and DHS equally and does not provide preferential 
treatment to either party. To the extent that commenters simply 
disagree with either the law or the examples provided, commenters did 
not provide a persuasive justification for why their particular policy 
preferences are superior to those adopted by the Department in the 
rule. Moreover, as explained in the NPRM and herein, this rule is just 
one example of the Department's actions, both recently and in the past, 
to increase efficiencies before the BIA and address the record pending 
caseload. The Department reiterates the reasoning set out in the 
proposed rule for the changes, and the discussion further below 
regarding commenters' concerns with particular provisions of the rule.
2. Violates Due Process
    Comment: Many commenters expressed broad concerns that the rule 
would erode aliens' due process rights in immigration court or BIA 
proceedings. Specifically, several commenters claimed that the rule 
favored efficiency over fairness. Commenters stated that the rule 
claimed to promote efficiency, but that its proposed changes ``would 
sacrifice fairness and due process for this increased efficiency.'' 
Several commenters noted that due process should be more highly valued 
than efficiency in removal proceedings. For example, one commenter 
asserted that the rule ``has everything to do with efficiency and 
nothing to do with due process.'' A commenter also stated that that 
rule's ``goal should not be to create a more efficient production 
system for the rapid removal of litigants.'' Another commenter claimed 
that, under the rule, the BIA would put efficiency above its duties as 
an appellate body, which would thereby violate respondents' due process 
rights.
    Furthermore, commenters voiced concern that the rule was attempting 
to inappropriately speed up and streamline procedures in a way that 
would negatively affect due process protections. One commenter stated 
that the streamlining of procedures ``will foster further inequities 
and affect due process for all people involved.'' A number of 
commenters pointed out that cases should not be decided quickly and 
that due process requires that attorneys be given a sufficient amount 
of time to prepare their clients' cases. Several other commenters 
raised concerns that the rule was an attempt by the Administration to 
prioritize deportations over due process protections.
    Numerous commenters were also concerned with the possible 
consequences stemming from what they view as a potential erosion of due 
process protections. Commenters noted that the level of due process in 
immigration court proceedings can mean the difference between a 
respondent living safely in the United States and being returned to 
danger in another country.
    Response: To the extent that commenters equate ``due process'' with 
an outcome favorable to the alien and an ``erosion'' of due process 
with an outcome adverse to the alien--and base their comments 
accordingly on that view--the Department declines to accept both that 
view of due process and the comments based on it. The foundation of due 
process is notice and an opportunity to be heard, and nothing in the 
rule eliminates either an alien's right to notice or an alien's 
opportunity to be heard on a case before the Board.\19\ See LaChance v. 
Erickson, 522 U.S. 262, 266 (1998) (``The core of due process is the 
right to notice and a meaningful opportunity to be heard.''). The 
Department does not evaluate due process based on outcomes for either 
party, and it accordingly declines to adopt comments premised on the 
intimation that due process occurs only when the outcome of a case is 
favorable to an alien. Cf. Pugel v. Bd. of Trs. of Univ. of Ill., 378 
F.3d 659, 666 (7th Cir. 2004) (``Due process did not entitle 
[appellant] to a favorable result . . . only to a meaningful 
opportunity to present [a case].'').
---------------------------------------------------------------------------

    \19\ The Department notes that although the INA statutorily 
requires proceedings over which an immigration judge must preside to 
determine an alien's removability in many situations, under sections 
240(a)(1) and (3) of the Act, 8 U.S.C. 1229a(a)(1) and (3), and 
acknolwedges that an administrative appeal may be permitted, e.g., 
INA 101(a)(47)(B) and 208(d)(5)(A)(iv), 8 U.S.C. 1101(a)(47)(B) and 
1158(d)(5)(A)(iv), there is no constitutional or statutory right to 
an administrative appeal to the BIA. See Albathani v. INS, 318 F.3d 
365, 376 (1st Cir. 2003) (``An alien has no constitutional right to 
any administrative appeal at all. Such administrative appeal rights 
as exist are created by regulations promulgated by the Attorney 
General.'' (citations omitted)); Guentchev v. INS, 77 F.3d 1036, 
1037-38 (7th Cir. 1996) (``The Constitution does not entitle aliens 
to administrative appeals. Even litigants in the federal courts are 
not constitutionally entitled to multiple layers of review. The 
Attorney General could dispense with the Board and delegate her 
powers to the immigration judges, or could give the Board discretion 
to choose which cases to review (a la the Appeals Council of the 
Social Security Administration, or the Supreme Court exercising its 
certiorari power).''); cf. Provisional Unlawful Presence Waivers of 
Inadmissibility for Certain Immediate Relatives, 78 FR 536, 554-55 
(Jan. 3, 2013) (``In upholding the BIA's practice of `affirmance 
without opinion' of immigration judge decisions, for example, 
several courts of appeals have recognized that Due Process does not 
require an agency to provide for administrative appeal of its 
decisions.''). Thus, the Department's administrative appellate 
process involving the BIA already provides more due process to 
aliens in removal proceedings than is required by either the INA or 
the Constitution, and the alteration of the BIA's procedures through 
regulations promulgated by the Attorney General is fully consonant 
with the provision of due process. See Barradas v. Holder, 582 F.3d 
754, 765 (7th Cir. 2009) (stating that immigration proceedings that 
meet the statutory and regulatory standards governing the conduct of 
such proceedings generally comport with due process).
---------------------------------------------------------------------------

    As noted above, EOIR's mission is ``to adjudicate immigration cases 
by fairly, expeditiously, and uniformly interpreting and administering 
the Nation's immigration laws.'' These objectives are generally 
complementary; for example, unnecessary delays in the receipt of relief 
for meritorious aliens is itself a fairness concern. Moreover, there is 
nothing inherently unfair in ensuring that a case is adjudicated by the 
Board within approximately 11 months--i.e., 335 days--of its filing. To 
the contrary, excessive delay in adjudication, especially when issues 
of human welfare are at stake, may raise concerns themselves and 
increase the risk of litigation.\20\ See, e.g., Telecomms. Rsch.

[[Page 81596]]

and Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (outlining 
several factors for deciding unreasonable delay claims under the 
Administrative Procedures Act, including acknowledging ``delays that 
might be reasonable in the sphere of economic regulation are less 
tolerable when human health and welfare are at stake'').
---------------------------------------------------------------------------

    \20\ The Department recognizes and agrees with the Supreme 
Court's observation that ``as a general matter, every delay works to 
the advantage of the deportable alien who wishes merely to remain in 
the United States.'' Doherty, 502 U.S. at 323. Thus, it is aware 
that many aliens likely prefer substantial delays in the 
adjudications of their appeals by the BIA and, accordingly, oppose 
any efforts to increase the efficiency of such adjudications. 
Nevertheless, the Department finds any rationale for encouraging or 
supporting the dilatory adjudication of cases both inherently 
unpersuasive and wholly outweighed by the importance of timeliness 
and fairness--especially to aliens with meritorious claims--in BIA 
adjudications.
---------------------------------------------------------------------------

    Commenters are incorrect that the provisions of this rule impede 
aliens' due process rights in the manner alleged. Although the rule 
refines timing and other procedural requirements, the rule does not 
affect any party's fundamental rights to notice or an opportunity to be 
heard by the BIA. Moreover, the rule does not make proceedings before 
the BIA ``so fundamentally unfair that the alien was prevented from 
reasonably presenting his case.'' Gutierrez v. Holder, 662 F.3d 1083, 
1091 (9th Cir. 2011) (citations and quotation marks omitted). None of 
the changes in the rule limit aliens in immigration proceedings before 
EOIR from filing appeals, briefs, or other evidence such that it 
prevents aliens from reasonably presenting their appeal. Further, many 
commenters assessed the rule through only a one-sided lens related to 
aliens and did not acknowledge that (1) most of the changes apply 
equally to DHS and (2) some of the changes--e.g., the elimination of 
simultaneous briefing for non-detained cases--fall much more heavily on 
DHS than on aliens. In short, as the Department explained in the NPRM 
and reiterates in the final rule, the changes are designed for the 
benefit of all parties and the adjudicators and do not affect either 
party's entitlement to due process in immigration proceedings.
3. Specific Concerns With the NPRM
a. BIA Jurisdiction by Certification (8 CFR 1003.1(c))
    Comment: Numerous commenters expressed concern over the 
Department's removal of the BIA's self-certification authority at 8 CFR 
1003.1(c).
    At least one commenter expressed dismay as to why the Department 
would retract the BIA's self-certification authority rather than 
retaining the authority but defining ``exceptional circumstances,'' 
which the commenter believed would be less costly and more beneficial.
    Commenters were concerned that the removal of the BIA's self-
certification authority will negatively impact aliens in proceedings, 
particularly pro se respondents. For example, a commenter explained 
that the changes would disproportionately impact pro se aliens because 
they are ``the parties least likely to have a sophisticated notion of 
when an appeal to the BIA is worth taking.'' Another commenter noted 
that removal of the self-certification authority would prevent the BIA 
from addressing defects in an alien's Notice of Appeal, which may be 
the result of factors outside the alien's control, such as mail delays, 
illness, or language ability.
    One commenter characterized the change as removing an important 
check on immigration judge misconduct.
    Taking issue with the Department's supposed analogy to Federal 
courts, another commenter claimed that Federal courts were distinct 
from immigration courts because the ``process of filing a notice of 
appeal in federal court is straightforward, [ ] the Federal Rules of 
Civil Procedure provide ample protection for pro se parties who make 
mistakes, [and] the stakes in most civil suits arising in federal 
district court are, unlike the stakes in most immigration court cases, 
not a matter of life and death.''
    Response: As an initial point, the Department notes that many 
commenters objected to the limitation of the Board's certification 
authority solely because they perceived that authority to be beneficial 
only to respondents. Those comments, however, support the Department's 
concern about the inappropriate and inconsistent usage of that 
authority and its decision to limit that authority because it may be 
applied in a manner that benefits one party over the other.
    As the Department discussed in the NPRM, the BIA's use of its self-
certification authority has been subject to inconsistent usage, if not 
abuse, by the BIA in the past. For example, despite clear language that 
required the BIA to have jurisdiction in order to exercise its self-
certification authority, BIA members often inverted that principle and 
used the self-certification authority to establish jurisdiction. See, 
e.g., Matter of Carlos Daniel Jarquin-Burgos, 2019 WL 5067262, at *1 
n.1 (BIA Aug. 5, 2019) (``On March 29, 2019, we accepted the 
respondent's untimely appeal. To further settle any issues of 
jurisdiction, we accept this matter on appeal pursuant to 8 CFR 
1003.1(c).''), Matter of Daniel Tipantasig-Matzaquiza, 2016 WL 4976725, 
at *1 (BIA Jul. 22, 2016) (``To settle any issues regarding 
jurisdiction, we will exercise our discretionary authority to accept 
this appeal on certification. See 8 CFR 1003.1(c).''), and Matter of 
Rafael Antonio Hanze Fuentes, 2011 WL 7071021, at *1 n.1 (BIA Dec. 29, 
2011) (``In order to avoid any question regarding our jurisdiction over 
this appeal, we take jurisdiction over this matter by certification 
pursuant to 8 CFR 1003.1(c).'').
    Commenters' own suggestions that removing this authority would harm 
alien appellants because the BIA often uses its self-certification 
authority inappropriately and contrary to existing case law to avoid 
finding appeals untimely or correct filing defects provide further 
support for the Department's decision. See Matter of Jean, 23 I&N Dec. 
373, 380 n.9 (A.G. 2002) (the Board's certification authority, like its 
sua sponte authority, ``is not meant to be used as a general cure for 
filing defects or to otherwise circumvent the regulations, where 
enforcing them might result in hardship'' (internal citation and 
quotation marks omitted)). Further, commenters did not explain how the 
Board could exercise jurisdiction through certification without 
determining its jurisdiction in the first instance. See 85 FR at 52506. 
Finally, most commenters did not acknowledge that the withdrawal of 
certification authority would also impact cases in which it may have 
been used contrary to precedent to accept appeals in favor of DHS. In 
other words, as the Department has noted, the impact of this provision 
is equally applicable to both parties and is not directed at one over 
the other.
    The Department finds that the same risks would continue should the 
Department provide further definition of ``exceptional circumstances'' 
rather than remove the certification authority, as suggested by 
commenters. Indeed, the existence of a standard for ``exceptional 
circumstances'' applicable to BIA self-certification since at least 
2002, see Matter of Jean, 23 I&N Dec. at 380 n.9, has not precluded the 
Board members from disregarding that standard as both the NPRM, 85 FR 
at 52506, and commenters recognize. Accordingly, the Department finds 
that further attempts to refine that standard would likely be 
unhelpful, if not futile, especially because there is no effective 
check on its usage to ensure consistency. Moreover, creating an 
additional definitional standard for ``exceptional circumstances'' 
would also create additional adjudicatory delays and arguments 
surrounding whether a case genuinely met that standard.
    Regarding the possible impact of the rule on pro se aliens, the 
Department first notes that most aliens--i.e., 86 percent, EOIR, 
Current Representation Rates, Oct. 13, 2020 [hereinafter Representation 
Rates], available at https://www.justice.gov/eoir/page/file/

[[Page 81597]]

1062991/download--whose cases are considered by the Board have 
representation. For those who do not, there are multiple avenues they 
may pursue to obtain representation.\21\ For example, the Department 
maintains a BIA Pro Bono Project in which ``EOIR assists in identifying 
potentially meritorious cases based upon criteria determined by the 
partnering volunteer groups.'' EOIR, BIA Pro Bono Project, Oct. 16, 
2020, available at https://www.justice.gov/eoir/bia-pro-bono-project.\22\ Additionally, certain procedural doctrines, such as 
equitable tolling, may excuse noncompliance with filing deadlines for 
pro se aliens.\23\ Moreover, immigration judges have a duty to develop 
the record in cases involving pro se aliens which will assist such 
aliens in pursuing appeals if needed. See Mendoza-Garcia v. Barr, 918 
F.3d 498, 504 (6th Cir. 2019) (collecting cases). The Department has 
fully considered the possible impacts of this rule on the relatively 
small pro se population of aliens with cases before the Board. However, 
the rule neither singles such aliens out for particular treatment under 
the Board's procedures, nor does it restrict or alter any of the 
avenues noted above that may assist pro se aliens.
---------------------------------------------------------------------------

    \21\ In an appeal to the Board in removal proceedings, ``the 
person concerned shall have the privilege of being represented (at 
no expense to the Government) by such counsel, authorized to 
practice in such proceedings, as he shall choose.'' INA 292, 8 
U.S.C. 1362. Despite this statutory right to counsel at no expense 
to the Government in appeals to the BIA in removal proceedings, the 
Department recognizes that some aliens do not obtain representation 
before the BIA. The Department understands that some aliens do not 
secure representation because they do not wish to pay the fee 
charged by a potential representative. The Department also 
understands that many representatives, due to ethical or 
professional responsibility obligations, will not take cases of 
aliens who are ineligible for any relief or protection from removal 
(e.g., an alien with an aggravated felony drug trafficking 
conviction who has no fear of persecution or torture in his or her 
home country) because they do not wish to charge money for 
representation when representation will not affect the outcome of 
the proceeding. These situations illustrate only that some aliens 
may not ultimately secure counsel for reasons common to issues of 
representation in all civil cases--i.e., the cost of the 
representation and the strength of the case--not that aliens are 
limited or prohibited from obtaining representation. See United 
States v. Torres-Sanchez, 68 F.3d 227, 231 (8th Cir. 1995) 
(``Although Torres-Sanchez expressed some frustration over his 
attempt to obtain counsel, that frustration, in our view of the 
record, stemmed from his realization that he faced the inevitable 
consequence of deportation, not from a lack of opportunity to retain 
counsel. In any event, the mere inability to obtain counsel does not 
constitute a violation of due process.''). As the Department is not 
involved in discussions between respondents and potential 
representatives, it cannot definitively state every reason that an 
alien who seeks representation may not obtain it. Nevertheless, it 
can state that this rule does not limit or restrict any alien's 
ability to obtain representation in accordance with section 292 of 
the Act, 8 U.S.C. 1362.
    \22\ In addition, as discussed elsewhere in this rule, the 
Department emphasizes that EOIR provides numerous resources to 
assist pro se individuals with self-representation and participation 
in their proceedings. For example, EOIR's Office of Policy seeks to 
increase access to information and raise the level of representation 
for individuals in hearings before immigration courts and the BIA. 
See EOIR, Office of Legal Access Programs (Feb. 19, 2020), available 
at https://www.justice.gov/eoir/office-of-legal-access-programs. In 
addition, EOIR has developed a thorough electronic resource for 
individuals in proceedings. EOIR, Immigration Court Online Resource, 
available at https://icor.eoir.justice.gov/en/.
    \23\ Although the Board has not formally adopted such a rule, by 
practice, it also construes pro se filings liberally. At least one 
court of appeals has held that the Board is legally required to 
liberally construe pro se filings. See Higgs v. Att'y Gen. of the 
U.S., 655 F.3d 333, 339-40 (3d Cir. 2011).
---------------------------------------------------------------------------

    Ultimately, however, unless a doctrine such as equitable tolling is 
applicable, BIA procedures are not excused for pro se respondents, just 
as they are not excused generally for pro se civil litigants. See, 
e.g., McNeil v. United States, 508 U.S. 106, 113 (1993) (``[W]e have 
never suggested that procedural rules in ordinary civil litigation 
should be interpreted so as to excuse mistakes by those who proceed 
without counsel.''); Edwards v. INS, 59 F.3d 5, 8-9 (2d Cir. 1995) 
(rejecting a pro se alien litigant's arguments for being excused from 
Federal court procedural requirements due to his pro se status). 
Although the Department appreciates the challenges faced by pro se 
litigants and recommends that all aliens obtain representation, but see 
note 21, supra (explaining why aliens may not obtain representation), 
it declines to establish two separate procedural tracks for appeals 
depending on whether an alien has representation. Further, weighing the 
possibility of abuses of the certification process described above and 
in the NPRM, 85 FR at 52506-07, the size of the pro se population with 
cases before the BIA, and the well-established avenues of assistance 
for pro se aliens, the Department disagrees that it is necessary or 
appropriate to keep the certification process simply due to the 
possibility of its use as a means of relieving a party of his or her 
compliance with particular procedural requirements.
    The Department is unsure why a commenter claimed the Department's 
underlying logic on this issue relied on an analogy to Federal court, 
as the entire section describing the changes is silent as to Federal 
appellate courts. Id. at 52506-07. Accordingly, the Department cannot 
provide an informed response to that comment.
    As to removing a necessary procedural check on immigration judges, 
the Department notes that the regular appeals process to the BIA is 
unchanged, and parties that believe an immigration judge erred in his 
or her decision should seek an appeal at the BIA consistent with those 
procedures. Commenters did not provide an explanation as to why the 
certification process would provide a check that the regular appeal 
process would not, nor did they explain why EOIR's well-established 
complaint process for immigration judge misconduct would also not be a 
sufficient check on immigration judge behavior. See EOIR, Summary of 
EOIR Procedures for Handling Complaints Concerning EOIR Adjudicators, 
Oct. 15, 2018, available at https://www.justice.gov/eoir/page/file/1100946/download (last visited Nov. 24, 2020). In short, commenters did 
not persuasively explain why the BIA self-certification process, which 
is subject to inconsistent application and potential abuse, is superior 
to the normal appellate process and EOIR's immigration judge misconduct 
complaint process for monitoring immigration judge behavior; 
accordingly, the Department declines to accept the commenters' 
suggestions on that issue.
b. Administrative Closure (8 CFR 1003.1(d)(1)(ii), 1003.10)
    Comment: Commenters raised concerns with the rule's general 
prohibition on administrative closure, explaining that the prohibition 
would prevent adjudicators from efficiently organizing and prioritizing 
cases on their dockets, resulting in increased backlogs. For example, 
commenters stated that immigration judges would not be able to 
prioritize terrorism suspects over persons who overstayed visas and 
have apparent eligibility for relief.
    Commenters further explained that eliminating administrative 
closure would result in unfairly harsh consequences for persons who 
have pending applications with the United States Citizenship and 
Immigration Services (``USCIS''), such as U visas and applications for 
Special Immigrant Juvenile Status. Instead of allowing for 
administrative closure of their removal proceedings while those 
applications are being processed by USCIS, the commenters explained 
that persons would likely be required to appeal a removal order or file 
a motion to reopen once USCIS approves their application, potentially 
while the person is outside the United States. Moreover, commenters 
noted that this would

[[Page 81598]]

create inefficiencies due to simultaneous adjudications by EOIR and 
USCIS. Similarly, commenters noted that the rule would also prejudice 
persons with pending matters in State or Federal courts as well, such 
as direct appeals of criminal convictions or other post-conviction 
relief.
    Commenters raised multiple concerns about the rule's effects on 
persons applying for provisional unlawful presence waivers with DHS. 
Commenters alleged that the rule conflicts with section 212(a)(9)(B)(v) 
of the Act, 8 U.S.C. 1182(a)(9)(B)(v), which provides for an unlawful 
presence hardship waiver. Commenters explained that the Secretary of 
Homeland Security implemented regulations at 8 CFR 212.7(e)(4)(iii) 
interpreting the waiver statute as allowing persons in removal 
proceedings to apply for a provisional waiver if their removal 
proceeding is administratively closed. In implementing this rule, the 
commenter alleges that the Department is implicitly amending the DHS 
regulation by rendering DHS's administrative closure language 
superfluous. As a result, commenters believe that the rule infringes on 
the Secretary's authority to interpret section 212(a)(9)(B)(v) of the 
Act, 8 U.S.C. 1182(a)(9)(B)(v).
    Moreover, commenters also stated that, as a practical matter, the 
rule would act as a bar to persons in removal proceedings from 
obtaining provisional unlawful presence waivers from DHS in order to 
consular process because the waiver applicants would no longer be able 
to receive administrative closure, as required by DHS regulations. One 
commenter noted that, instead of administrative closure, immigration 
courts have been recently using status dockets to handle cases that 
have applications pending with USCIS. However, the commenter noted that 
status dockets do not allow persons to apply for provisional unlawful 
presence waivers because their removal cases remain pending.
    Relatedly, at least one commenter stated that the administrative 
closure prohibition will push more aliens into filing applications for 
cancellation of removal, since they will be unable to administratively 
close their removal proceedings in order to apply for a provisional 
unlawful presence waiver. The commenter stated this would raise costs 
for EOIR since adjudicating cancellation of removal applications costs 
more than administratively closing proceedings in order for DHS to 
adjudicate the waiver applications.
    As a general matter, commenters alleged that the Department's 
explanation for the administrative closure changes were insufficient 
and incapable of justifying the changes under the APA, including 
claiming that EOIR relied on flawed and misleading statistics and that 
the Department's reliance on Matter of Castro-Tum, 27 I&N Dec. 271 
(A.G. 2018) is misplaced because Castro-Tum was wrongly decided. 
Commenters alleged that the Department's statements that prohibiting 
administrative closure will improve efficiency is not supported in the 
proposed rule and that administrative closure actually contributes to 
shrinking the backlog by allowing respondent to pursue ancillary 
relief. Moreover, commenters stated that the Department should have 
consulted with DHS to ensure that adjudications between the two 
agencies are consistent.
    At least one commenter also raised constitutional concerns with the 
rule's administrative closure changes. The commenter alleged that the 
rule violates due process by depriving persons in removal proceedings 
of the right to submit applications for provisional unlawful presence 
waivers and by depriving United States citizens of the opportunity to 
live with their non-citizen spouse while the spouse's provisional 
unlawful presence waiver is being adjudicated by USCIS. The commenter 
similarly alleged that the rule violates the Equal Protection Clause 
because persons in removal proceedings will be prevented from applying 
for a provisional unlawful presence waiver simply because they are in 
removal proceedings when persons who have been ordered removed are 
allowed to apply for a waiver.
    Response: EOIR is tasked with the efficient adjudication of 
immigration proceedings. See, e.g., 8 CFR 1003.10(b) (explaining that 
``immigration judges shall seek to resolve the questions before them in 
a timely and impartial manner''). As such, indefinitely delaying 
immigration court proceedings in order to allow aliens to pursue 
speculative relief that may take years to resolve does not comport with 
EOIR's mission to expeditiously adjudicate cases before it. See, e.g., 
Matter of L-A-B-R-, 27 I&N Dec. 405, 416 (A.G. 2018) (denying a 
continuance in part because an indefinite request would undermine 
administrative efficiency). With EOIR's pending caseload reaching 
record highs, EOIR simply cannot allow indefinite delays that prolong 
adjudication any longer than necessary for immigration judges to decide 
the issues squarely before them. See Hernandez-Serrano v. Barr, --
F.3d--, 2020 WL 6883420, *3 (6th Cir. Nov. 24, 2020) (``The result of 
administrative closure, . . . is that immigration cases leave an IJ's 
active calendar and, more often than not, never come back. Thus the 
reality is that, in hundreds of thousands of cases, administrative 
closure has amounted to a decision not to apply the Nation's 
immigration laws at all.''). Therefore, the Department does not believe 
that administrative closure is a proper tool \24\ for efficiently 
adjudicating proceedings and, as a result, is using its authority to 
clarify its own regulations to preclude immigration judges and the BIA 
from granting administrative closure, with limited exceptions. See INA 
103(g)(2), 8 U.S.C. 1103(g)(2) (granting the Attorney General the 
authority to issue regulations as necessary for carrying out his 
authority as it relates to EOIR).
---------------------------------------------------------------------------

    \24\ The Department notes that there are other potential tools 
available to respondents with pending relief or actions outside of 
EOIR, including requesting a continuance or working with DHS counsel 
to file a motion to dismiss. See 8 CFR 1003.29, 1239.2(c).
---------------------------------------------------------------------------

    Additionally, the Department finds it necessary to provide this 
clarification to resolve competing interpretations of 8 CFR 
1003.1(d)(1)(ii) and 1003.10(b) that have resulted in the inconsistent 
nationwide application of administrative closure authority. Compare 
Matter of Castro-Tum, 27 I&N Dec. at 271 (holding that neither 
immigration judges nor the BIA have a general authority to indefinitely 
suspend immigration proceedings through administrative closure), and 
Hernandez-Serrano, 2020 WL 6883420 at *4 (``Indeed no one--neither 
Hernandez-Serrano, nor the two circuit courts that have rejected the 
Attorney General's decision in Castro-Tum--has explained how a general 
authority to close cases administratively can itself be lawful while 
leading to such facially unlawful results.''), with Meza Morales v. 
Barr, 973 F.3d 656 (7th Cir. 2020) (rejecting Castro-Tum and holding 
that immigration judges are not precluded from administratively closing 
cases), and Romero v. Barr, 937 F.3d 282 (4th Cir. 2019) (same). These 
conflicting decisions, and the possibility of additional such 
decisions, create uncertainty for immigration judges and the BIA, which 
this rule seeks to remedy through a consistent nationwide policy. Cf. 
Meza Morales, 973 F.3d at 667 (noting that the Attorney General may 
amend the regulations through the proper procedures to remove any 
perceived administrative closure authority).
    The Department disagrees with commenters that the agency did not 
provide sufficient reasons for the change in the NPRM, or that the 
given reasons were false, erroneous, or relied on incorrect or 
misleading statistics.

[[Page 81599]]

Rather, the Department explained that the general authority to 
administratively close cases ``failed as a policy matter and is 
unsupported by the law.'' See 85 FR at 52504. In the NPRM, the 
Department noted that, following the expansion of administrative 
closure in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), the backlog 
of immigration court cases has grown significantly. See also 
Adjudication Statistics: Pending Cases, New Cases, and Total 
Completions, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/1242166/download. While the use of administrative closure is 
not solely responsible for this growth, the need for prompt 
adjudication of pending cases has only increased. Administrative 
closure merely delays a decision until an unknown future date, thus 
allowing the total number of cases at the immigration courts to grow, 
rather than requiring the immigration judge to adjudicate the issues 
before them in order to promptly move cases to completion.
    The Department also explained in the NPRM that the agency believes 
the Attorney General's holding in Matter of Castro-Tum is correct that 
8 CFR 1003.1(d)(1)(ii) and 1003.10(b) do not provide for general 
administrative closure authority, citing the Attorney General's 
explanations that general administrative closure authority conflicts 
with the regulatory ``timely'' requirements, 27 I&N Dec. at 284; that 
the regulations do not ordinarily include the authority to suspend 
cases indefinitely, id. at 285; and that specific delegations that 
prior Attorneys General have made would be rendered superfluous, id. at 
287-88, among others. See also Hernandez-Serrano, 2020 WL 6883420 at 
*1, *4 (stating that ``[a]s of October 2018, more than 350,000 of those 
[administratively closed] cases had not been reopened. An adjudicatory 
default on that scale strikes directly at the rule of law'' and that 
``[t]he result of administrative closure, . . . is that immigration 
cases leave an IJ's active calendar and, more often than not, never 
come back. Thus the reality is that, in hundreds of thousands of cases, 
administrative closure has amounted to a decision not to apply the 
Nation's immigration laws at all.'').
    Further, the Department also explained in the NPRM that the agency 
believes general administrative closure authority improperly allows 
immigration judges to determine which immigration cases should be 
adjudicated and which ones should not. See 85 FR at 52503. Similar to 
continuances, administrative closure is a tool to delay cases in 
certain instances. However, in practice, unlike continuances, 
administrative closure has at times been used to effectively terminate 
cases through indefinite delay. Thus, the Department believes that such 
authority is improper as a policy matter unless expressly provided for 
by regulation or judicially approved settlement.
    Lastly, the Department also explained in the NPRM that existing 
regulations make clear that authority to defer the adjudication of 
cases lies with EOIR leadership and not with individual members of the 
BIA or immigration judges. See 8 CFR 1003.0(b)(1)(ii), 
1003.1(a)(2)(i)(C), 1003.9(b)(3).
    The Department also disagrees with commenters that this rule 
conflicts with section 212(a)(9)(B)(v) of the Act, 8 U.S.C. 
1182(a)(9)(B)(v), as interpreted by DHS in 8 CFR 212.7(e)(4)(iii), 
which makes a person in removal proceedings ineligible for a 
provisional unlawful presence hardship waiver unless the proceedings 
are administratively closed. Regulations solely promulgated by and 
binding on DHS do not confer independent authority on immigration 
judges or the Board, and DHS does not have the power to provide 
immigration judges with the general authority to grant administrative 
closure or to prohibit EOIR from interpreting its own regulations, so 
any interpretation of Sec.  212.7(e)(4)(iii) attempting to do sowould 
be erroneous. See INA 103(a)(1), 8 U.S.C. 1103(a)(1) (providing the 
Attorney General with the authority to make ``controlling'' 
determinations of the immigration laws); see also Castro-Tum, 27 I&N 
Dec. at 287 n.9 (``Because only the Attorney General may expand the 
authority of immigration judges or the Board, that regulation [8 CFR 
212.7(e)(4)(iii)] cannot be an independent source of authority for 
administrative closure.''). The Department has considered the interplay 
of EOIR and DHS's regulations regarding provisional unlawful presence 
waivers and has decided to continue with a general prohibition on 
administrative closure in immigration proceedings before EOIR. DHS 
chose to limit the eligibility for provisional unlawful presence 
waivers as a matter of policy. See 78 FR at 544 (explaining that DHS 
chose to limit eligibility to aliens with administratively closed 
removal proceedings in order to be ``consistent with [DHS's] 
established enforcement priorities''). DHS may choose to update their 
regulations as a result of the Department's amendments regarding 
administrative closure authority, but any concerns with DHS's policy 
decisions are outside the scope of this rule.
    Commenters did not identify an explicit conflict between the 
language of INA 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), and the 
Department is unaware of any. That statutory provision refers to a 
waiver of inadmissibility based on an alien's unlawful presence in the 
United States, and this final rule does not purport to interpret, 
alter, or even address that provision. Rather, commenters assert that 
this rule's restriction on the use of administrative closure presents 
an undesirable policy choice to the extent that it may limit 
eligibility for that waiver based on DHS's current regulatory language. 
The Department acknowledges commenters' policy disagreement and has 
considered it. Nevertheless, the benefits of the final rule far 
outweigh its alleged costs, even crediting commenters' speculative 
assertions.\25\ Moreover, regardless of policy preferences, the 
Attorney General has determined that the expansive version of 
administrative closure preferred by commenters is incompatible with 
existing law and does not warrant a delegation of such authority. 
Matter of Castro-Tum, 27 I&N Dec. at 292 (``The current practice of 
administrative closure lacks a valid legal foundation, and I do not 
believe it would be appropriate to delegate such authority.''); cf. 
Hernandez-Serrano, 2020 WL 6883420 at *4 (``Those concessions imply 
that the permanent closure of some 350,000 immigration cases was 
largely contrary to law. Indeed no one--neither Hernandez-Serrano, nor 
the two circuit courts that have rejected the Attorney General's 
decision in Castro-Tum--has explained how a general authority to close 
cases administratively can itself be lawful while leading to such 
facially unlawful results.''). In short, the Department finds no basis 
to contradict the Attorney General and adopt commenters' policy 
preferences.
---------------------------------------------------------------------------

    \25\ The final rule does not prohibit administrative closure 
altogether, and commenters did not generally acknowledge or account 
for those aliens who may still benefit from administrative closure 
under the rule in their assertions about the rule's impact.
---------------------------------------------------------------------------

    The Department believes that any increase in cancellation of 
removal applications in response to this unrelated rule is purely 
speculative. Further, even if commenters' predictions turn out to be 
accurate, the Department is well-equipped to handle an increase in such 
applications as its adjudicators have considered them for decade and 
the relevant law is well-established. Additionally, commenters' 
speculation on this point implies that the majority of such 
applications would

[[Page 81600]]

be meritless; otherwise, the aliens would have already filed such 
applications because an approved application for cancellation of 
removal for non-permanent residents provides lawful permanent residence 
which is a preferable outcome to the limbo-like nature of 
adnministrative closure. The Department finds that a potential increase 
in meritless applications for relief is not a persuasive reason for 
altering this final rule, and any adjudicatory costs associated with 
such an increase are outweighed by the benefits of the rule.
    The Departments disagree that the administrative closure provisions 
raise any constitutional concerns. There is no cognizable due process 
interest in access to or eligibility for a discretionary, provisional 
unlawful presence waiver of inadmissibility. See, e.g., Champion v. 
Holder, 626 F.3d 952, 957 (7th Cir. 2010) (``To articulate a due 
process claim, [the individual] must demonstrate that she has a 
protected liberty or property interest under the Fifth Amendment. 
Aliens have a Fifth Amendment right to due process in some immigration 
proceedings, but not in those that are discretionary.'') (citations 
omitted). Moreover, this rule's administrative closure changes do not 
violate the concept of equal protection--in either the Equal Protection 
Clause of the Fourteenth Amendment or as a component of the Fifth 
Amendment's Due Process Clause--as they do not impose any 
classifications that would invoke the doctrine. To the extent the 
administrative closure changes would have a disparate impact on persons 
in removal proceedings as compared to persons not in proceedings, the 
Departments note that the changes are rationally related to the 
Department's interest in efficiently allocating EOIR's limited 
adjudicatory capacity in order to decide cases in a timely manner. Cf. 
DeSousa v. Reno, 190 F.3d 175, 184 (3d Cir. 1995) (``[D]isparate 
treatment of different groups of aliens triggers only rational basis 
review under equal protection doctrine. Under this minimal standard of 
review, a classification is accorded `a strong presumption of 
validity'. . . .'' (internal citations omitted)).
    Overall, as discussed in more detail, infra, the Department has 
weighed the relevant equities of the rule's administrative closure 
provision. The Department does not believe that the administrative 
closure provision will have a significant impact on the public, as most 
immigration courts--63 out of 67, all but those in Arlington, 
Baltimore, Charlotte, and Chicago \26\--currently follow either Matter 
of Castro-Tum itself or an applicable Federal court decisioning 
affirming it, e.g., Hernandez-Serrano, 2020 WL 6883420 at *5 (``In 
summary, therefore, we agree with the Attorney General that Sec. Sec.  
1003.10 and 1003.1(d) do not delegate to IJs or the Board `the general 
authority to suspend indefinitely immigration proceedings by 
administrative closure.''' (quoting Matter of Castro-Tum, 27 I&N Dec. 
at 272)). Therefore, the effect of this rule simply codifies the 
existing limitations on immigration judges' general authority to grant 
administrative closure.\27\ Moreover, to the extent that commenters 
simply disagree with the decision in Matter of Castro-Tum as a policy 
matter, the Department has explained that the legal and policy issues 
implicated by the free-floating use of administrative closure and the 
efficiency that would follow from clearly delineating the circumstances 
of its usage outweigh the policy arguments advanced by commenters. See 
also Hernandez-Serrano, 2020 WL 6883420 at *1 (``A regulation 
delegating to immigration judges authority to take certain actions 
`[i]n deciding the individual cases before them' does not delegate to 
them general authority not to decide those cases at all. Yet in more 
than 400,000 cases in which an alien was charged with being subject to 
deportation or (after April 1, 1997) removal, immigration judges or the 
Board of Immigration Appeals have invoked such a regulation to close 
cases administratively--meaning the case was removed from the IJ's 
docket without further proceedings absent some persuasive reason to 
reopen it. As of October 2018, more than 350,000 of those cases had not 
been reopened. An adjudicatory default on that scale strikes directly 
at the rule of law.'').
---------------------------------------------------------------------------

    \26\ The Department notes that Matter of Castro-Tum did not 
incorporate all of the legal arguments presented in the NPRM 
regarding whether immigration judges and Board members have free-
floating authority to defer adjudication of cases. E.g., 85 FR at 
52503 (discussing tension created by interpreting 8 CFR 
1003.1(d)(1)(ii) and 1003.10(b) to allow free-floating authority to 
administratively close cases with references in those provisions to 
the ``disposition'' of cases and with the provisions of 8 CFR 
1003.1(a)(2)(i)(C) and 8 CFR 1003.9(b)(3) which assign authority to 
defer case adjudications to the Board Chairman and the Chief 
Immigration Judge rather than to all Board members and all 
immigration judges); accord Hernandez-Serrano, 2020 WL 6883420 at *4 
(``To the contrary, the regulations expressly limit their delegation 
to actions `necessary for the disposition' of the case. And that 
more restricted delegation cannot support a decision not to decide 
the case for reasons of administrative `convenience' or the 
`efficient management of the resources of the immigration courts and 
the BIA.' '' (emphases in original). Thus, circuit court decisions 
abrogating Matter of Castro-Tum did not necessarily address all 
arguments surrounding administrative closure. Accordingly, 
independent of Matter of Castro-Tum, immigration judges and Board 
members may still come to the conclusion that they generally lack 
free-floating authority to administratively close cases.
    \27\ Although this rule codifies the result of Matter of Castro-
Tum, its bases are broader than just that decision. See supra text 
accompanying note 26.
---------------------------------------------------------------------------

    Further, for those courts that are not bound by Matter of Castro-
Tum, the Department disagrees that the change will result in 
unnecessary removal orders, as immigration judges are already tasked 
with resolving the proceedings before them, including determining 
removability and issuing removal orders if required. See, e.g., 8 CFR 
1003.10(b) (``In all cases, immigration judges shall seek to resolve 
the questions before them in a timely and impartial manner consistent 
with the Act and regulations.''). The Department declines to adopt 
commenters' speculation as to the counter-factual outcomes of cases 
that have been administratively closed, and commenters did not support 
their assertion that only cases in which an alien will be ordered 
removed are administratively closed.\28\ To the contrary, aliens have 
sought recalendaring of their proceedings in order to apply for relief 
from removal for which they believe they are eligible, suggesting that 
in many cases, aliens themselves do not believe that a case that has 
been administratively closed would necessarily have otherwise resulted 
in a removal order. See, e.g., Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 
2017) (``[The respondent] filed a timely application for asylum and 
related relief and protection, which he seeks to have the Immigration 
Judge review in removal proceedings. The respondent argues that the 
administrative closure of his case prevents him from pursuing that 
relief.''), overruled by Matter of Castro-Tum, 27 I&N Dec. at 272.
---------------------------------------------------------------------------

    \28\ The Department notes that simply delaying an alien's 
removal is not a compelling policy basis for declining to promulgate 
this rule. See Nken v. Holder, 556 U.S. 418, 436 (2009) (``There is 
always a public interest in prompt execution of removal orders: The 
continued presence of an alien lawfully deemed removable undermines 
the streamlined removal proceedings IIRIRA established, and permits 
and prolongs a continuing violation of United States law.'' 
(internal citations and quotation marks omitted)).
---------------------------------------------------------------------------

    As the Department asserted, free-floating authority to unilaterally 
administratively close cases is in significant tension with existing 
law, including regulations and longstanding Board case law. 85 FR at 
52503-05. To the extent that commenters suggested the Department should 
retain the status quo and its problematic tension with

[[Page 81601]]

existing law, the Department simply disagrees.
    The question of unlawful presence waivers was already addressed by 
Matter of Castro-Tum, 27 I&N Dec. at 278 n.3, 287 n.9, and this final 
rule does not impact such waivers accordingly. Moreover, the regulation 
identified by commenters, 8 CFR 212.7(e)(4)(iii) has no analogue in 
chapter V of title 8, and that regulation is not binding on the 
Department. Additionally, such a waiver is both ``provisional'' and 
``discretionary,'' 8 CFR 212.7(e)(2)(i); like administrative closure 
itself, an alien has no right to such a waiver; and, a provisional and 
discretionary waiver to which an alien lacks any entitlement cannot be 
seen as necessary to the disposition of the alien's case in immigration 
proceedings. See Gutierrez-Morales v. Homan, 461 F.3d 605, 610 (5th 
Cir. 2006) (``We have squarely held that `neither relief from removal 
under discretionary waiver nor eligibility for such discretionary 
relief is entitled to due process protection.' Stated differently, an 
alien has no due process right to a hearing to determine his 
eligibility for relief that is purely discretionary.'' (footnotes 
omitted, emphasis in original)).
    Further, although aliens in removal proceedings (unless 
administratively closed) and aliens with administratively final orders 
of removal are barred from obtaining the waiver, 8 CFR 212.7(e)(4)(iii) 
and (iv), an alien with an administratively final order of voluntary 
departure is not, and by definition, aliens must voluntarily depart the 
United States in order to receive the benefit of such a waiver. Thus, 
the availability of administrative closure has no bearing on an alien's 
ability to receive and effectuate an order of voluntary departure, 
which is a practical prerequisite for obtaining the benefit of the 
waiver, and commenters did not explain why the restriction on 
administrative closure would have any impact at all on an alien's 
ability to obtain an order of voluntary departure and then a 
provisional waiver before departing to receive the final waiver abroad. 
Although the Department has considered the link between such waivers 
and administrative closure--just as the Attorney General did in Matter 
of Castro-Tum--that link is too attenuated to outweigh the significant 
legal and policy concerns raised by the Department regarding 
administrative closure.
    Similarly, concerns about putative reliance interests are 
misplaced. First, as discussed, infra, the rule applies, in general, 
only prospectively, so it does not disturb cases that have already been 
administratively closed. Second, and relatedly, all changes in the law 
may impact matters of attorney strategy in interactions with clients, 
but that is an insufficient basis to decline to change the law.\29\ To 
find otherwise would effectively preclude any law from ever being 
changed. Third, nothing in the rule prohibits a practitioner from 
seeking administrative closure; rather, it more clearly delineates the 
situations in which administrative closure is legally authorized. 
Fourth, a representative may not ethically guarantee any result in a 
particular case; thus, to the extent commenters suggest that the final 
rule restricts or interferes with an attorney's ability to guarantee an 
alien both a grant of administrative closure and the approval of a 
provisional waiver, the Department finds such a suggestion unavailing. 
See Model Rules of Prof'l Conduct R. 7.1 cmt. 3 (2020) (``A 
communication that truthfully reports a lawyer's achievements on behalf 
of clients or former clients may be misleading if presented so as to 
lead a reasonable person to form an unjustified expectation that the 
same results could be obtained for other clients in similar matters 
without reference to the specific factual and legal circumstances of 
each client's case.''); id. cmt. 4 (``It is professional misconduct for 
a lawyer to engage in conduct involving dishonesty, fraud, deceit or 
misrepresentation.'') (quoting R. 8.4(c)); id. R. 8.4(e) (``It is 
professional misconduct for a lawyer to . . . state or imply an ability 
to influence improperly a government agency or official or to achieve 
results by means that violate the Rules of Professional Conduct or 
other law.'').
---------------------------------------------------------------------------

    \29\ Furthermore, as reiterated herein, because Matter of 
Castro-Tum was issued in 2018, aliens and their representatives in 
jurisdictions following Castro-Tum should not be currently relying 
on the expectation of administrative closure to pursue provisional 
unlawful presence waivers.
---------------------------------------------------------------------------

    In short, the Department appropriately considered potential 
alternatives as well as the relevant interests and alleged costs in 
issuing the final rule regarding administrative closure. On balance, 
however, commenters' suggestions would not resolve the issues 
identified by the Department, and the concerns raised by commenters are 
far outweighed by both the significant legal and policy issues raised 
by the Department in the NPRM regarding administrative closure and the 
increased efficiency that a formal clarification of its use will 
provide.
    With regards to the alleged costs to persons in removal proceedings 
who allegedly may no longer be eligible to obtain a provisional 
unlawful presence waiver without administrative closure, the Department 
first reiterates that situation is already the status quo in all but 
four immigration courts and has been so since 2018. As Matter of 
Castro-Tum was issued in 2018, aliens and their representatives in 
jurisdictions following Castro-Tum should not be currently relying on 
the expectation of administrative closure to pursue provisional 
unlawful presence waivers. Consequently, this final rule does not 
change the status quo regarding the availability of a provisional 
unlawful presence waiver for the overwhelming majority of aliens 
currently in removal proceedings, and commenters generally did not 
distinguish the reality of the status quo in making their speculative 
projections. Further, the Department believes that the strong interest 
in the efficient adjudication of cases and the legal and policy issues 
identified in the NPRM outweigh the potential inability of aliens at 4 
out of 67 immigration courts to obtain provisional unlawful presence 
waivers, something to which they are not entitled to in the first 
instance. The Department notes that these persons may still apply for 
an unlawful presence waiver from outside the United States, and that 
DHS may choose, as a matter of policy, to amend their regulations to 
remove the administrative closure requirement for persons in removal 
proceedings applying for a provisional waiver.
    The Department also disagrees that the general prohibition on 
administrative closure does not harmonize with DHS regulations 
regarding provisional unlawful presence waivers. As a Federal circuit 
court recently noted, the presence of references to administrative 
closure in existing regulations ``presuppose only the existence of a 
general practice of administrative closure, not its legality.'' 
Hernandez-Serrano, 2020 WL 6883420 at *4. Thus, assuming counter-
factually--but as commenters asserted--that 8 CFR 212.7(e)(4)(iii) 
controlled the Department and that no aliens would be eligible to have 
their cases administratively closed after this final rule--and, thus, 
no aliens in immigration proceedings were eligible for a provisional 
waiver under 8 CFR 212.7(e)(4)(iii)--those factors, even if factually 
accurate, would not provide a strong policy basis to overrule the 
Attorney General's decision in Matter of Castro-Tum for all of the 
reasons given by the Department in the NPRM and this final rule. See 
also Hernandez-Serrano, 2020 WL 6883420 at *4 (``neither the IJs nor 
the Board [nor parties] enjoy a right of adverse possession as to the 
Attorney General's

[[Page 81602]]

regulations.''). The Department considered the interplay of EOIR and 
DHS's regulations and, due to the strong equities in favor of limiting 
administrative closure, decided to continue with a general prohibition 
on administrative closure in immigration proceedings before EOIR. DHS 
chose to limit the eligibility for provisional unlawful presence 
waivers as a matter of policy, and DHS may choose to update their more 
specific regulations accordingly as a result of this rule.
c. Enhanced BIA Factfinding (8 CFR 1003.1(d)(3)(iv))
i. Administrative Notice
    Comment: As a general matter, many commenters asserted that the 
provisions regarding administrative notice were biased in favor of DHS, 
thereby demonstrating the allegedly partisan nature of the BIA and, 
more broadly, the Department. Similarly, one commenter explained that 
the administrative notice provisions were ``problematic'' because, as 
the commenter alleged, DHS could submit new evidence but the alien was 
not permitted to submit counter evidence under the new rules.
    Commenters expressed concern about the types of items the rule 
would allow the BIA to administratively notice items ``not reasonably 
subject to dispute.'' 8 CFR 1003.1(d)(3)(iv)(A). Overall, commenters 
predicted disputes at both the BIA and the Federal courts over whether 
particular facts fit any of the listed exemplary categories of such 
evidence or otherwise constitute such items. 8 CFR 
1003.1(d)(3)(iv)(A)(1)-(4). Such disputes, commenters alleged, would 
undermine the efficiency goals of the rule. One commenter explained 
that ``[m]ost of this information--especially that contained within 
government documents--will be adverse to respondents. The rule thus 
creates a one-sided system in which information favorable to DHS may be 
considered by the BIA, but information favorable to respondents may not 
be.'' Commenters claimed that the rule's inclusion of all of these 
facts was arbitrary and capricious.
    Further, commenters specifically alleged that the ``the contents of 
official documents outside the record,'' 8 CFR 1003.1(d)(3)(iv)(A)(2), 
are subject to reasonable dispute because DHS records, including 
records from CBP and ICE, ``routinely contain [ ] egregious errors and 
coerced statements.'' Commenters also stated that current events, 8 CFR 
1003.1(d)(3)(iv)(A)(1), could similarly be subject to reasonable 
dispute. Commenters stated that the contours of the category of facts 
from government sources was unclear, despite it being limited to 
``facts that can be accurately and reliably determined,'' 8 CFR 
1003.1(d)(3)(iv)(A)(3), because DHS records are unreliable. In 
addition, at least one commenter stated that the rule did not explain 
why facts that can be administratively noticed by the BIA may only be 
sourced from official or universally acclaimed documents.
    At least one commenter alleged that the administrative notice 
provisions would allow the BIA to consider and act upon facts not 
raised by either party, thereby considering ``facts that did not 
constitute part of the immigration judge's decision-making.'' The 
commenter alleged that this would allow the BIA to act as prosecutor 
instead of a neutral arbiter. The commenter explained that because DHS 
rarely submits a brief on appeal, the administrative notice changes 
would disproportionately affect pro se individuals.
    Several commenters stated that the provisions regarding notice and 
an opportunity to respond were insufficient because a response may 
require witnesses and additional clarifying evidence. Commenters 
explained that witnesses and additional evidence were more 
appropriately introduced at the immigration court level, given the 
immigration judge's unique position to assess facts and determine 
credibility and the general prohibition against factfinding by the BIA. 
Commenters also emphasized that the rule failed to consider that the 
BIA would need to give notice to the parties and an opportunity to 
respond if the BIA intended to administratively notice a fact that was 
outside the record and would serve as the basis for overturning a 
removal order or denial of relief. The commenter explained that the BIA 
does not appear to be neutral when it must only administratively notice 
facts that could be used to deny relief that was previously granted.
    One commenter explained that the rule's changes to administrative 
notice would affect the standard of review for factual findings on 
appeal at the appellate court level. The commenter explained that the 
current use of the ``substantial evidence'' standard would not be 
justified, given that some factual findings would have been made only 
by the BIA in the first instance. Thus, the commenter suggested that 
the ``clearly erroneous'' standard replace the ``substantial evidence'' 
standard in these cases.
    Response: As an initial point, the Department notes that the 
Board's ability to take administrative notice of certain facts is 
already well-established in both existing regulations, e.g., 8 CFR 
1003.1(d)(3)(iv) (2019) (allowing the Board to take administrative 
notice of current events and the contents of official documents), and 
case law, e.g., Sankoh v. Mukasey, 539 F.3d 456, 465 (7th Cir. 2008) 
(``The Board has the authority to take administrative notice of 
uncontroverted facts, meaning facts that can be characterized as 
commonly acknowledged.'' (internal citation and quotation marks 
omitted)). Thus, to the extent that commenters assert the Board should 
not be able to take administrative notice of facts not reasonably 
subject to dispute, they did not explain why the Department should 
reverse the Board's longstanding authority to do so.
    Similarly, commenters did not persuasively explain why Federal Rule 
of Evidence 201(b), which is well-established in Federal jurisprudence 
and governs judicial notice by appellate courts, In re Omnicare, Inc. 
Securities Litigation, 769 F.3d 455, 466 (6th Cir. 2014) (``[Federal 
Rule of Evidence 201(b)] applies to appellate courts taking judicial 
notice of facts supported by documents not included in the record on 
appeal.'' (quoting United States v. Ferguson, 681 F.3d 826, 834 (6th 
Cir. 2012)), was not an appropriate model for the Board to follow. 
Without such explanations as to why the Department should overturn 
these longstanding and well-established principles, the Department 
finds commenters' unsupported policy preferences on this point 
unpersuasive.
    Additionally, commenters' suggestions about the allegedly ``one-
sided'' nature of this change belie both a misunderstanding of the rule 
and an acknowledgement of its importance to ensure that only 
meritorious claims are granted. First, contrary to the assertions of 
many commenters, the rule applies equally to DHS and to respondents. 
Thus, the Board may take administrative notice of facts both favorable 
and adverse to either party, as long as those facts are not reasonably 
subject to dispute. Second, the broad, hyperbolic, and unsupported 
assertion that official government documents should not be 
administratively noticed because they contain only information adverse 
to respondents is both inaccurate factually, e.g., Dahal v. Barr, 931 
F.3d 15, 19 (1st Cir. 2019) (``Thus, far from undercutting Dahal's 
fears, the [Department of State] Country Report on the elections 
recognizes a remaining threat of Maoist persecution.''), and in tension 
with well-established Federal practice in which courts may take 
judicial notice of official government documents, e.g.,

[[Page 81603]]

Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d 
156, 166 (S.D.N.Y. 2015) (``Under Federal Rule of Evidence 201, a court 
may take judicial notice, at `any stage of the proceeding,' of any fact 
`that is not subject to reasonable dispute because' it `can be 
accurately and readily determined from sources whose accuracy cannot 
reasonably be questioned.' Fed. R. Evid. 201(b)(2), (d). . . . Pursuant 
to Rule 201, courts have considered newspaper articles, documents 
publicly filed with the SEC or FINRA, documents filed with a Secretary 
of State, documents filed with governmental entities and available on 
their official websites, and information publicly announced on certain 
non-governmental websites, such as a party's official website.''); 
Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.1991) (``[A] . . 
. court may take judicial notice of the contents of relevant public 
disclosure documents . . . as facts `capable of accurate and ready 
determination by resort to sources whose accuracy cannot reasonably be 
questioned.' '' (quoting Fed. R. Evid. 201(b)(2)).
    Moreover, this suggestion misapprehends the nature of the rule 
and--perhaps unintentionally by the commenter--offers further support 
for maintaining it. The rule allows the Board to take administrative 
notice of ``[f]acts that can be accurately and readily determined from 
official government sources and whose accuracy is not disputed.'' 8 CFR 
1003.1(d)(3)(iv)(A)(3). Commenters did not explain why facts whose 
accuracy is not disputed and that are unfavorable to an alien should 
not be considered by individuals adjudicating claims made by aliens--
except that ignoring such facts would potentially increase the 
likelihood that non-meritorious claims would be granted, which is an 
outcome preference tacitly supported by many commenters. The Department 
finds it vitally important that all undisputed, accurate facts bearing 
on a claim should be considered in order to reduce adjudication errors 
and to ensure that meritorious claims are granted in a timely manner 
while unmeritorious ones are efficiently addressed. In short, the 
Department disagrees with the implicit suggestion of commenters that 
the Board should intentionally turn a blind eye to relevant, undisputed 
facts, regardless of which party those facts allegedly favor.
    The rule does not authorize the BIA to rely on facts that did not 
constitute part of the immigration judge's decision-making, except when 
such ``facts [ ] are not reasonably subject to dispute.'' 8 CFR 
1003.1(d)(3)(iv)(A) (proposed); see also Matter of J-Y-C-, 24 I&N Dec. 
260, 261 n.1 (BIA 2007) (providing that issues not raised before an 
immigration judge are waived). The BIA must take administrative notice 
of those facts. 8 CFR 1003.1(d)(3)(iv)(A). Further, if the BIA were to 
reverse a grant of relief or protection from removal based on such 
facts, the BIA must give the parties notice and not less than 14 days 
to respond. 8 CFR 1003.1(d)(3)(iv)(B). Accordingly, contrary to 
commenters' assertions, an alien whose grant of relief or protection 
may be subject to reversal will have an opportunity to respond, 
including by submitting additional arguments and evidence such as 
affidavits or declarations.
    Furthermore, the administrative notice provisions are not the 
product of partisanship or favoritism toward DHS, and contrary to an 
implicit assertion made by most commenters, they apply equally to both 
parties. The BIA has long been able to take administrative notice of 
commonly known facts and official government records, and these changes 
build on this prior practice. Moreover, contrary to the assertion of at 
least one commenter, the Department intends to ensure that an alien 
receives notice and an opportunity to respond if the BIA were to rely 
on a fact outside the record to reverse a grant of relief or protection 
from removal. If anything, the provision treats respondents more 
favorably than DHS because it does not require the BIA to provide 
notice to DHS if it intends to rely on facts outside the record to 
reverse an immigration judge's denial of relief or protection, yet many 
commenters failed to acknowledge this discrepancy or to explain why the 
Department should not adopt such a provision.
    The Department emphasizes that regulations, not statute, determine 
appellate procedures at the BIA. See generally 8 CFR part 1003, subpart 
A; see also 85 FR at 52492. Accordingly, the Department properly 
exercised its rulemaking authority under section 103(g)(2) of the Act, 
8 U.S.C. 1103(g)(2), to promulgate the administrative notice provisions 
to clarify appellate procedures at the BIA, with the overarching goal 
of increasing efficiencies and consistency in cases before the BIA.
    The Department disagrees with commenters' suggestions that the 
regulation's list of facts that may be administratively noticed include 
disputable facts, as whether any given fact is ``disputable'' will 
depend on the putative fact at issue and the overall circumstances of 
the case. The Department recognizes that parties may disagree over 
whether a fact is truly undisputed, but factual disputes are already a 
common feature of immigration proceedings and can be resolved under 
existing law. Moreover, respondents will have at least 14 days to argue 
otherwise if the Board intends to rely on a fact ``not reasonably 
subject to dispute'' outside the record in order to reverse a rant of 
relief or protection. 8 CFR 1003.1(d)(3)(iv)(B).
    Further, the Department rejects any allegation that official 
documents or government documents contain ``egregious errors'' and 
``coerced statements,'' or are ``unreliable,'' as commenters claimed. 
Government documents, broadly speaking, provide reliable data and cite 
to reliable sources in support of the ideas presented and are meant to 
inform the public. Second, the Department disagrees with the 
commenters' concerns that all but paragraph (d)(3)(iv)(A)(4) could be 
disputable. The Department disagrees that administrative notice of any 
of those facts creates a biased system. Inclusion of these facts is not 
arbitrary or capricious; both ``current events'' and ``official 
documents'' were carried over from existing regulations. The ``official 
government sources'' category provides further clarification and 
distinction from the ``official documents'' category. In providing this 
list, the Department sought to delineate clear categories of facts that 
were indisputable, and the rule concurrently included the provision 
requiring notice and an opportunity to respond to ensure that both 
sides may address administratively noticed facts. Commenters' concerns 
regarding prolonged disputes at the BIA and the Federal courts are 
speculative, as are commenters' concerns regarding efficiency that stem 
from those litigation-related concerns. More specifically, all disputes 
at the BIA may potentially result in Federal litigation, including 
disputes over the appropriateness of the Board taking administrative 
notice of undisputed facts. The near-certainty of litigation, which has 
grown considerably in the immigration field well before the NPRM was 
published, is an insufficient basis, however, to decline to adopt the 
rule.
    In regard to administratively noticed documents, those listed at 8 
CFR 1003.1(d)(3)(iv)(A)(1)-(4) are examples of documents, as indicated 
by the words ``such as'' preceding the list provided at paragraphs 
(d)(3)(iv)(A)(1)-(4), that would generally raise facts not reasonably 
subject to dispute. The rule did not require that sources be 
``official'' or ``universally acclaimed,'' as commenters claimed. 
Rather, the rule required that administratively noticed facts, 
regardless of their sources, be ``not

[[Page 81604]]

reasonably subject to dispute.'' Although official or universally 
acclaimed documents typically raise facts that are not in dispute, 
those are not the exclusive sources from which the BIA may 
administratively notice facts.
    Because facts that may administratively noticed are not reasonably 
subject to dispute, the BIA does not act as a ``prosecutor'' when it 
takes administrative notice of such facts. Further, the regulation 
requires the BIA to provide parties at least 14 days to respond if it 
takes administrative notice of facts. 8 CFR 1003.1(d)(3)(iv)(B). Thus, 
regardless of whether DHS files a brief on appeal and regardless of 
whether an alien is represented, the alien is afforded an opportunity 
to respond to administratively-noticed facts outside the record if 
those facts will be used to overturn a grant or relief or protection. 
This rule also does not impose any specific limits on such a response, 
though the Board's ordinary rules for service and filing would still 
apply.
    Although the Department agrees that immigration courts are 
generally best-positioned to engage in factfinding, see generally 85 FR 
at 52500-01, there are circumstances--similar to those recognized by 
Federal courts--in which procedural efficiency counsels in favor of 
being noticed on appeal in order to avoid remanding a case to address a 
fact that is undisputed. Thus, the Department has determined that 
certain facts described in 8 CFR 1003.1(d)(3)(iv)(A)(1)-(4) may 
appropriately be raised before the BIA. See id. at 52501.
    Some commenters alleged that the rule permits DHS to submit new 
evidence and prevents the alien from submitting new evidence to counter 
DHS's new evidence. However, the rule does not permit either party to 
submit new evidence in this regard. To the extent that commenters 
framed this concern as one regarding exceptions related to factual 
issues raised by identity, law enforcement, or security investigations 
or examinations, or other investigations noted in 85 FR at 52500 n.21, 
that issue is distinct from the issue of administratively noticed facts 
and, for asylum applications, has a statutory foundation, INA 
208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i) (``[A]sylum cannot be 
granted until the identity of the applicant has been checked against 
all appropriate records or databases maintained by the Attorney General 
and by the Secretary of State, including the Automated Visa Lookout 
System, to determine any grounds on which the alien may be inadmissible 
to or deportable from the United States, or ineligible to apply for or 
be granted asylum''). For further discussion on issues related to 
identity, law enforcement, or security investigations or examinations, 
see section II.C.3.e.
    Commenters' concerns regarding use of the clearly erroneous 
standard in place of the substantial evidence standard is outside the 
scope of this rulemaking, as this rule does not propose or affect 
standards of review for factual findings at the appellate court level. 
The Department does not have the authority to issue a rule that would 
alter the standard of review employed by a Federal circuit court. This 
rule does not affect the commenters' ability to lobby Congress or 
advise other attorneys in regard to this concern.
ii. BIA Factfinding Remands
    Comment: Commenters opposed the rule's prohibition on the BIA to 
remand a case for further factfinding, explaining that oftentimes 
combining excluded evidence with evidence in the record could determine 
the outcome of a case. Overall, one commenter explained that the rule 
``defied logic'' by categorically restricting the BIA from exercising 
discretion to determine whether additional facts must be adduced. The 
commenter stated that the Department provided no data to support the 
rule's changes to the BIA's long-standing factfinding efforts, nor did 
the rule explain how restricting the BIA's factfinding capabilities 
would increase efficiency and consistency.
    Commenters voiced general concern for pro se individuals, alleging 
that the rule's removal of the BIA's ability to remand a case sua 
sponte for further factfinding ``appears designed to quickly, and with 
finality, remove those without representation who would be least likely 
to understand that they have the ability to seek remand and would 
therefore most heavily rely on EOIR to protect their rights.'' More 
specifically, especially in the case of pro se individuals, commenters 
were concerned that respondents who were unaware of what was necessary 
to meet their burden would also similarly not have attempted to 
``adduce the additional facts before the immigration judge,'' as 
required by proposed 8 CFR 1003.1(d)(3)(iv)(D)(2) for the BIA to remand 
a case. One commenter further explained that this provision would 
``require respondents to predict a future that will be created by 
actors beyond their control in order to obtain the lawful status that 
is otherwise statutorily available to them.''
    Similarly, commenters opposed proposed 8 CFR 1003.1(d)(3)(iv)(D)(1) 
requiring that an issue be ``preserved'' before the immigration judge 
because, the commenters explained, the respondent would be unaware of 
what factfinding the immigration judge had conducted until the decision 
is issued. Accordingly, commenters alleged that the respondent would 
have to ``interrupt the IJ as the IJ is dictating her ruling. Or, even 
worse, the [r]espondent wouldn't even have the opportunity to object 
because he received his decision by postal mail.'' Citing the 
performance metrics for immigration judges, commenters were concerned 
that immigration judges would have ``little incentive'' to take the 
time to develop the record in cases ``where there is no possibility 
that the case could be remanded for failure to do so.''
    Commenters also disagreed with proposed 8 CFR 
1003.1(d)(3)(iv)(D)(3), which requires the BIA to first determine 
whether additional factfinding would ``alter the outcome of the case.'' 
Commenters alleged that making such determination constituted 
factfinding on the part of the BIA, contradicting the general 
opposition to factfinding by the BIA.
    Commenters disagreed with the clearly erroneous standard in 
proposed 8 CFR 1003.1(d)(3)(iv)(D)(5). Commenters explained that it 
should not make a difference whether an immigration judge's findings 
were erroneous if an alien should have been granted asylum in the first 
instance. Other commenters voiced general support for the current 
system, which they explained required the BIA to determine whether an 
immigration judge made a clearly erroneous factual finding that 
prejudiced the alien. One commenter alleged that, under the rule, the 
BIA would be forced to issue ``poor decisions based on incomplete facts 
and conjecture.''
    Response: Again, as an initial point, the Department notes that the 
assertions of many commenters reflect either an unsubstantiated, 
tendentious interpretation of the rule or a fundamental 
misunderstanding of the procedures of adversarial civil proceedings, 
including immigration proceedings. Except for issues related to 
identity, law enforcement, or security investigations or examinations, 
which are required by other regulations or statutes,\30\ the changes in 
the rule regarding factfinding apply to both

[[Page 81605]]

parties equally. Thus, both DHS and an alien must comply with the 
rule's provisions in order to seek a remand for factfinding.
---------------------------------------------------------------------------

    \30\ Most applications cannot be granted in immigration 
proceedings--at the BIA or otherwise--without the completion and 
clearance of identity, law enforcement, or security investigations 
or examinations. 8 CFR 1003.47. A similar statutory restriction 
applies specifically to asylum applications. INA 208(d)(5)(A)(i), 8 
U.S.C. 1158(d)(5)(A)(i).
---------------------------------------------------------------------------

    Because the parties themselves are responsible for meeting any 
applicable burdens of proof before the immigration judge, 8 CFR 1240.8, 
and because the Board acts a neutral arbiter between the parties--
rather than as an advocate for one party over the other--there is 
generally no reason for the Board to remand a case on its own for 
further factfinding unless a question of jurisdiction has arisen that 
requires such factfinding. To do otherwise, the Board would, in 
essence, be acting on behalf of a party in order to advance that 
party's arguments, which is inappropriate. 8 CFR 1003.1(d)(1) (``The 
Board shall resolve the questions before it in a manner that is timely, 
impartial, and consistent with the Act and regulations.'' (emphasis 
added)); 5 CFR 2635.101(b)(8) (``Employees [of the federal government] 
shall act impartially and not give preferential treatment to any 
private organization or individual.''); BIA Ethics and Professionalism 
Guide at sec. V (``A Board Member shall act impartially and shall not 
give preferential treatment to any organization or individual when 
adjudicating the merits of a particular case.''). In other words, it is 
not the Board's role to correct deficiencies in a party's case or to 
provide a second or additional opportunity for a party to do so. It is 
the Board's role to ``review . . . administrative adjudications under 
the Act . . . . [R]esolve the questions before it in a manner that is 
timely, impartial, and consistent with the Act and regulations . . . . 
[And] provide clear and uniform guidance to the [DHS], the immigration 
judges, and the general public on the proper interpretation and 
administration of the Act and its implementing regulations.'' 8 CFR 
1003.1(d)(1). The final rule recognizes the Board's appropriate role, 
and to the extent that commenters suggest the Board should employ 
procedures in resolving appeals that favor one party over the other, 
the Department declines to adopt such a suggestion to avoid 
compromising the Board's impartiality.
    The rule reflects several well-established principles that 
commenters did not persuasively challenge or address. First, it 
requires that the party seeking remand for factfinding on an issue to 
have preserved that issue below. Issues not preserved in front of an 
immigration judge are generally waived. See Matter of Edwards, 20 I&N 
Dec. 191, 196 n.4 (BIA 1990) (noting that an issue not preserved in 
front of the immigration judge is waived). Thus, it is both inefficient 
and inconsistent with existing case law to remand a case for further 
factfinding on issue that has already been waived on appeal. Commenters 
did not explain why EOIR should allow the Board to remand cases for 
further factfinding on issues that have already been waived, and the 
Department is unaware of any logical or persuasive basis to do so.
    Second, the rule requires the party seeking remand, if it bore the 
burden of proof below, to have attempted to adduce the additional facts 
before the immigration judge. There is no logical reason for a party to 
choose not to attempt to adduce facts sufficient to meet its burden of 
proof before an immigration judge, and this requirement merely 
recognizes both the inefficiency and the gamesmanship that would follow 
if parties were relieved of an obligation to attempt to bring out facts 
to meet a burden of proof before an immigration judge. Again, 
commenters did not explain why parties--including both aliens and DHS--
should be relieved of that burden, particularly since they, presumably, 
should already have attempted to meet it. 8 CFR 1240.8.
    Third, the rule requires that the additional factfinding alter the 
outcome or disposition of the case. To do otherwise would be to remand 
a case for no purpose since the remand would not affect the outcome or 
disposition of the case. In short, it would be a remand for no reason. 
The Department is unaware of any need to remand a case for no reason, 
and commenters did not provide one.
    Fourth, and relatedly, the rule requires that the additional 
factfinding would not be cumulative of the evidence already presented 
or contained in the record. Again, to do otherwise would largely be 
purposeless. The Department is unaware of any reason to remand a case 
for factfinding that is cumulative or already present in the record, 
and commenters did not advance one.
    Fifth, the rule requires, inter alia, that the immigration judge's 
factual findings were clearly erroneous. The Board already reviews 
immigration judge factual findings under a clearly erroneous standard, 
and the rule does not change that standard. Id. Sec.  1003.1(d)(3)(i). 
Rather, the rule recognizes that additional factfinding in cases in 
which an immigration judge's factual findings are not clearly erroneous 
could mean only one of two possibilities. It could mean that a party 
failed to meet its burden of proof but the Board believes--for some 
unknown or unstated reason--that the party warrants another chance to 
meet that burden to bring out additional facts. Such a decision would 
effectively convert the Board into an advocate for the party seeking a 
remand, and in that case, the Board would be abdicating its role as an 
impartial or neutral arbiter. See id. 1003.1(d)(1); 5 CFR 
2635.101(b)(8); BIA Ethics and Professionalism Guide at sec. V. 
Commenters did not offer persuasive reasons for the Board to abandon 
its need for impartiality, and to the extent that commenters alleged 
multiple reasons for not adopting the rule, the Department finds that 
the need for the Board to remain an impartial body is more compelling 
than those reasons.
    Alternatively, additional factfinding in cases in which an 
immigration judge's factual findings are not clearly erroneous could 
mean that the immigration judge made an error of law which will 
necessitate additional factfinding on remand. For example, an 
immigration judge may err as a matter of law in failing to sufficiently 
develop the record for a pro se respondent, which would inherently 
require further factfinding. Although that interpretation would be 
based on a legal determination and the rule does not restrict the 
Board's ability to remand a case due to a legal error, the Department 
recognizes that some cases of legal error may require additional 
factfinding on remand. The Department did not intend the rule to 
prohibit factfinding on remand when the remand is based on a legal 
error--subject to other requirements--and the final rule clarifies that 
point to avoid confusion. 8 CFR 1003.1(d)(3)(iv)(D)(5).
    Contrary to commenters' contentions, the rule did not 
``categorically restrict'' the BIA from exercising discretion to 
determine whether additional facts may be adduced. For example, the BIA 
may exercise discretion to determine that additional facts not 
reasonably subject to dispute may be administratively noticed. The rule 
did, however, clarify the extent to which the BIA may engage in 
factfinding on appeal and the circumstances in which the BIA may remand 
for further factfinding, consistent with applicable law and 
regulations. 85 FR at 52500-01.
    The rule cited various data, see id. at 52492, to demonstrate the 
significant increase in cases and related challenges, which the 
Department believes would be unsustainable under the BIA system pre-
dating this rule and thus prompted the Department's decision to review 
the BIA's regulations in order to address and reduce unwarranted delays 
in the

[[Page 81606]]

appeals process and ensure efficient use of resources.\31\
---------------------------------------------------------------------------

    \31\ To the extent that commenters asserted that the Department 
provided no data regarding the BIA's factfinding procedures, the 
Department notes that granular data on how many BIA remands for 
factfinding that do not affect the outcome of cases and that are for 
factfinding that is cumulative to facts already found in the record 
is not available and is likely untraceable due to the inherently 
fact-specific nature of each case and the somewhat counter-factual 
of such data. Moreover, commenters did not suggest that such data 
was available or could be obtained, nor did they even suggest how to 
calculate or measure the ``inappropriateness'' or ``incorrectness'' 
of a remand that would be necessary to track such data. As 
discussed, the remaining parts of the rule follow from well-
established legal principles (e.g., waiver, burden of proof, and 
standard of review for factfinding) and are not intended to turn on 
data. Overall, the Department reiterates that the rule explained how 
restricting the BIA's factfinding capabilities would increase 
efficiency and consistency.
---------------------------------------------------------------------------

    Contrary to commenters' claims, the Department maintains that it 
explained in the NPRM how proposed changes to the BIA's factfinding 
abilities would increase efficiency and consistency. For example, in 
support of the administrative notice provisions, the Department 
explained that there was no operational or legal reason to remand a 
case for factfinding if the record already contained evidence of 
undisputed facts. Id. at 52501. Thus, the Department clarified that the 
BIA could rely on such facts without remanding the case, thereby 
reducing an unwarranted delay. Overall, the proposed changes were made 
``to more clearly delineate the circumstances in which the BIA may 
engage in factfinding on appeal.'' Id. Clarifying such circumstances 
inherently facilitates a more efficient and consistent process because 
adjudicators need not spend time determining, for example, whether 
factfinding is appropriate or whether previous adjudicators otherwise 
engaged in factfinding in similar circumstances.
    The Department promulgated this rule to reduce unwarranted delays 
and ensure efficient use of resources, given the significant increase 
in pending cases in the immigration courts that has led to an increase 
in appeals. See id. at 52492. In no way are these changes intended for 
the purpose of harming or quickly removing pro se individuals. To the 
contrary, EOIR's Office of Policy (OP) seeks to increase access to 
information and raise the level of representation for individuals in 
hearings before immigration courts and the BIA. In addition, EOIR has 
developed a thorough electronic resource for individuals in 
proceedings. EOIR, Immigration Court Online Resource, available at 
https://icor.eoir.justice.gov/en/ (last visited Nov. 27, 2020); see 
also EOIR Launches Resources to Increase Information and 
Representation, Oct. 1, 2020, https://www.justice.gov/eoir/pr/eoir-launches-resources-increase-information-and-representation. In short, 
EOIR's OP, the private bar, and other non-governmental organizations 
all may assist individuals with their immigration proceedings,\32\ 
which include providing information which may assist individuals in 
preserving issues or attempting to adduce additional facts before the 
immigration judge.
---------------------------------------------------------------------------

    \32\ The Department notes that individuals in removal 
proceedings before an immigration judge and the BIA have the 
``privilege of being represented (at no expense to the Government) 
by such counsel, authorized to practice in such proceedings, as [the 
alien] shall choose.'' INA 292, 8 U.S.C. 1362; see also INA 
240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); 8 CFR 1240.10(a)(1).
---------------------------------------------------------------------------

    Regarding the possible impact of the rule on pro se aliens, as 
noted previously, the Department first reiterates that most aliens--
i.e., 86 percent, Representation Rates, supra--whose cases are 
considered by the Board have representation. For those who do not, 
there are multiple avenues they may pursue to obtain representation. 
For example, the Department maintains a BIA Pro Bono Project in which 
``EOIR assists in identifying potentially meritorious cases based upon 
criteria determined by the partnering volunteer groups.'' BIA Pro Bono 
Project, supra. Further, immigration judges have a duty to develop the 
record in cases involving pro se aliens, which will ensure that such 
aliens attempt to adduce relevant facts to meet their burdens of proof 
and reduce the likelihood that aliens inadvertently waive an issue.\33\ 
See Mendoza-Garcia, 918 F.3d at 504.
---------------------------------------------------------------------------

    \33\ Whether a pro se alien knowingly waived an issue may also 
be a relevant consideration in appropriate cases. See Matter of 
Samai, 17 I&N Dec. 242 (BIA 1980) (objection to improper notice 
raised for the first time on appeal by a previously unrepresented 
respondent could still be considered by the Board).
---------------------------------------------------------------------------

    To be sure, BIA procedures are not excused for pro se respondents, 
just as they are not excused generally for pro se civil litigants. See, 
e.g., McNeil, 508 U.S. at 113 (``[W]e have never suggested that 
procedural rules in ordinary civil litigation should be interpreted so 
as to excuse mistakes by those who proceed without counsel.''); 
Edwards, 59 F.3d at 8-9 (rejecting a pro se alien litigant's arguments 
for being excused from Federal court procedural requirements due to his 
pro se status). Moreover, issues not raised below may be deemed waived 
even for pro se individuals. See, e.g., Tannenbaum v. United States, 
148 F.3d 1262, 1263 (11th Cir. 1998) (``Pro se pleadings are held to a 
less stringent standard than pleadings drafted by attorneys and will, 
therefore, be liberally construed. But, issues not raised below are 
normally deemed waived.'' (internal citations omitted)). However, those 
standards have existed for years and exist independently of the rule, 
and nothing in the rule alters or affects their applicability.
    The Department has fully considered the possible impacts of this 
rule on the relatively small pro se population of aliens with cases 
before the Board. However, the rule neither singles such aliens out for 
particular treatment under the Board's procedures, nor does it restrict 
or alter any of the avenues noted above that may assist pro se aliens. 
Further, commenters' concerns related to pro se aliens and these 
provisions are based almost entirely on a speculative, unfounded belief 
that immigration judges will disregard their duty to develop the record 
in pro se cases. The Department declines to accept such a view of 
immigration judges as either incompetent or unethical and declines to 
accept commenters' suggestions on that basis. Chem. Found., Inc., 272 
U.S. at 14-15 (``The presumption of regularity supports the official 
acts of public officers, and, in the absence of clear evidence to the 
contrary, courts presume that they have properly discharged their 
official duties.''). Finally, weighing the complete lack of necessity--
and corresponding inefficiency--of factfinding remands where the facts 
are either irrelevant to the disposition of the case or cumulative to 
facts already in the record, the importance of maintaining the Board's 
impartiality, the duty of immigration judges to develop the record in 
cases of pro se aliens, the size of the pro se population with cases 
before the BIA, and the well-established avenues of assistance for pro 
se aliens, the Department finds, as a matter of policy, that the 
clarity and efficiency added by factfinding provisions in the rule far 
outweigh the speculative and unfounded concerns raised by commenters, 
particularly since many commenters misapprehended that the rule applies 
to both DHS and respondents.
    Although commenters provided examples of challenges individuals 
would face in complying with the regulatory provisions at proposed 8 
CFR 1003.1(d)(3)(iv)(D)(1) and (2), the Department finds the examples 
unpersuasive or inapposite. The commenters' examples do not demonstrate 
a bar to preserving issues or adducing additional facts for use on 
appeal. Indeed, some commenters'

[[Page 81607]]

examples assume that issues can only be preserved or additional facts 
be adduced for use on appeal during an immigration judge's issuance of 
a decision, which is inaccurate. Throughout the course of proceedings, 
individuals may raise evidentiary or factfinding issues as the record 
is developed. See generally 8 CFR 1240.10 (explaining the course of the 
hearing, during which an alien may, for example, examine and make 
objections to evidence against him and present evidence on his behalf); 
see also 8 CFR 1240.9 (detailing the contents of the record, including 
``testimony, exhibits, applications, proffers, and requests, the 
immigration judge's decision, and all written orders, motions, appeals, 
briefs, and other papers filed in the proceedings''). Moreover, if a 
party objects to an immigration judge's exclusion of evidence from the 
record, the regulations provide that an affected party may submit a 
brief. Id. 1240.9. Accordingly, numerous avenues exist through which 
individuals may comply with the proposed provisions at 8 CFR 
1003.1(d)(3)(iv)(D)(1) and (2).
    The Department reiterates that immigration judges and the BIA will 
continue to exercise independent judgment and discretion to adjudicate 
cases before them in accordance with applicable law and regulations. 
See Id. Sec.  1003.1(d)(1)(ii), 1003.10(b), 1240.1(a). Circuit courts 
have held that under section 240(b)(1) of the Act, 8 U.S.C. 
1229a(b)(1), immigration judges have an obligation to develop the 
record. See, e.g., Yang v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002); 
Mekhoukh v. Ashcroft, 358 F.3d 118, 130 (1st Cir. 2004); Mendoza-
Garcia, 918 F.3d at 504. The Department rejects any speculative 
contention--rooted in a tacit assertion that immigration judges are 
either unethical or incompetent--that immigration judges would simply 
shirk their obligation, including developing the record, in favor of 
completing more cases.
    The Department disagrees that the BIA's determination in accordance 
with proposed 8 CFR 1003.1(d)(3)(iv)(D)(3), constitutes factfinding on 
the part of the BIA. Whether ``additional factfinding would alter the 
outcome or disposition of the case'' is well within the BIA's proper 
scope of review under 8 CFR 1003.1(d)(3) and inherent in the BIA's 
responsibility to decide appeals.
    Because the BIA generally cannot consider new evidence on appeal or 
engage in further factfinding, 8 CFR 1003.1(d)(3)(iv), subject to some 
exceptions, the rule sought to clearly establish limitations on the 
BIA's ability to remand for further factfinding. As explained in the 
NPRM, the INA contains few details in regard to the appeals process; 
thus, EOIR's regulations govern specific procedural requirements for 
appeals. 85 FR at 52493. Consequently, in accordance with its statutory 
authority under section 103(g)(2) of the Act, 8 U.S.C. 1103(g)(2), to 
promulgate regulations, the Department determined that it would 
condition remand on a determination that either the immigration judge's 
factual findings were clearly erroneous or that remand is warranted 
following de novo review.
    As the Department explained in the NPRM, the current system for 
adjudicating appeals does not always operate in an effective and 
efficient manner. As explained in the NPRM, the Department believed it 
was necessary to reevaluate its regulations governing the BIA, as it 
routinely does, see id. at 52494. As a result, the Department 
determined that the current system could be amended in various ways to 
reduce unwarranted delays and ensure efficient use of resources, given 
the significant increase in pending cases in the immigration courts 
that has led to an increase in appeals. See id. Moreover, changes made 
by this rulemaking will best position the Department to address the 
growing caseload and related challenges. Id. at 52492-93.
    The Department strongly disagrees with commenters that the rule 
would force the BIA to issue ``poor decisions based on incomplete facts 
and conjecture.'' Again, this comment suggests that Board members are 
incompetent and cannot perform their functions fairly and efficiently, 
a suggestion the Department categorically rejects. The Department is 
confident that the BIA will continue to competently resolve issues in a 
manner that is timely, impartial, and consistent with applicable law 
and regulations. See 8 CFR 1003.1(d)(1). BIA members exercise 
independent judgment and discretion and ``may take any action 
consistent with their authorities under the Act and the regulations as 
is appropriate and necessary for the disposition of the case.'' Id. 
Sec.  1003.1(d)(1)(ii).
d. BIA Affirmance on Any Basis Supported by the Record (8 CFR 
1003.1(d)(3)(v))
    Comment: Commenters expressed concerns about new paragraph 8 CFR 
1003.1(d)(3)(v) that would enable the BIA to affirm the underlying 
decision of the immigration judge or DHS on ``any basis'' supported by 
the record, including a ``basis supported by facts that are not 
reasonably subject to dispute'' or ``undisputed facts.''
    Commenters argued that this change creates inefficiencies instead 
of efficiencies for a variety of reasons. For example, commenters 
expressed a belief that this provision will inevitably require 
respondents before the BIA to litigate every possible issue that could 
be raised by the record in order to preserve their arguments for future 
appeals, regardless of the particular rulings by the IJ. Commenters 
noted that this in turn creates inefficiencies as opposed to 
efficiencies in BIA procedures. In addition, commenters stated that 
this provision will in effect lead to a full second adjudication of 
every case by the BIA instead of the BIA only analyzing the specific 
issues posed by the parties. Citing SEC v. Chenery Corp., 318 U.S. 80 
(1943), commenters argued that respondents should not have to guess at 
what bases the BIA might have for its decisions.
    Commenters disputed the Department's citation to Helvering v. 
Gowran, 302 U.S. 238, 245 (1937) in support of the change, explaining 
that the Supreme Court in that case provided the parties with an 
opportunity to establish additional facts that would affect the result 
under the new theory first presented at the Court of Appeals.
    Commenters expressed concern that this provision will inevitably 
lead to the BIA engaging in impermissible fact-finding and that the 
rule is insufficiently clear as to what is a ``disputed'' or undisputed 
fact.
    Commenters stated that this change is internally inconsistent with 
other provisions of the rule because it allows the BIA to affirm a 
decision based on arguments not raised in the proceedings below but 
prohibits the BIA from similarly remanding based on arguments not 
raised below.
    Response: As an initial point, few commenters acknowledged that 
this standard is analogous to the one employed by Federal appellate 
courts reviewing Federal trial court decisions and is, thus, a well-
established principle of appellate review. See, e.g., Keyes v. School 
Dist. No. 1, 521 F.2d 465, 472-73 (10th Cir. 1975) (``An appellate 
court will affirm the rulings of the lower court on any ground that 
finds support in the record, even where the lower court reached its 
conclusions from a different or even erroneous course of reasoning.''). 
Relatedly, few, if any, commenters offered an explanation or rationale 
for why that appellate principle would be inappropriate to apply to 
Board review of immigration judge decisions, particularly since Federal 
appellate courts handle cases of

[[Page 81608]]

pro se litigants and complex records from trial courts below just as 
the Board does. Further, few, if any, commenters acknowledged that the 
Board already possesses the authority to base its decision on a review 
of the record as a whole even if a party has not raised an issue. See, 
e.g., Ghassan v. INS, 972 F.2d 631, 635 (5th Cir. 1992) (``First, he 
argues that the BIA should not have disregarded the IJ's finding, 
because the INS did not challenge that finding in its brief. We 
disagree. . . . In the instant case, the BIA based its decision upon 
the administrative record as a whole. There was no procedural 
impropriety.''). To the extent that commenters failed to engage with a 
principal foundation for this provision of the rule, the Department 
finds their comments unpersuasive. See Home Box Office, 567 F.2d at 35 
n.58 (``Moreover, comments which themselves are purely speculative and 
do not disclose the factual or policy basis on which they rest require 
no response. There must be some basis for thinking a position taken in 
opposition to the agency is true.'').
    As the Department also explained in the proposed rule, 85 FR at 
52501 n.23, clarifying that the BIA may affirm the decision of the 
immigration judge or DHS on any basis supported by the record is 
consistent with long standing principles of judicial review. See, e.g., 
Chenery Corp., 318 U.S. at 88 (describing the principle that a 
reviewing court must affirm the result of the lower court if the result 
is correct, even if the lower court relied upon a wrong ground or wrong 
reason as ``settled rule'') (citing Helvering, 302 U.S. at 245)). 
Indeed, as the Supreme Court explained, it would be wasteful for an 
appellate body to have to return a case to the lower court based on 
grounds already in the record and within the power of the BIA to 
formulate. Id.
    The Department emphasizes, however, that the BIA may only affirm a 
decision on a basis that is supported by the record as developed by the 
immigration judge or any facts not reasonably subject to dispute and of 
which the BIA takes administrative notice. 8 CFR 1003.1(d)(3)(iv). 
Accordingly, despite commenters' unsupported predictions, the rule 
would not enable the BIA to engage in de novo factfinding as a way to 
affirm the underlying immigration judge or DHS decision. Cf. Chenery 
Corp., 318 U.S. at 88 (``[I]t is also familiar appellate procedure that 
where the correctness of the lower court's decision depends upon a 
determination of fact which only a jury could make but which has not 
been made, the appellate court cannot take the place of the jury.''). 
Because the BIA's review is limited to the record in this manner, the 
Department disagrees with the commenters' speculation that the BIA 
review will be less efficient because it would become an alleged second 
complete adjudication. Instead--just as in Federal appellate courts--
this provision only creates efficiencies by making it clear that the 
BIA does not have to turn a blind eye to undisputed facts that are 
clear from the record that relate to the correctness of the underlying 
decision.
    In addition, the Department finds unpersuasive commenters' concerns 
that aliens must address all possible issues in their briefing or other 
arguments or else risk ceding a future argument on appeal to Federal 
court due to failure to exhaust the issue. The Department already 
expects an appealing party to address all relevant issues on appeal; 
otherwise, the party risks summary dismissal of the appeal, 8 CFR 
1003.1(d)(2)(i)(A) (authorizing summary dismissal when a party does not 
specify the reasons for appeal on the Notice of Appeal), waiver of the 
issue before the Board, see Matter of Cervantes, 22 I&N Dec. 560, 561 
n.1 (BIA 1999) (expressly declining to address an issue not raised by 
party on appeal), and potentially dismissal of a petition for review 
due to a failure to exhaust an issue before the Board, see, e.g., Sola 
v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (``A petitioner's 
failure to raise an issue before the BIA generally constitutes a 
failure to exhaust, thus depriving this court of jurisdiction to 
consider the issue.''). The rule imposes no additional consequences for 
a party who fails to raise issues on appeal to the BIA beyond those 
that already exist, and a party choosing to address some issues but not 
others on appeal does so at its own risk. Consequently, the Department 
does not see why a party would choose not to raise an issue on appeal, 
even under the current regulations, and rejects the assertion that the 
rule imposes a new requirement in this regard.
    As a practical matter, the Department is also unaware of how such a 
scenario posited by commenters would occur. For example, an alien 
appealing an adverse decision by an immigration judge regarding an 
application for relief or protection will have necessarily argued to 
the immigration judge all of the elements required to grant such an 
application; otherwise, the alien will have waived issues not argued 
anyway. Further, even if the immigration judge denied the application 
on one basis--and did not address others--and even if the Board 
affirmed the denial on another basis, the alien will not be deemed to 
have failed to exhaust the issue even if the alien did not include the 
issue in the Notice of Appeal. See, e.g., Abebe v. Gonzales, 432 F.3d 
1037, 1040-41 (9th Cir. 2005) (stating that when the BIA reviews the 
entire record, considers issues argued before an immigration judge but 
not raised by an alien in a Notice of Appeal, and issues its decision 
based on such issues after reviewing the entire record, alien is not 
barred from raising the issue in a petition for review due to 
exhaustion). In short, commenters' concerns are unfounded, and the 
Department declines to credit them accordingly.
e. Changes to BIA Procedures for Identity, Law Enforcement, or Security 
Investigations or Examinations (8 CFR 1003.1(d)(6))
    Comment: Commenters expressed concern regarding the rule's proposed 
changes to the BIA procedures for identity, law enforcement, or 
security investigations or examinations. See 8 CFR 1003.1(d)(6)(ii) and 
(iii); see also 82 FR at 52499.
    At least one commenter stated that the changes conflict with the 
Department's reasoning for the rule's amendments regarding 
administrative closure.\34\ For example, the commenter stated that the 
BIA does not have the regulatory authority to place a case on hold 
indefinitely.
---------------------------------------------------------------------------

    \34\ For further discussion of administrative closure, see 
section II.C.3.b above.
---------------------------------------------------------------------------

    Other commenters expressed due-process related and other concerns 
about the rule's procedures for communications between the BIA and DHS 
and the alien regarding the status of background checks and to allow 
the BIA to deem an application abandoned if DHS alleges that an alien 
failed to comply with its biometrics instructions. See 8 CFR 
1003.1(d)(6)(ii) and (iii). Specifically, one commenter stated the 
procedures fail to protect respondents' due process rights because they 
require the BIA to deem an application abandoned and accordingly deny 
relief if DHS states that the respondent failed to comply with its 
instructions but do not provide adequate opportunity for the alien to 
contest that they did not receive notice from DHS about the 
requirements or to otherwise establish good cause for failing to 
comply. To illustrate this risk, the commenter cited a hypothetical 
that ``the BIA could deem an otherwise approvable application abandoned 
because DHS reports to the BIA that the applicant failed to timely 
comply with biometrics, but where DHS had inadvertently sent the 
biometrics

[[Page 81609]]

instructions to the wrong address.'' The commenter also noted that due 
to recent changes by DHS to the biometrics procedures,\35\ new 
individuals, including children under the age of 14, will be subject to 
biometrics requirements for the first time, increasing the likelihood 
of removal orders for respondents who otherwise would qualify for 
relief from removal. Another commenter expressed concern that although 
the alien's deadline to comply begins to run from the date the BIA 
sends out a notice to the alien that DHS will be providing further 
information, DHS in turn has no deadline to contact the alien.
---------------------------------------------------------------------------

    \35\ Collection and Use of Biometrics by U.S. Citizenship and 
Immigration Services, 85 FR 56338 (Sept. 11, 2020).
---------------------------------------------------------------------------

    Another commenter also raised issues of disparate treatment, 
stating that, while respondents would be barred from submitting new 
evidence on appeal that would likely change the result of the case, the 
Department would be expressly permitted to submit new evidence that is 
the result of ``identity, law enforcement, or security 
investigations.'' See 8 CFR 1003.1(d)(6)(ii).
    Response: Neither the BIA nor an immigration judge may grant an 
alien most forms of relief or protection unless DHS has certified that 
the alien's identity, law enforcement, or security investigations have 
been completed and are current. See 8 CFR 1003.1(d)(6)(i), 1003.47(g); 
see also INA 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i). When the 
Department first implemented the background check procedures in 
2005,\36\ the Department provided the BIA with two options in cases 
where the identity, law enforcement, or security investigations or 
examinations have not been completed or are no longer current: remand 
to the immigration judge with instructions or place the case on hold 
until the investigations or examinations are completed or updated. 8 
CFR 1003.1(d)(6)(ii)(A) and (B).
---------------------------------------------------------------------------

    \36\ Background and Security Investigations in Proceedings 
Before Immigration Judges and the Board of Immigration Appeals, 70 
FR 4743 (Jan. 31, 2005).
---------------------------------------------------------------------------

    At the time, the Department explained that the expectation was that 
the BIA and DHS would be able to make greater use of the procedure for 
holding pending appeals without the need to resort to a remand. 70 FR 
at 4748. Contrary to this prediction, however, it has become common 
practice for the BIA to remand cases to the immigration judge rather 
than holding the case for the completion of or updates to the required 
investigations and examinations. See, e.g., Matter of S-A-K- and H-A-H- 
24 I&N Dec. 464, 466 (BIA 2008) (order sustaining appeal and remanding 
the case to the immigration judge for DHS to complete or update 
background checks). Because this practice creates unnecessary delays in 
the resolution of cases given the overburdened resources and size of 
the caseload at the immigration court level, the Department proposed to 
remove the option at 8 CFR 1003.1(d)(6)(ii)(A) for the BIA to remand 
cases for the completion or update of the checks and investigations and 
proposed procedural changes in those cases that remain subject to BIA 
holds under the amended 8 CFR 1003.1(d)(6)(ii).
    This procedure, which has existed since 2005, does not conflict 
with the rule's changes regarding administrative closure. First, when 
the BIA places a case on hold for the completion of or updates to the 
required identity, law enforcement, or security investigations or 
examinations, the hold is not ``indefinite.'' Instead, the hold is at 
most 180 days. See 8 CFR 1003.1(d)(6)(iii) (instructing the BIA to 
remand the case to the immigration judge for further proceedings under 
8 CFR 1003.47(h) if DHS fails to report the result of the 
investigations or examinations within 180 days). Second, even to the 
extent that the BIA hold process may be erroneously compared to an 
administrative closure, such practice would be an example of an 
administrative closure that is authorized by a regulation promulgated 
by the Department of Justice. See 8 CFR 1003.1(d)(1)(ii); see also 
Matter of Castro-Tum, 27 I&N Dec. at 283 (holding that immigration 
judges only have the authority to grant administrative closure if a 
regulation or settlement agreement has expressly conferred such 
authority).
    In addition, the Department disagrees that the instructions in the 
proposed rule for the BIA regarding when to deem an application 
abandoned for failure to comply with biometrics requirements violate 
due process. As the commenter noted, during the respondent's initial 
hearing, the immigration judge must ``specify for the record when the 
respondent receives the biometrics notice and instructions and the 
consequences for failing to comply with the requirements.'' 8 CFR 
1003.47(d). Accordingly, respondents before the BIA have already been 
generally informed about the biometrics process and have fulfilled the 
requirements at least once and understand how to comply with the 
requirements for any needed identity, law enforcement, or security 
investigations or examinations. Moreover, the Board's notice to the 
alien will also be part of the record so that it is clear when the 
alien was served with the notice.
    Nevertheless, the Department has included two changes from the 
proposed rule in this section to account for the commenters' concerns. 
First, this rule contains an additional requirement that, if DHS is 
unable to independently update any required identity, law enforcement, 
or security investigations, DHS shall provide a notice to the alien 
with appropriate instructions, as DHS does before the immigration 
courts under 8 CFR 1003.47(d), and simultaneously serve a copy of the 
notice with the BIA. Second, while the NPRM would have begun the 
alien's 90-day timeline for compliance with the biometrics update 
procedures at the time the Board provided notice to the alien, the 
final rule aligns the 90-day time period to begin running at the time 
DHS submits the notice to the alien in situations in which DHS is 
unable to independently update any required checks. The Department 
agrees with the commenters' concerns that without these changes, the 
provisions of the proposed rule could have resulted in situations where 
the alien is unable to effectively comply with the biometrics 
requirements due to possible delays by DHS or lack of sufficient 
notice.
    Finally, commenters' concerns about alleged disparate treatment 
between DHS and aliens are unpersuasive. The rule does not generally 
allow any party to file a motion to remand based on new evidence 
pertaining to an issue that was not raised below. Rather, DHS may 
submit limited evidence solely with respect to information yielded from 
completed identity, law enforcement, or security investigations or 
based on the alien's failure to comply with biometrics requirements, 8 
CFR 1003.1(d)(6)(iii), at which time the alien would also have the 
opportunity to file evidence in response. Accordingly, the alien would 
not be prejudiced by remands for such issues.
    Further, such a requirement is fully consistent with existing law, 
e.g., 8 CFR 1003.47 and INA 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i). 
To the extent that commenters disagree with those longstanding and 
well-established provisions, those concerns are beyond the scope of 
this rule.
f. BIA Authority To Issue Final Orders (8 CFR 1003.1(d)(7)(i))
    Comment: One commenter stated that the rule's focus on the BIA's 
ability to issue orders of removal in the first instance without a 
similar focus on the BIA's ability to grant relief in the first 
instance would result in an unfair process that favors DHS over aliens 
in

[[Page 81610]]

proceedings. Another commenter speculated that allowing the BIA to 
issue orders of removal without a remand to the immigration judge would 
impede respondents' ability to ultimately seek a petition for review in 
Federal court.
    Response: First, the commenter who stated that the rule is focused 
on enabling the BIA to issue a removal order misconstrues the 
Department's amendment regarding the BIA's authority to issue final 
orders. The rule amends 8 CFR 1003.1(d)(7)(i) to clarify that the BIA 
has the authority to issue, inter alia, both final orders of removal 
and orders granting relief from removal. Accordingly, the commenter is 
incorrect that these amendments favor either party to proceedings 
before the BIA.
    Second, without further explanation, the Department is unable to 
further respond to the commenter's speculation that the BIA issuing a 
removal order would impede a respondent's ability to seek a petition 
for review in Federal court. An alien who receives an order of removal, 
whether from the BIA or the immigration judge, may file a petition for 
review subject to the requirements of section 242 of the Act, 8 U.S.C. 
1252, and nothing in this rule affects that statutory provision.
g. BIA Remands Changes (1003.1(d)(7)(ii) and (iii))
i. Issues With Respect to Limitations on BIA's Authority To Remand
    Comment: Numerous commenters expressed concern about limiting the 
BIA's authority to remand cases. For example, commenters were concerned 
that the rule would shift more authority to the immigration judge, 
while tying the hands of BIA members who observed errors and that the 
rule would provide the BIA with no choice but to affirm an immigration 
judge's denial despite concerns that the record was not sufficiently 
developed. Another commenter stated that the BIA is the consummate 
authority on immigration law and that they have enough expertise and 
experience to make determinations on their own without being limited by 
the rule. Some commenters suggested that the BIA should be permitted to 
remand cases to the immigration court for any purpose.
    Commenters stated that the proposed changes have no basis in the 
law, depart from agency practice, violate the right to present evidence 
on one's own behalf, and in many cases, would result in orders of 
removal that were issued notwithstanding meritorious defenses and 
dispositive collateral challenges in criminal matters. One commenter 
stated that prohibiting motions to remand would prejudice respondents 
with cases that were delayed through no fault of their own.
    Commenters objected to the rule on the basis that it would not 
allow the BIA to remand cases where there has been a change in the law. 
At least one commenter specifically objected to the BIA's limited 
remand authority in asylum cases, where, the commenter stated, 
eligibility rules are in a constant state of flux, and individuals 
should be permitted to seek remand for cases that were denied based on 
rules that are under litigation. The commenter further specified that 
the UNHCR has recommended that appellate bodies look to both facts and 
law using updated information and take any such new and relevant 
information into consideration. The commenter listed, as an example, 
asylum seekers who were denied asylum under the third-country transit 
bar, which was later vacated by a Federal court, and alleged that such 
individuals may now be eligible for asylum. See CAIR Coal. et al. v. 
Trump, No. 19-2117, 2020 WL 3542481 (D.D.C. June 30, 2020). The 
commenter stated that, in this case, the immigration judge may not have 
fully developed the record below because the third-country bar analysis 
would not require evaluation of all bases for asylum. The commenter 
asserted that such records should be remanded to the immigration judge 
for further fact finding.
    At least one commenter stated that the rule does not account for 
legal issues that arise during the hearing itself, such as the 
immigration judge conducting the hearing in an unfair manner, which the 
commenter states, would necessarily not be included in briefing that 
had been drafted before the hearing.
    Commenters alleged that the rule would unfairly disadvantage 
individuals who are unrepresented, unfamiliar with the law, and non-
English speaking.
    One commenter objected to the NPRM's statement that a party seeking 
to introduce new evidence in proceedings should file a motion to 
reopen. 85 FR at 52500. The commenter stated that a motion to reopen 
while an appeal is pending at the BIA does not make sense because an 
order is not final until the BIA resolves the appeal under 8 CFR 
1241.1(a).
    One commenter suggested that it would be unfair for EOIR to require 
that the respondent's counsel fully brief every issue before the 
hearing and not to require the same of DHS's counsel.
    Response: As noted elsewhere, to the extent that commenters 
erroneously believe this rule applies only to respondents and not to 
DHS, they are mistaken. Further, to the extent that commenters assert 
the BIA should be allowed unfettered discretion to remand cases for any 
purpose, such a suggestion is inconsistent with the Board's limited, 
and regulatorily defined, authority. Additionally, as discussed, supra, 
the rule does not preclude the Board from remanding a case in which the 
immigration judge committed an error of law by insufficiently 
developing the record. To the extent that commenters misconstrue the 
rule or suggest changes to the rule that are inconsistent with the 
Board's authority, the Department declines to accept those suggestions.
    Commenters are incorrect that this rule has no basis in the law, 
departs from agency practice, violates the right to present evidence on 
one's own behalf, and could result in orders of removal that were 
issued notwithstanding meritorious defenses and dispositive collateral 
challenges in criminal matters. As noted in the NPRM, the Supreme Court 
has recognized that ``the BIA is simply a regulatory creature of the 
Attorney General, to which he has delegated much of his authority under 
the applicable statutes.'' 85 FR at 52492 n.1 (quoting Doherty, 502 
U.S. at 327). Although there is a reference to the BIA in section 
101(a)(47)(B) of the Act, 8 U.S.C. 1101(a)(47)(B), that reference 
occurs only in the context of establishing the finality of an order of 
deportation or removal after the BIA has affirmed the order or the time 
allowed for appeal to the BIA has expired. It does not address the 
scope of the BIA's authority or its procedures. Accordingly, the 
Department is well within its authority to limit the scope of remands 
to the immigration courts, as it doing now in order to improve 
efficiency.
    At the same time, the Department recognizes the BIA's expertise in 
appellate immigration adjudications. Indeed, one purpose for this 
rulemaking is to better empower the BIA to make final decisions where 
possible, as the Department recognizes it is capable of doing. To that 
end, the Department agrees with commenters who noted the Board's 
expertise and experience, and it notes that this provision fully 
effectuates that expertise and experience by allowing the Board to 
render final decisions in certain circumstances.
    Further, nothing in the rule precludes a respondent from submitting 
evidence on his or her own behalf during the course of removal 
proceedings before the immigration judge, although the rule does, 
within its authority, limit the BIA's authority to remand a decision

[[Page 81611]]

back to the immigration judge on the basis of new evidence at the 
administrative-appeals stage. 8 CFR 1003.1(d)(3)(iv)(D), (d)(3)(7)(ii). 
The Department notes that motions to remand are an administrative, 
adjudicatorily-created concept, not rooted in statute, which was later 
codified by the regulations. Further, as the NPRM explained, the BIA 
has treated new evidence submitted on appeal inconsistently, despite 
both case law and regulations addressing such situations. 85 FR at 
52500-01. The concerns raised by commenters do not outweigh the need 
for uniform and consistent treatment to ensure that all aliens who 
obtain allegedly new evidence and wish to submit it after an 
immigration judge has rendered a decision are treated in a similar 
fashion.
    Moreover, the INA explicitly provides a statutory avenue to address 
new evidence: A motion to reopen. See INA 240(c)(7), 8 U.S.C. 
1229a(c)(7).\37\ While the changes require that a party comply with the 
statutory requirements for a motion to reopen in order to submit such 
evidence, the rule does not impact motions to reopen. To the contrary, 
the rule recognizes that motions to remand are generally considered 
analogous to motions to reopen or reconsider and that due to the 
inconsistent treatment of allegedly new evidence on appeal through the 
lens of a motion to remand, it is both more efficient and more likely 
to promote uniformity and consistency--and also more likely to reduce 
gamesmanship on appeal--to simply rely on the established motion to 
reopen procedure. Thus, because the sole statutorily created process to 
consider new evidence is still available, the Department finds that 
aliens' rights regarding the submission of new evidence, including 
evidence of criminal-related issues, remain intact. Cf. Sankoh, 539 
F.3d at 466 (``As we have held many times, however, administrative 
notice does not violate the alien's due process rights because an alien 
can challenge any factual finding through a motion to reopen.'' (citing 
Kaczmarczyk v. INS, 933 F.2d 588, 594 (7th Cir. 1991))). Additionally, 
to the extent that the Board makes an error of law or fact in its 
decision, the rule does not affect the ability of a party to file a 
motion to reconsider. 8 CFR 1003.2(b). In short, the rule does not 
alter the availability of established mechanisms for addressing new 
evidence or new issues; instead, it simply eliminates an inconsistently 
applied and confusing procedural avenue that is redundant given those 
clearer, established mechanisms.
---------------------------------------------------------------------------

    \37\ The Department notes that at least one commenter appears to 
have misunderstood the procedural posture at which a respondent 
would file a motion to reopen, expressing concern that it would not 
be sensible for the alien to file a motion to reopen while removal 
proceedings were still pending. The Department clarifies that, as 
contemplated by the statute, an alien would file a motion to reopen 
to submit new evidence after proceedings have concluded. Otherwise, 
there is no removal order or proceeding to, in fact, reopen.
---------------------------------------------------------------------------

    For reasons stated, supra, the Department rejects the assertion 
that the rule would have a singular effect on aliens who are 
unrepresented, unfamiliar with the law, and non-English speaking. These 
concerns are speculative, unsupported by evidence, and contrary to 
decades of experience adjudicating appeals in immigration cases. Such 
aliens already participate in BIA procedures under existing 
regulations--and have done so for many years--including through the 
submission of motions to reopen, and nothing in the rule treats them in 
a categorically different manner. Further, commenters did not explain 
why such aliens would be able to file a motion to remand but not a 
motion to reopen nor how such aliens would be able to comprehend the 
BIA's confusing and inconsistent standards for new evidence, 85 FR at 
52500-01, if they were retained. To the extent that commenters' 
concerns are, thus, unfounded or internally inconsistent, the 
Department declines to incorporate them into this final rule.
    With respect to commenter concerns that the BIA would be unable to 
remand a decision even where presented with superseding or intervening 
case law, including litigation surrounding regulations or precedential 
decisions that were the basis for denying relief, the Department 
rejects such comments because they are based on either a deliberately 
obtuse or wholly incorrect reading of the rule. Nothing in the rule 
prohibits the BIA from remanding a case when an immigration judge has 
made an error of law, a legal question of jurisdiction has arisen, or 
an alien is no longer removable, subject to other requirements. 8 CFR 
1003.1(d)(7)(ii). Thus, to the extent that superseding or intervening 
law caused the immigration judge to make an error of law, raised a 
question of jurisdiction, or caused an alien to no longer be removable, 
the Board can still remand on those bases under this final rule.
    If the superseding or intervening legal development did not raise a 
question of jurisdiction, cause the immigration judge's decision to be 
an error of law, or affect an alien's removability, then the BIA may 
not remand the case on that basis; however, commenters did not 
persuasively argue why an irrelevant change in law should form the 
basis for a remand. To the extent that commenters focus solely on 
changes in law related to applications for relief or protection, the 
Department believes that the majority of superseding intervening law 
would be relevant to legal arguments that had already been presented 
below, thus mooting commenter concerns for the vast majority of 
cases.\38\ In the rare case in which intervening law categorically 
established an alien's eligibility for relief on a basis that the alien 
did not address below and the intervening law did not state how it 
should be applied to pending cases,\39\ an alien remains eligible to 
file a motion to reopen to have that claim considered. See INA 
240(c)(7), 8 U.S.C. 1229a(c)(7).
---------------------------------------------------------------------------

    \38\ The Department also notes that in the asylum context, which 
appears to the principal area of concern for commenters, superseding 
or intervening law that indisputably affects an alien's claim will 
likely be rare because each asylum application is adjudicated based 
on its own facts and evidentiary support. In the asylum context, 
case law does not establish categorical bases for granting or 
denying asylum claims. See, e.g., SER.L. v. Att'y Gen., 894 F.3d 
535, 556 (3d Cir. 2018) (``Consequently, it does not follow that 
because the BIA has accepted that one society recognizes a 
particular group as distinct that all societies must be seen as 
recognizing such a group. . . . Thus, as a matter of logic, it is 
invalid to assert that proof in one context is proof in all 
contexts.''). Consequently, intervening case law that categorically 
renders an alien eligible for relief in the asylum context--but does 
not affect the alien's removability--will be rare.
    \39\ The Department notes that statutory changes providing 
opportunities for relief typically include provisions regarding 
application of the changes to existing cases, and those changes 
would be applicable on their own terms. See, e.g., EOIR, Policy 
Memorandum 20-06: Section 7611 of the National Defense Authorization 
Act of 2020, Public Law 116-92 (Jan. 13, 2020), available at https://www.justice.gov/eoir/page/file/1234156/download (explaining the 
application of the availability of a new statutory form of relief 
for certain Liberian nationals to cases before EOIR, including cases 
at the BIA).
---------------------------------------------------------------------------

    The Department disagrees that requiring the alien to utilize 
statutory-based methods for presenting new evidence after an 
immigration judge has rendered a decision, rather than motions to 
remand, would lead to delays or conflict with the purpose of the rule. 
As discussed in the NPRM, the BIA's treatment of new evidence on appeal 
is confusing and inconsistently applied. 85 FR at 52500-01. An 
additional principal concern of the rule is to reduce unnecessary 
remands and ensure the BIA is able to move forward independently with 
adjudicating as many appeals as possible. As noted in the NPRM, id. at 
52501, motions to remand created confusion, inconsistent results, 
gamesmanship, and an operational burden on the immigration judge, who 
has already used significant judicial resources during the underlying

[[Page 81612]]

proceeding. After reviewing commenters' concerns, weighing 
alternatives, including retaining the status quo, and assessing the 
significance of the operational burdens imposed by motions to remand, 
the availability of more uniform treatment of new evidence than 
currently exists, and the importance of encouraging the presentation of 
all available and probative evidence at the trial level, the Department 
has determined that the burden of potential motions to reopen based on 
new evidence--which are also already routinely filed independently of 
the rule and have generally increased in recent years, EOIR, 
Adjudication Statistics: Motions, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/1060896/download--is ultimately less 
than the burden of addressing motions to remand through unclear and 
inconsistent practices, including practices that create downstream 
burdens on immigration judges due to improper remands or gamesmanship 
by aliens who have received unfavorable decisions from immigration 
judges and merely seek a second bite at the apple with the concomitant 
delay in the resolution of proceedings that such a request entails.
    Commenters are incorrect that BIA members would not have the 
authority to remand in instances where they observe unjust or incorrect 
immigration judge decisions. The rule generally authorizes the BIA to 
remand a case where, applying the appropriate standard of review, it 
has identified an error of law or fact. 8 CFR 1003.1(d)(7)(ii). The 
regulation specifies some limitations to this general authority in 
order to ensure that remands are only ordered where legally appropriate 
to ensure the fair disposition of the case, but none of these 
exceptions would prevent the BIA from ordering a remand, in an 
appropriate case, where the immigration judge has committed reversible 
error on a dispositive issue in the case.
    The first limitation states that the BIA cannot remand a case where 
it has not first specified the standard of review that it applied and 
identified the specific error or errors made by the adjudicator below 
in order to ensure that the BIA's order to remand is based upon the 
correct legal standards and provides the immigration judge below and 
the parties with clarity over the basis for a finding of reversible 
error. See 8 CFR 1003.1(d)(7)(ii)(A). To the extent commenters objected 
to this provision, they did not persuasively explain why it is 
inappropriate to require an appellate body to specify the standard of 
review it employed when remanding a case, and the Department is unaware 
of any such reason. Such specification assists the parties, the 
immigration judge, and potentially a Federal court, and commenters did 
not persuasively explain why it should not be a part of a BIA remand 
decision.
    The second limitation provides that the BIA cannot remand based 
upon a ``totality of the circumstances'' standard, which, as noted in 
the NPRM, is not a standard authorized by the governing law and 
regulations. See 8 CFR 1003.1(d)(7)(ii)(B). The Department discusses 
comments on this provision in more detail, infra.
    Third, the BIA may not remand a decision based upon a legal 
argument that was not presented below, unless it pertains to 
jurisdiction or a material change in fact or law underlying a 
removability ground that arose after the date of the immigration 
judge's decision and where substantial evidence indicates that change 
vitiated all grounds of removability applicable to the alien. See 8 CFR 
1003.1(d)(7)(ii)(C). Such a limitation is consistent with long-standing 
requirements that appealing parties must have preserved the issue for 
appeal below. Matter of J-Y-C-, 24 I&N Dec. at 261 n.1 (``Because the 
respondent failed to raise this claim below, it is not appropriate for 
us to consider it for the first time on appeal.''); Matter of Edwards, 
20 I&N Dec. at 196 n.4 (``We note in passing, however, that because the 
respondent did not object to the entry of this document into evidence 
at the hearing below, it is not appropriate for him to object on 
appeal.''). This is also consistent with other appellate court 
standards, which are instructive. See Arsdi v. Holder, 659 F.3d 925, 
928 (9th Cir. 2011) (``As we have often reiterated, it is a well-known 
axiom of administrative law that if a petitioner wishes to preserve an 
issue for appeal, he must first raise it in the proper administrative 
forum.'') (internal quotations omitted). Again, commenters did not 
explain why the Department should abandoned these well-established 
principles, and the Department is unaware of any persuasive reason for 
doing so.
    Fourth, the BIA may not remand a decision through an exercise of 
sua sponte authority, for reasons discussed below at Part II.C.3.k. See 
8 CFR 1003.1(d)(7)(ii)(D).
    Fifth, the BIA may not remand a decision solely to consider a 
request for voluntary departure or failure to issue advisals following 
a grant of voluntary departure where other parts of this rulemaking 
authorize the BIA to issue final decisions in such matters. See 8 CFR 
1003.1(d)(7)(ii)(E), (d)(7)(iv). The Department further discusses this 
provision, infra.
    Sixth, the BIA may generally not remand the case for further 
factfinding unless the following criteria are met: the party seeking 
remand preserved the issue below; the party seeking remand, if it bore 
the initial burden of proof, attempted to adduce the additional facts 
below, additional factfinding would alter the outcome or disposition of 
the case, the additional factfinding would not be cumulative of the 
evidence already presented or contained in the record; and either the 
immigration judge's factual findings were clearly erroneous or remand 
to DHS is warranted following de novo review. 8 CFR 
1003.1(d)(3)(iv)(D). The Department addresses commenters' concerns on 
this provision in more detail, supra.
    The Department disagrees with commenters' concerns that limiting 
the BIA's authority to order remands to exclude issues that were not 
raised below, with specified exceptions, would not permit parties to 
request a remand based on legal issues that arose during a hearing, 
such as the immigration judge conducting the hearing in an unfair 
manner. Commenters did not explain why such an example would not be 
raised on appeal in the normal course, and existing waiver principles 
independent of this rule would currently preclude its consideration if 
it were not raised on appeal. In short, if a party believes that the 
immigration judge's decision should be vacated on the basis that the 
immigration judge conducted the hearing in an unfair manner, it is 
unclear why the party would not be able to raise that issue when filing 
his or her appeal, as the facts upon which the party based his or her 
decision would have clearly been available to the party at that time. 
See 8 CFR 1003.3(b) (``The party taking the appeal must identify the 
reasons for the appeal in the Notice of Appeal (Form EOIR-26 or Form 
EOIR-29) or in any attachments thereto, in order to avoid summary 
dismissal pursuant to Sec.  1003.1(d)(2)(i). The statement must 
specifically identify the findings of fact, the conclusions of law, or 
both, that are being challenged.'').
    Comment: Commenters were opposed to the rule's prohibition on the 
BIA remanding cases based on the ``totality of the circumstances.'' 8 
CFR 1003.1(d)(7)(ii)(B).
    One commenter noted that the ``totality of the circumstances'' 
standard inherently includes clearly erroneous findings of fact or 
prejudicial errors of law. Specifically, the commenter stated,

[[Page 81613]]

that on a record where no findings of fact were clearly erroneous, and 
if no errors of law occurred, then a totality of the circumstances 
review would never permit remand.
    Commenters asserted that the Department did not consider relevant 
precedential case law from the Supreme Court and Federal courts of 
appeals which, the commenter claims, impose a ``totality of the 
circumstances'' standard in a variety of circumstances, many of which 
are applicable to immigration removal proceedings. For example, one 
commenter cites Jobe v. INS, which stated that legislative history of 
that provision of the Act reflected Congress's concern with fairness 
and required the Attorney General to ``look at the totality of 
circumstances to determine whether the alien could not reasonably have 
expected to appear'' 212 F.3d 674 (1st Cir. 2000) (quoting H.R. Conf. 
Rep. 101-955 (1990)) (withdrawn at request of court). The commenter 
noted that the BIA has previously recognized that the statute's 
legislative history requires an adjudicator to evaluate the totality of 
the circumstances to resolve this issue, citing Matter of W-F-, 21 I&N 
Dec. 503, 509 (BIA 1996). The commenter also stated that the rule was 
contrary to decades of past precedent, citing, inter alia, Matter of 
Miranda-Cordiero, 27 I&N Dec. 551, 554 (BIA 2019); Matter of W-F-, 21 
I&N Dec. at 509; Jobe, 212 F.3d 674; and Alrefae v. Chertoff, 471 F.3d 
353, 360-61 (2d Cir. 2006) (Sotomayor, J.).
    At least one commenter noted that the rule mentioned that there is 
no statutory or regulatory basis for the totality of the circumstances 
standard but failed to acknowledge that statutes and regulations are 
not the only types of law applicable in removal proceedings or other 
proceedings reviewed by the BIA. Accordingly, the commenter stated, the 
Department's failure to consider other sources of law, many of which 
utilize the ``totality of the circumstances'' standard of review, 
renders the rule's allegation--that remands justified by review of a 
totality of the circumstances are without merit--highly questionable.
    Another commenter further stated that the totality of the 
circumstances standard was particularly important for the BIA's review 
of in absentia motions, in order to resolve whether exceptional 
circumstances exist pursuant to section 240(b)(5)(C)(i) of the Act, 8 
U.S.C. 1229a(b)(5)(C)(i). The commenter also disagreed with the 
Department's position that there was no statutory or regulatory basis 
for the ``totality of the circumstances'' standard.
    One commenter criticized the Department for proposing such a rule 
change where it did not allege that the ``totality of the 
circumstances'' standard had resulted in incorrect or unfair case 
outcomes. Another commenter stated that the ``totality of the 
circumstances'' standard should be maintained because decisions should 
not be permitted on a single factor or on some factors, without taking 
into account the totality of the circumstances because it would allow 
adjudicators to pick the facts that they wish to use to make a decision 
that could be based upon pre-existing prejudices, which would violate 
fairness and justice. A commenter stated that, without the totality of 
the circumstances standard, parties could not provide details that were 
not apparent in the initial case, either through misinterpretation or 
misunderstanding, or through recently obtained documents.
    Response: As an initial point, the Department notes that many, if 
not all, commenters confused an appellate standard of review with a 
trial-level determination of ``totality of the circumstances.'' Neither 
the INA nor applicable regulations has ever authorized a ``totality of 
the circumstances'' standard of review by the BIA. Prior to 2002, the 
BIA reviewed all aspects of immigration judge decisions de novo. 
Regulatory changes in 2002 authorized the Board to review immigration 
judge factual findings for clear error and all other aspects of such 
decisions de novo. 8 CFR 1003.1(d)(3); Matter of S-H-, 23 I&N Dec. 462 
(BIA 2002); See 67 FR at 54902. Accordingly, the BIA has never been 
authorized to review decisions based on the ``totality of the 
circumstances,'' and the rule merely codifies that principle.
    Further, the Department is unaware of any appellate court--and 
commenters did not provide an example--employing a ``totality of the 
circumstances'' standard of review for questions of law, fact, 
discretion, judgment or other appellate issues similar to those 
considered by the BIA. 8 CFR 1003.1(d)(3). The Department agrees that 
``totality of the circumstances'' may be a relevant trial-level 
consideration in various situations and that an appellate body may 
review an underlying determination by the trial entity of the 
``totality of the circumstances''; however, that is not the same as 
using ``totality of the circumstances'' as a standard for appellate 
review. See, e.g., Cousin v. Sundquist, 145 F.3d 818, 832 (6th Cir. 
1998) (``We therefore undertake de novo review of the district court's 
analysis of the totality of the circumstances[.]'').
    To the commenter's point about the BIA's review of in absentia 
motions and the totality of the circumstances standard, the Department 
notes again that the commenter misapprehends a distinction between the 
legal standard that an adjudicator should apply in making 
determinations about whether an individual has been properly ordered 
removed in absentia and the standard for review of an appeal. Although 
the question of whether ``exceptional circumstances'' have been 
established for purposes of considering a motion to reopen an in 
absentia removal order may involve a consideration of the totality of 
the circumstances, that question is distinct from the standard of 
review employed by the BIA in reviewing the immigration judge's 
resolution of such a question on appeal. In other words, the BIA should 
evaluate the immigration judge's decision under the appropriate 
standard of review, but that standard is not one of ``totality of the 
circumstances.'' More specifically, assuming arguendo that an 
individual seeking remand on the basis that the immigration judge 
wrongly applied a totality of the circumstances standard, the motion to 
remand would not be, itself, based on a totality of the circumstances 
standard, but rather based on the immigration judge's alleged error of 
law in applying that standard.\40\
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    \40\ This distinction is best illustrated by the Board's 
decision in Matter of Miranda-Cordiero, 27 I&N Dec. at 554 which was 
cited by at least one commenter. In that decision, the Board noted 
that ``[w]hether proceedings should be reopened sua sponte is a 
discretionary determination to be made based on the totality of 
circumstances presented in each case,'' but it did not apply or 
purport to apply such a standard on appellate review. Matter of 
Miranda-Cordiero, 27 I&N Dec. at 554-55. Rather, it appropriately 
applied a de novo standard of review to that question of discretion, 
consistent with 8 CFR 1003.1(d)(3)(ii). Id. at 555 (``Upon our de 
novo review, we find that the respondent's case does not present an 
exceptional situation that warrants the exercise of discretion to 
reopen sua sponte, regardless of the availability of a provisional 
waiver.'' (emphasis added)).
---------------------------------------------------------------------------

    Although the Department recognizes that the BIA may have suggested 
or intimated that it was using such a standard of review in individual 
cases in the past, its lack of clarity clearly supports the change in 
this rule. Whether the Board previously failed to apply a correct or 
appropriate standard of review when remanding a case based on the 
totality of the circumstances or whether it merely was unclear about 
the standard it was actually applying, the rule ensures that all 
parties are now aware that there is no such standard of review and that 
the Board will be clearer in the future on this issue. Contrary to 
commenters' suggestions, neither the lack of clarity nor the potential 
to apply an incorrect standard

[[Page 81614]]

of review are persuasive reasons to continue the Board's occasional 
prior practice on this issue in perpetuity. Rather, the Department 
believes it is important to reiterate the BIA's commitment to adhering 
to regulatory standards in order to ensure consistent adjudication of 
similarly situated cases.
    Commenters' suggestions that, without a ``totality of the 
circumstances'' standard of review, adjudicators would specifically 
select facts that would allow them to deny remands for otherwise 
meritorious cases is both contrary to the existing regulations--which 
do not permit such a standard--and unsupported by any evidence. Members 
of the BIA will consider whether remand for any of the permitted 
purposes would be appropriate after an impartial examination of the 
record and applying the correct standard of review, without reference 
to a regulatory atextual--and almost wholly subjective--totality of the 
circumstances standard of review. See 8 CFR 1003.1(d)(1) (``The Board 
shall resolve the questions before it in a manner that is timely, 
impartial, and consistent with the Act and regulations.''). Indeed, the 
Department believes that the nebulous and vague ``totality of the 
circumstances'' standard that the BIA may have previously applied is 
itself ripe for exactly the kind of unfair ``cherry picking'' that the 
commenter fears.
    Regarding commenters' discussion of case law and the totality of 
the circumstances standard, the Department first notes that the BIA and 
Federal appellate courts do not necessarily employ parallel standards 
of review. Compare Sandoval-Loffredo v. Gonzales, 414 F.3d 892, 895 
(8th Cir. 2005) (applying ``deferential substantial evidence standard'' 
to review agency findings of fact), with, e.g., 8 CFR 1003.1(d)(3)(i) 
(establishing a clear error standard for reviewing immigration judge 
findings of fact). Nevertheless, as discussed, supra, the Department is 
unaware of any Federal appellate court that uses a ``totality of the 
circumstances'' standard of review, and commenters did not provide any 
such examples.
    The Department disagrees with commenter concerns regarding whether 
the ``totality of the circumstances'' standard has resulted in 
incorrect or unfair case outcomes. Regardless of whether this putative 
standard of review, which is not authorized by statute or regulation, 
results in ``incorrect'' or ``unfair'' case outcomes, which are 
subjective determinations made by commenters, the Department is issuing 
this rule to make clear that there is no existing statutory or 
regulatory basis for applying this standard of review even though the 
BIA, arguably, may have utilized it in the past without authority. 85 
FR at 52501. In short, the risk of continued confusion over whether the 
Board applied the correct standard of review--and whether there exists 
a standard of review outside of the regulatory text that is applied 
only as the BIA subjectively sees fit in individual cases--
significantly outweighs commenters' concerns that it should remain as a 
nebulous quasi-equitable authority whose provenance is unknown and 
whose application approaches an ad hoc basis. Nonetheless, in light of 
the confusion evidenced by commenters, the Department in this final 
rule is making clear that the Board cannot remand a case following a 
totality of the circumstances standard of review, though an immigration 
judge's consideration of the totality of the circumstances may be a 
relevant subject for review under an appropriate standard.
    Finally, to the extent that commenters objected to the specific 
prohibition on the Board's ability to remand cases in the ``totality of 
circumstances'' solely because they perceived such remands as being 
beneficial only to respondents, the Department finds that an 
unpersuasive basis for declining to issue this rule. Rather, those 
comments support the Department's concern about the inappropriate use 
of such a putative standard of review and its decision to codify the 
inapplicability of such a standard to the extent that it has been 
applied in a manner that benefits one party over the other and, thus, 
raises questions regarding the Board's impartiality. See 8 CFR 
1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA Ethics and Professionalism 
Guide at sec. V.

i. Issues With Respect to Limiting Scope of Remand to Immigration Court

    Comment: Commenters also raised concerns regarding the Department's 
proposed changes that would limit the scope of a remand to the 
immigration court. For example, commenters suggested, the rule would 
unfairly impact individuals who had been subject to ineffective 
assistance of counsel before the immigration court but whose cases had 
been wrongly decided for other reasons. Such individuals, the commenter 
suggested, should not be limited to their prior, poorly developed 
record on remand when they might be represented by new counsel. One 
commenter suggested that limiting the scope of a remand does not 
improve efficiency because once the case is back before the immigration 
judge, he or she may take new evidence and engage in fact finding to 
resolve issues that may later have to be addressed in a motion to 
reopen.
    Commenters also suggested that an individual should not be bound to 
the record before the immigration judge where a new avenue of relief 
had become available in the intervening period of time when he or she 
was waiting for their new individual hearing. One commenter stated that 
they opposed what they characterized as the Department's attempt to 
force immigration judges to improperly issue removal orders for the 
purposes of eliminating confusion for immigration judges. The commenter 
suggested that this rule would harm both respondents and immigration 
judges.
    Commenters stated that the rule change arbitrarily precluded the 
immigration judge from considering new facts or law and would not 
improve efficiency because it would force litigation of such issues to 
be contemplated upon a separate motion to reopen, after the conclusion 
of proceedings, when it could be more efficiently addressed on remand. 
The commenter also suggested that there would be increased litigation 
about the constitutionality of the rule which would also decrease 
efficiency and increase inconsistent outcomes. Another commenter stated 
that issues that could have previously been resolved with a ``simple 
remand'' and straightforward adjudication in immigration court would 
now require the BIA to produce a transcripts, order briefing, and 
review briefing by both sides before rendering a decision.
    Response: The Department disagrees with commenter concerns 
regarding limiting the scope of remand to the immigration court. The 
rule is intended to alleviate confusion for immigration judges 
regarding the scope of a remand. ``[E]ven where the [BIA] clearly 
intends a remand to be for a limited purpose[,]'' an immigration judge 
interpreting the remand as a ``general remand'' would allow 
consideration, litigation, or relitigation, of the myriad of issues 
that had either already been addressed or were unrelated to the initial 
proceedings. See 85 FR at 52502.
    Commenters did not explain why an immigration judge should not be 
bound by the intent of a Board remand nor why the Board should not 
adopt the same principle used by Federal appellate courts 
distinguishing between general and limited remands. See, e.g., United 
States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999) (``Remands, 
however, can be either general or limited in scope.

[[Page 81615]]

Limited remands explicitly outline the issues to be addressed by the 
district court and create a narrow framework within which the district 
court must operate. General remands, in contrast, give district courts 
authority to address all matters as long as remaining consistent with 
the remand.'' (internal citations omitted)). As the NPRM explained, all 
Board remands are currently de facto general remands, even when the 
intent of the remand is clearly limited. 85 FR at 52496; see Bermudez-
Ariza v. Sessions, 893 F.3d 685, 688-89 (9th Cir. 2018) (``We think it 
likely that the BIA limited the scope of remand to a specific purpose 
in this case by stating that it was remanding `for further 
consideration of the respondent's claim under the Convention Against 
Torture.' That said, the BIA's remand order nowhere mentioned 
jurisdiction, much less expressly retained it. Thus, irrespective of 
whether the BIA qualified or limited the scope of remand, the IJ had 
jurisdiction to reconsider his earlier decisions under 8 CFR 
1003.23.''). However, the Department sees no basis to retain such an 
anomalous system or to continue to preclude the BIA from exercising its 
appellate authority to issue limited-scope remands.
    Commenters did not explain why such an inefficient limitation--and 
one that encourages the re-litigation of issues already addressed by an 
immigration judge and the Board--should be retained. Requiring every 
remand to constitute a general remand both increases inefficiency--by 
requiring the parties to potentially re-argue issues previously 
addressed--and undermines finality by allowing a second chance to argue 
and appeal issues to the Board that the Board has already ruled upon 
once.
    Additionally, it is not appropriate for the immigration court to, 
without explicit directive, expand the scope of its decision beyond 
that which is desired by its reviewing court. Cf. 8 CFR 1003.1(d)(1) 
(``The Board shall function as an appellate body charged with the 
review of those administrative adjudications under the Act that the 
Attorney General may by regulation assign to it.''). The Department 
notes that, should a respondent disagree with the immigration judge's 
determinations made on remand, he or she may appeal that determination 
to the BIA. Thus, the respondent would not be prejudiced by limiting 
the scope of the remand to issues as directed by the appellate body. To 
the extent that new relief becomes available in the intervening time 
while a case is being rescheduled before the immigration court on 
remand, the respondent may file a motion to reconsider the scope of the 
BIA's remand decision. Alternatively, the respondent may file a motion 
to reopen or reconsider with the immigration judge after the judge 
enters a new decision following the remand. The Department further 
notes that such issues may generally be appealed to the Federal circuit 
courts of appeals.
    Commenters are correct that aliens would submit motions to reopen 
after the BIA's adjudications, but the Department disagrees that this 
procedure would lead to delays or conflict with the purpose of the 
rule. Instead, one of the main animating purposes of the rule is to 
reduce unnecessary and inefficient remands and to ensure the BIA is 
able to move forward independently with as many appeals as possible, 
and maintaining a general remand rule erodes both of those goals.
    The Department disagrees with the commenter's concerns that 
limiting the scope of remand would unfairly impact individuals who have 
been subject to ineffective assistance of counsel. As an initial point, 
the commenter did not explain how such a claim would arise in either a 
general or limited remand situation, as claims of ineffective 
assistance of counsel on direct appeal are relatively rare; 
nevertheless, such claims could be considered by the Board as with any 
other appellate argument. Moreover, individuals who have been subjected 
to ineffective assistance of counsel may pursue reopening of their 
proceedings pursuant to Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). 
In short, nothing in this final rule affects an alien's ability to 
raise claims of ineffective assistance of counsel through established 
channels.
    The Department agrees with commenters that administrative appellate 
review is an important part of removal proceedings; however, the 
Department believes that at least some commenters have mischaracterized 
the role of administrative appeals as maintaining ``court[] checks and 
balances and separation of powers.'' Rather, the BIA exists to review 
immigration court decisions for accuracy and adherence to the law, as 
well as providing guidance to adjudicators. See 8 CFR 1003.1(d)(1). 
This role is unrelated to the concepts of checks and balances and 
separation of powers as they exist between separate, coequal branches 
of government.
    To the extent that commenters objected to the codification of the 
Board's authority to issue limited remands solely because they 
perceived such remands as being beneficial only to respondents, the 
Department finds that an unpersuasive basis for declining to issue this 
rule. First, to reiterate, the rule applies to both parties, and 
general remands may benefit or hinder either party. It is just as 
likely that DHS may acquire additional evidence or submit additional 
arguments following a general remand as the respondent would. 
Consequently, the Department focuses on the efficiency aspects of 
eliminating the current ``only general remands'' principle, rather than 
its use to obtain any specific results. Second, to the extent that 
there is a misperception that the general remand rule aids only aliens, 
those comments support the Department's decision to authorize the Board 
to issue both limited and general remands in order to ensure that the 
Board remains impartial in its treatment of both parties. See 8 CFR 
1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA Ethics and Professionalism 
Guide at sec. V.
    Overall, after weighing the potential burdens and commenters' 
concerns, as well as the Board's position as an impartial appellate 
body, the Department has concluded that the benefits of expressly 
allowing the Board to issue limited remands, including increased 
efficiency and better alignment with the Board's status as an appellate 
authority, outweigh concerns raised by commenters that parties should 
continue to be able to raise all issues again on remand, even if they 
have previously been litigated.
h. New Evidence on Appeal (8 CFR 1003.1(d)(7)(v))
    Comment: Numerous commenters expressed general concerns about the 
amendments at 8 CFR 1003.1(d)(7)(v) regarding the BIA's consideration 
of new evidence on appeal. For example, at least one commenter 
characterized the change as ``banning the submission of new evidence.'' 
Other commenters expressed that the changes were a ``blatant power 
grab'' and offensive to the constitution, principles of basic decency, 
and fundamental fairness. Commenters explained that motions to reopen 
are inadequate substitutes for motions to remand for consideration of 
new evidence due to the strict time and number limitations that apply. 
See INA 240(c)(7)(C)(i), 8 U.S.C. 1229a(c)(7)(C)(i).
    Commenters stated that motions to remand on account of new evidence 
are critical to protecting aliens' due process rights in immigration 
proceedings and that, by banning motions to remand for new evidence, 
the rule would violate aliens' rights at section 240(b)(4)(B) of the 
Act, 8 U.S.C. 1229a(b)(4)(B), to present evidence on their behalf. 
Commenters explained that these

[[Page 81616]]

motions to remand allow aliens to account for situations when evidence 
that is material was formerly unavailable. Commenters noted that new 
evidence may be necessary for consideration due to intervening changes 
in the law.
    Similarly, commenters disagreed with the Department's 
characterization of the basis for these changes as gamesmanship by the 
parties, noting that it frequently takes time for an alien to obtain 
evidence from other sources. Commenters also noted that the Department 
did not provide concrete evidence or citations in support of these 
characterizations. See 85 FR at 52501.
    In general, commenters expressed concern that this provision would 
allow the BIA to remand a case when there is derogatory information 
about an alien as a result of the identity, law enforcement, or 
security investigations or examinations but prevent aliens from seeking 
a remand for new and favorable evidence. This difference, according to 
commenters, gives ``the appearance of impropriety and favoritism toward 
one party in the beginning.'' Another commenter alleged that such an 
appearance ``damages the public trust in the neutral adjudication 
process.'' Extending the allegations, a commenter claimed that these 
changes resulted in the decision makers no longer being neutral or 
unbiased, a constitutional requirement, according to the commenter, 
that was established in Mathews v. Eldridge, 424 U.S. 319 (1976). 
Commenters noted that allowing remands due to information uncovered in 
the investigations without restrictions conflicts with the Department's 
efficiency-based justification for the rule.
    Commenters similarly stated that the rule favors DHS because all 
three exceptions to remands for consideration of new evidence at 8 CFR 
1003.1(d)(7)(v)(B) relate to types of evidence more likely to benefit 
DHS's case or arguments than the alien's.
    Other commenters warned that this change would increase the backlog 
at the immigration courts, the BIA, and the circuit courts. For 
example, at least one commenter argued that the change would lead to 
unnecessary delays by requiring the BIA to affirm a removal order that 
would be subsequently reopened since the BIA could not grant a remand 
to account for new evidence while the case is still pending. Similarly, 
commenters stated that forcing cases to first have a removal order 
before evidence could be considered with a motion to reopen 
unnecessarily starts the removal process and creates complications.
    Other commenters voiced concern that pro se aliens who improperly 
label their motion to the BIA as a motion to remand rather than a 
motion to reopen will have their motions dismissed and their new 
evidence would be ``foreclosed from consideration.'' Another commenter 
echoed this concern and noted that the government, which will always be 
represented by counsel, would not be required to meet the same motion 
formalities as aliens in order for the BIA to remand due to derogatory 
information.
    Concerned about refoulement, a commenter stated that the Department 
should not make it more difficult for asylum seekers, who often have 
limited access to evidence due to harms from abusers or traffickers or 
post-traumatic stresses, to submit whatever evidence they are able to 
procure. Similarly, at least one commenter noted the difficulties faced 
by children in proceedings.
    Commenters described a range of situations when they believe the 
rule would prevent aliens from submitting new evidence that is relevant 
or needed. Examples include when an alien has been approved for a U-
visa but has not actually received it and when an immigration judge 
unreasonably limited the record and the alien needs to establish that 
the immigration judge abused her discretion in a prejudicial manner.
    Response: The Department has addressed many of these comments 
regarding the submission of new evidence on appeal, supra, and 
incorporates and reiterates its previous response here. Further, the 
Department notes that the rule does not ban the submission or 
consideration of new evidence following the completion of immigration 
court proceedings. Instead, the changes require that a party comply 
with the statutory requirements for a motion to reopen to submit such 
evidence.\41\ A motion to remand, which is an administratively created 
concept \42\ that was later codified into the regulations, was never 
imagined as part of the statutory scheme. However, the statutory scheme 
of the INA included an avenue to address new evidence--a motion to 
reopen--and the NPRM does not impact motions to reopen. Because the 
sole statutorily created process to consider new evidence is still 
available, the Department finds that aliens' due process rights 
regarding the submission of new evidence remain intact.
---------------------------------------------------------------------------

    \41\ The Department recognizes commenters' concerns that motions 
to reopen are limited by statute to certain time and number 
requirements. See INA 240(c)(7)(C)(i), 8 U.S.C. 1229a(c)(7)(C)(i). 
Such limitations are the product of congressional judgment and 
otherwise outside the Department's authority to set or amend. 
Nevertheless, the Department also recognizes that equitable tolling, 
which commenters generally did not acknowledge, may also be 
available in certain circumstances to ameliorate time limitations.
    \42\ See Matter of Coelho, 20 I&N Dec. 464, 470-71 (BIA 1992).
---------------------------------------------------------------------------

    Commenters mischaracterize the Department's basis for these 
changes. While the Department noted that the procedures and 
availability of motions to remand create opportunities for 
gamesmanship, such possible gamesmanship was not alone the reason for 
the changes. 85 FR at 52501. Instead, as the Department noted, such 
motions have resulted in inconsistent applications of the law, 
particularly given the general prohibition on the BIA's consideration 
of new evidence on appeal. 85 FR at 52500-01. Further, prohibiting the 
BIA from considering new evidence on appeal is in keeping with the 
immigration judge's authority to manage the filing of applications and 
collection of relevant documents. Under 8 CFR 1003.31(c), a party who 
fails to file an application or document within the time set by the 
immigration judge is deemed to have waived the opportunity to file that 
application or document.
    Further, commenters are incorrect that the rule demonstrates bias 
or particular aid to DHS. The NPRM contains three exceptions: New 
evidence that (1) is the result of identity, law enforcement, or 
security investigations or examination; (2) pertains to an alien's 
removability under the provisions of 8 U.S.C. 1182 and 1227; or (3) 
calls into question an aspect of the jurisdiction of the immigration 
courts. These are the three situations in which the Department 
determined that the need for remand ``overrides any other consideration 
because the new evidence calls into question the availability or scope 
of proceedings in the first instance.'' 85 FR at 52501.
    Only the first basis applies solely to DHS, and as the Department 
has discussed, supra, that basis is consistent with statutes and 
regulations that are beyond the scope of this rule. 8 CFR 1003.47; INA 
208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i). The second and third bases 
apply equally to both parties and allow, for example, a respondent to 
submit new evidence of United States citizenship (which would call into 
question the jurisdiction of the proceedings) or new evidence that 
suggests the respondent is no longer removable. Both parties have 
vested interests in ensuring that removal proceedings do not occur in 
circumstances when a respondent is not amenable to removal, and the 
Department accordingly disagrees with

[[Page 81617]]

commenters that these circumstances are in any way one-sided or 
beneficial solely or primarily to DHS.
    Further, it is a mischaracterization to isolate the first 
exception, remands for evidence that is the result of the alien's 
identity, law enforcement, or security investigations or examinations, 
as particular evidence that the provision is biased in favor of the 
government. As discussed in the NPRM, by statute, no alien may be 
granted asylum ``until the identity of the applicant has been checked 
against all appropriate records or databases maintained by the Attorney 
General and by the Secretary of State, including the Automated Visa 
Lookout System, to determine any grounds on which the alien may be 
inadmissible to or deportable from the United States, or ineligible to 
apply for or be granted asylum.'' INA 208(d)(5)(A)(i), 8 U.S.C. 
1158(d)(5)(A)(i). As such, the BIA must be able to remand on account of 
unfavorable findings resulting from identity and security 
investigations or the BIA would not be complying with the statutory 
requirements, and aliens would not have an opportunity to present 
relevant evidence in response.
    Commenters are correct that aliens may submit motions to reopen 
after the BIA's adjudication, but the Department disagrees that this 
procedure, compared with the submission of new evidence on appeal, 
would lead to delays or conflict with the purpose of the rule. As 
discussed in the NPRM, 85 FR at 52500-01, and reiterated, supra, the 
BIA's inconsistent treatment of new evidence submitted on appeal 
warrants a change in the regulations, and commenters suggestions to the 
contrary are unpersuasive. After weighing the relevant equities--
including the need for clarity and consistency, the availability of 
alternatives such as motions to reopen, the burden of immigration 
judges caused by improper consideration of new evidence on appeal, and 
the importance of encouraging parties to submit all available and 
probative evidence at the trial level--the Department decided that the 
benefits of the rule outweigh the concerns raised by commenters, 
particularly due to the availability of motions to reopen.\43\
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    \43\ To the extent commenters are concerned about removal 
pending a motion to reopen given these changes, the Department notes 
that aliens may seek stays of removal from DHS or, as appropriate, 
the BIA. 8 CFR 241.6 and 1241.6.
---------------------------------------------------------------------------

    As to the commenters' concerns regarding the risk of unrepresented 
aliens submitting improperly titled motions, the issue is not novel, 
and the BIA is familiar in handling such matters.\44\ The BIA reviews 
each submission for its substance. In addition, EOIR provides reference 
materials to the public regarding procedures before EOIR, which provide 
pro se aliens with assistance when engaging in self-representation. See 
generally BIA Practice Manual; see also EOIR, Immigration Court Online 
Resource, supra; EOIR, Self-Help Materials (Aug. 1, 2019), available at 
https://www.justice.gov/eoir/self-help-materials. Thus, the Department 
does not find that mistitled or mischaracterized motions will be an 
undue burden on the BIA or present a particular risk that aliens' 
opportunity to have new evidence considered will be denied due to 
formalities.
---------------------------------------------------------------------------

    \44\ Nevertheless, the Department reiterates that approximately 
86 percent of aliens are represented upon appeal. EOIR Workload and 
Adjudication Statistics, Current Representation Rates, Oct. 13, 
2020, available at https://www.justice.gov/eoir/page/file/1062991/download.
---------------------------------------------------------------------------

    The Department finds that the various scenarios when motions to 
remand for consideration of new evidence would be used do not compel 
reconsideration of the rule. The three exceptions provide safeguards 
that allow for the consideration of evidence when it calls into 
question the availability or scope of proceedings, and motions to 
reopen remain the appropriate recourse for aliens with newly discovered 
or previously unavailable evidence. Similarly, a motion to reopen 
provides the proper avenue for newly acquired evidence for asylum 
seekers or others concerned about refoulement; thus, aliens in that 
situation are not ``arbitrarily blocked'' from presenting such 
evidence.
i. BIA Timelines (8 CFR 1003.1(e)(1), (8))
i. Issues With Respect to Screening Panel Deadlines
    Comment: Commenters expressed concern that the rule's 14-day 
timeframe for the BIA to conduct its initial screening for summary 
dismissal and 30-day timeframe for the BIA to issue a decision would 
lead to erroneous dismissals in light of the number of cases pending 
before the BIA. Specifically, the commenters stated that BIA staff 
conducting the initial screening would not know whether the case could 
be summarily dismissed until after they have screened the case, and 
that the ``mandatory adjudicatory timeframes'' would pressure screeners 
to review cases quickly rather than accurately. Another commenter 
stated that the ``screening panel'' consisted of only one BIA member, 
who would not have sufficient time to meaningfully review the appeal. 
Commenters similarly expressed concern that the rule's requirement that 
a single BIA member decide whether to issue a single-member decision or 
refer the case for three-member review will cause BIA members to 
emphasize speed over fairness in reviewing case records, which could 
result in erroneous denials. The commenters suggested that these 
timelines were arbitrary. One commenter stated that it supported 
extending the existing regulatory deadlines, rather than shortening 
them.
    One commenter cited several Ninth Circuit cases that determined 
that the BIA had erred in its summary dismissal of an appeal. See, 
e.g., Vargas-Garcia v. INS, 287 F.3d 882, 885-86 (9th Cir. 2002) 
(holding that the BIA Notice of Appeal form was inadequate for an 
unrepresented respondent given the BIA's standards of specificity and 
lack of notice in summarily dismissing the appeal); Casas Chavez v. 
INS, 300 F.3d 1088, 1090 & n.2 (9th Cir. 2002) (holding that the notice 
of the reasons for appeal sought by the summary dismissal regulation 
can be met either in the Notice of Appeal or in the brief and ``there 
is an underlying assumption in the regulation that both requirements 
need not be satisfied as long as sufficient notice is conveyed to the 
BIA'' and reasoning that ``[i]f this were not true, the 
constitutionality of the regulation would be called into question on 
the basis of denial of due process. . . . In the context of deportation 
proceedings, due process requires that aliens who seek to appeal be 
given a fair opportunity to present their cases.'') (internal citations 
and quotations omitted);
    Response: Most, if not all, of the commenters' concerns appear to 
be based on a tacit assertion that either Board members are incompetent 
and cannot screen an incoming case within two weeks or Board members 
are incompetent or unethical and will issue summary dismissal orders 
for reasons unrelated to the merits or the law. The Department 
categorically rejects those assertions and any comments based on such 
presumptions. Chem. Found., Inc., 272 U.S. at 14-15 (``The presumption 
of regularity supports the official acts of public officers, and, in 
the absence of clear evidence to the contrary, courts presume that they 
have properly discharged their official duties.'').
    There is no evidence--and commenters did not provide any--that 
establishing a 14-day timeframe within which the BIA must conduct its 
initial screening for summary dismissal and 30-day timeframe for 
issuing a decision

[[Page 81618]]

will result in erroneous denials. The BIA has already established such 
internal requirements by policy, see PM 20-01 at 2 without any known 
degradation in the quality of its screening or issuance of summary 
dismissals.
    Contrary to the suggestion of at least one commenter, the screening 
panel is comprised of multiple Board members, not just one, and the 
panel consists of a ``sufficient number of Board members'' to carry out 
screening functions. 8 CFR 1003.1(e). The rule does not alter the 
existence or composition of the screening panel. Further, commenters 
did not provide any evidence--and the Department is unaware of any--
that the screening panel is insufficient to carry out its functions 
under the rule.
    As noted in the NPRM, 85 FR at 52507, the regulations currently 
direct the BIA to screen and ``promptly'' identify cases subject to 
summary dismissal, 8 CFR 1003.1(d)(2)(ii), and few commenters 
acknowledged that promptness requirement nor explained why an undefined 
promptness requirement is preferable to a clear one set at 30 days. 
These regulatory timelines will both improve efficiency at the BIA, so 
that there is more time for BIA members and staff to devote to cases 
involving more substantive, dispositive issues. They will also benefit 
the parties by offering more expedient resolution of appeals amenable 
to summary dismissal allowing more time to be devoted to meritorious 
cases. The Department believes that 14 and 30 days are ample periods of 
time to both screen and issue decisions, respectively, on such limited 
matters, and these timelines will not negatively affect the quality or 
accuracy of such adjudications.
    Finally, the Department notes the commenter's citation to cases 
regarding incorrect usage of the BIA's summary dismissal procedures. 
The BIA may dismiss an appeal summarily without reaching its merits in 
the following circumstances: Failure to adequately inform the BIA of 
the specific reasons for the appeal on either the Notice of Appeal 
(Form EOIR-26) or any brief or attachment; failure to file a brief if 
the appealing party has indicated that a brief or statement would be 
filed; the appeal is based on a finding of fact or conclusion of law 
that has already been conceded by the appealing party; the appeal is 
from an order granting the relief requested; the appeal is filed for an 
improper purpose; the appeal does not fall within the BIA's 
jurisdiction; the appeal is untimely; the appeal is barred by an 
affirmative waiver of the right of appeal; the appeal fails to meet 
essential statutory or regulatory requirements; or the appeal is 
expressly prohibited by statute or regulation. See 8 CFR 
1003.1(d)(2)(i). The cases identified by commenters, however, are 
inapposite to this rule, which does not amend the circumstances under 8 
CFR 1003.1(d)(2)(i) when the BIA may summarily dismiss a case.
ii. Issues With Respect to Other Appeals
    Comment: One commenter asserted that the changes to the BIA's 
timelines were designed to codify an October 2019 EOIR policy memo, but 
the commenter stated that the Department did not point to any increased 
efficiency or productivity since those new case-management procedures 
were implemented. Other commenters similarly criticized the Department 
for not adequately explaining how its objectives to achieve higher 
consistency, efficiency, and quality of decisions would be furthered by 
limiting BIA discretion to manage its own caseload. Commenters likened 
their concerns with the new timelines to concerns with the BIA's 
procedures for affirmances without opinion.
    Commenters stated that the rule would lead the BIA to issue rushed, 
not quality, decisions. For example, commenters stated that BIA 
decisions would be inconsistent since achieving consistency requires 
reviewing previous decisions and understanding important distinctions 
between different cases. Commenters stated that decisions made without 
sufficient consideration of the facts and law would be more likely to 
be overturned for errors, which decreases efficiency.
    The commenters also stated that this rule would incentivize BIA 
members to decide and deny cases themselves rather than determine that 
a case requires three-member review, which is required to reverse an 
immigration judge's decision, because it is faster for a single member 
to affirm an immigration judge's decision.
    Commenters criticized that the Department did not explain why the 
BIA would benefit from such adjudication timelines when other courts 
can issue rulings only when they are prepared to do so.
    One commenter stated that the time period proposed for EOIR 
adjudicators is much less than many other administrative tribunals. The 
commenter listed, as examples, the Board of Veterans Appeals, which the 
commenter alleged took an average of 247 days to decide an appeal in FY 
2017, and the Social Security Administration Appeals Council, which the 
commenter alleged had an average processing time for an appeal of 364 
days in FY 2016.
    Response: Again, many, if not all, of the commenters' concerns 
appear to be based on a tacit underlying assertion that Board members 
are either incompetent or unethical and, thus, cannot or will not 
perform their duties properly in a timely manner, notwithstanding the 
longstanding regulatory directive for them to ``resolve the questions 
before [them] in a manner that is timely, impartial, and consistent 
with the Act and regulations.'' 8 CFR 1003.1(d)(1). The Department 
categorically rejects those assertions and any comments based on such 
presumptions. Chem. Found., Inc., 272 U.S. at 14-15 (``The presumption 
of regularity supports the official acts of public officers, and, in 
the absence of clear evidence to the contrary, courts presume that they 
have properly discharged their official duties.'').
    Although aspects of PM 20-01 informed this rule, it was not the 
sole consideration nor the basis of authority for the rulemaking. The 
Attorney General is statutorily authorized to issue regulations to 
carry out his authority in the INA. INA 103(g)(2), 8 U.S.C. 1101(g)(2). 
Further, the Director exercises delegated authority from the Attorney 
General to ensure the ``efficient disposition of all pending cases, 
including the power, in his discretion, to set priorities or time 
frames for the resolution of cases.'' 8 CFR 1003.0(b)(1)(i). 
Additionally, the Director may ``[e]valuate the performance of the 
Board of Immigration Appeals . . . and take corrective action where 
needed[.]'' Id. Sec.  1003.0(a)(1)(iv).
    The Department notes that this rulemaking, and other recent 
rulemakings, designed to improve efficiencies at the BIA, in addition 
to the measures outlined in the policy memorandum, to the extent that 
they are not included in the rulemaking will work in conjunction to 
improve efficiencies at the BIA. See, e.g., Organization of the 
Executive Office for Immigration Review, 84 FR 44537 (Aug. 26, 2019); 
85 FR 18105. The Department also notes that the Board has already 
demonstrated improved efficiency by completing over 40,000 cases in the 
first full fiscal year (FY) after PM 20-01 was issued, which was its 
highest completion total since FY 2008. EOIR, Adjudication Statistics: 
All Appeals Filed, Completed, and Pending, Oct. 13, 2020, available at 
https://www.justice.gov/eoir/page/file/1248506/download.
    Contrary to commenters' assertions, this rule does not encourage 
any

[[Page 81619]]

particular result of an appellate adjudication; rather, the outcome of 
an appeal remains wholly dependent on the merits of the appeal and the 
applicable law. This rule does not encourage the denial of appeals or 
the issuance of legally deficient decisions, and the Department again 
rejects the insinuation that its adjudicators would abdicate their 
duties or are too incompetent to perform them correctly. Further, this 
provision regarding the BIA's timelines are intended to improve 
efficiency and encourage the timeliness of appeals, not to affect the 
disposition of appeals. The NPRM clearly states that ``this delegation 
of authority to the Director does not change the applicable law that 
the Board or the Director must apply in deciding each appeal[.]'' 85 FR 
at 52508. BIA members are directed by regulation to ``exercise 
independent judgment and discretion in considering and determining the 
cases coming before the [BIA.]'' 8 CFR 1003.1(d)(1)(ii). Such 
determinations must be made in accordance with applicable statutes, 
regulations, and binding case law. Additionally, BIA members receive 
``comprehensive, continuing training,'' administered by the Director, 
in order to promote adjudicative quality. Id. Sec.  1003.0(b)(1)(vi), 
(vii). Furthermore, BIA members, who are adjudicators within EOIR, were 
hired to serve EOIR's mission to adjudicate cases in a fair, 
expeditious, and uniform manner. See EOIR, About the Office, Aug. 14, 
2018, available at https://www.justice.gov/eoir/about-office. The 
Department rejects commenters' insinuations that BIA members would act 
outside of that mission by affirming an immigration judge's decision 
solely to dispose of an appeal more expediently due to the 
timelines.\45\ The Department disagrees with commenters' concerns that, 
given the number of cases pending before the BIA, it would not be 
possible for BIA members to adjudicate appeals within the given 
timeframes or other allegations that the 335-day time period is 
insufficient. As noted in the NPRM, most appeals are already decided 
within the given parameters. 85 FR at 52508. Accordingly, commenters' 
comparisons to other courts or administrative bodies with different 
processing timelines and averages are inapposite, though the Department 
notes that the BIA's timeline falls between the two examples given, 
which actually supports the rule.
---------------------------------------------------------------------------

    \45\ Because an alien may appeal a BIA decision to Federal 
court, this asserted behavior would not be efficient or rational--
and, thus, would be unlikely to occur, contrary to commenters' 
allegations--because improper adjudications will simply lead to more 
cases being remanded from Federal court. Moreover, although 
commenters did not acknowledge it, the Department is cognizant that 
DHS cannot petition a Federal court for review of a BIA decision. 
Thus, if BIA adjudicators were to ignore their ethical obligations, 
disregard the law and evidence in each case, and adjudicate cases 
based solely on regulatory timelines in the manner alleged by 
commenters, they would actually have an incentive to rule in favor 
of aliens--contrary to the assertions of commenters--because there 
is little likelihood of a subsequent reversal. Thus, if commenters 
were correct about an asserted relationship between efficiency and 
outcomes, then that relationship would logically favor aliens, which 
is, paradoxically, a result favored by most commenters opposing the 
rule. Nevertheless, the Department reiterates that the improved 
efficiency created by the rule is outcome-neutral, and it expects 
that all Board members will carry out their duties in an impartial 
and professional manner consistent with the regulations. See 8 CFR 
1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA Ethics and Professionalism 
Guide at sec. V.
---------------------------------------------------------------------------

    For such cases that are atypical, and for which it would be 
appropriate for the BIA to devote additional time to completing 
adjudication, the regulations provide for an extension of the 
adjudication time period. 8 CFR 1003.1(e)(8)(ii) (``[I]n exigent 
circumstances . . . in those cases where the panel is unable to issue a 
decision within the established time limits, as extended, the Chairman 
shall either assign the case to himself or a Vice Chairman for final 
decision within 14 days or shall refer the case to the Director for 
decision.''); 1003.1(d)(6)(ii)(B) (allowing BIA to place a case on hold 
while it awaits the completion or updating of all identity, law 
enforcement, or security investigations or examinations); 
1003.1(e)(8)(iii) (permitting BIA Chief Appellate Immigration Judge to 
hold a case pending a decision by the U.S. Supreme Court or a U.S. 
Court of Appeals, in anticipation of a BIA en banc decision, or in 
anticipation of an amendment to the regulations). Therefore, as noted 
in the NPRM, the Department expects few, if any, appeals to not be 
resolved within the regulatory time frames. 85 FR at 52508. In short, 
commenters simply did not persuasively explain why it would be neither 
feasible nor desirable for the BIA to adjudicate cases within 11 
months, subject to certain exceptions contained in the rule.
iii. Issues With Respect to Referral to the Director
    Comment: Commenters also expressed a range of disagreements with 
the rule's procedures for the referral of appeals that have been 
pending for more than 335 days \46\ to the Director. The commenters 
asserted that this would promote the denial of appeals. The commenters 
also expressed concerns that this would consolidate final decision-
making authority with one allegedly politically appointed person, the 
Director, whom, the commenters alleged, would not have the necessary 
information or knowledge of the case to issue a decision. Commenters 
alleged that the Director's decision in referred cases would be made 
based on the rules, without taking the appropriate time to evaluate the 
case.
---------------------------------------------------------------------------

    \46\ Numerous comments refer to a 355 day deadline which appears 
to be a typographical error, as the time period set forth in the 
NPRM was 335 days, and there is no discussion of a 355 day time 
period in the NPRM. See 8 CFR 1003.1(e)(8)(v) (proposed). The 
Department has reviewed and addressed such comments for substance as 
if they had correctly stated that there was a 335 day deadline.
---------------------------------------------------------------------------

    Further, commenters objected that the rule would undermine the 
perception of neutrality, politicize the appellate process and violate 
substantive Due Process by allowing the Director, a political 
appointee, rather than a career adjudicator to adjudicate hundreds or 
thousands of cases. One commenter asserted that it is not the role of 
the Director to adjudicate decisions, and that the position is a non-
adjudicatory position that is meant to run EOIR operations and does not 
have expertise, training, or impartiality necessary to decide cases. 
The commenter stated that, as an executive position, the Director would 
make decisions based on the priorities of the executive branch rather 
than the requirements of the law.
    Numerous commenters opposed the 335-day period before referrals 
because it is not much longer than the 323-day median case appeal time 
period.
    One commenter criticized the rulemaking because the Department did 
not address how the Director would have time to personally write 
decisions or, alternatively, who would write them under the Director's 
name. The commenter further criticized that the NPRM did not discuss 
what kind of training and oversight such individuals would receive or 
what metrics they would use.
    Some commenters offered anecdotal evidence about appeals that were 
pending for more than 335 days and noted that such delays have become 
even increasingly common in light of the COVID-19 epidemic. One 
commenter stated that every non-detained BIA appeal filed under the 
current administration had been pending for well over 335 days, and 
that, accordingly, the rule would result in the Director issuing 
decisions for every respondent.
    One commenter asserted that referring decisions to the Director 
would undermine rule's efficiency purpose because it would introduce a 
third level

[[Page 81620]]

of administrative review. Instead, commenters asserted that it would be 
more efficient to allow the BIA member or BIA panel that has already 
reviewed the case and the record to make the ultimate disposition in 
the case.
    At least one commenter alleged that the rule would result in 
increased appeals to the Federal courts.
    Commenters asserted that it would not be possible for the BIA to 
adequately review the number of pending BIA cases in the given 
timeframe to avoid referrals to the EOIR Director. For example, 
commenters stated, based on DOJ statistics, that there were over 70,000 
cases pending before the BIA at the end of FY 2019, and that for a 23-
member BIA, each BIA member would have to complete 3,043 cases per year 
to comply with the 335-day deadline.
    Commenters also raised concerns with imposing quotas on judicial 
processes, and stated that the same concerns apply to both BIA 
adjudicators and immigration judges.
    Response: As an initial point, the Director is not a political 
appointee. A political appointee is a full-time, non-career 
presidential or vice-presidential appointee, a non-career Senior 
Executive Service (``SES'') (or other similar system) appointee, or an 
appointee to a position that has been excepted from the competitive 
service by reason of being of a confidential or policy-making character 
(Schedule C and other positions excepted under comparable criteria) in 
an executive agency. See, e.g., E.O. 13770, sec. 2(b) (Jan. 28, 2017) 
(``Ethics Commitments by Executive Branch Appointees''); see also 
Edward `Ted' Kaufman and Michael Leavitt Presidential Transitions 
Improvements Act of 2015, Public Law 114-136, sec. 4(a)(4), (5), Mar. 
18, 2016, 130 Stat. 301. No employee currently at EOIR, including the 
Director, falls within these categories. See Organization of the 
Executive Office for Immigration Review, 85 FR 69465, 69467 (Nov. 3, 
2020) (``In short, all of EOIR's federal employees, including the 
Director and the Assistant Director for Policy, are career employees 
chosen through merit-based processes, and none of EOIR's employees are 
political appointees.'').
    EOIR has no Schedule C positions or positions requiring appointment 
by the President or Vice President. The Director is a career appointee 
within the SES. SES positions are specifically designed to ``provide 
for an executive system which is guided by the public interest and free 
from improper political interference.'' 5 U.S.C. 3131(13). Although the 
Director and Deputy Director are general SES positions, they have 
traditionally been filled only by career appointees, and the incumbent 
Director serves through a career appointment. In short, all of EOIR's 
Federal employees, including the Director, are career employees chosen 
through merit-based processes, and contrary to commenters' assertions, 
none of EOIR's employees, including the Director, are political 
appointees.\47\
---------------------------------------------------------------------------

    \47\ Most, if not all, of the comments opposing the NPRM because 
the Director is an alleged political appointee assume that any 
employee appointed to an agency position by an agency head, such as 
the Attorney General, is necessarily a political appointee. By 
statute, regulation, policy, or to comply with the Appointments 
Clause of the Constitution, approximately 545 positions at EOIR 
currently require appointment by the Attorney General, including 
Board members, immigration judges, and administrative law judges. 
The fact that the Attorney General, who is a political appointee, 
appoints an individual to a position does not convert that position 
to a political position. Moreover, even if the Director position 
were filled by a political appointment, that fact alone would not 
render the individual a biased adjudicator incapable of adjudicating 
cases under the regulations. Cf. Matter of L-E-A-, 27 I&N Dec. at 
585 (rejecting arguments that the Attorney General is a biased 
adjudicator of immigration cases in the absence of any personal 
interest in the case or public statements about the case). After 
all, the functions of EOIR are vested in the Attorney General, who 
is a political appointee, and the INA specifically provides that 
determinations in immigration proceedings are subject to the 
Attorney General's review. 28 U.S.C. 503, 509, 510; INA 103(g), 8 
U.S.C. 1103(g).
---------------------------------------------------------------------------

    Similarly, some commenters objected to the NPRM by asserting that 
the Director is merely an administrator with no adjudicatory role and 
no subject matter expertise regarding immigration law. Longstanding 
regulations make clear, however, that the Director must have 
significant subject matter expertise in order to issue instructions and 
policy, including regarding the implementation of new legal 
authorities. See 8 CFR 1003.0(b)(1)(i). The position of Director 
requires a significant amount of subject-matter expertise regarding 
immigration laws. The Director is charged with, inter alia, directing 
and supervising each EOIR component in the execution of its duties 
under the Act, which include adjudicating cases; evaluating the 
performance of the adjudicatory components and taking corrective action 
as necessary; providing for performance appraisals for adjudicators, 
including a process for reporting adjudications that reflect poor 
decisional quality; ``[a]dminister[ing] an examination for newly 
appointed immigration judges and Board members with respect to their 
familiarity with key principles of immigration law before they begin to 
adjudicate matters, and evaluat[ing] the temperament and skills of each 
new immigration judge or Board member within 2 years of appointment''; 
and, ``[p]rovid[ing] for comprehensive, continuing training and support 
for Board members, immigration judges, and EOIR staff in order to 
promote the quality and consistency of adjudications.'' Id. Sec.  
1003.0(b)(1). Each of these responsibilities necessarily requires some 
manner of subject-matter expertise to carry out effectively.
    Moreover, the Director was given explicit adjudicatory review 
authority involving recognition and accreditation (``R&A'') cases in 
January 2017, well before the NPRM was promulgated. See Recognition of 
Organizations and Accreditation of Non-Attorney Representatives, 81 FR 
92346, 92357 (Dec. 19, 2016) (``Additionally, the final rule provides 
that organizations whose requests for reconsideration are denied may 
seek administrative review by the Director of EOIR. See final rule at 8 
CFR 1292.18. This provision responds to concerns that [the Office of 
Legal Access Programs (``OLAP'')] would be the sole decision-maker 
regarding recognition and accreditation and that another entity should 
be able to review OLAP's decisions.''). In short, existing regulations 
already require some level of subject-matter knowledge by the Director 
and provide for the Director to have an adjudicatory role in addition 
to administrative duties. See, e.g., Matter of Bay Area Legal Services, 
27 I&N Dec. 837 (Dir. 2020) (decision by the Director in R&A 
proceedings). Accordingly, to the extent that commenters' objections to 
this provision are based on an inaccurate understanding of the Director 
position, the Department finds those objections unsupported and 
unpersuasive.
    Further, the Director, like members of the BIA, exercises 
independent judgment and discretion in accordance with the statutes and 
regulations to decide any case before him for a final decision pursuant 
to 8 CFR 1003.1(e)(8)(v) due to the BIA's failure in that case to meet 
the established timelines. See 8 CFR 1003.0(c) (``When acting under 
authority [to adjudicate cases], the Director shall exercise 
independent judgment and discretion in considering and determining the 
cases and may take any action consistent with the Director's's 
authority as is appropriate and necessary for the disposition of the 
case.''); cf. 8 CFR 1003.1(d)(1)(ii) (``Board members shall exercise 
their independent judgment and discretion in considering and 
determining the cases coming before the Board[.]''). Further, the 
Director's decisions are subject to review by the Attorney General, 
either at the Director's or Attorney General's request. Id. Sec.  
1003.1(e)(8)(v). And as the final

[[Page 81621]]

agency decision, such decisions would be subject to further review in 
Federal court. INA 242, 8 U.S.C. 1252. Thus, the Director's authority 
on such cases would not necessarily be ``final'' to any extent greater 
than BIA's authority is ``final.''
    Regarding the commenters' concerns about the lack of information in 
the rule regarding the particular support staff or other internal 
procedures that the EOIR Director would utilize for issuing decisions 
referred under the rule, the Department notes that such details 
regarding internal staffing models are not generally the topic of 
regulations. Nevertheless, the regulations do make clear that the 
Director may employ sufficient staff as needed to carry out EOIR's 
functions, 8 CFR 1003.0(a) (``EOIR shall include . . . such . . . staff 
as the Attorney General or the Director may provide.''); 28 CFR 
0.115(a) (same), just as they make clear that the Director is integral 
to ensuring the Board itself has sufficient staff, 8 CFR 1003.1(a)(6) 
(``There shall also be attached to the Board such number of attorneys 
and other employees as the Deputy Attorney General, upon recommendation 
of the Director, shall from time to time direct.'').
    The Department further notes that it is not uncommon for someone 
other than the adjudicator to prepare a decision draft for the 
adjudicator's review and signature and that EOIR has, for many years, 
hired judicial law clerks to assist with drafting decisions. See Dept. 
of Justice, Honors Program Participating Components, Aug. 25, 2020, 
available at https://www.justice.gov/legal-careers/honors-program-participating-components (``EOIR Honors Program hires serve 2 year 
judicial clerkships . . . .''). It is a common practice for both BIA 
and immigration court adjudicators to have supporting staff prepare 
decision drafts. Such decisions are still ultimately issued by the 
adjudicator, which in the case of untimely adjudications that have been 
referred is the Director--not the staff who prepared the draft. 
Moreover, the Department notes that the Director has the power to 
``[p]rovide for comprehensive, continuing training and support for 
Board members, immigration judges, and EOIR staff in order to promote 
the quality and consistency of adjudications[,]'' including 
adjudications that are referred to him. See 8 CFR 1003.0(b)(1)(vii).
    Contrary to the commenters' concerns, the proposed changes would 
not undermine due process. The essence of due process in an immigration 
proceeding is notice and an opportunity to be heard. LaChance, 522 U.S. 
at 266 (``The core of due process is the right to notice and a 
meaningful opportunity to be heard.''). Nothing in the rule eliminates 
notice of charges of removability against an alien, INA 239(a)(1), 8 
U.S.C. 1229(a)(1), or the opportunity for the alien to make his or her 
case to an immigration judge, INA 240(a)(1), 8 U.S.C. 1229a(a)(1), or 
on appeal, 8 CFR 1003.38. Further, although due process requires a fair 
tribunal, In re Murchison, 349 U.S. 133, 136 (1955), generalized, ad 
hominem allegations of bias or impropriety are insufficient to 
``overcome a presumption of honesty and integrity in those serving as 
adjudicators.'' Withrow v. Larkin, 421 U.S. 35, 47 (1975). Commenters 
identified no reason--other than ad hominem dislike, crude 
suppositions, and unfounded, tendentious accusations of bias--why it 
would be inappropriate for a career, non-political SES official with no 
pecuniary or personal interest in the outcome of immigration 
proceedings and with both subject-matter expertise and adjudicatory 
experience, such as the Director, to adjudicate appeals in limited, 
specific circumstances. Cf. Matter of L-E-A-, 27 I&N Dec. 581, 585 
(A.G. 2019) (rejecting arguments that the Attorney General is a biased 
adjudicator of immigration cases in the absence of any personal 
interest in the case or public statements about the case).
    Additionally, the Department notes that the Attorney General 
oversees EOIR and has statutory authority to, among other 
responsibilities, review administrative determinations in immigration 
proceedings; delegate authority; and perform other actions necessary to 
carry out the Attorney General's authority over EOIR. INA 103(g), 8 
U.S.C. 1103(g). Over time, the Attorney General has promulgated 
regulations pursuant to this statutory authority that reflect the full 
range of his authority and oversight in section 103(g) of the Act, 8 
U.S.C. 1103(g). Among many examples, in 8 CFR 1003.1(h), the Attorney 
General codified the authority to review BIA decisions, and in 8 CFR 
1003.0(a), the Attorney General delegated authority to the Director to 
head EOIR. Despite this delegated authority, EOIR remains subject to 
the Attorney General's oversight, and it is reasonable and proper that 
the Attorney General continue to exercise that oversight by way of such 
delegations of administrative review.
    In accordance with 8 CFR 1003.0(a), the Director, who is appointed 
by the Attorney General, exercises delegated authority from the 
Attorney General related to oversight and supervision of EOIR. See also 
INA 103(g)(1), 8 U.S.C. 1103(g)(1); 28 CFR 0.115(a). The Director may 
only act in accordance with the statutes and regulations and within the 
authority delegated to him by the Attorney General; put differently, 
the statute and regulations provide the Attorney General with the 
authority to act, and the Attorney General, in turn, determines the 
extent of the Director's authority. The Attorney General, by 
regulation, provides a list of the Director's authority and 
responsibilities at 8 CFR 1003.0(b), which includes the authority to 
``[e]xercise such other authorities as the Attorney General may 
provide.'' 8 CFR 1003.0(b)(1)(ix). Such delegation supersedes the 
restrictions related to adjudication outlined in 8 CFR 1003.0(c) due to 
that paragraph's deference to 8 CFR 1003.0(b).
    The Director's authority provided in the rule to adjudicate BIA 
cases that have otherwise not been timely adjudicated constitutes 
``such other authorities'' provided to the Director by the Attorney 
General, based on the powers to delegate and conduct administrative 
review under section103(g) of the Act, 8 U.S.C. 1103(g). See 8 CFR 
1003.0(c), 1003.1(e)(8). To reiterate, the Attorney General's authority 
to review administrative determinations does not violate due process; 
thus, the proper delegation of that authority to the Director pursuant 
to statute and pre-existing regulations does not violate due process--
specifically in light of the fact that those decisions ultimately 
remain subject to the Attorney General's review under 8 CFR 
1003.1(e)(8). To the extent that commenters are concerned about such an 
appearance, the Department emphasizes the clear, direct intent of 
Congress in statutorily authorizing such delegations, and the Attorney 
General is acting within the bounds of his statutory authority by 
issuing the rule. INA 103(g)(2), 8 U.S.C. 1103(g)(2); see also Chevron 
v. Nat. Res. Def. Council, 467 U.S. 837, 842 (1984). In issuing the 
rule, the Attorney General properly delegates adjudicatory authority to 
the Director to review certain administrative decisions that are 
otherwise untimely. 8 CFR 1003.1(e)(8). This delegation aligns with the 
Attorney General's longstanding authority to issue regulations and 
delegate that authority, in line with principles of due process.
    The Department disagrees that these procedures would introduce 
inefficiency or a third level of review. Under this rulemaking, the 
Director would not review appeals that the BIA had adjudicated in a 
timely fashion. Rather, the Director will, acting with the same 
authority as a BIA adjudicator would have, issue decisions on appeals

[[Page 81622]]

that have been pending for longer than the prescribed regulatory 
period. Id. Sec.  1003.1(e).
    Commenters are also incorrect that the referral of appeals that 
have not been timely decided could be characterized as an improper 
consolidation of power under one individual. Cases would be referred to 
the Director only where the BIA has taken more than 335 days to 
adjudicate an appeal, in order to ensure timely disposition of a case. 
As noted by the NPRM, ``absent a regulatory basis for delay, there is 
no reason for a typical appeal to take more than 335 days to 
adjudicate--including time for transcription, briefing, and adherence 
to the exiting 90- or 180- day time frames for decision.'' 85 FR at 
52508. Moreover, commenters did not explain why aliens with meritorious 
appeals should have to wait more than 335 days for a decision, and the 
Department is unaware of any reason for doing so. To the contrary, 
allowing the Director to adjudicate appeals which have languished for 
almost a year without adjudication will help ensure that aliens with 
meritorious claims receive the decision they warrant in a timely 
manner.
    Additionally, for such cases that are atypical, and for which it 
would be appropriate for the BIA to devote additional time to 
completing adjudication, the regulations provide for an extension of 
the adjudication time period. 8 CFR 1003.1(e)(8)(ii) (``[I]n exigent 
circumstances . . . in those cases where the panel is unable to issue a 
decision within the established time limits, as extended, the Chairman 
shall either assign the case to himself or a Vice Chairman for final 
decision within 14 days or shall refer the case to the Director for 
decision.''); 1003.1(d)(6)(ii)(B) (allowing BIA to place a case on hold 
while it awaits the completion or updating of all identity, law 
enforcement, or security investigations or examinations); 
1003.1(e)(8)(iii) (permitting BIA Chairman to hold a case pending a 
decision by the U.S. Supreme Court or a U.S. Court of Appeals, in 
anticipation of a BIA en banc decision, or in anticipation of an 
amendment to the regulations). The Attorney General has delegated 
decision-making authority to the Director pursuant to 8 CFR 
1003.1(e)(8)(ii), subject to possible further review by the Attorney 
General. The Director may only adjudicate cases that have surpassed the 
articulated deadlines, and the rule is clear that the Director's scope 
of review is limited to only a narrow subset of EOIR cases.
    Nevertheless, the Department recognizes commenters' concerns 
regarding the potential volume of cases that could conceivably be 
subject to referral, as well as the interaction between the referral 
procedures and other changes to the rule. To that end, the final rule 
adds four further exceptions to 8 CFR 1003.1(e)(8)(v) in which cases 
would not be referred. Cases on hold pursuant to 8 CFR 1003.1(d)(6)(ii) 
to await the results of identity, law enforcement, or security 
investigations or examinations will not be subject to referral if the 
hold causes the appeal to remain pending beyond 335 days. Cases whose 
adjudication has been deferred by the Director pursuant to 8 CFR 
1003.0(b)(1)(ii) will not be subject to referral if the deferral causes 
the appeal to remain pending beyond 335 days. Cases remanded by the 
Director under 8 CFR 1003.1(k) will not be subject to referral if the 
case remains pending beyond 335 days after the referral. Cases that 
have been administratively closed pursuant to a regulation promulgated 
by the Department of Justice or a previous judicially approved 
settlement that expressly authorizes such an action will not be subject 
to referral if the administrative closure occurred prior to the elapse 
of 335 days and causes the appeal to remain pending beyond 335 days.
    These changes, which are incorporated through a stylistic 
restructuring of 8 CFR 1003.1(e)(8)(v) for clarity, recognize 
additional situations in which a case may appropriately remain pending 
beyond 335 days without adjudication or when referral back to the 
Director would be incongruent because the Director had remanded the 
case immediately prior to the referral. They also recognize, in 
response to commenters' concerns, that the Director may defer 
adjudication of BIA cases, consistent with authority under 8 CFR 
1003.0(b)(1)(ii), in order to avoid needing to have those cases 
referred to himself. In short, although most commenters' concerns are 
inaccurate, unfounded, or hyperbolic, the Department recognizes that 
the BIA should exercise default appellate adjudicatory authority in 
immigration cases and that referral of cases to the Director should be 
the exception, rather than the rule.
    Finally, in response to comments about the clarity and scope of the 
NPRM's changes to the BIA's case management procedures, the final rule 
also makes edits to eliminate confusion over the scope of 8 CFR 
1003.1(e). As both the title of that paragraph (``Case management 
system'') and its general introductory language (``The Chairman shall 
establish a case management system to screen all cases and to manage 
the Board's caseload.'') make clear, the provisions of the paragraph 
apply to ``cases.'' 8 CFR 1003.1(e) (emphasis added). In turn, ``the 
term case means any proceeding arising under any immigration or 
naturalization law.'' 8 CFR 1001.1(g). At the Board, cases may be 
initiated in one of three ways: the filing of a Notice of Appeal, the 
filing of a motion directly with the Board (e.g., a motion to 
reconsider or a motion to reopen), or the receipt of a remand from a 
Federal court, the Attorney General, or--under this rule--the Director. 
In other words, the Board adjudicates multiple types of cases, not just 
appeals. Although the existing language of 8 CFR 1003.1(e) is clear 
that it applies to all types of cases at the Board, regardless of how 
they are initiated, the inconsistent, subsequent use of ``appeals'' 
throughout that paragraph creates confusion as to its scope since 
appeals are not the only type of case the Board considers. See, e.g., 8 
CFR 1003.1(e)(3) (in describing the Board's merits review process, 
using ``case'' in the first sentence, ``case'' and ``appeal'' in the 
second sentence, and ``appeal'' in the third sentence, all is 
describing a unitary process). To avoid continued confusion and to 
ensure that the scope of the other changes in the final rule regarding 
the Board's case management process are clear, the final rule makes 
edits to 8 CFR 1003.1(e) to ensure that it is clearly applicable to all 
cases before the Board, not solely cases arising through appeals.\48\
---------------------------------------------------------------------------

    \48\ For similar reasons, the final rule also makes changes to 8 
CFR 1003.1(d)(3)(iv) to clarify that 8 CFR 1003.1(d)(3)(iv)(A) 
applies to all cases at the Board, whereas 8 CFR 1003.1(d)(3)(iv)(D) 
applies only to direct appeals of immigration judge decisions. None 
of these changes effect any substantive alteration of the applicable 
regulations governing the BIA's functioning.
---------------------------------------------------------------------------

iv. Other Issues
    Comment: One commenter objected to the rule's limitation of the 
Board Chairman's authority to hold a decision in anticipation of a 
pending decision by a U.S. Court of Appeals or an amendment to the 
regulations. The commenter stated that such a change was not necessary 
and irrational because the Board Chairman's existing authority to place 
cases on hold is permissive. The commenter stated that the proposed 
change would eliminate the Board Chairman's discretion to hold cases 
when changes to the case law or regulations would benefit immigrants. 
The commenter stated that making the Board Chairman's determination to 
hold a case subject to the concurrence by the Director was intended to 
enhance the Director's influence over appellate

[[Page 81623]]

decision making and ensure that cases are held only when it would 
further the administration's political agenda, and not in the 
administration of justice.
    Response: The Department disagrees with this comment and finds it 
unpersuasive for several reasons. First, the regulatory process is 
unpredictable, and both the timing and final substance of any given 
regulation cannot be predicted with sufficient accuracy to warrant 
holding adjudications for future regulations. Similarly, there is no 
reliable method of predicting how long an adjudication at a circuit 
court of appeals will take or when, precisely, a circuit court will 
render a decision.\49\ Moreover, the proliferation of immigration 
litigation in recent years has increased the likelihood both that a 
circuit court panel's decision may not be the last word on the issue--
due to the possibility of rehearing en banc or a petition for 
certiorari filed with the Supreme Court--and that multiple circuits may 
reach different conclusions. Thus, there is little reason to place 
cases on hold to await an individual circuit court decision since the 
timing of that decision is unknown, it may not be the final decision, 
and it may conflict with other circuit courts causing the Board to 
pause some cases but not others even though the cases raise the same 
issues.
---------------------------------------------------------------------------

    \49\ In contrast, the term of the Supreme Court is well-
established, and decisions for a particular term are ordinarily 
expected by the end of June.
---------------------------------------------------------------------------

    Additionally, requiring the Director to concur with the BIA 
Chairman about whether to hold cases is not irregular, and the 
Department rejects the insinuation that the concurrence process would 
be used for nefarious, political, or otherwise inappropriate ends. The 
Chairman is, by regulation, generally subject to the supervision of the 
Director. 8 CFR 1003.1(a)(2); 28 CFR 0.115(a). As explained above, the 
Director is not a political appointee, and the Director's decisions 
regarding EOIR procedures, including whether an appeal is of such a 
nature so as to warrant further delay in adjudication, will be made in 
accordance with his general supervisory authority. Moreover, both the 
Director and the Board Chairman already possess longstanding authority 
to defer adjudication of Board cases, 8 CFR 1003.0(b)(1)(ii) and 
1003.1(a)(2)(i)(C), and there is no evidence either has used that 
authority inappropriately. Accordingly, there is no basis to expect 
that they would apply the hold authority in 8 CFR 1003.1(e)(8)(iii) 
inappropriately.
    Comment: One commenter asserted that the NPRM improperly 
characterized the BIA's decreased efficiency as paradoxical. Rather, 
the commenter asserted, this resulted from ``massive changes that the 
current administration has wrought in immigration proceedings.'' The 
commenter stated that there have been constant and repeated changes to 
the law, as well as national, regional, and local injunctions of such 
changes, making it difficult to keep track of the current law and 
causing appeals adjudications to take longer as adjudicators research 
the current state of the law. Another commenter offered as a specific 
example, the Attorney General's decision in Matter of Castro-Tum, 27 
I&N Dec. 271, which, the commenter alleged, added 330,211 previously 
completed cases back on to the pending caseload.
    One commenter asserted, without providing further detail, that the 
Department's claim about the length of time that it takes to adjudicate 
most appeals is ``patently false'' and a factual misrepresentation.
    Commenters also raised concerns with imposing quotas on judicial 
processes, and stated that the same concerns apply to both BIA 
adjudicators and immigration judges.
    At least one commenter asserted that the Department had failed to 
consider other alternatives to improving efficiencies and offered 
alternative suggestions to the timeline-related changes. For example, 
at least one commenter suggested the preparation of reports concerning 
longstanding cases, akin to the reports submitted to Congress 
concerning district court motions and cases that have been pending 
adjudication for a long time. This alternative, the commenter 
suggested, would explain why specific cases required longer-than-usual 
adjudication times. The commenter also proposed, as another 
alternative, recommended timelines that required brief explanations 
when such timelines were exceeded. The commenter proposed a third 
alternative where, as part of the initial screening, the BIA could 
subcategorize cases assigned to single BIA members or three-member 
panels based upon their apparent complexity, with different timelines 
assigned to each subcategory.
    At least one commenter expressed support for the 30-day 
interlocutory appeal timeline but asserted that the rule would be 
meaningless without an enforcement method. The commenter suggested that 
the Department consider adding a privately enforceable cause of action 
against the BIA if it failed to adjudicate appeals in the timespan 
proposed in the rule. The commenter stated that, if expediency of 
adjudications was the administration's priority, subjecting 
adjudicators to such lawsuits would give adjudicators the extra 
incentive to meet applicable deadlines.
    Commenters suggested that survivors of gender-based violence, 
children, and detained individuals without representation might be 
particularly negatively impacted by the rule's timelines.
    One commenter compared criticism from the BIA's practice of issuing 
affirmances without opinion (``AWOs'') to the NPRM because 
``[e]ncouraging even quicker and more opaque decision-making from an 
overworked, under-resourced, and now highly politicized appellate 
body'' was both arbitrary and capricious and result in legally 
erroneous, and possibly biased, decision making.
    Response: With respect to criticism of the rule pertaining to the 
Department setting new regulatory case-management procedures, the 
Department maintains that it has acted with the appropriate authority 
do so. Case management procedures have been in place regarding Board 
adjudications for many years, including 90-day and 180-day timelines 
for the adjudication of appeals, and the Department's authority to 
maintain such procedures is not seriously subject to question. As 
discussed in the NPRM, 85 FR at 52493, the case-management procedures 
also respond to concerns raised by the Department's Office of the 
Inspector General (``OIG'') regarding how EOIR manages the timely 
adjudication of cases at the BIA.
    Nor were the Department's decisions about the timelines arbitrary. 
Rather, they were based on experience and consideration of the average 
amount of time that it has taken the BIA to adjudicate appeals. See 85 
FR at 52508 n.38. Moreover, as noted supra, commenters have not 
seriously questioned why it is impossible or improper to expect the BIA 
to be able to complete a case within 11 months. To the contrary, the 
cases of delayed adjudication cited by commenters provide support for 
the rule's timeline, and the Department agrees that the provisions of 
this final rule will respond to commenters' concerns about any 
excessive delays in case adjudications.
    The Department shares a commenter's concern regarding the Board's 
decreased efficiency. To the extent that the Board's efficiency 
decreased even as its number of adjudicators increased or held steady 
prior to FY 2020, the Department does find that paradoxical. 
Nevertheless,

[[Page 81624]]

regardless of the precise basis for the Board's decreased efficiency, 
the Department believes it must be addressed and that the NPRM sets 
forth well-supported ways of doing so.
    Regarding the commenter who asserted that the decision in Matter of 
Castro-Tum added 330,211 previously completed cases back to the pending 
caseload, the Department notes first that an administratively closed 
cases is not a completed case. Thus, the assertion that the cases 
mentioned were ``completed'' is erroneous. See Matter of Lopez-Barrios, 
20 I&N Dec. 203, 204 (BIA 1990) (``[A]dministrative closing is merely 
an administrative convenience. . . . However, it does not result in a 
final order.''); Hernandez-Serrano, 2020 WL 6883420 at *3 
(``Administrative closure typically is not an action taken `[i]n 
deciding' a case before an IJ; instead, as shown above, it is typically 
a decision not to decide the case. Nor is administrative closure 
typically an action `necessary for the disposition' of an immigration 
case. Administrative closure is not itself a `disposition' of a case, 
as Hernandez-Serrano concedes in this appeal.''). Second, the 
Department notes that cases that have been administratively closed 
remain pending even while they are closed; thus, those cases never went 
away and, accordingly, were not added by Matter of Castro-Tum.
    The Department is unable to respond to the commenter who alleged 
that the median time to complete an appeal represented by the 
Department was false without providing further detail. The Department 
maintains that its calculation was accurate. Further, most commenters, 
who have experience practicing before the Board and are familiar with 
its timelines, did not dispute the idea that, on average, the Board 
takes, roughly, just over 10 months to adjudicate cases.
    The rule does not impose any ``quotas'' on Board members, nor does 
it establish any type of case completion goal for BIA members. To the 
extent that commenters believe that the 90-day and 180-day timelines 
establish a quota, those timeframes have existed for many years, and 
the rule does not alter them, though it harmonizes when they begin in 
response to criticism and confusion over the years, including by the 
Department's OIG, 85 FR at 52493.
    Regarding proposed alternatives, the Department finds that 
preparing a report would not address issues with the Board's 
efficiency. To the contrary the regulations already require the Board 
Chairman to prepare a report ``assessing the timeliness of the 
disposition of cases by each Board member on an annual basis,'' 8 CFR 
1003.1(e)(8)(v), and that existing requirement, which does not appear 
to have been followed with any diligence prior to 2019, has not aided 
the Board's efficiency. Similarly, explanations for why timelines have 
been exceeded are useful for understanding why cases may move at 
different speeds, and the regulations already contemplate situations in 
which case processing may be delayed due to specific explanations. See 
id. Sec.  1003.1(e)(8)(i)-(iii). Explanations themselves, however, do 
not ensure that cases are processed in a timely and fair manner, which 
is the Board's goal. Finally, the commenter's suggestion of 
subcategorization is already built into the screening process and the 
differential timelines for single-member versus panel decisions. 
Although the Department appreciates the commenter's suggestions and has 
fully considered them, it believes they are either already contemplated 
by the regulations or would not otherwise improve the efficiency of the 
Board's adjudications.
    The Department appreciates one commenter's support for a 30-day 
interlocutory appeal timeline but notes that it does not possess the 
legal authority to establish a cause of action in Federal court to 
ensure that timeline is met.
    Although commenters suggested that survivors of gender-based 
violence, children, and detained individuals without representation 
might be particularly negatively impacted by the rule's timelines, they 
did not explain how or why that would be the case. The timelines are 
not case-specific and do not depend on the facts of any particular 
case. The Department has explained, supra, that the rule would not have 
a deleterious impact on individuals without representation, and there 
is no basis to believe that the rule will apply differently to children 
or survivors of violence. To the extent that commenters are concerned 
about cases of detained aliens, existing regulations already prioritize 
such cases, 8 CFR 1003.1(e) (prioritizing ``cases or custody appeals 
involving detained aliens''), and the Department maintains a 
longstanding goal developed pursuant to the Government Performance and 
Results Act, Public Law 103-62, Aug. 3, 1993, 107 Stat. 285, of 
completing 90 percent of detained appeals within 150 days of filing. PM 
20-01 at 6. In short, the rule has no impact on the efficiency of 
adjudicating appeals of detained aliens, as such cases are already 
adjudicated expeditiously in the normal course under existing 
principles.
    Commenter criticisms of AWOs, comparison with other agency 
adjudication timelines, which involve completely different factors for 
consideration, and concerns over ``flooding'' the circuit courts of 
appeals, are outside of the scope of this rulemaking, although the 
Department reiterates that it does not believe that this rulemaking 
would encourage speed over quality of decisions, but rather believes 
that it strikes an appropriate balance. The Department acknowledges 
commenter anecdotes about appeals that have been pending for longer 
than the 335-day regulatory period for various stated reasons and notes 
that stating a median, by definition, will include cases that have been 
pending for longer. Nevertheless, the Department acknowledges that 
these anecdotes further support the Department's efforts to resolve 
cases more expeditiously through this rule.
j. Immigration Judge Quality Assurance Certification (8 CFR 1003.1(k))
    Comment: Some commenters expressed concern regarding the 
establishment of new quality assurance procedures that allow 
immigration judges to certify cases, in certain limited circumstances, 
to the Director. 8 CFR 1003.1(k).
    Commenters opined the quality assurance procedures would undermine 
the BIA in a variety of manners. For example, at least one commenter 
stated that quality assurance certifications undermine the BIA's 
integrity by dispossessing it of its full appellate authority. Other 
commenters stated that the procedures will erode a fundamental purpose 
of the BIA: National consistency. Commenters further opined that the 
NPRM would undermine the adversarial nature of BIA proceedings. Others 
claimed that the procedures would remove discretion from the BIA, which 
the commenter likened to other changes by the Department that the 
commenter felt have removed discretion from immigration judges. 
Commenters further alleged that the rule would have a chilling effect 
on the BIA as it would heighten their concerns about job security over 
fairness and impartiality.
    At least one commenter expressed a belief that quality assurance 
certifications are not needed because every opinion the commenter 
received from the BIA was ``highly professional [and] based on the 
Board members' evaluation of the law and the facts of the particular 
case.'' Another commenter opined that there were easier ways to change 
a typographical error.
    According to commenters, the bases for the quality assurance 
certifications

[[Page 81625]]

are so broad that an immigration judge who simply disagrees with the 
BIA's decision--or the decision's impact on the immigration judge's 
performance metrics--can certify the case to the Director. See id. 
Sec.  1003.1(k)(1)(i)-(iv).
    Commenters expressed concerns regarding the appropriateness of the 
Director receiving such quality assurance certifications and the 
Director's ability to appropriately respond to and manage the 
certifications he would receive. For example, commenters predicted that 
the Director could receive thousands of cases from the BIA due to other 
changes in the rule as well as the cases certified from immigration 
judges. Due to the caseload, a commenter claimed that the Director 
would simply ``rubber stamp denials.'' Commenters described the 
position of the Director as managerial and non-adjudicatory and 
accordingly opined that the individual appointed to it does not 
necessarily possess the ``expertise, training, or impartiality 
necessary to decide cases.'' Others expressed concern about the 
Director's role reviewing and responding to quality assurance 
certifications due to the commenters' perception that the Director is a 
political appointee or otherwise is politically motivated. Some 
commenters alleged that the Director is not subject to the same the 
ethics and professionalism guidelines applicable to BIA members and the 
decisions of the Director cannot be remedied through EOIR's procedure 
for addressing complaints against EOIR adjudicators.
    Other commenters requested that the neutral arbiter be other 
experts in immigration law or another body.
    Other commenters worried that regardless of the Director's 
decision, it would be unreviewable by any adjudicator, while another 
commenter claimed that appeals would flood the circuit courts.
    Commenters claimed that the Department mischaracterized HALLEX I-3-
6-10. For example, one commenter stated that the cited section allows 
for clarity but not for Administrative Law Judges to ``protest'' or 
question decisions on their cases in the same manner immigration judges 
would be allowed to do for BIA decisions.
    Other commenters were concerned with procedural issues. Some 
commenters claimed that the parties and the BIA should receive notice 
that the immigration judge certified a case. Commenters requested that 
parties be allowed to object to certification and file briefs 
accordingly and noted that the non-moving party has a chance to respond 
in the current scheme to address BIA errors. At least one commenter 
expressed concern about the implications on the immigration judge's 
posture in the proceedings and claimed that immigration judges who 
issue certifications would have to recuse themselves in case of remand 
because the certification is in effect an appeal by the judge that 
equates the judges to an advocate in the proceedings.
    Other commenters expressed concern that the certification 
procedures curtail aliens' due process rights.
    Commenters opined that the quality assurance certifications, when 
combined with the restriction on the BIA considering new evidence, will 
result in numerous certifications because the BIA will fail to consider 
a material factor pertinent to the issue(s) before the immigration 
judge.
    Some commenters claimed that the rule would increase inefficiency 
because, in order for the case to be resolved, the Director must refer 
the case to a different adjudicator.
    Response: As an initial point, the Department notes that many of 
the same commenters who criticized other parts of this final rule 
because it would allegedly allow the BIA to deny meritorious appeals 
for inappropriate reasons also criticized this provision by claiming it 
would undermine the professionalism and expertise of the BIA in 
deciding cases. To the extent that commenters inconsistently asserted 
that the BIA is both unprofessional and professional--depending solely 
on which view allowed the commenter to oppose a particular provision of 
this final rule--the Department finds such tendentious criticism 
insufficient to warrant changes to the final rule.
    Further, any implication that these quality assurance 
certifications divests the BIA of its appellate jurisdiction and role 
in the immigration system is incorrect. The new procedures at 8 CFR 
1003.1(k) do not create a higher secondary appellate review body. 
Rather, they provide a quality control measure to ensure that the BIA's 
decisions consistently provide appropriate and sufficient direction to 
immigration judges. The distinction is evident in the certification 
process and the actions available to the Director. Cases may only be 
certified to the Director if they fall within limited, and specifically 
delineated, circumstances: (1) The BIA decision contains a 
typographical or clerical error affecting the outcome of the case; (2) 
the BIA decision is clearly contrary to a provision of the INA, any 
other immigration law or statute, any applicable regulation, or a 
published, binding decision; (3) the BIA decision is vague, ambiguous, 
internally inconsistent, or otherwise did not resolve the basis for the 
appeal; or (4) a material factor pertinent to the issue(s) before the 
immigration judge was clearly not considered in the BIA decision. 8 CFR 
1003.1(k)(1)(i)-(iv). These narrow situations are all tailored to 
quality control--not to express disagreement with the BIA's well-
founded legal analysis, which is how another layer of appellate review 
would function.
    Further, the Director only has a limited number of options 
available upon certification. The Director may: (1) Dismiss the 
certification and return the case to the immigration judge; (2) remand 
the case back to the BIA for further proceedings; (3) refer the case to 
the Attorney General; (4) or issue a precedent decision that does not 
include an order of removal, a request for voluntary departure, or the 
grant or denial of an application for relief or protection from 
removal. Id. Sec.  1003.1(k)(3). Thus, the quality assurance procedures 
do not vest the Director with any final adjudicatory power of cases 
that have been certified, and the Director must return the case to 
either the BIA or the immigration judge in order for the case to be 
resolved. Accordingly, commenters are incorrect that the rule creates 
an additional level of appellate review.
    The Department appreciates the commenter's compliments that the 
decisions that they have received from the BIA have been faithful to 
the law and highly professional, though it notes that other commenters 
insinuated that the BIA's decisions are not always faithful to the law. 
Regardless, the Department cannot rely on anecdotal evidence to 
maintain quality control in all cases in the context of the ever-
growing BIA with a mounting caseload, see 85 FR at 52492; EOIR, 
Adjudication Statistics: Case Appeals Filed, Completed, and Pending, 
Oct. 23, 2019, available at https://www.justice.gov/eoir/page/file/1198906/download, and the Department is aware of examples from 
immigration judges raising questions about the quality or accuracy of 
BIA decisions. The Department believes that the rule creates a clear 
and efficient mechanism to ensure that the commenter's remarks that the 
BIA's decisions are accurate and dispositive are, and remain, true. The 
Department does not believe that a quality control process that is 
aimed toward full and accurate decisions would have any other 
substantial impact that to cause increased attention to the accuracy 
and completeness of decisions. Overall, the Department finds that the 
certification process as laid out in the rule will, in

[[Page 81626]]

a timely manner, ensure that BIA decisions are accurate and 
dispositive, which is the purpose of the changes.
    In regards to commenters' allegations that immigration judges could 
simply certify cases with which they disagree, particularly for 
political or other personal reasons, the Department specifically 
reiterates that merely disagreeing with decisions or objecting to 
specific legal interpretations is not a basis for certification. 85 FR 
at 52503. Some commenters worried that the bases for certification are 
so broad that an immigration judge could solely object to a particular 
legal interpretation and still certify the case by sweeping it into one 
of the four criteria, specifically that the decision is ``vague.'' To 
this, the Department notes that vagueness is included in the criteria 
in order to address a specific problem: Immigration judges receiving 
orders that are confusing and need additional clarification or 
explanation. See 85 FR at 52496. ``Vagueness'' is not so broad as to 
contain within it a myriad of legal objections to specific legal 
interpretations; certainly, it cannot be stretched to contain personal 
or political objections to such legal interpretations.
    Moreover, although few commenters acknowledged it, immigration 
judges already possess the authority to certify a case to the BIA 
following a remand and the issuance of another decision, 8 CFR 1003.7, 
and some immigration judges have used that procedure in order to seek 
clarification of the BIA's decision. That indirect process, however, is 
both burdensome to the parties, who must wait until the immigration 
judge issues another decision (even if the immigration judge considers 
the Board's decision unclear or vague), and inefficient in that it 
results in a case being sent back to the same body which remanded it in 
the first instance without further clarification. The Department's 
quality assurance process will ensure clearer and more timely 
resolution of disagreements, within four narrow categories, between 
immigration judges and the BIA by a neutral third-party who supervises 
each.
    As far as the authority of the Director, the Attorney General is 
authorized to decide the Director's authority. INA 103(g)(1), 8 U.S.C. 
1103(g)(1); 28 CFR 0.115(a). Reviewing certified cases falls within the 
``such other authorities'' provided to the Director by the Attorney 
General, based on the powers to delegate and conduct administrative 
review under INA 103(g) (8 U.S.C. 1103(g)). See 8 CFR 1003.0(b)(1)(ix) 
and (c), 1003.1(e)(8)(ii). This delegation supersedes the restrictions 
related to adjudication outlined in 8 CFR 1003.0(c) due to that 
paragraph's deference to 8 CFR 1003.0(b).
    Moreover, the Director is responsible for the supervision of the 
immigration judges and the BIA members and already possesses the 
authority to ensure that adjudications are conducted in a timely 
manner. See id. Sec.  1003.0(b)(1)(ii). Accordingly, the Director is in 
a well-positioned to address errors made by the BIA and to remedy them 
in a timely manner. The Director is also in a direct position to 
implement changes to address repeat errors. Because the delegation of 
authority is proper, the process requires notice, and the process 
involves a neutral decisionmaker who lacks authority to issue a final 
order, it does not violate due process.
    In response to commenters concerns that the delegation of 
authority, even if proper, will appear improper, the Department 
responds that Congress' intent is clear and explicit in statutorily 
authorizing such delegations, and the Attorney General is acting within 
the bounds of his statutory authority when by issuing the rule. INA 
103(g)(2), 8 U.S.C. 1103(g)(2); see also Chevron, 467 U.S. at 842. In 
issuing the rule, the Attorney General properly delegates the Director 
the authority to review certified cases from the immigration judges. 
This delegation aligns with the Attorney General's longstanding 
authority to issue regulations and delegate that authority, in line 
with principles of due process.
    Regarding commenters concerns about perceived political influence 
or politicization of the Director position, the Department reiterates 
its response to similar concerns raised and discussed, supra. The 
Department again notes that the Director is a career appointee, who is 
selected based on merit, independent of any political influence, and a 
member of the SES. The position requires a significant amount of 
subject-matter expertise regarding immigration laws as demonstrated by 
various duties of the Director: ``[a]dminister an examination for 
newly-appointed immigration judges and Board members with respect to 
their familiarity with key principles of immigration law before they 
begin to adjudicate matters, . . . [p]rovide for comprehensive, 
continuing training and support for Board members, immigration judges, 
and EOIR staff[, and] [i]mplement a process for receiving, evaluating, 
and responding to complaints of inappropriate conduct by EOIR 
adjudicators.'' 8 CFR 1003.0(b)(1)(vi)-(viii). Additionally, reviewing 
certified cases would require no more expertise than administratively 
reviewing certain types of decisions in recognition and accreditation 
cases, which the Director has been tasked with the authority to do 
since 2017 with no noted objection at that time. See id. Sec.  
1292.18(a). Further, the Director is held to the same professionalism 
and ethical standards as all Department employees. In short, 
commenters' concerns appear to be rooted in either a personal dislike 
for the incumbent Director or disagreement with the overall policies of 
the Department, rather than any specific or genuine concern about the 
Director position itself.
    In response to commenters' concerns over the workload for the 
Director that quality assurance certifications may cause, the Director 
may utilize all appropriate support staff to assist with his 
responsibility. Nevertheless, because of the narrow scope of issues 
subject to certification and the procedural requirements which will 
dissuade filing frivolous or meritless certifications--particularly 
because immigration judges already have generally full dockets of cases 
to adjudicate--the Department expects that these procedures will be 
employed infrequently. Accordingly, although the Department appreciates 
commenters' concerns about the Director's workload, the rule already 
anticipates and limits the number of cases expected to be subject to 
this process.
    In regards to the reviewability of the Director's decision, the 
Department notes first that the Director's decision is not final and 
that, regardless of what action the Director does take, the ultimate, 
underlying final EOIR administrative decision may be appealed to the 
circuit court. See INA 242, 8 U.S.C. 1252.
    Regarding commenters' accusations of the mischaracterization of 
HALLEX I-3-6-10, the Department notes that it referenced Social 
Security's protest criteria for decisions by administrative law judges 
or its administrative appeals body, the Appeals Council, in the context 
of explaining the narrow set of criteria for certification set out in 
the rule. 85 FR at 52502 (``These criteria are used in similar 
circumstances at other adjudicatory agencies.'') The Department was not 
attempting to claim that the two processes exactly mirror one another, 
nor was it attempting to claim that it structured the certification 
procedure to directly mimic the Social Security Administration. The 
Department believes although the two procedures are not identical, the 
degree of similarity--as well as the underlying purpose, i.e., to 
ensure correct, quality

[[Page 81627]]

decisions by adjudicators--is enough to warrant analogy.
    Regarding commenters' requests that the various parties should 
receive notice at the time of certification, the Department notes that 
the rule, in fact, requires the immigration judge to provide notice of 
certification to both parties. 8 CFR 1003.1(k)(2)(iii). However, the 
Department disagrees with commenters' argument that the parties should 
have opportunities for objections and additional briefing at the time 
of certification, particularly because the case was likely already 
briefed to the Board prior to the certification to the Director. The 
certification procedures allow immigration judges to quickly determine 
a potential error by the BIA and to timely seek a remedy to that error, 
all without placing an additional burden on the parties. The Department 
determined that the current incomplete and piecemeal system of various 
parties filing various motions or appeals was cumbersome, time 
consuming, and may not fully address the error. 85 FR at 52502. Adding 
time for objections and briefs, as suggested by some commenters, would 
morph the process in the rule into a portion of what it was created to 
avoid: A cumbersome and time consuming process. Moreover, regardless of 
whether the Director returns the case to the immigration judge or to 
the Board, the parties will have an opportunity to raise appropriate 
arguments or issues before a final decision is rendered. Nevertheless, 
the Department recognizes that in discrete cases, additional briefing 
or filings may be helpful to the Director in reviewing a certified 
case. Accordingly, the final rule provides that the Director, in his or 
her discretion, may request additional briefs or filings from the 
parties when reviewing a certified case through the quality-control 
process.
    Additionally, the Department rejects any claim that the immigration 
judges are acting as advocates and would thus have to recuse 
themselves. Again, this assertion suggests that immigration judges will 
behave unethically or partially in violation of regulations and their 
code of conduct. 8 CFR 1003.10 (``In all cases, immigration judges 
shall seek to resolve the questions before them in a timely and 
impartial manner consistent with the Act and regulations.'') (emphasis 
added)); 5 CFR 2635.101(b)(8) (``Employees [of the federal government] 
shall act impartially and not give preferential treatment to any 
private organization or individual.''); IJ Ethics and Professionalism 
Guide at sec. V (``An Immigration Judge shall act impartially and shall 
not give preferential treatment to any organization or individual when 
adjudicating the merits of a particular case.''); see also Chem. 
Found., Inc., 272 U.S. at 14-15 (``The presumption of regularity 
supports the official acts of public officers, and, in the absence of 
clear evidence to the contrary, courts presume that they have properly 
discharged their official duties.''). The Department categorically 
rejects this suggestion.
    In the context of the quality assurance process, the immigration 
judge is flagging an issue and relaying it to the Director for 
examination. While the immigration judge is required to ``specify the 
regulatory basis for the certification and summarize the underlying 
procedural, factual, or legal basis,'' this is necessary to relay the 
immigration judge's determination of error by the BIA to the Director 
in order to both qualify for certification and to expedite the process. 
Moreover, this process is substantively similar to the existing 
certification process utilized by immigration judges for many years, 8 
CFR 1003.7. Commenters did not provide any evidence that this existing 
process has raised questions about immigration judges becoming 
advocates, and the Department is unaware of any.
    Regarding commenters' concerns about the Department not supporting 
the rule with data, the Department notes that such quality assurance 
issues are not subject to tracking or amenable to particular data 
points. For instance, commenters did not indicate how the Department 
would measure the ``correctness'' of Board remand decisions in order to 
calculate the data they sought, and the Department is unaware of any 
metric for measuring the ``correctness'' or ``appropriateness'' of 
remand decisions by an appellate court.\50\ Further, since no quality 
assurance system is currently in place, there is no baseline for data 
to provide. Moreover, even without specific further data, the 
Department is still well within its authority to create a certification 
process that ensures the quality of BIA decisions. 8 CFR 
1003.0(b)(1)(ii).
---------------------------------------------------------------------------

    \50\ Whether the result of a case is ``correct''--e.g., whether 
an application or appeal should have been granted or denied--is 
often solely based on the narrative seeking to be advanced by the 
evaluator, and there is no accepted way of determining whether an 
adjudicator's decision is normatively ``correct.'' See Barry C. 
Edwards, Why Appeals Courts Rarely Reverse Lower Courts: An 
Experimental Study to Explore Affirmation Bias, 68 Emory L.J. On. 
1035, 1046 (2019) (``Given a sample of . . . court cases, no 
researcher could practically determine what the courts got `right' 
and what they got `wrong.' There is no reliable method of coding how 
cases ``should'' have been decided and, thus, no reliable way of 
assessing whether the [decision] rate is `too high' using 
observational data.'').
---------------------------------------------------------------------------

    Commenters are incorrect that the quality assurance certification 
procedures are incompatible with the restriction on the BIA's 
consideration of new evidence. In order for a case to be certified, the 
BIA decision must have clearly not considered ``a material factor 
pertinent to the issue(s) before the immigration judge.'' Id. Sec.  
1003.1(k)(1)(iv). The only such material factors would be those that 
were already before the judge and, accordingly, not new evidence before 
the BIA only at the appeal. Thus, no new evidence that the BIA was 
barred from considering based on the regulations would amount to a 
``material factor'' before an immigration judge.
    As to a commenter's assertion that there must be an easier way to 
correct typographical errors, the Department notes that the 
certification process involves more than just typographical errors. The 
quality assurance provisions are designed to address wider examples of 
quality concerns at the BIA level, of which typographical errors are 
just one kind.\51\
---------------------------------------------------------------------------

    \51\ Further to the commenter's point, the Department notes that 
because the BIA retains sua sponte authority to reconsider a 
decision to correct a typographical error under this rule, 8 CFR 
1003.2, situations in which an immigration judge may use this 
quality assurance process on that basis alone should be extremely 
rare.
---------------------------------------------------------------------------

    Further, while the Department appreciates commenters suggestions 
for other methods to meet the Department's quality assurance goals, 
such as suggestions that the Department make BIA decisions public,\52\ 
increase three-member panel decisions, or increase the number of 
detailed and reasoned precedential decisions, the Department finds that 
they would not provide an efficient and accurate process to ensure that 
BIA decisions are dispositive and accurate. Instead, such suggestions 
represent a continuation of the status quo rather than the real 
introduction of new procedures for immigration judges to bring issues 
to the forefront for consideration. Moreover, commenters did not 
explain how increased three-member panel decisions or an increased 
number of precedential decisions, both actions by the BIA, would 
improve quality in each individual BIA adjudication or how such actions

[[Page 81628]]

address immigration judge concerns about the quality of BIA decisions.
---------------------------------------------------------------------------

    \52\ The Department notes that this suggestion suffers from an 
additional infirmity. Due to privacy restrictions and 
confidentiality regulations, e.g., 8 CFR 1208.6, the Department 
cannot simply make all BIA decisions public without redactions, and 
the requirement for redactions would necessarily inhibit the ability 
to determine whether those decisions were of appropriate quality. 
Further, the Department notes that many BIA decisions are already 
available through commercial databases, but that availability has 
not ensured that the Board issues a quality or correct decision in 
every case.
---------------------------------------------------------------------------

    Finally, to the extent that most, if not all, commenters focused on 
how this process would affect cases of aliens, the Department 
reiterates that it would affect both parties equally. Moreover, many 
commenters appear to not have recognized that the process is primarily 
designed for EOIR's adjudicators and to improve quality decisionmaking 
at both the trial and appellate levels, rather than being a process 
designed to favor one party over another.
k. Removal of Sua Sponte Motion To Reopen Authority (8 CFR 1003.2(a), 
1003.23(b)(1))
i. Due Process Concerns
    Comment: Commenters opposed the rule's removal of the BIA and 
immigration judge's authority to sua sponte reopen proceedings. 
Commenters alleged that the Department failed to consider due process 
and explained that sua sponte authority was a ``vital tool'' for 
``curing errors and injustices'' that may have occurred during removal 
proceedings. Further, commenters explained that even if a BIA member 
saw good reason to reopen a case, such as in the case of an untimely or 
number-barred motion to reopen, the member would be unable to do so 
without the sua sponte authority.
    Response: As an initial point, the Department notes that several 
courts have acknowledged that sua sponte reopening (or the lack 
thereof) cannot implicate due process rights because it is entirely 
discretionary, so there is no liberty interest in it that would 
implicate any of an alien's rights in proceedings. See, e.g., Mejia v. 
Whitaker, 913 F.3d 482, 490 (5th Cir. 2019); Gyamfi v. Whitaker, 913 
F.3d 168 (1st Cir. 2019); Salgado-Toribio v. Holder, 713 F.3d 1267, 
1271 (10th Cir. 2013); see also Matter of G-D-, 22 I&N Dec. 1132, 1137 
(BIA 1999) (``We see no procedural due process concerns arising from 
our discretionary decision declining to exercise our independent 
reopening powers on behalf of the respondent. The respondent's right to 
a full and fair hearing on his asylum claim has not been 
compromised.'').
    As explained in the NPRM, sua sponte authority is entirely a 
creature of regulation based on a delegation of authority from the 
Attorney General. 8 CFR 1003.2(a), 1003.23(b)(1); see also 85 FR at 
52504. It is also not the only tool available to address possible 
errors in immigration proceedings; thus, removal of sua sponte 
authority, in and of itself, does not constitute a violation of due 
process.
    In addition, commenters confuse sua sponte authority with motions 
to reopen. Filing a motion to reopen, regardless of whether it is time 
or number-barred as commenters describe, does not invite the BIA to 
exercise sua sponte authority; it requests the BIA to reopen a 
proceeding in response to the motion. See Malukas v. Barr, 940 F.3d 
968, 969 (7th Cir. 2019) (``Reopening in response to a motion is not 
sua sponte; it is a response to the motion and thus subject to the 
time-and-number limits.''). Thus the rule's removal of sua sponte 
authority does not itself preclude the BIA from reopening a case in 
accordance with applicable law. See, e.g., 8 CFR 1003.2(c)(3)(iii), 
1003.23(b)(4)(iv). Rather, it ensures that reopening occurs in 
meritorious situations authorized by statute or regulation, rather than 
through the BIA's subjective and largely unchecked view of what 
constitutes an exceptional circumstance. Accordingly, contrary to 
commenters' assertions, the rule promotes fairness due to ``the lack of 
a meaningful standard to guide a decision whether to order reopening or 
reconsideration of cases through the use of sua sponte authority, the 
lack of a definition of `exceptional situations' for purposes of 
exercising sua sponte authority, the resulting potential for 
inconsistent application or even abuse of this authority, the inherent 
problems in exercising sua sponte authority based on a procedurally 
improper motion or request, and the strong interest in finality'' by 
withdrawing an authority subject to inconsistent and potentially 
abusive usage. 85 FR at 52505.
    Further, as discussed in the NPRM, the Department recognizes that 
the BIA has, in the past, exercised what it termed ``sua sponte 
authority'' in response to a motion and, arguably, contrary to law. 85 
FR at 52504 n.31 (``Despite this case law to the contrary, the Board 
has sometimes granted motions using what it erroneously labels as `sua 
sponte' authority.''). To the extent that the commenters oppose the 
change in this practice--particularly based on the perception that it 
favors aliens--the Department has acknowledged that the rule would no 
longer provide an avenue for the Board to use its sua sponte authority 
to grant a motion to use such authority. Indeed, one of the reasons 
stated for the rule was ``the inherent problems in exercising sua 
sponte authority based on a procedurally improper motion or request.'' 
Id. at 52505. The rule seeks to end the practice of the Board taking 
allegedly sua sponte action in response to a motion and to thereby 
reduce the incentive for filing such procedurally improper motions. Id.
    In short, the rule returns the focus on motions to reopen to the 
merits of the motions themselves and the applicable law, rather than 
the BIA's subjective and inconsistent invocation of its sua sponte 
authority. Finally, as discussed, supra, and noted in the NPRM, the 
Supreme Court has recognized that ``the BIA is simply a regulatory 
creature of the Attorney General, to which he has delegated much of his 
authority under the applicable statutes.'' Id. at 52492 n.1 (quoting 
Doherty, 502 U.S. at 327 (1992)). Accordingly, to the extent that the 
Attorney General can delegate authority to the BIA, he can also 
unquestionably remove that delegation. The removal of such authority, 
which is solely the Attorney General's to delegate, does not violate 
due process.
    Comment: Similarly, commenters were concerned that the rule would 
foreclose reopening the cases of respondents who later became eligible 
for relief, providing some of the following examples: An approved 
immediate immigrant relative petition, an approved application for SIJ 
status, an approved application for U visa status, or derivative asylum 
status through a spouse or parent. Commenters noted that these 
applications typically take years to adjudicate. Commenters were also 
concerned that the rule would deny protection to the most vulnerable 
populations in immigration proceedings, such as by foreclosing 
reopening the cases of respondents who were victims of fraud or 
ineffective assistance of counsel, non-English speakers or others with 
language barriers, and children who failed to appear for their hearings 
by no fault of their own. One commenter further described the effects 
on unaccompanied alien children (``UAC'') generally, explaining that 
sua sponte authority was an important safeguard to protect children 
because critical details and information in children's cases typically 
emerge over time.
    At least one commenter alleged that the Department purposefully 
promulgated these provisions as an ``attack'' on asylum seekers and 
migrants.
    As with other provisions of the rule, commenters explained that the 
Department should not remove the sua sponte authority because 
``fairness is more important than finality'' or quick removals.
    Response: As an initial point, the Department notes that many of 
its responses to comments regarding the withdrawal of the BIA's 
certification authority discussed, supra, are equally

[[Page 81629]]

applicable to comments regarding the withdrawal of sua sponte reopening 
authority. On balance, the inconsistent application of such authority, 
even with a well-established standard, and the existence of equally 
functional alternatives, particularly as equitable tolling has advanced 
as a doctrine to extend filing deadlines for motions to reopen, 
militate in favor of removing the Attorney General's delegation of such 
authority.
    The Department did not promulgate this rule as an attack on anyone. 
As discussed herein, the rule applies equally to DHS and respondents, 
it applies to all types of cases (not just asylum cases), and it 
addresses significant issues of inconsistent adjudications and 
efficiency, among others. Commenters generalized policy disagreements 
with the rule do not effectively engage with its provisions and, thus, 
do not provide a useful basis for the Department to respond.
    In general, commenters' concerns that respondents will be unable to 
reopen their cases without the BIA's sua sponte authority are based on 
an erroneous understanding or assumption that respondents are entitled 
to such a reopening. The Department emphasizes that the vehicle by 
which such respondents should seek reopening is a motion to reopen. See 
Malukas, 940 F.3d at 969 (``Reopening in response to a motion is not 
sua sponte; it is a response to the motion and thus subject to the 
time-and-number limits.''). The Attorney General has already determined 
that sua sponte authority may not be used to circumvent timing and 
numerical limits, see Doherty, 502 U.S. at 323; INS v. Abudu, 485 U.S. 
94, 107 (1988). Further, Congress included such limitations to promote 
finality in proceedings. Matter of Monges-Garcia, 25 I&N Dec. 246, 250 
(BIA 2010) (explaining that, by requiring the Department to promulgate 
motion time and number limits by regulation as part of the Immigration 
Act of 1990, ``Congress clearly intended that the time and number 
limitations on motions would further the statute's purpose of bringing 
finality to immigration proceedings'').
    Nevertheless, aliens who reach agreement with DHS regarding the 
validity of their changed claim may jointly file a motion to reopen 
with DHS regardless of the amount of time that has passed since the 
underlying final order. 8 CFR 1003.2(c)(3)(iii), 1003.23(b)(4)(iv). The 
rule does not affect that pre-existing exception to the time and number 
limitations on motions to reopen. In addition, the deadline for filing 
a motion to reopen by aliens who have been the victim of fraud, 
ineffective assistance of counsel, and other harms may be subject to 
equitable tolling. Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th 
Cir. 2015) (stating that the deadline for filing a motion to reopen is 
subject to equitable tolling).
    Regarding commenters' concerns for UAC, the Department has 
considered whether there would be any specific impacts of the rule on 
UAC in particular--as distinguished from other categories of aliens--
but has identified none. As discussed, supra, there is no right to a 
motion to reopen sua sponte for any classification of aliens, many 
aliens (not just UAC) are subject to remote visa priority dates, and 
many aliens (not just UAC) may become putatively eligible for relief 
well after their immigration proceedings have concluded. Commenters 
also did not identify any specific impacts on UAC that would not also 
fall on the general population of aliens in immigration proceedings. 
Moreover, even if the rule did have particular impacts on UAC, the 
Department finds that those impacts are far outweighed by the benefits 
provided the rule, namely more consistent application of the law, more 
efficient adjudication of cases, and a more appropriate emphasis on the 
importance of finality in immigration proceedings.
    The Department further emphasizes that safeguards for UAC seeking 
asylum remain in place under provisions on motions to reopen that are 
premised on changed country conditions, see INA 240(c)(7)(C)(ii), 8 
U.S.C. 1229a(c)(7)(C)(ii); 8 CFR 1003.2(c)(3)(ii), 1003.23(b)(4)(i). 
Further, nothing in the rule singles out UAC for adverse treatment, and 
available avenues for untimely motions to reopen--e.g., joint motions 
and motions based on equitable tolling--continue to exist independent 
of the rule. The law does not guarantee UAC a right to sua sponte 
reopening, just as it does not guarantee any particular alien such a 
right for the reasons stated in this rule, and commenters did not point 
to any provision claiming such a right. For similar reasons, 
commenters' allegation that the generally applicable provision is 
specifically targeted at asylum-seekers, is without merit. The 
withdrawal of sua sponte authority applies to all cases and all 
parties, and it is well within the Attorney General's authority to 
withdraw a delegation of authority that he alone has provided.
    Underlying many of the comments on this provision is a tacit claim 
that an alien who establishes eligibility for relief long after 
immigration proceedings have concluded--e.g., aliens whose visa numbers 
become current or who obtain the potential for derivative status--
should be granted reopening sua sponte as a matter of right and that, 
accordingly, the rule will deprive such aliens of a ``right'' to reopen 
their cases and obtain relief from removal. This view, however, is 
unsupported by law in multiple ways and, thus, unpersuasive.
    First, as discussed, supra, there is no right to reopening of a 
removal proceeding, and the Board may even deny a motion to reopen when 
the alien establishes a prima facie claim for relief. 8 CFR 1003.2(a) 
(``The Board has discretion to deny a motion to reopen even if the 
party moving has made out a prima facie case for relief.''). Second, as 
also discussed, supra, a motion to reopen sua sponte is an ``oxymoron'' 
and represents an improper filing that should ordinarily be rejected. 
Third, Board case law makes clear that untimely motions to reopen to 
pursue adjustment of status should ordinarily be denied, indicating 
that it ordinarily would not exercise sua sponte reopening authority in 
such situations either. See Matter of Yauri, 25 I&N Dec. 103, 105 (BIA 
2009) (``We emphasize that untimely motions to reopen to pursue an 
application for adjustment of status, even for cases that do not 
involve an `arriving alien,' do not fall within any of the statutory or 
regulatory exceptions to the time limits for motions to reopen before 
the Board and will ordinarily be denied.'' (emphasis added)); cf. 
Vithlani v. Att'y Gen., 823 F. App'x 104, 105-06 (11th Cir. Aug. 10, 
2020) (``The BIA denied the motion [to reopen based on asserted 
eligibility for adjustment of status], finding that it was untimely and 
number-barred, and that it did not demonstrate an exceptional situation 
warranting sua sponte reopening. The BIA later also denied her motion 
to reconsider, stating that becoming eligible for adjustment of status 
was not an exceptional situation warranting the grant of an untimely 
motion to reopen. In 2019, Vithlani . . . . sought sua sponte 
reopening, again seeking to apply for adjustment of status. . . . The 
IJ denied Vithlani's motion to reopen . . . . stat[ing] that becoming 
eligible to adjust status was not uncommon. . . . [and finding] that 
the motion did not demonstrate an exceptional situation to warrant sua 
sponte reopening.'').
    The Department emphasizes that, as stated throughout this final 
rule, the changes to Board procedures are intended to promote 
consistency and efficiency in proceedings. To the extent that 
commenters assert as a policy matter that the Board should retain sua 
sponte authority solely as a vehicle for aliens to file motions seeking 
to evade

[[Page 81630]]

the usual time and number limitations and possibly delay removal, cf. 
Doherty, 502 U.S. at 323 (``[A]s a general matter, every delay works to 
the advantage of the deportable alien who wishes merely to remain in 
the United States.''), or that the Department should not seek to 
correct the inconsistent and potentially inappropriate usage of that 
authority, the Department finds such policy arguments unpersuasive for 
the reasons given in the NPRM and this final rule.
    Further, commenters are incorrect that the respondents whom they 
alleged would be unable to reopen their cases if the BIA can no longer 
exercise sua sponte authority. As discussed in the NPRM, 85 FR at 
52504-05 and supra, those respondents are not truly requesting that the 
BIA exercise sua sponte authority; in actuality, they seek a response 
to their filed motion. See Salazar-Marroquin v. Barr, 969 F.3d 814, 816 
n.1 (7th Cir. 2020) (``Describing the motion as seeking a `sua sponte' 
reopening is a common but unfortunate misnomer and even an oxymoron. 
Board action on a motion would not be sua sponte.''). Nothing in the 
rule prohibits the BIA from adjudicating motions to reopen filed by 
aliens in accordance with well-established principles of law.
    Further, the Attorney General has already determined that sua 
sponte authority may not be used to circumvent timing and numerical 
limits. Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997). Thus, to the 
extent that commenters assert sua sponte authority has been used to 
circumvent those limits previously, the BIA's prior failure to follow 
the law in individual cases is not a compelling or persuasive reason to 
retain such authority. To the contrary, it would further reinforce the 
Department's decision to remove the delegation of such authority. 
Additionally, contrary to commenters' concerns, regulations at 8 CFR 
1003.2(c)(3), 1003.23(b)(4)(iv), 214.11(d)(9)(ii), and 
214.14(c)(5)(i)--in addition to the ability to file a joint motion to 
reopen, 8 CFR 1003.2(c)(3)(iii)--would continue to provide exceptions 
to the time and numerical limits in appropriate cases, and none of 
those are affected by this rulemaking. Similarly, the availability of 
equitable tolling in particular cases, which many commenters did not 
acknowledge, would also allow aliens the ability to evade strict 
adherence to statutory time limitations.
    Other than highlighting its incorrect usage to evade time and 
number limitations contrary to Matter of J-J-, commenters did not 
explain how the withdrawal of sua sponte authority would affect any 
discrete populations, particularly when those populations could not 
file a putative motion to reopen sua sponte in the first instance. As a 
delegation of procedural authority, sua sponte reopening authority does 
not apply differently to different types of cases; accordingly, its 
withdrawal will not affect any specific populations.
    Finally, to the extent commenters alleged that the withdrawal of 
sua sponte authority would impact aliens with in absentia removal 
orders, the Department notes there is already no time limit on such 
motions if they are based on a lack of notice. INA 240(b)(5)(C)(ii), 8 
U.S.C. 1229a(b)(5)(C)(ii). Thus, the withdrawal of sua sponte authority 
would not affect the ability of an alien to file a motion to reopen an 
in absentia removal order based on a lack of notice. Similarly, an 
alien who fails to appear due to exceptional circumstances may file a 
motion to reopen any resulting in absentia removal order within 180 
days. INA 240(b)(5)(C)(i), 8 U.S.C. 1229a(b)(5)(C)(i). Commenters did 
not explain why an alien who failed to appear due to exceptional 
circumstances would wait longer than 180 days to file such a motion, 
and the Department declines to speculate as to such reasons. 
Nevertheless, the Department notes that even in that unlikely 
situation, an alien may seek to have the 180-day deadline equitably 
tolled. In short, the withdrawal of sua sponte reopening authority has 
no impact on existing and well-established avenues for aliens to reopen 
in absentia removal orders.
ii. Limited Current Use and Abuse of Authority
    Comment: Commenters generally opposed the Department's removal of 
sua sponte authority, stating that the Department did not provide any 
specific examples of abuse in the rule and that immigration judges or 
BIA members do not need much time to consider requests to reopen.
    Commenters explained that immigration judges and BIA members 
currently use sua sponte authority sparingly and only for the most 
compelling cases. Accordingly, the commenter believes that the 
authority is neither abused by adjudicators nor evidence of finality 
issues as the rule suggested.
    Commenters stated further that there was no reason to believe that 
adjudicators could not properly apply the appropriate standards for sua 
sponte reopening.
    Response: As the Departments explained in the NPRM, use of sua 
sponte authority facilitates inconsistent application and possible 
abuse, due to the lack of a meaningful standard to evaluate the use of 
sua sponte authority, see 85 FR at 52505 (collecting cases); the lack 
of a definition for ``exceptional circumstances'' required to exercise 
such authority; and, the problems resulting from a procedurally 
improper motion or request. Contrary to commenters' assertions, the 
Department did provide examples of cases in which sua sponte authority 
appears to have been improperly used. Id. Considering all of those 
reasons together, the Department determined that use of sua sponte 
authority severely undermines finality in immigration proceedings, see 
85 FR at 52493, in which there lies a strong public interest in 
bringing litigation to a close, consistent with providing a fair 
opportunity to the parties to develop and present their cases. See 
Abudu, 485 U.S. at 107.
    Comment: Commenters alleged that immigration judges and the BIA 
``frequently have unfettered discretion in deciding when to order 
removal proceedings.'' Accordingly, the commenters explained that 
removing sua sponte authority due to concerns of abuse of such 
authority was ``laughable.''
    The commenters further explained that removing such authority would 
exacerbate the backlog because BIA members would be unable to remand a 
case to further develop the facts, which another commenter asserted 
would conflict with Congress and the Attorney General's trust in the 
BIA and immigration judges ``to intervene in cases where fundamental 
fairness and the interests of justice so warrant.'' Similarly, 
commenters alleged that the Department failed to explain in the rule 
why speed in this context was not favored, given that sua sponte action 
would be faster than waiting for a motion to reopen. Commenters 
explained that removing such authority would increase the number of 
appeals and the BIA's workload.
    Response: The Department does not have ``unfettered discretion'' in 
regard to removal proceedings. As an initial matter, EOIR's 
jurisdiction in proceedings is bound by the INA and the regulations. 
See, e.g., INA 240, 8 U.S.C. 1229a. Second, immigration judges exercise 
independent judgement and discretion in applying applicable law and 
regulations. See 8 CFR 1003.10(b), 1240.1(a). Likewise, BIA members 
resolve issues before them in a manner that is timely, impartial, and 
consistent with applicable law and regulations, in an exercise of their 
independent judgment and discretion. See 8 CFR 1003.1(d)(1) 
introductory

[[Page 81631]]

text, (d)(1)(ii). Nevertheless, the authority of immigration judges and 
Board members to reopen cases is circumscribed by law, and neither 
class of adjudicator possesses free-floating authority to reopen cases 
in contravention of established law or in the absence of clear legal 
authority.
    The Department's decision to withdraw sua sponte authority would 
not exacerbate the backlog, and the Department finds this particular 
comment somewhat illogical. By definition, sua sponte authority to 
reopen a case would apply only to cases that are already 
administratively final and, thus, not part of the pending caseload. In 
fact, also by definition, the continued use of sua sponte authority 
would necessarily increase the pending caseload because it would allow 
the Board to reopen proceedings even in cases in which there was 
otherwise no legal basis to do so. Similarly, there is no basis to 
believe that withdrawing sua sponte reopening authority would increase 
the number of appeals to the Board because, again, that authority would 
only be used for a case that is already final and, thus, not subject to 
further appeal.
    The commenter's concern about speed is also misplaced. The 
Department's withdrawal of sua sponte authority does not indicate that 
the Department favored speed in this context. Rather, the Department 
explained the multitude of reasons, considered together, that prompted 
its decision. See generally 85 FR at 52505-06. These reasons invoke 
concerns over finality and consistency, which are distinct from speed. 
Further, regardless of whether sua sponte reopening or a motion to 
reopen is ``faster'' to adjudicate in the abstract--a question for 
which the Department does not believe an appropriate metric exists--the 
need to manage the inappropriate and inconsistent use of sua sponte 
reopening authority would outweigh whatever marginal ``speed'' benefits 
may be obtained from its usage. In other words, the expediency of the 
usage of sua sponte authority does not outweigh the need to ensure its 
correct and consistent application.
iii. Standard of Review
    Comment: Commenters disagreed with the rule's assertion that 
Federal circuit courts had no meaningful standard of review with which 
to review an exercise of sua sponte authority. Rather, the commenters, 
citing Lenis v. United States, 525 F.3d 1291, 1292 (11th Cir. 2008), 
explained that the Federal circuit courts declined to review because 
they lacked jurisdiction.
    Commenters nevertheless disagreed that the Department was unable to 
check inconsistencies or abuses that may result from the exercise of 
sua sponte because they asserted that the Attorney General could review 
BIA decisions regarding whether to exercise sua sponte authority 
instead.
    Response: The Department agrees with the commenters that the court 
in Lenis declined to review for lack of jurisdiction; however, that 
court explained that it lacked such jurisdiction under 5 U.S.C. 
701(a)(2), which prohibits judicial review of decisions ``committed to 
agency discretion.'' Lenis, 525 F.3d at 1293. The court explained this 
exception was extremely narrow, applicable only where ``statutes are 
drawn in such broad terms that in a given case there is no law to 
apply.'' Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 
401 U.S. 402, 410 (1971)). The court explained that:

[n]either the statute nor the regulation at issue today provides any 
``meaningful standard against which to judge the agency's exercise 
of discretion.'' Indeed, no statute expressly authorizes the BIA to 
reopen cases sua sponte; rather, the regulation at issue derives 
from a statute that grants general authority over immigration and 
nationalization matters to the Attorney General, and sets no 
standard for the Attorney General's decision-making in this context.

Id. Accordingly, that case supports the Department's position that no 
meaningful standard exists, which prompted, in part, the Department's 
decision to withdraw this authority.
    Further, as discussed, supra, regarding the Board's certification 
authority, precedential decisions, including by the Attorney General, 
e.g., Matter of J-J-, 21 I&N Dec. at 984, have been ineffective at 
checking inconsistent or abusive usages of sua sponte authority. Thus, 
the Department finds that further Attorney General review of such 
authority would not necessarily address the concerns regarding its use. 
Moreover, the current--and comparatively inefficient--case-by-case 
nature of determining ``exceptional circumstances,'' the inconsistent 
application of that standard and its consideration through an open-
ended and largely subjective lens by Board members and immigration 
judges, and the lack of an effective and efficient corrective measure 
for addressing improper reopenings under that authority (e.g., in 
response to a motion or to cure filing defects or circumvent 
regulations), all make the subject of sua sponte reopening authority 
both ripe for rulemaking and, ultimately, withdrawal of such authority. 
See Lopez v. Davis, 531 U.S. 230, 244 (2001) (observing that ``a single 
rulemaking proceeding'' may allow an agency to more ``fairly and 
efficiently'' address an issue than would ``case-by-case 
decisionmaking''); Marin-Rodriguez v. Holder, 612 F.3d 591, 593 (7th 
Cir. 2010) (``An agency may exercise discretion categorically, by 
regulation, and is not limited to making discretionary decisions one 
case at a time under open-ended standards.'').
    Comment: Commenters explained that, under Ekimian v. INS, 303 F.3d 
1153, 1158 (9th Cir. 2002), sua sponte decisions are not reviewable 
simply as a result of their discretionary nature, which the commenter 
alleged was not a reasonable or sufficient justification to retract the 
authority since other discretionary matters were not so scrutinized.
    Response: Sua sponte authority is distinct from other discretionary 
forms of relief. As aptly explained in Lenis, sua sponte authority is 
subject to an exception prohibiting judicial review, 5 U.S.C. 
701(a)(2), because the statute from which it derives is ``drawn in such 
broad terms that in a given case there is no law to apply.'' 525 F.3d 
at 1293 (quoting Citizens to Preserve Overton Park, Inc., 401 U.S. at 
410). Other forms of discretionary relief, such as asylum, do not meet 
this exception. Accordingly, the commenters' comparison of sua sponte 
authority to any other discretionary form of relief is incorrect; 
moreover, the Department did not justify withdrawing sua sponte 
authority based solely on its discretionary nature, though that nature 
has contributed to inconsistent application.
    Comment: Commenters explained that the Department's citations to 
circuit court decisions upholding the denial of a request for sua 
sponte reopening does not support the Department's concern that the sua 
sponte authority is being abused; instead, the commenters contend that 
those cases demonstrate that immigration judges and the BIA are 
applying the BIA's precedents limiting the use of that authority to 
truly exceptional situations. Commenters further explained that courts 
have only limited jurisdiction to review the BIA's decision not to use 
its sua sponte authority to reopen a case based on legal or 
constitutional errors. Accordingly, the commenters asserted that the 
BIA's decision on sua sponte authority is generally final and thus does 
not contribute to inefficiencies in the immigration courts or the BIA.
    Response: The Department's reference to circuit court decisions in 
the NPRM, 85 FR at 52505, was not meant to

[[Page 81632]]

demonstrate abuse of the authority. Instead, the Department collected 
cases to underscore the fact that, generally, ``no meaningful standards 
exist to evaluate the BIA's decision not to reopen or reconsider a case 
based on sua sponte authority.'' Id. Moreover, commenters did not 
acknowledge that DHS lacks authority to appeal BIA decisions to Federal 
court; accordingly, there necessarily will be few circuit court 
decisions holding that the BIA abused its sua sponte authority in 
reopening a case in which reopening inured to the benefit of the 
alien.\53\
---------------------------------------------------------------------------

    \53\ Consistent with the general tenor of comments focusing only 
on the rule's alleged impact on aliens, commenters also failed to 
acknowledge that the Board has exercised sua sponte authority in 
response to motions filed by DHS. See, e.g., Chehazeh v. Att'y Gen., 
666 F.3d 118, 124 (3d Cir. 2012). In such circumstances at least one 
circuit court has questioned whether the Board's decision to 
exercise sua sponte authority was an abuse of that authority. Id. at 
140 (``The BIA has plainly stated that its sua sponte authority is 
not designed to `circumvent the regulations.' Matter of J-J-, 21 I&N 
Dec. at 984. That authority may, of course, have the effect of 
circumventing the regulations when an exceptional situation calls 
for it, but wherever the line between an unexceptional situation and 
an exceptional situation lies, we wonder whether--on this record--
this case is near it.'').
---------------------------------------------------------------------------

    Commenters are correct that some courts have held that there is 
jurisdiction to review the BIA's denial of a motion to reopen sua 
sponte for constitutional or legal error. However, the Department's 
finality and consistency concerns still stand--absent the rule, sua 
sponte authority may still be exercised by either immigration judges or 
the BIA in an inconsistent or inappropriate manner, which undermines 
the importance of decisional finality. Moreover, the acknowledged lack 
of meaningful standards invites inconsistent application which is at 
odds with both decisional finality and principle of treating similar 
cases in a similar manner. Given all of these issues and understanding 
commenters' concerns, the Department maintains that withdrawing sua 
sponte authority, on balance, represents an appropriate course of 
action.
iv. Obligations Under International and Domestic Law and Treaties
    Comment: Various commenters stated that removing sua sponte 
authority violated the United States' obligations under international 
law, specifically the American Declaration, to ``protect and preserve 
the rights of individuals (both U.S. citizens and noncitizens) to 
establish a family.'' Commenters explained that ``refugee law'' 
provides for a `` `refugee sur place,' meaning that something has 
changed to create a fear of return to the country of origin.'' 
Commenters stated that sua sponte authority allowed for reopening such 
cases and other related circumstances. Commenters explained that sua 
sponte authority facilitates compliance with the UN Protocol and 
Convention Relating to the Status of Refugees, the UN Convention 
Against Torture (CAT), and the TVPRA because adjudicators may reopen 
cases in which newly discovered or previously unavailable material 
evidence relevant to a persecution claim is discovered more than 90 
days after a decision becomes administratively final. Accordingly, the 
commenters alleged that refoulement would increasingly occur. 
Commenters also explained that removing sua sponte authority conflicted 
with UNHCR guidelines that provide that an applicant should ``not be 
prohibited from presented new evidence at the appeals stage.'' 
Commenters reasoned that sua sponte authority may be an alien's only 
way to present new evidence on appeal, thus, removal of such authority 
would conflict with the UNHCR guidelines.
    Response: As an initial point, as discussed, supra, an alien has no 
right to file a ``motion to reopen sua sponte,'' and such a motion is 
an ``oxymoron.'' See Malukas, 940 F.3d at 970. To the extent that 
commenters assert that the withdrawal of sua sponte authority infringes 
upon such a right, they are simply mistaken as a matter of law. 
Further, no domestic law or international convention enshrines a right 
to sua sponte reopening, and the withdrawal of such authority, which 
exists solely through a delegation from the Attorney General, does not 
contravene any binding body of law.
    Further, because the rule does not foreclose other mechanisms that 
may be used as exceptions to time and number limits, as discussed, 
supra, withdrawal of sua sponte authority does not constitute denial of 
protection for particular populations, nor does it contradict the 
United States' obligations under international and domestic law and 
various treaties. The United States continues to fulfill its 
obligations under international and domestic law, including the 1967 
Protocol, the CAT, the TVPRA, and any other applicable treaties. This 
rulemaking does not violate those obligations. Moreover, this rule does 
not affect the ability of aliens to file a motion to reopen to apply 
for asylum or statutory withholding of removal based on changed country 
conditions and supported with new, material evidence. INA 
240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii). Further, the Department 
continues to provide all aliens, including refugees and children, a 
meaningful opportunity to resolve their claims, in accordance with 
applicable law, regulations, and obligations under international law. 
In short, this rule does nothing to restrict an alien's ability to seek 
asylum, statutory withholding of removal, or other protections as 
permitted by statute and regulation.
v. Alternatives to Sua Sponte Authority
    Comment: Commenters disagreed with the rule's assertion that a 
joint motion to reopen was a viable alternative to sua sponte authority 
because, as commenters explained, DHS and immigrants are ``rarely in 
agreement'' in regard to motions to reopen. The commenters explained 
that the joint motion process places ultimate authority to reopen or 
reconsider a case on DHS, which is not the case with sua sponte 
requests; thus, the joint motion was not an equitable alternative.
    Commenters explained that removing sua sponte reopening while at 
the same time removing the BIA's ability to remand a case for 
consideration of new evidence presented by the respondent, instead 
instructing the respondent to file a motion to reopen, was particularly 
``harsh.'' Further, commenters averred that the Department could not 
claim there were ``sufficient avenues available'' to present claims for 
relief when the Department had both restricted the BIA's ability to 
remand a case and had eliminated sua sponte reopening.
    Commenters explained that although the rule mentions the ability to 
toll the time and number limitations on motions to reopen, equitable 
tolling and the Department's procedures for motions to reopen are 
difficult for lawyers, much less pro se parties, to understand. 
Accordingly, commenters claimed that equitable tolling and motions to 
reopen were not viable avenues for relief.
    Commenters suggested that instead of removing sua sponte authority, 
the Department should define ``exceptional circumstances.'' The 
commenters explained that this would preserve the flexibility 
associated with sua sponte action while also providing the circuit 
courts with a meaningful standard of review to review sua sponte 
reopening or reconsideration. Commenters explained that although 
exercising sua sponte authority should be rare, it was ``worthy of 
consideration,'' especially in cases where DHS does not oppose the 
motion to reopen. Commenters suggested that the BIA and the immigration 
judges could reject ``improper invitations'' to invoke sua sponte 
authority, rather than remove the authority altogether. One commenter

[[Page 81633]]

explained that the rule's failure to consider these alternatives 
renders the rule arbitrary and capricious in violation of the APA.
    Response: The Department maintains that the rule does not disturb 
various viable alternatives to sua sponte authority. Indeed, the 
Department reiterates that respondents have no right to an 
adjudicator's sua sponte exercise of authority and that a motion to 
reopen sua sponte is an ``oxymoron.'' See Malukas, 940 F.3d at 970. 
Although the contours of such alternatives may differ to some extent 
from sua sponte authority, the alternatives noted remain viable 
alternatives for aliens, both with and without representation. 85 FR at 
52505-06. Aliens may seek a motion to reopen under well-established 
statutory and regulatory procedures, including to submit a new 
application for relief or protection. They may seek a joint motion with 
DHS. They may seek equitable tolling of time limitations, as 
appropriate, based on case law. The rule itself codifies new exceptions 
to time and number limitations for motions to reopen. 8 CFR 
1003.1(c)(3)(v). Thus, there remain multiple, significant avenues for 
an alien to have his or her case reopened as appropriate.
    Regarding commenters' assertion that removing sua sponte reopening 
while at the same time removing the BIA's ability to remand a case for 
consideration of new evidence presented by the respondent, instead 
instructing the respondent to file a motion to reopen, was particularly 
``harsh,'' the Department again reiterates both that an alien has no 
right to sua sponte reopening and that the concept of a motion to 
reopen sua sponte is an oxymoron. Thus, the withdrawal of the 
delegation of the BIA's sua sponte reopening authority is not 
``harsh''--regardless of any other changes--because there is no right 
to the exercise of such authority in the first instance. Moreover, as 
discussed, supra, multiple avenues remain for an alien to have his or 
her case reopened as appropriate. Further, an alien who wished to 
submit additional evidence during the pendency of an appeal would 
presumably be able to submit that evidence with a motion to reopen 
within the applicable time period for such a motion and, thus, would 
have no need to avail himself of the BIA's sua sponte authority. In 
short, the Department disagrees with commenters that it changes are 
``harsh'' and further notes that any alleged ``harshness'' is 
outweighed by the benefits provided by the rule discussed herein.
    The rule does not affect the alien's ability to argue for equitable 
tolling of a time limit or to seek a joint motion with DHS. The alleged 
difficulty of arguments for equitable tolling is belied by the 
frequency with which it has been argued before the BIA and Federal 
courts, and every Federal court to have considered the issue has found 
it to be applicable to deadlines for motions to reopen. See, e.g., 
Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357, 1364 (11th Cir. 2013) 
(per curiam) (collecting cases). Furthermore, one commenter's 
suggestion that sua sponte authority should be used when DHS does not 
oppose a motion to reopen--though, as noted, supra, sua sponte 
authority is not exercised in response to a motion--actually suggests 
that a joint motion with DHS would be a viable alternative, at least in 
the case identified by the commenter.
    The Department also considered the alternatives advanced by 
commenters. As discussed elsewhere, a standard for ``exceptional 
circumstances'' has existed since 1997, Matter of J-J-, 21 I&N Dec. at 
984, but that standard has not prevented inconsistent or improper usage 
of sua sponte authority. Thus, the Department does not believe that 
further elaboration of that standard would address the concern. Because 
sua sponte authority is not properly exercised in response to a motion 
or ``invitation,'' 85 FR at 52504-05, the Department does not see how 
limiting the use of such authority to only ``proper'' invitations would 
be appropriate, even if it could devise a workable and consistently 
applied distinction between ``proper'' and ``improper'' invitations. 
Similarly, situations in which DHS does not oppose a motion to reopen 
are not appropriate for the exercise of sua sponte authority because 
such authority is not exercised in response to a motion. Id. Rather, 
such situations appear amenable to a joint motion which the rule does 
not alter. 8 CFR 1003.2(c)(3)(iii). In short, the Department has 
considered commenters' concerns about the available alternatives to the 
exercise of sua sponte authority, but finds them unpersuasive or 
legally inapposite for the reasons given.
    Finally, to the extent that commenters' concerns are based on a 
belief that sua sponte authority should be retained because it allows 
aliens to file motions to reopen sua sponte in order to circumvent time 
and number bars to motions to reopen, the Department reiterates that 
the exercise of sua sponte authority is not proper in response to a 
motion and that its use to circumvent regulatory or statutory deadlines 
contravenes established case law and, accordingly, supports the 
Department's decision to withdraw that authority.
vi. Other Concerns
    Comment: Commenters alleged that although the Department addressed 
the use of sua sponte authority in precedential decisions, the 
Department failed to address whether the BIA's use of sua sponte 
authority in non-precedential decisions forms the vast majority of its 
docket. The commenters claimed that EOIR was in the ``better position'' 
to address this issue but that it failed to analyze the issue.
    Response: The extent to which sua sponte authority is used in non-
precedential decisions did not and would not affect the Department's 
conclusion that such authority is no longer appropriate. As described 
in the NPRM, the Department withdrew sua sponte authority for several 
reasons: ``the exceptional nature of a situation required to invoke sua 
sponte authority in the first instance, the general lack of use of 
genuine sua sponte authority since 2002, and the availability of 
multiple other avenues to reopen or reconsider cases and to alleviate 
the hardships imposed by time and number deadlines.'' 85 FR at 52506. 
Although the Department noted the extremely limited use of sua sponte 
authority in precedential decisions, the Department did not withdraw 
sua sponte authority based on that consideration alone. The 
Department's conclusion, was multi-faceted, and regardless of the 
nature of cases in which sua sponte authority is exercised, the 
Department has determined that it is appropriate to withdraw sua sponte 
authority because, inter alia, there are multiple viable alternatives 
for both parties, its use undermines efficiency by encouraging improper 
motions, and its potentially inconsistent and borderline ad hoc usage 
is both inappropriate and inefficient to the extent that it is used to 
reopen cases contrary to law.
    Comment: Without further explanation, one commenter alleged that 
removing sua sponte authority would violate principles of ``equal 
protection under the law for all.'' Also without further explanation, a 
commenter stated that limiting sua sponte motions to reopen would 
continue the family separation policy. One commenter disagreed with the 
rule, stating that its fixation on the phrase sua sponte ``converts an 
important issue of fairness and justice into a debate over semantics.'' 
Commenters explained that removing sua sponte authority violated the 
APA because Congress did not enact limits on such authority, thereby

[[Page 81634]]

infringing on congressional authority to create laws.
    Response: The Department disagrees with commenters that these 
provisions generally violate equal protection. The Department continues 
to equally apply applicable law and regulations to all aliens in 
proceedings before the agency. In addition, the Department rejects 
allegations, which contained no further explanation, that the rule 
furthers any family separation ``policy.'' To the extent the commenter 
was referring to the prosecution of criminal aliens along the southwest 
border in late spring 2018 which involved the separation of alien 
criminal defendants from their families while those defendants were 
being prosecuted--consistent with the treatment of most criminal 
defendants subject to arrest in the United States-- there is no 
identifiable linkage between this rule and that situation.
    As previously explained, sua sponte authority is a product of 
regulation; Congress has not statutorily established this authority. 
Accordingly, withdrawing this authority does not violate the APA or 
infringe on congressional authority. To the contrary, preventing the 
Attorney General from withdrawing authority that is his alone to 
delegate in the first instance would infringe upon his statutory 
authority. INA 103(g), 8 U.S.C. 1103(g). Further, courts afford broad 
deference to an agency's policy changes. ``Agencies are free to change 
their existing policies as long as they provide a reasoned explanation 
for the change.'' Encino Motor Cars v. Navarro, 136 S. Ct. 2117, 2125 
(2016) (citing Nat'l Cable & Telecomm. Assn. v. Brand X internet 
Services, 545 U.S. 967, 981-982 (2005)). The Department provided an 
extensive discussion in the NPRM, supplemented by this final rule, to 
explain its reasoning for withdrawing sua sponte authority. 85 FR at 
52504-06. This discussion did not ``fixate'' on semantics or any one 
reason to justify withdrawing sua sponte authority. Rather, the 
Department provided a fulsome discussion, supplemented by this final 
rule, of the many reasons that, considered together, prompted 
withdrawal of sua sponte authority.\54\
---------------------------------------------------------------------------

    \54\ The text of 8 CFR 1003.2(a) in the NPRM inadvertently 
removed the phrase ``or reconsider'' from the first sentence of that 
paragraph. This final rule reinserts that phrase to ensure that 
parties and the BIA are clear that the Board can reconsider a 
decision sua sponte in order to correct a typographical error or 
defect in service.
---------------------------------------------------------------------------

l. DHS Motions To Reopen Time and Number Limitations (8 CFR 
1003.2(c)(3)(vii))
    Comment: Commenters expressed concern that the NPRM's proposed 
changes regarding the time and number limitation for DHS motions to 
reopen before the BIA are unfair and would create different rules for 
the government and for aliens in proceedings, noting that both aliens 
and the government at times have good cause to file motions to reopen 
that exceed the normal time and number limitations. Commenters were 
concerned that the change would give DHS favorable or preferential 
treatment. Commenters noted that allowing DHS to file motions to reopen 
without regard to any time or number limitations would prevent aliens 
who have been in proceedings from ever feeling confident that the 
decision in their case is final. At least one commenter stated the 
Department should restrict DHS's ability to file motions to reopen 
before the BIA and create parity between the parties rather than have 
the same unequal procedures before both the immigration courts and the 
BIA.
    Response: In 1996, Congress amended the INA and provided specific 
restrictions regarding motions to reopen filed by aliens in 
proceedings. See INA 240(c)(7), 8 U.S.C. 1229a(c)(7). The INA restricts 
aliens to file one motion to reopen proceedings within 90 days of the 
date of the entry of a final order of removal, subject to time and 
number exceptions based on lack of notice and when the motion to reopen 
is premised on changed country conditions in support of an application 
for asylum. Id. Notably, however, Congress did not provide any similar 
restriction on motions to reopen filed by the government. Accordingly, 
the Department previously removed the time and number limitation on 
motions to reopen filed by the government as part of the regulatory 
changes implemented following the enactment of the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996 (``IIRIRA''), Public 
Law 104-208, Sept. 30, 1996, 108 Stat. 1796. See Inspection and 
Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct 
of Removal Proceedings; Asylum Procedures, 62 FR 10312, 10321 (Mar. 6, 
1997) (explaining, in response to public comments that the same 
limitations on motions to reopen should apply to all parties, that 
``IIRIRA specifically mandates that `[a]n alien may only file one 
motion to reopen' in removal proceedings. Congress has imposed limits 
on motions to reopen, where none existed by statute before, and 
specifically imposed those limits on the alien only.'').\55\
---------------------------------------------------------------------------

    \55\ Notably, although the regulatory changes in 1997 only 
explicitly codified the exception to the time and number limitations 
filed by the government in removal proceedings before the 
immigration court, commenters at the time understood the changes to 
apply to motions to reopen filed by the government before the BIA 
and the immigration courts. See 62 FR at 10321 (``A number of 
commenters pointed out that Sec. Sec.  3.2(d) and 3.23(b) subject 
all parties to time and numerical limits for motions to reopen in 
deportation and exclusion proceedings, but apply those limits only 
to aliens in removal proceedings.'').
---------------------------------------------------------------------------

    Here, the rule's amendment to 8 CFR 1003.2(c)(3)(vii) regarding 
motions to reopen filed by DHS similarly aligns the BIA's regulations 
with the INA's limitation only on alien-filed motions to reopen. By 
ensuring that EOIR's regulations provide clarity for the public 
regarding the requirements and restrictions set out by Congress in the 
INA, commenters are incorrect that the Department is providing DHS with 
any favorable or preferential treatment.
    To the extent that commenters are concerned that aliens will be 
unable to have confidence that their cases will be subject to an 
infinite number of motions to reopen for an indefinite amount of time, 
the Department first emphasizes that any motion to reopen filed by DHS 
is not automatically granted by the BIA. Instead, like all motions to 
reopen, DHS must ``state the new facts that will be proven at a hearing 
to be held if the motion is granted,'' support the motion with 
``affidavits or other evidentiary material,'' and demonstrate that the 
``evidence sought to be offered is material and was not available and 
could not have been discovered or presented at the former hearing.'' 8 
CFR 1003.2(c)(1). As with all motions and appeals, the BIA considers 
the merits of each motion to reopen individually. Moreover, DHS has 
possessed the authority to file motions to reopen at the immigration 
court level without being subject to the general time and number bars 
since 1997, and there is no evidence that it has engaged in a practice 
of filing infinite motions over an indefinite period. Accordingly, the 
Department finds that commenters' concerns are overstated, if not 
wholly unfounded, in light of the applicable regulatory requirements 
and DHS's practice before the immigration courts.
    Finally, apart from being statutorily atextual and ahistorical 
regarding DHS practice, commenters' suggestion that the rule provides 
DHS with preferable treatment fails to acknowledge the various 
exceptions to time and number limitations afforded motions to reopen 
filed by aliens. First, there is not a limitation when the motion to 
reopen is

[[Page 81635]]

for the purpose of applying or reapplying for asylum or withholding of 
removal based on changed country conditions ``if such evidence is 
material and was not available and could not have been discovered or 
presented at the previous hearing.'' 8 CFR 1003.2(c)(3)(ii). Second, as 
discussed, supra, aliens may rely on equitable tolling in certain 
circumstances to avoid a strict application of the time deadlines for 
motions to reopen. Third, the rule itself provides a new avenue for 
aliens to file a motion to reopen when a ``material change in fact or 
law . . . vitiates all grounds of removability applicable to the 
alien.'' 8 CFR 1003.2(c)(3)(v). In short, the rule retains significant 
options for aliens to file motions to reopen which offset the 
unsupported allegations of allegedly favorable treatment, even if such 
treatment were not rooted in statutory text.
m. Briefing Schedule Changes (8 CFR 1003.3(c))
i. General Concerns
    Comment: Commenters raised concerns with the rule's changes to the 
briefing schedule process, claiming that the changes favor speed over 
fairness and that the limited time savings does not sufficiently 
outweigh the disadvantages to the parties.
    Response: The Department expects the Board to adjudicate cases 
fairly and efficiently, 8 CFR 1003.1(d)(1) (noting that Board members 
will resolve cases in both a ``timely'' and ``impartial'' manner 
(emphasis added)), and does not view ``speed'' and ``fairness'' as 
mutually exclusive objectives. Consequently, the rule not favor one 
goal over the other, and commenters' suggestion amounts to a false 
dichotomy that cases cannot be handled both fairly and efficiently.
    As explained in the NPRM, due to the growing BIA caseload, the 
Department finds it necessary to implement these briefing schedule 
reforms to ensure that appeals are adjudicated in a timely manner. 85 
FR at 52492-93. In doing so, the Department disagrees with commenters' 
unsubstantiated alleged potential difficulties caused by the briefing 
schedule changes outweigh the benefits of more prompt adjudication. 
Further discussion of commenters concerns with specific briefing-
related changes follows below.
ii. Simultaneous Briefing
    Comment: Regarding the rule's change to require simultaneous 
briefing in all cases, commenters noted that almost every appellate 
adjudication system in the United States uses sequential briefing in 
order to allow the parties to respond to each other's arguments. By 
contrast, commenters claimed that under this rule, the non-appealing 
party will not receive sufficient notice of which arguments to focus on 
in their brief, as the appealing party may include multiple issues in 
the Notice of Appeal but only brief a few of those issues. Commenters 
allege that this will result in briefs with cursory coverage of every 
topic rather than focused arguments on the few key issues raised in the 
appellant's brief. Commenters stated this would be particularly 
problematic in cases with difficult legal issues, such as unaccompanied 
children or gender-based asylum claims. Commenters also claimed that 
simultaneous briefing would require the BIA to expend additional effort 
in reviewing the appeal record, as the parties would no longer be 
vetting each other's arguments through sequential briefing and instead 
may focus on different issues. Commenters further argued that non-
detained cases have larger administrative records due to non-detained 
persons generally having greater relief eligibility and do not invoke 
the same liberty interests as detained cases, which makes simultaneous 
briefings less appropriate. Commenters also noted that briefing every 
potential issue would also inevitably conflict with the BIA's page 
limit requirements.\56\ As a result, one commenter recommended changing 
all briefing, including detained cases, to non-simultaneous sequential 
briefing.
---------------------------------------------------------------------------

    \56\ See BIA Practice Manual at Ch. 3.3(c)(iii) (limiting briefs 
to 25 pages absent a motion to increase the page limit).
---------------------------------------------------------------------------

    Response: Commenters generally failed to engage the specific 
reasons put forth by the Department--both in the NPRM and previously 
when it proposed simultaneous briefing in 2002, 85 FR at 52498-99--for 
adopting simultaneous briefing in all cases or to acknowledge that a 
change to simultaneous briefing falls principally on DHS because the 
vast majority of Board appeals are filed by respondents whose initial 
brief timing as an appellant is unchanged by this rule.\57\ To the 
extent that commenters simply disagree as a policy matter that Board 
cases should be completed in a timely manner, see 8 CFR 1003.1(d); cf. 
Doherty, 502 U.S. at 323 (``as a general matter, every delay works to 
the advantage of the deportable alien who wishes merely to remain in 
the United States''), or that the Department should take measures, 
consistent with due process, to ensure the timely completion of such 
cases, the Department finds such policy disagreements unpersuasive for 
the reasons given in the NPRM and this final rule.
---------------------------------------------------------------------------

    \57\ In FY 2019, respondents filed 50,129 appeals from 
immigration judge decisions, compared to 5,636 appeals filed by DHS 
and 116 cases in which both parties filed an appeal. Preliminary 
data from FY 2020 paints a similar picture: Respondents filed 45,117 
appeals from immigration judge decisions, compared to 5,965 appeals 
filed by DHS and 117 cases in which both parties filed an appeal. 
Because the appellant filed the initial brief under the prior 
regulation, in approximately 90 percent of appeals in FY 2019 and 
approximately 88 percent of appeals in FY 2020, the change to 
simultaneous briefing would have had no impact on the timing of the 
brief filed by a respondent.
---------------------------------------------------------------------------

    The BIA has used simultaneous briefing for detained appeals for 
nearly 20 years,\58\ with no apparent issues for the parties or the 
BIA.\59\ Conforming non-detained appeals to the same simultaneous 
briefing schedules will provide consistency across all appeals while 
helping to more efficiently process the growing appeals caseload. As 
such, the Department disagrees with commenters requesting that all 
appeal move to non-simultaneous briefing.
---------------------------------------------------------------------------

    \58\ 67 FR 54878.
    \59\ In an analogous situation, EOIR's Office of the Chief 
Administrative Hearing Officer (OCAHO) also utilizes a simultaneous 
21-day briefing schedule for cases reviewed by the CAHO following 
the decision of an administrative law judge. 28 CFR 68.54(b)(1) 
(``In any case in which administrative review has been requested or 
ordered pursuant to paragraph (a) of this section, the parties may 
file briefs or other written statements within twenty-one (21) days 
of the date of entry of the Administrative Law Judge's order.''). 
OCAHO cases under the provisions of INA 274A and 274C, 8 U.S.C. 
1324a and 1324c, involve violations of worksite enforcement laws, 
including violations related to completion of Form I-9, and document 
fraud, and they are just as complex or involved as cases in 
immigration court, if not more so. Yet, the Department is unaware of 
any challenge to OCAHO's simultaneous 21-day briefing schedule for 
administrative reviews or any reason why it is not an appropriate 
model or analogy for such a schedule before the BIA.
---------------------------------------------------------------------------

    Commenters' suggestion that the non-appealing party will not 
receive sufficient notice of which arguments to focus on in their brief 
because the appealing party may include multiple issues in the Notice 
of Appeal but only brief a few of those issues is both conjectural and 
illogical, as party who fails to raise an issue in a brief risks having 
that issue deemed waived. Thus, the Department would expect that all 
issues raised in the Notice of Appeal will be briefed.
    The Department also disagrees with commenters that the non-
appealing party will have difficulty drafting a simultaneous brief 
without first having the appealing party's brief to review. To 
reiterate, this system already occurs in the context of appeals of 
detained cases, and commenters did not explain why that system has not 
experienced the problems alleged to necessarily result

[[Page 81636]]

from utilizing the same system for non-detained cases on appeal. 
Further, as explained in the NPRM, the appealing party must identify 
the reasons for the appeal in the Notice of Appeal (Form EOIR-26 or 
Form EOIR-29) or in any accompanying attachments. 8 CFR 1003.3(b). In 
doing so, the appealing party must already comply with the following 
well-established requirements which are unaltered by the final rule:

     The party taking the appeal must identify the reasons 
for the appeal in the Notice of Appeal (Form EOIR-26 or Form EOIR-
29) or in any attachments thereto, in order to avoid summary 
dismissal pursuant to Sec.  1003.1(d)(2)(i).
     The statement must specifically identify the findings 
of fact, the conclusions of law, or both, that are being challenged.
     If a question of law is presented, supporting authority 
must be cited.
     If the dispute is over the findings of fact, the 
specific facts contested must be identified.
     Where the appeal concerns discretionary relief, the 
appellant must state whether the alleged error relates to statutory 
grounds of eligibility or to the exercise of discretion and must 
identify the specific factual and legal finding or findings that are 
being challenged.

Id.
    Commenters did not generally address why this information, which 
should already be contained in the Notice of Appeal, is insufficient to 
apprise the opposing party of the issues on appeal.\60\ See also BIA 
Practice Manual at Ch. 4.4(b)(iv)(D) (``The statement of appeal is not 
limited to the space on the form but may be continued on additional 
sheets of paper . . . Parties are advised that vague generalities, 
generic recitations of the law, and general assertions of Immigration 
Judge error are unlikely to apprise the Board of the reasons for 
appeal.''). As a result, the Department believes these statements 
provide the non-appealing party with ample information to draft a 
simultaneous brief in non-detained cases, just as it has in detained 
cases for many years.
---------------------------------------------------------------------------

    \60\ Commenters did not challenge 8 CFR 1003.3(b), which has 
been in effect for many years, or suggest that its requirements were 
inappropriate. To the extent that commenters assert that parties do 
not comply with this regulatory requirement, such regulatory 
noncompliance is not a persuasive basis to adopt commenters' 
objections. The Department expects both parties to comply with all 
regulatory requirements regarding appeals adjudicated at the Board.
---------------------------------------------------------------------------

    Finally, the Department also has no concerns that appellees will be 
unable to follow the page limit requirements for briefs, and such 
concerns are unsupported by any evidence and wholly speculative. 
Moreover, increases are available by motion at the BIA's discretion. 
See BIA Practice Manual at Ch. 3.3(c)(iii).
iii. Briefing Extensions
    Comment: Commenters were also concerned about the shortened 
timeframe for briefing extensions, explaining that by the time a filer 
receives a response as to whether or not the extension is granted, the 
14 days would be nearly expired. Moreover, commenters were concerned 
with limiting the briefing extension to a single 14-day period, noting 
that there may be issues that prevent filing within the 14-day 
extension period, including serious medical issues or a death in the 
family.
    Commenters were also concerned that the shortened briefing 
extension timeframe would lead to less legal representation before the 
BIA. Commenters stated that if newly retained counsel, including pro 
bono counsel, cannot receive a reasonable extension to review the 
record and prepare a brief, it is unlikely the counsel would accept 
representation in order prevent the possibility of providing 
ineffective representation. As a result, commenters were concerned that 
this rule would make pursuing appeals even more difficult for pro se 
respondents.
    One commenter stated that requiring the BIA to make individualized 
good cause determinations for briefing extensions would create a 
significant burden for the BIA.
    Commenters also raised issues with the NPRM's reference to 
preventing ``gamesmanship'' as a reason to shorten the briefing 
extension time period, stating that the Department did not provide 
support for this claim.
    Commenters claimed that the shortened briefing schedule changes 
would also create institutional bias against women, such as due to 
timing issues surrounding child birth and child care responsibilities.
    Another commenter stated that shortening the briefing extension 
period during the COVID-19 pandemic was improper.
    Response: As an initial matter, the Department notes that 
underlying most commenter objections was a tacit suggestion that there 
is an entitlement to briefing extensions and that they should be 
granted by the Board as a matter of right. That view is incorrect. 
Briefing extensions are generally disfavored, as parties, including 
newly retained counsel, should be completing their briefs in the 
original allotted time, particularly in cases where the briefing period 
only begins once transcripts are complete. See BIA Practice Manual at 
Ch. 4.7(c)(i), (``In the interest of fairness and the efficient use of 
administrative resources, extension requests are not favored.''). 
Further, there is no entitlement to a briefing extension, and to the 
extent that commenters opposed the NPRM because they believe parties 
have a right to an extension--e.g., for newly retained counsel--they 
are mistaken. Id. at ch. 4.7(c) (``The Board has the authority to set 
briefing deadlines and to extend them. The filing of an extension 
request does not automatically extend the filing deadline, nor can the 
filing party assume that a request will be granted. Until such time as 
the Board affirmatively grants an extension request, the existing 
deadline stands.'').
    Additionally, few commenters acknowledged that notwithstanding the 
existing language of 8 CFR 1003.3(c)(1), the Board's longstanding 
policy has been to limit briefing extensions to 21 days. BIA Practice 
Manual at Ch. 4.7(c)(i). Nor did commenters generally acknowledge that 
the Board already possesses the authority to shorten the overall 
briefing period to less than 21 days. 8 CFR 1003.3(c)(1). Consequently, 
the final rule merely codifies timelines that the Board itself could 
choose to adopt, and commenters did not persuasively explain why it 
would preferable for the Board to adopt those changes through policy or 
case-by-case adjudication rather than through rulemaking. See Lopez, 
531 U.S. at 244 (observing that ``a single rulemaking proceeding'' may 
allow an agency to more ``fairly and efficiently'' address an issue 
than would ``case-by-case decisionmaking''); Marin-Rodriguez, 612 F.3d 
at 593 (``An agency may exercise discretion categorically, by 
regulation, and is not limited to making discretionary decisions one 
case at a time under open-ended standards.'').
    To the extent that commenters assert as a policy matter that the 
Board should always grant a briefing extension for a maximum amount of 
time because such extensions inherently delay adjudication in the case 
to the benefit of aliens, cf. Doherty, 502 U.S. at 323 (``as a general 
matter, every delay works to the advantage of the deportable alien who 
wishes merely to remain in the United States''), or that the Department 
should not take measures, consistent with due process, to ensure the 
timely completion of cases, the Department finds such policy 
disagreements unpersuasive for the reasons given in the NPRM and this 
final rule. Moreover, few, if any, commenters acknowledged that this 
rule applies equally to DHS, which will also have to comply with the 
timelines, or that this rule will benefit aliens with meritorious 
claims for relief

[[Page 81637]]

or protection by allowing them to receive a decision sooner. To the 
extent that commenters did not fully assess the implication of the 
rule--and, thus, provided comments without a complete foundation--the 
Department finds those comments unpersuasive.
    The briefing extension time period in this rule is sufficient for 
parties to file their briefs, and commenters have not persuasively 
explained why a total of up to 35 days is an insufficient amount of 
time to file a brief. Moreover, few commenters acknowledged that the 
BIA can ask for supplemental briefing if it finds that the briefs 
submitted are inadequate, which allows an additional opportunity for 
parties to submit arguments if the BIA believes such additional 
argument is necessary. The Board, rather than the parties, is 
ultimately in the best position to determine whether briefing is 
sufficient in a particular case, and this rule does not restrict the 
Board's ability to request supplemental briefing if it believes such 
briefing is helpful. 8 CFR 1003.3(c)(1). In short, the procedures and 
time provided by this rule are sufficient to ensure that the Board 
receives appropriate information through briefing in order to aid its 
adjudication. Further, as noted in the NPRM, 85 FR at 52498-99, the 
parties need not wait until a briefing schedule is actually issued to 
begin drafting the brief, and they can use any extension to complete 
the brief, as appropriate.
    The Departments disagree with commenters' supposition that 
shortened briefing extension time periods will lead to less 
representation at the BIA. As an initial point, commenters did not 
explain why a respondent would wait until a briefing schedule has been 
issued or a brief is due before retaining representation. The 
Department expects that most aliens whose cases are on appeal will 
obtain representation as quickly as possible, especially in the cases 
in which the respondent files the Notice of Appeal. Commenters did not 
explain what incentive an alien would have to wait until an appeal has 
been pending for a notable length of time before engaging 
representation, and the Department is aware of none. Moreover, in any 
litigation, newly retained counsel takes a client as he or she finds 
him, and as discussed above, there is no entitlement to a briefing 
extension in any circumstance, even for newly retained counsel. 
Consequently, the same concerns advanced by commenters already exist 
under the present system--i.e., a new representative may be 
unsuccessful at obtaining an extension of the briefing schedule--and 
are unaltered by the rule.\61\
---------------------------------------------------------------------------

    \61\ The Department reiterates that approximately 86 percent of 
aliens are represented upon appeal under the existing system which 
is largely condified in this rule. EOIR, Adjudication Statistics: 
Current Representation Rates, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/1062991/download. Thus, there is even 
less basis to assert that this rule will increase the number of pro 
se cases before the Board.
---------------------------------------------------------------------------

    Further, the Department's BIA Pro Bono Project is not tied to the 
issuance of a briefing schedule. The Department reviews cases for 
referral through that Project upon the filing of a Notice of Appeal, 
not upon the issuance of a briefing schedule. Moreover, under current 
practice, pro bono volunteers who accept a case typically receive a 
copy of the alien's file before a briefing schedule is issued and, like 
all representatives, may request an extension if appropriate. 
Consequently, there is no evidence that shortening the length of a 
briefing extension, which is already a disfavored practice and not 
guaranteed to any representative, will have any negative impact on 
representation before the BIA, particularly pro bono representation.
    Regarding commenters' concerns with requiring the BIA to make 
individualized good cause determinations for briefing extensions, 
commenters are incorrect that this requirement will significantly 
burden the BIA. Indeed, such good cause determinations are already 
incorporated into the regulations, 8 CFR 1003.3(c)(1), and, thus, also 
into the current BIA practice. Accordingly, the final rule does alter 
the need for the Board to find good cause in order to grant a briefing 
extension.
    With regards to ``gamesmanship,'' the Department notes that the 
shortened briefing extension period may help to reduce any possible 
future gamesmanship attributable to last-minute extension requests in 
two respects. First, in the Board's experience, it is not uncommon to 
receive a briefing extension request filed just before or on the date a 
brief is due, suggesting that many extension requests are merely last-
minute delay tactics rather than genuine representations of unforeseen 
circumstances preventing adherence to the original schedule. Second, 
such last-minute requests often occur after the opposing party has 
already served its brief, as a party submitting a brief by mail will 
often do so several days in advance of the deadline to ensure that it 
is timely received. In such situations, if the extension request is 
granted, the party who sought the extension would then have at least a 
full 21 days to review the opposing party's brief and tailor its 
arguments accordingly in filing an initial brief.
    The Department acknowledges that eliminating briefing extensions 
altogether would also eliminate these risks of dilatory tactics and 
gamesmanship. However, after considering that alternative, the 
Department does not believe it is necessary at the present time. 
Although the final rule will not end either dilatory tactics or 
gamesmanship, shortening the period for a briefing extension will 
reduce both the incentive to engage in such tactics and the impact on 
both the BIA's efficiency and the opposing party when such tactics are 
employed.\62\
---------------------------------------------------------------------------

    \62\ Although the Department is aware of anecdotal examples of 
gamesmanship and dilatory tactics occurring, it did not state that 
such activity occurs in every case. Rather, one of the principles 
animating this provision of the rule, as well as the provision 
related to simultaneous briefing, is to ensure that the risk of such 
activity occurring is reduced and, concomitantly, ensuring that the 
BIA's regulations provide for as efficient and orderly an appeals 
system as possible. 85 FR at 52498.
---------------------------------------------------------------------------

    In response to comments about COVID-19, the Department recognizes 
the challenges caused by the pandemic. However, those challenges are 
largely inapplicable to the BIA which has maintained generally regular 
operations during the COVID-19 outbreak because it typically receives 
briefs by mail or expedited courier service, and it began accepting 
briefs by email during the pandemic until after it was cleared to enter 
Phase Two of the Department's plan for returning to normal 
operations.\63\ Moreover, the BIA is scheduled to adopt ECAS in early 
2021. Consequently, these challenges do not warrant maintaining the 
regulatory maximum length for a briefing extension, particularly since 
the BIA has shortened that length already by policy--which has remained 
in effect during the COVID-19 outbreak--with no noted adverse effects 
or challenges.
---------------------------------------------------------------------------

    \63\ The BIA holds oral argument infrequently and has not held 
any oral argument sessions since before March 2020.
---------------------------------------------------------------------------

    Lastly, in response to one commenter, the briefing extension 
changes do not and are not intended to reflect any bias or adverse 
treatment toward women. To the extent that the commenter suggests that 
women are incapable of addressing both childbirth or childcare \64\ 
concerns and professional obligations as a representative, the 
Department categorically rejects such a suggestion.

[[Page 81638]]

Female attorneys routinely practice before the Board without any 
particular difficulties--as they do before all types of courts and 
administrative agencies. Nothing in the rule singles out any particular 
gender nor suggests that certain genders are inherently incapable of 
compliance with generally applicable and established procedural rules 
for representation before a tribunal.
---------------------------------------------------------------------------

    \64\ The Department notes, contrary to the commenter's 
suggestion, that men may also have childcare responsibilities. 
Nevertheless, the rule imposes no burden on any caregiver any 
greater than that which already exists for any representative caring 
for another individual.
---------------------------------------------------------------------------

    Finally, the Department notes that as the Board received briefs 
from both parties in fewer than half of the cases in which it issued 
briefing schedules in FY 2019--and received no brief from either party 
in approximately 18 percent of such cases--the impact of changes to 
briefing procedures, including a change to simultaneous briefing and 
the reduction in the maximum time allowable for a briefing extension, 
is far less than what many commenters speculated based on supposition 
and unsubstantiated anecdotes.\65\ 85 FR at 52498. The Department has 
considered the issues and concerns raised by commenters but finds them 
ultimately unpersuasive for the reasons noted. In short, weighing the 
need for additional operational efficiency, the ability of the Board to 
request additional briefing in any case if it believes such briefing is 
necessary, the importance of reducing opportunities for gamesmanship, 
the actual number of briefs filed and the party identity of most 
appeals, and the largely speculative or anecdotal issues raised by 
commenters, the Department finds that, on balance, the benefits of the 
changes in the final rule significantly outweigh the purported 
drawbacks.
---------------------------------------------------------------------------

    \65\ Preliminary data from FY 2020 indicates that the Board set 
a briefing schedule in approximately 30,000 cases; the respondent 
filed a brief in roughly 21,000 cases (69 percent), and DHS filed a 
brief in roughly 11,500 cases (38 percent). In approximately 5200 
cases (17 percent), neither party filed a brief. As noted in the 
NPRM, 85 FR at 52498, n.15, these numbers treat the filing of a 
motion to summarily affirm the decision below as the filing of a 
brief and do not exclude cases in which a party indicated on the 
Notice of Appeal that it did not intend to file a separate brief.
---------------------------------------------------------------------------

iv. Reply Briefs
    Comment: Commenters raised concerns that the rule would, in 
practice, prohibit the filing of reply briefs. Commenters stated that 
the parties would have much less than 14 days to file a reply brief 
because the time period would be shortened by the length of time 
required to request and have the BIA grant leave to file the reply 
brief and by the amount of time it takes the opposing parties' brief to 
be served by mail, which commenters stated routinely takes 
approximately five days to receive. Commenters also noted that the 
Department should take into account the fact that the BIA does not have 
electronic filing, which would allow the parties to immediately receive 
opposing briefs and grants of leave to file reply briefs.
    Response: The Departments first note that reply briefs are 
generally disfavored. See BIA Practice Manual at Ch. 4.6(h) (explaining 
that the BIA ``does not normally accept briefs outside the time set in 
the briefing schedule'' such as reply briefs, but that the BIA may 
accept reply briefs in limited circumstances). Further, there is no 
right to file a reply brief, and the Board must accept it through the 
granting of a motion. Id. Most significantly, ``[t]he Board will not 
suspend or delay adjudication of the appeal in anticipation of, or in 
response to, the filing of a reply brief.'' Id. Commenters did not 
persuasively explain why shortening the time to file a brief that is 
already disfavored, not guaranteed to be accepted, and does not suspend 
the adjudication of an appeal would have any additional impact on such 
briefs beyond those already established. Moreover, parties that are 
allowed to file reply briefs should not require significant time to 
file such briefs as all issues should have already been covered in the 
Notice of Appeal and the initial simultaneous briefs; thus, any reply 
briefs should only be clarifications on existing issues. In short, the 
rule does not prohibit the submission of reply briefs, but its 
shortened submission timeline recognizes both their already-disfavored 
status and the reality of the likelihood that they will have a 
substantive impact on the adjudication of the case.
    The Department again notes that EOIR is currently in the process of 
a staggered nationwide deployment of the EOIR Court & Appeals System 
(``ECAS''), which will allow registered attorneys and accredited 
representatives to view electronic records of proceeding and 
electronically file against them. See EOIR Electronic Filing Pilot 
Program, 83 FR 29575 (June 25, 2018); EOIR, EOIR Launches Electronic 
Filing Pilot Program (July 19, 2018), available at https://www.justice.gov/eoir/pr/eoir-launches-electronic-filing-pilot-program. 
Once ECAS is deployed at the BIA, which is expected in early 2021, 
registered attorneys and accredited representatives will be able to 
immediately view and download documents for cases with electronic 
records of proceeding, which will mitigate commenters' concerns about 
mail service and its potential effect on briefing schedule timing.
n. Changes to Immigration Judge Transcript Review Process and 
Forwarding of Record (8 CFR 1003.5)
    Comment: At least one commenter opposed the rule's transcript 
review provisions, stating that immigration judges are best positioned 
to determine the accuracy of a transcript of a decision. Technology and 
human error, the commenter alleged, result in routine transcription 
errors, which the commenter asserted required correction by the 
immigration judge.
    Moreover commenters pointed to the following common transcription 
errors: Punctuation errors, which can drastically change the meaning of 
a sentence; mis-transcribed legal language, which can also change the 
meaning of a sentence; and, errors in names, locations, and other 
issues. Commenters disagreed with the BIA's need to ``guess'' what the 
immigration judge said or listen to the audio decision to determine 
what the transcriber incorrectly typed, and the commenter alleged that 
without the immigration judge's approval of the ultimate decision and 
transcript, the BIA would have ``no idea if what was transcribed is 
what was actually ultimately decided by the immigration judge.'' 
Commenters explained that the rule lacked any mechanism for the BIA to 
return the case to the immigration judge to clarify confusion resulting 
from a hastily made decision. Further, commenters alleged that sending 
a case back to the immigration judge after a briefing schedule has been 
issued would result in adjudication delays. The commenter predicted 
that a significant increase in remands from the Federal courts would 
result.
    Commenters alleged that the current 14-day time period in which an 
immigration judge must review the transcript and make corrections is 
too short, given that, as the commenter alleged, it takes more than a 
year to get a copy of the transcript. The commenter suggested that 
hiring more transcribers with appropriate training to produce 
transcriptions in a timely manner or procuring new technology to 
produce transcriptions with fewer errors would increase efficiency more 
so than the provisions of the rule.
    Other commenters opposed elimination of the 14-day review process 
because they stated that it sacrificed quality in favor of speed, 
risking the possibility that errors that could have been corrected at 
an early stage in the appeal process absent the rule would now require 
a remand and further delay. The commenters alleged

[[Page 81639]]

that subsequent efficiencies to be gained were minimal.
    Response: The Department appreciates a commenter's supportive 
suggestion--and tacit support for additional resources--to hire more 
transcribers and obtain new technology to improve the quality and 
timeliness of transcript production. Transcription at the Board may 
occasionally become an issue, e.g., PM 20-01 at 3 & n.6, and the 
Department is always looking for additional ways in which to make the 
process more efficient and accurate. To that end, the Department, 
through this rulemaking, adopts the NPRM's provisions on this issue 
without change because it believes such provisions properly balance 
efficiency in the transcription review process while facilitating the 
development and distribution of accurate transcripts. Nevertheless, 
further changes to internal transcription technologies or contracts are 
outside the scope of this rule.
    Regarding other commenters' statements, in general, they did not 
explain precisely which errors immigration judge review would be able 
to correct. Immigration judges should not make substantive corrections 
to a transcript, 85 FR at 52508-09, and there is no operational or 
legal need for an immigration judge to correct minor typographical 
errors.\66\ To the extent that commenters identified examples of 
substantive errors, those are generally not the type immigration judges 
should correct, particularly since the parties are not able to argue 
whether they are genuinely errors before the immigration judge makes an 
edit. Id.; see also Mamedov v. Ashcroft, 387 F.3d 918, 920 (7th Cir. 
2004) (``[I]n general it is a bad practice for a judge to continue 
working on his opinion after the case has entered the appellate process 
. . . .'').
---------------------------------------------------------------------------

    \66\ Since 1993, immigration judges have been prohibited from 
correcting any part of a transcript other than minor typographical 
errors. EOIR, Operating Policies and Procedures Memorandum 93-1: 
Immigration Judge Decisions and Immigration Judge Orders at 2 (May 
6, 1993), available at https://www.justice.gov/sites/default/files/eoir/legacy/2002/07/31/93-1.pdf (``The `clean-up' of an oral 
decision must be limited to the review of the transcript for 
corrections in punctuation, grammar and syntax.''). There is no 
need, however, for an immigration judge to correct such minor 
errors, and commenters did not identify one. Moreover, there is also 
no consistent practice among immigration judges in reviewing 
transcripts of decisions. Some review for style and substance, 
whereas others review only for substance; some review with the 
record of proceedings at hand, whereas others do not. Inconsistent 
practices breed inefficiency and risk inadvertent errors. Thus, 
``there is simply no reason to retain the requirement that 
immigration judges continue to review transcripts, and removing this 
requirement will also eliminate the possibility of the transcript 
being amended incorrectly, even inadvertently, after a decision has 
been rendered.'' 85 FR at 52508-09.
---------------------------------------------------------------------------

    Many commenters also did not appear to appreciate the distinction 
in the existing regulation that immigration judges review only the 
transcript of their decision, not the entire transcript of proceedings. 
8 CFR 1003.5(a) (2019). Thus, many potential issues identified by 
commenters regarding errors in the full transcript of proceedings are 
inapposite to the change made by this rule.
    Additionally, an immigration judge's primary role is to adjudicate 
cases expeditiously and impartially, not to review transcripts for 
errors. As explained in the NPRM, the Department uses ``reliable 
digital audio recording technology,'' 85 FR at 52508, and maintains a 
procedure through which parties may address defective or inaccurate 
transcripts, including the errors cited by commenters. See BIA Practice 
Manual at Ch. 4.2(f)(iii) (instructing parties that believe a 
transcript contains an error that is significant to their argument or 
the appeal to identify such defect in briefing). Moreover, pursuant to 
8 CFR 1003.1(e)(2), the BIA may also remedy defective transcripts 
through a remand for clarification or correction. Accordingly, the BIA 
need not ``guess,'' as commenters alleged, at what the transcript said 
or what the decision held.
    Further, the NPRM did not neglect to provide or overlook the need 
for a mechanism through which defective or inaccurate transcripts could 
be addressed. The BIA Practice Manual already provides such process; 
thus, concerns that litigation would proliferate based on the absence 
of such processes are purely speculative and unfounded. Despite this 
speculation, the Department reiterates the importance of accurate 
transcripts and will continue to have procedures, as described in the 
BIA Practice Manual and 8 CFR 1003.1(e)(2), available to ensure that 
end.
    Circuit courts have affirmed EOIR's current procedures through 
which parties may address defective or inaccurate transcripts in 
accordance with the BIA Practice Manual and regulations, and courts 
have criticized the practice of immigration judge-review of a 
transcript following the filing of an appeal. See Witjaksono v. Holder, 
573 F.3d 968, 976 (10th Cir. 2009); Mamedov, 387 F.3d at 920. 
Practically, removing the immigration judge-review period will 
eliminate the possibility that a transcript is incorrectly or 
inadvertently amended after the decision has been issued. See 85 FR at 
52508. Given these safeguards and circuit court considerations, the 
Department disagrees with commenters that immigration judges should 
continue to use scarce judicial resources to review transcripts of 
their decisions.
    The Department disagrees that the rule sacrifices quality for 
speed. As noted, supra, immigration judges should not make substantive 
corrections, and there is no operational need for them to make minor 
typographical corrections. Consequently, the current regulation serves 
little, if any, purpose and certainly not one that promotes either 
quality or speed. Moreover, given the quality of EOIR's audio recording 
technology systems and the protections to ensure accuracy set out in 
the BIA Practice Manual and available remands to address defective 
transcripts, the Department finds removing the inefficiencies resulting 
from the immigration judge-review period will not affect the quality of 
transcriptions.
    Comment: At least one commenter stated that the Department should 
not end the practice of forwarding physical records to the BIA until 
ECAS is fully implemented nationwide.
    Response: The rule amends 8 CFR 1003.5(a) in relevant part to 
provide that the immigration court shall promptly forward the record of 
proceeding to the BIA, ``unless the Board already has access to the 
record of proceeding in electronic format.'' Accordingly, this change 
does not end the practice of immigration courts forwarding the record 
of proceeding, but instead provides the immigration courts and the BIA 
with flexibilities as ECAS is implemented. It is illogical to require 
the immigration court to create a physical record of an otherwise 
electronic record simply for the purposes of sending it to the BIA in 
case of an appeal if the BIA has the capability of accessing the record 
electronically.
o. BIA Authority To Grant Voluntary Departure in the First Instance (8 
CFR 1003.1(d)(7)(iv), 1240.26(k))
    Comment: Commenters raised concerns about the rule's changes 
requiring the BIA to adjudicate voluntary departure requests rather 
than remand them back to the immigration courts, explaining that the 
changes raised significant due process and fairness concerns.
    Commenters were concerned about allowing the BIA to adjudicate 
voluntary departure requests without allowing aliens to submit evidence 
to the BIA supporting their request. For example, commenters stated 
that required travel documents filed with the

[[Page 81640]]

immigration court may have expired by the time the case reaches the 
BIA. Similarly, commenters stated that the alien may not have submitted 
all necessary evidence before the immigration court, particularly in 
cases where the immigration judge grants relief and does not reach the 
merits of an alternative voluntary departure request. Commenters also 
raised concerns that the BIA would not have a sufficient record on 
which to determine which conditions would be necessary to ensure the 
alien's timely departure from the United States. In addition, 
commenters were concerned that the BIA will not have the immigration 
judge's ability to view the alien's credibility, which may go towards 
the voluntary departure determination.
    Separately, commenters claimed the rule did not provide an ability 
to challenge any BIA denial of voluntary departure under the rule. 
Commenters also stated that there was no mechanism to remedy an 
improperly served voluntary departure grant from the BIA, which would 
prevent the alien from being able to comply with the voluntary 
departure requirements and conditions and, in turn, result in an 
alternate order of removal.
    Commenters were concerned about the requirement that the voluntary 
departure bond must be posted within five business days, which 
commenters argued was too short due to the mail delivery time.
    Commenters were concerned that the rule only requires the 
conditions and consequences to be provided in writing to the alien, 
rather than in person like the voluntary departure regulations for the 
immigration courts. Commenters explained that many aliens would have 
difficulty understanding an English-language voluntary departure order, 
which could result in significant adverse consequences if they were 
unable to comply with the order's requirements or conditions.
    Commenters noted that, in cases where an immigration judge grants 
another form of relief or protection, and DHS appeals the decision to 
the BIA, the rule would prevent the BIA from alternatively considering 
the alien's voluntary departure request because, as written, the rule 
requires the immigration judge to have denied the voluntary departure 
request and the alien to have appealed that denial. However, in 
granting another form of relief or protection, the immigration judge 
would not have reached voluntary departure.
    One commenter requested clarification on the rule's change allowing 
the BIA to grant voluntary departure. First, the commenter asked if 
noncitizens can apply for voluntary departure in the first instance 
with the BIA. Second, the commenter questioned whether the rule 
conflicts with existing regulations prohibiting the BIA from making 
findings of fact. Similarly, another commenter raised concerns about 
cases where DHS opposes a voluntary departure grant and whether such 
cases require a merits hearing and fact-finding before an immigration 
judge.
    Lastly, a commenter raised concerns that this authority would shift 
the workload of adjudicating voluntary departure requests from 
immigration courts to the BIA.
    Response: In general, most commenters' concerns on this issue 
reflected a misunderstanding of immigration court procedures and 
relevant law. An alien who seeks voluntary departure as a form of 
relief from removal must apply for it in the first instance before the 
immigration judge; otherwise, the alien's opportunity to seek such 
relief will be deemed waived, both by the immigration judge and by the 
Board on appeal. 8 CFR 1003.31(c); Matter of J-Y-C-, 24 I&N Dec. at 261 
n.1 (``Because the respondent failed to raise this claim below, it is 
not appropriate for us to consider it for the first time on appeal''); 
Matter of Edwards, 20 I&N Dec. at 196 n.4 (``We note in passing, 
however, that because the respondent did not object to the entry of 
this document into evidence at the hearing below, it is not appropriate 
for him to object on appeal.''). Thus, the alien will have necessarily 
already raised the issue to the immigration judge and, particularly for 
requests for voluntary departure under section 240B(b) of the Act,\67\ 
introduced evidence or a proffer of evidence regarding the alien's 
eligibility for voluntary departure.
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    \67\ Because voluntary departure pursuant to INA 240B(a), 8 
U.S.C. 1229c(a), requires that the alien waives appeal of all 
issues, 8 CFR 1240.26(b)(1)(i)(D), the Board is unlikely to see many 
appeals related to that provision. Nevertheless, an alien who 
appeals the denial of a request for voluntary departure under INA 
240B(a), 8 U.S.C. 1229c(a), will have necessarily raised that issue 
to the immigration judge. Similarly, by definition, in cases in 
which DHS appeals a grant of voluntary departure under INA 240B(a), 
8 U.S.C. 1229c(a), the alien will have raised the issue and offered 
evidence of eligibility before the immigration judge.
---------------------------------------------------------------------------

    Similarly, if the alien appeals the immigration judge's decision, 
the alien must raise the issue of voluntary departure eligibility on 
appeal; otherwise, it would be waived. See Matter of Cervantes, 22 I&N 
Dec. at 561 n.1 (expressly declining to address an issue not raised by 
party on appeal). Thus, for the Board to even consider an alien's 
eligibility for voluntary departure, the alien must have already raised 
the issue with the immigration judge--and with the Board if appealing 
the immigration judge's adverse decision--and the record must already 
contain evidence--or at least a proffer of evidence--of the alien's 
eligibility.
    Assuming that an alien did not waive the issue by failing to raise 
it with the immigration judge, there are no operational impediments to 
the Board making its own voluntary departure determination. The 
requirements for such relief under either 8 CFR 1240.26(b) or (c) are 
straightforward and involve determinations that the Board routinely 
already makes, e.g., whether an alien has been convicted of an 
aggravated felony, has good moral character, and is not deportable on 
national security grounds. Further, the Board routinely reviews 
credibility determinations made by immigration judges and is well-
prepared in assessing the credibility of an alien's assertion or 
proffer on appeal that he or she possesses ``the means to depart the 
United States and . . . the intention do so.'' 8 CFR 
1240.26(c)(1)(iv).\68\
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    \68\ In a case in which DHS appeals an immigration judge's 
decision granting another form of relief, that the alien applied for 
and the immigration judge adjudicated such relief necessarily means 
that the alien was seeking voluntary departure under INA 240B(b) at 
the conclusion of proceedings. Therefore, the record below will 
contain evidence regarding the alien's eligibility for voluntary 
departure--or else the alien would have waived the issue before the 
immigration judge--allowing the Board to make a determination on 
that application on appeal.
---------------------------------------------------------------------------

    Most significantly, the Board already routinely reviews immigration 
judge decisions about voluntary departure on appeal and possesses the 
authority to reinstate an immigration judge's grant of such relief. 8 
CFR 1240.26(c)(3)(ii). It further already provides advisals, which are 
required to be in writing, related to voluntary departure if it does 
reinstate that relief. E.g., 8 CFR 1240.26(i) (``The Board shall advise 
the alien of the condition provided in this paragraph in writing if it 
reinstates the immigration judge's grant of voluntary departure.''). In 
short, the Board already serves as a de facto adjudicator of requests 
for voluntary departure, and commenters did not identify a particular, 
realistic scenario in which the Board would be unable to discern from 
the record whether an alien was eligible for voluntary departure and 
warranted a grant of such relief as a matter of discretion, especially 
in cases in which an alien maintains on appeal--and, thus, necessarily 
asserts eligibility

[[Page 81641]]

through reference to evidence already in the record--that he or she 
warrants voluntary departure.
    The purpose of the changes to allow the Board to grant voluntary 
departure are to increase operational efficiency by allowing the BIA to 
grant voluntary departure rather than first requiring remand to the 
immigration court. With regard to the ability of aliens to submit 
evidence in support of their voluntary departure requests, the 
Department notes that the alien must submit all relevant voluntary 
departure evidence to the immigration court. The BIA will then 
adjudicate the voluntary departure request like any other appeal by 
reviewing the record developed at the immigration court. See 8 CFR 
1003.1(d)(7)(iv) (requiring the BIA to adjudicate voluntary departure 
requests ``based on the record''). Likewise, the BIA will only impose 
necessary conditions to ensure the alien's timely departure based on 
the record on appeal. See 8 CFR 1240.26(k)(4).
    Responding to a commenter's concerns about the inability to 
challenge a BIA denial of voluntary departure, the Department first 
notes that existing statutory provisions already preclude appeals of 
voluntary departure decisions to Federal court, and this rule does 
not--and could not--change those provisions. INA 242(a)(2)(B)(i), 8 
U.S.C. 1252(a)(2)(B)(i) (stripping jurisdiction to review most 
discretionary determinations in immigration proceedings, including 
voluntary departure under INA 240B, 8 U.S.C. 1229c); see also INA 
240B(f), 8 U.S.C. 1229c(f) (precluding judicial review of denials of 
voluntary departure under INA 240B(b), 8 U.S.C. 1229c(b)). Moreover, 
cases in which aliens seek only voluntary departure before an 
immigration judge--and not another form of relief such as asylum, which 
is commonly appealed to Federal court--require the waiver of appeal and 
are, thus, unlikely to be appealed to the Board in the first instance. 
8 CFR 1240.26(b)(1)(i)(D). Further, where the Board has denied 
voluntary departure aliens are not prevented from filing motions to 
reopen or reconsider if applicable. See generally 8 CFR 1003.2; cf. 8 
CFR 1240.26(e)(1) (providing that such a motion prior to the expiration 
of the voluntary departure period terminates a ``grant of voluntary 
departure''). In short, the rule has no impact on an alien's existing 
ability to challenge the denial of a request for voluntary departure 
through an appeal to Federal court or a motion to reopen, and 
commenters' concerns on those points are, accordingly, unpersuasive.
    With regards to commenter's concerns about being able to post a 
voluntary departure bond within five days of the BIA's decision, the 
Department notes that the five-day requirement remains unchanged from 
the existing regulations regarding the immigration courts. See 8 CFR 
1240.26(c)(3)(i). It further notes that immigration judges may issue 
voluntary departure orders in written decisions that are mailed to 
aliens, and it is unaware of any noted problems with that process. 
Moreover, once ECAS is deployed to the BIA, registered attorneys and 
accredited representatives will be able to immediately view and 
download documents for cases with electronic records of proceeding, 
which will mitigate commenters' concerns about mail service and its 
potential effect on complying with voluntary departure requirements. 
See generally EOIR, EOIR Courts & Appeals System (ECAS)--Online Filing 
(Oct. 5, 2020), available at https://www.justice.gov/eoir/ECAS.
    Nevertheless, in recognition of the fact that Board orders are 
generally served by mail--unlike orders of immigration judges which are 
more often served in person--the final rule states that aliens will 
have ten business days, rather than five, to post a voluntary departure 
bond if the Board's order of voluntary departure was served by mail. 
Further, as the Board is currently transitioning to an electronic 
filing system and expects to fully deploy that system within the next 
year, the final rule retains a period of five business days to post a 
voluntary departure bond if the Board's order was served 
electronically.
    In response to commenters' concerns about aliens being unable to 
understand English-language voluntary departure orders, the Department 
first notes that all orders, decisions, and notices issued by EOIR--
including written decisions issued by an immigration judge granting 
voluntary departure--are in English and, likewise, all documents filed 
with EOIR must be in English or accompanied by an English-language 
translation. See, e.g., 8 CFR 1003.3(a)(3), 1003.33. Moreover, the 
Department does not believe that an English-language voluntary 
departure order, which is already used in thousands of cases every year 
with no noted concerns, raises any due process issues, as a reasonable 
recipient would be on notice that further inquiry is required. See 
Ojeda-Calderon v. Holder, 726 F.3d 669, 675 (5th Cir. 2013) (citing 
Nazarova v. INS, 171 F.3d 478, 483 (7th Cir. 1999) (explaining that due 
process does not require notices to be in a language the alien can 
understand)). Additionally, the Department notes that under 
longstanding practice, a BIA order reinstating voluntary departure--
which is, in all material parts, an order granting voluntary 
departure--is already issued in English with appropriate warnings. 
Commenters raised no particular issues with this existing process, and 
the Department is unaware of any.
    In response to commenters' concerns about cases in which DHS 
appeals a separate grant of relief or protection, the Department is 
making edits from the NPRM to clarify the Board's procedure in that 
situation. Although cases in which an alien made multiple applications 
for relief or protection (including voluntary departure), an 
immigration judge granted at least one application but did not address 
the request for voluntary departure, DHS appealed the immigration 
judge's decision, the BIA determined that the immigration judge's 
decision was in error and that the alien's application(s) should be 
denied, and the BIA found a basis to deny all other applications 
submitted by the respondent without needing to remand the case, leaving 
only the request for voluntary departure unadjudicated, should be 
uncommon, the Department nevertheless makes clarifying edits to 8 CFR 
1240.26(k)(2) and (3) \69\ to indicate that the BIA may grant voluntary 
departure in cases in which DHS appeals provided that the alien 
requested voluntary departure from the immigration judge and is 
otherwise eligible.
---------------------------------------------------------------------------

    \69\ The Department also notes that 8 CFR 1240.26(k)(2) and (3) 
were duplicative in the NPRM and has further edited the provisions 
to remove the duplication since they apply to both types of 
voluntary departure under INA 240B, 8 U.S.C. 1229c.
---------------------------------------------------------------------------

    In response to at least one commenter's concern regarding the 
expiration of an alien's travel documents, the Department notes that 
current regulations do not require the presentation of an unexpired 
travel document in every case. See, e.g., 8 CFR 1240.26(b)(3)(i) 
(presentation of a travel document for voluntary departure is not 
required when ``[a] travel document is not necessary to return to [the 
alien's] native country or to which country the alien is departing . . 
. [or] [t]he document is already in the possession of the [DHS].'') 
Moreover, ``[i]f such documentation is not immediately available to the 
alien, but the immigration judge is satisfied that the alien is making 
diligent efforts to secure it, voluntary departure may be granted for a 
period not to exceed 120 days, subject to the condition that the alien 
within 60 days must secure such

[[Page 81642]]

documentation and present it to [DHS].'' 8 CFR 1240.26(b)(3)(ii). The 
rule adopts those provisions by reference and, thus, already addresses 
this concern to some extent. Nevertheless, the Department is making 
changes to the final rule to make clear that if the record does not 
contain evidence of travel documentation sufficient to assure lawful 
entry into the country to which the alien is departing--and the alien 
otherwise has both asserted a request for voluntary departure and 
established eligibility under the other requirements--the Board may 
nevertheless grant voluntary for a period not to exceed 120 days, 
subject to the condition that the alien within 60 days must secure such 
documentation.
    In response to one commenter's question, the Department notes that 
respondents cannot apply for voluntary departure in the first instance 
with the BIA because they would have waived that opportunity on appeal 
by not raising it before the immigration judge below. 8 CFR 1003.31(c); 
Matter of J-Y-C-, 24 I&N Dec. at 261 n.1 (``Because the respondent 
failed to raise this claim below, it is not appropriate for us to 
consider it for the first time on appeal''); Matter of Edwards, 20 I&N 
Dec. at 196 n.4 (``We note in passing, however, that because the 
respondent did not object to the entry of this document into evidence 
at the hearing below, it is not appropriate for him to object on 
appeal.'').
    In addition, the rule does not conflict with 8 CFR 
1003.1(d)(3)(iv), which generally prohibits the BIA from engaging in 
fact finding. As explained in the NPRM, the rule does not allow the BIA 
to engage in additional fact finding if granting voluntary departure, 
but rather the grant ``would continue to be a legal determination based 
upon the facts as found by the immigration judge during the course of 
the underlying proceedings . . . .'' See 85 FR at 52500. Similarly, in 
cases where DHS opposed voluntary departure at the immigration court, 
the record will contain evidence of all necessary facts, or else the 
application would have been deemed waived or abandoned.
    In response to concerns about BIA workload, the Department notes 
that immigration judges will continue to adjudicate voluntary departure 
requests in the first instance. This rule merely gives the BIA the 
authority to grant voluntary departure if certain requirements are met, 
rather than inefficiently remanding the case back to the immigration 
judge solely to grant voluntary departure. Moreover, as noted, supra, 
as the BIA already reviews appeals related to voluntary departure 
requests and possesses the authority to reinstate voluntary departure, 
which is the functional equivalent of granting it, simply authorizing 
the BIA to grant voluntary departure rather than remanding a case back 
to an immigration judge to take the same action imposes minimal 
operational burden on the Board but reduces operational inefficiency 
for EOIR as a whole.
4. Administrative Procedure Act: Sufficiency of 30-Day Comment Period
    Comment: Many commenters objected to the Department's allowance of 
a 30-day comment period instead of a 60-day or longer period. 
Commenters cited Executive Order 12866 and stated that a 60-day comment 
period is the standard period of time that should be provided for a 
complex rule like the NPRM. Commenters also stated that the 30-day 
comment period is insufficient in the context of the COVID-19 pandemic, 
which, commenters explained, has strained commenters' ability to 
prepare comments due to unique childcare, work-life, and academic 
difficulties. In addition, commenters stated that there was 
insufficient time to prepare responses to this rule due to other items 
that were published or released during the comment period, such as the 
Department's NPRM related to asylum procedures that the Department 
published in the final days of the comment period \70\ and the Attorney 
General's decision in Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020). 
Similarly, commenters cited an NPRM that the Department jointly 
published with DHS in June \71\ as an example of the complexity of 
recent rulemaking for which commenters need adequate time to prepare 
responses. Some commenters stated that there is no need for urgency and 
a short comment period given recent drops in asylum seekers at the 
border. Commenters argued that the Department should withdraw the rule 
and republish it with a longer period for public comment.
---------------------------------------------------------------------------

    \70\ Procedures for Asylum and Withholding of Removal, 85 FR 
59692 (Sept. 23, 2020).
    \71\ Procedures for Asylum and Withholding of Removal; Credible 
Fear and Reasonable Fear Review, 85 FR 36264 (June 15, 2020).
---------------------------------------------------------------------------

    Response: As an initial point, the Department notes that a far more 
sweeping regulatory change to the BIA's procedures also had only a 30-
day comment period, 67 FR at 54879, but that there is no evidence that 
period was insufficient. Further, commenters did not suggest or 
indicate what additional issues the comment period precluded them from 
addressing; to the contrary, the comments received reflect both a 
breadth and a level of detail which suggests that the period was more 
than sufficient. Cf. City of Waukesha v. EPA, 320 F.3d 228, 246 (D.C. 
Cir. 2003) (``In [showing prejudice] in the context of a violation of 
notice-and-comment requirements, petitioners may be required to 
demonstrate that, had proper notice been provided, they would have 
submitted additional, different comments that could have invalidated 
the rationale for the revised rule.''). Additionally, to the extent 
that commenters referred to other proposed rulemakings as a basis for 
asserting the comment period should have been longer, their comparisons 
are inapposite. No other proposed rulemaking cited by commenters 
addressed a small, discrete set of procedures which are already well-
established and with which aliens and practitioners have been quite 
familiar with for decades. In short, the Department acknowledges and 
has reviewed commenters' concerns about the 30-day comment period, but 
those comments are unavailing for all of the reasons given herein.
    The Department believes the 30-day comment period was sufficient to 
allow for meaningful public input, as evidenced by the 1,284 public 
comments received, including numerous detailed comments from interested 
organizations.\72\ The APA does not require a specific comment period 
length, see generally 5 U.S.C. 553(b)-(c), and although Executive Order 
12866 recommends a comment period of at least 60 days, a 60-day period 
is not required. Instead, Federal courts have presumed 30 days to be a 
reasonable comment period length. For example, the D.C. Circuit has 
stated that ``[w]hen substantial rule changes are proposed, a 30-day 
comment period is generally the shortest time period sufficient for 
interested persons to meaningfully review a proposed rule and provide 
informed comment.'' Nat'l Lifeline Ass'n v. Fed. Commc'ns Comm'n, 921 
F.3d 1102, 1117 (D.C. Cir. 2019) (citing Petry v. Block, 737 F.2d 1193, 
1201 (D.C. Cir. 1984)).
---------------------------------------------------------------------------

    \72\ The Department notes for comparison that the most 
significant regulatory change to the BIA's case management process 
had a 30-day comment period, and the Department received comments 
from 68 commenters. 67 FR at 54879. Although commenters objected to 
the 30-day period then as they do now, there is no evidence either 
then or now that such a window is insufficient. To the contrary, the 
significant increase in comments regarding a less comprehensive 
change to the BIA's case management process during a comment period 
of identical length strongly suggests that the 30-day period was 
appropriate.
---------------------------------------------------------------------------

    Further, litigation has mainly focused on the reasonableness of 
comment

[[Page 81643]]

periods shorter than 30 days, often in the face of exigent 
circumstances. See, e.g., N. Carolina Growers' Ass'n, Inc. v. United 
Farm Workers, 702 F.3d 755, 770 (4th Cir. 2012) (analyzing the 
sufficiency of a 10-day comment period); Florida Power & Light Co. v. 
United States, 846 F.2d 765, 772 (D.C. Cir. 1988) (15-day comment 
period); Northwest Airlines, Inc. v. Goldschmidt, 645 F.2d 1309, 1321 
(8th Cir. 1981) (7-day comment period). Here, the significant number of 
detailed public comments is evidence that the 30-day period was 
sufficient for the public to meaningfully review and provide informed 
comment. See, e.g., Little Sisters of the Poor Saints Peter and Paul 
Home, 140 S. Ct. at 2385 (``The object [of notice and comment], in 
short, is one of fair notice.'' (citation omitted)).
    The Department also believes that the COVID-19 pandemic has no 
effect on the sufficiency of the 30-day comment period. Employers 
around the country have adopted telework flexibilities to the greatest 
extent possible, and the Department believes that interested parties 
can use the available technological tools to prepare their comments and 
submit them electronically. Indeed, nearly every comment was received 
in this manner. Further, some of the issues identified by commenters--
e.g., childcare--would apply regardless of the length of the comment 
period and would effectively preclude rulemaking by the Department for 
the duration of the COVID-19 outbreak. The Department finds no basis to 
suspend all rulemaking while the COVID-19 outbreak is ongoing.
    The Department acknowledges that particular commenters may have 
faced individual personal circumstances which created challenges to 
commenting, but that assertion is true of every rulemaking. Further, 
there is no evidence of a systemic inability of commenters to provide 
comments based on personal circumstances, and commenters' assertions 
appear to reflect a desire to slow the rulemaking due to policy 
disagreements rather than an actual inability to comment on the 
rule.\73\
---------------------------------------------------------------------------

    \73\ The Department also notes that several portions of the 
rule, e.g., the changes to 8 CFR 1003.1(e)(8) and (k), reflect 
either internal delegations of authority and assignment of 
responsibility or matters of agency management, personnel, 
organization, procedure, or practice, making those portions a rule 
exempt from any period of notice and comment under the APA. 5 U.S.C. 
553(a)(2), (b)(A). An internal delegation of administrative 
authority does not adversely affect members of the public and 
involves an agency management decision that is exempt from the 
notice-and-comment rulemaking procedures of the APA. See United 
States v. Saunders, 951 F.2d 1065, 1068 (9th Cir. 1991) (delegations 
of authority have ``no legal impact on, or significance for, the 
general public,'' and ``simply effect[] a shifting of 
responsibilities wholly internal to the Treasury Department''); 
Lonsdale v. United States, 919 F.2d 1440, 1446 (10th Cir. 1990) 
(``APA does not require publication of [rules] which internally 
delegate authority to enforce the Internal Revenue laws''); United 
States v. Goodman, 605 F.2d 870, 887-88 (5th Cir. 1979) (unpublished 
delegation of authority from Attorney General to Acting 
Administrator of the Drug Enforcement Agency did not violate APA); 
Hogg v. United States, 428 F.2d 274, 280 (6th Cir. 1970) (where 
taxpayer would not be adversely affected by the internal delegations 
of authority from the Attorney General, APA does not require 
publication). Thus, to the extent that commenters complained about 
the sufficiency of the comment period regarding those provisions not 
subject to the APA's notice-and-comment requirements, such 
complaints are also unavailing because commenters were not entitled 
to a comment period in the first instance.
---------------------------------------------------------------------------

    Overall, based on the breadth and detail of the comments received, 
the Department's prior experience with a 30-day comment period for a 
much more sweeping change to BIA procedures, the rule's codification of 
established law with which practitioners and aliens are already 
familiar, the discrete and clear nature of the issues presented in the 
NPRM, the electronic receipt of most comments, and the essential nature 
of legal services even during the outbreak of COVID-19, the Department 
maintains that a 30-day comment period was ample for the public to 
comment on this rule. In short, none of the circumstances alleged by 
commenters appears to have actually limited the public's ability to 
meaningfully engage in the notice and comment period, and all available 
evidence provided by commenters indicates that the comment period was 
sufficient.
5. Concerns With Regulatory Requirements
    Comment: Commenters generally expressed concern that the Department 
did not comply with Executive Orders 12866 and 13563 because the 
Departments did not adequately consider the costs and possible 
alternatives to the provisions in the rule due to the significance of 
many of the rule's provisions.
    For example, one commenter asserted that removing the ability to 
reopen or reconsider cases via sua sponte authority constitutes 
``significant regulatory action'' that would trigger a cost and 
benefits analysis, as required by Executive Order 13563. The commenter 
stated that the Department should have conducted a cost and benefits 
analysis for alternatives to the rule, including preserving the current 
system and defining ``exceptional circumstances.'' The commenter 
predicted that the costs would be lower and the benefits higher if the 
Departments simply defined ``exceptional circumstances'' rather than 
entirely remove sua sponte authority.''
    Similarly, commenters claimed that the rule does not comply with 
Executive Orders 12866 and 13563 because EOIR did not assess the costs 
and benefits of available alternatives to prohibiting the general use 
of administrative closure, including better tracking of 
administratively closed cases or regulatory changes requiring the 
parties to notify the court when ancillary relief is adjudicated. 
Commenters also noted that EOIR did not weigh the costs of unnecessary 
removal orders that the administrative closure prohibition will cause 
and the effect on applicants and their families or the costs from the 
rule's effects on eligibility for unlawful presence waivers before DHS. 
Similarly, commenters stated that EOIR should consider the reliance 
interests of adjustment of status applicants who were relying on a 
grant of administrative closure in order to apply for a provisional 
unlawful presence waiver. Likewise, a commenter stated that EOIR should 
consider the effect on legal representation agreements since the rule 
would render agreements to pursue administrative closure in order to 
apply for provisional unlawful presence waivers moot. The commenter 
also claimed that the rule violates Executive Order 13563's requirement 
to harmonize rules because it contravenes 8 CFR 212.7(e)(4)(iii).
    Response: As an initial point, the Department has addressed many of 
these comments, supra, particularly regarding proposed alternatives, 
and it reiterates and incorporates those discussions by reference here. 
Additionally, commenters assume or conjecture, without evidence, that 
cases which are administratively closed would otherwise necessarily 
result in removal orders. As each case is adjudicated on its own merits 
in accordance with the evidence and applicable law, the Department 
declines to accept such a sweeping unsubstantiated generalization and 
finds comments based on such a generalization unpersuasive accordingly.
    The Department agrees with the commenter that the NPRM constitutes 
a ``significant regulatory action.'' 85 FR at 52509. The Department 
drafted the rule consistent with the principles of Executive Orders 
12866 and 13563 and submitted the rule to the Office of Management and 
Budget. Id. Nevertheless, because the Department believes associated 
costs will be

[[Page 81644]]

negligible, if any, the Department determined that no numeric cost 
benefit analysis was necessary. As most of the rule is directed at 
internal case processing, it would substantially improve the quality 
and efficiency of the BIA appellate procedure while not imposing new 
costs on the public.\74\
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    \74\ The Department notes that a prior, more comprehensive 
revision of the BIA's case management process did not contain a 
numeric cost-benefit analysis of the type suggested by commenters. 
67 FR at 54900. Moreover, commenters did not identify what metrics 
would be appropriate to use to measure, for example, whether the BIA 
granted a motion to reopen sua sponte in contravention of Matter of 
J-J- or the predictive outcome of a case that has been 
administratively closed. The Department is unaware of any 
established measures of adherence to the law by adjudicators or for 
case processing questions that turn on the specific facts of each 
case. In the absence of such measures--and granular data which could 
be utilized to fulfill them--the Department asserts that its 
qualitative assessment of the costs and benefits of the rule in the 
NPRM and in the final rule, in concert with the rule's review by 
OMB, satisfies the requirements of the relevant Executive Orders.
---------------------------------------------------------------------------

    In response to administrative closure-related concerns regarding 
compliance with Executive Orders 12866 and 13563, the Departments have 
weighed the relevant costs and benefits of the rule's administrative 
closure change in accordance with Executive Orders 12866 and 13563. The 
Department does not believe that the administrative closure changes 
will have a significant impact on the public, as most immigration 
courts--all but those in Arlington, Baltimore, Charlotte, and Chicago 
\75\--currently follow either Matter of Castro-Tum itself or an 
applicable Federal court decisioning affirming it, e.g., Hernandez-
Serrano, 2020 WL 6883420 at *5 (``In summary, therefore, we agree with 
the Attorney General that Sec. Sec.  1003.10 and 1003.1(d) do not 
delegate to IJs or the Board `the general authority to suspend 
indefinitely immigration proceedings by administrative closure.' '' 
(quoting Matter of Castro-Tum, 27 I&N Dec. at 272)). Therefore, the 
effect of this rule would simply codify the existing limitations on 
immigration judges' general authority to grant administrative closure. 
For those courts that are not bound by Matter of Castro-Tum, the 
Department disagrees that the change will result in unnecessary removal 
orders, as immigration judges are tasked with resolving the proceedings 
before them, including determining removability and issuing removal 
orders if required. See, e.g., 8 CFR 1003.10(b) (``In all cases, 
immigration judges shall seek to resolve the questions before them in a 
timely and impartial manner consistent with the Act and 
regulations.''). The Department cannot credit commenters' counter-
factual speculation as to the likely outcomes of cases that have been 
administratively closed, for as the Department discussed, supra, aliens 
have opposed administrative closure in individual cases because it 
interfered with their ability to obtain relief.
---------------------------------------------------------------------------

    \75\ The Department notes that Matter of Castro-Tum did not 
incorporate all of the legal arguments presented in the NPRM 
regarding whether immigration judges and Board members have free-
floating authority to defer adjudication of cases. E.g., 85 FR at 
52503 (discussing tension created by interpreting 8 CFR 
1003.1(d)(1)(ii) and 1003.10(b) to allow free-floating authority to 
administratively close cases with references in those provisions to 
the ``disposition'' of cases and with the provisions of 8 CFR 
1003.1(a)(2)(i)(C) and 1003.9(b)(3) which assign authority to defer 
case adjudications to the Board Chairman and the Chief Immigration 
Judge rather than to all Board members and all immigration judges). 
Thus, circuit court decisions abrogating Matter of Castro-Tum did 
not necessarily address those arguments. Accordingly, independent of 
Matter of Castro-Tum, immigration judges and Board members may still 
come to the conclusion that they generally lack free-floating 
authority to administratively close cases.
---------------------------------------------------------------------------

    As the Department asserted, free-floating authority to unilaterally 
administratively close cases is in significant tension with existing 
law, including regulations and longstanding Board case law. 85 FR at 
52503-05. To the extent that commenters suggested the Department should 
consider alternatives to the rule that retain that tension with 
existing law, the Department finds those suggestions unpersuasive. See 
Hernandez-Serrano, 2020 WL 6883420 at *1, *4 (``A regulation delegating 
to immigration judges authority to take certain actions `[i]n deciding 
the individual cases before them' does not delegate to them general 
authority not to decide those cases at all. Yet in more than 400,000 
cases in which an alien was charged with being subject to deportation 
or (after April 1, 1997) removal, immigration judges or the Board of 
Immigration Appeals have invoked such a regulation to close cases 
administratively--meaning the case was removed from the IJ's docket 
without further proceedings absent some persuasive reason to reopen it. 
As of October 2018, more than 350,000 of those cases had not been 
reopened. An adjudicatory default on that scale strikes directly at the 
rule of law. . . . [N]o one--neither Hernandez-Serrano, nor the two 
circuit courts that have rejected the Attorney General's decision in 
Castro-Tum--has explained how a general authority to close cases 
administratively can itself be lawful while leading to such facially 
unlawful results.'').
    Further, in addition to not resolving the legal issues raised by 
the view that immigration judges and Board members possess some 
intrinsic, freestanding authority to administratively close cases, 
commenters' proposed alternatives suffer from other infirmities or do 
not otherwise address the problem identified. For example, commenters 
did not explain why additional tracking of administratively closed 
cases and a requirement that parties notify the court of a situational 
change would effectively resolve the legal or policy issues presented. 
In fact, the Department already tracks administratively closed cases, 
EOIR, Adjudication Statistics: Administratively Closed Cases 
[hereinafter Administratively Closed Cases], Oct. 13, 2020, available 
at https://www.justice.gov/eoir/page/file/1061521/download, and the 
parties should already be notifying an immigration court or the Board 
if the basis for an order of administrative closure changes; \76\ yet, 
those items have not resolved the problems with administrative closure 
identified in the NPRM.
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    \76\ As representatives are officers of an immigration court and 
have professional responsibility obligations of candor toward the 
immigration court, parties with representation should already be 
notifying an immigration court of a relevant change that would 
affect the grant of administrative closure.
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    The question of unlawful presence waivers was already addressed by 
Matter of Castro-Tum, 27 I&N Dec. at 278 n.3, 287 n.9, and this final 
rule does not impact such waivers accordingly. Moreover, the regulation 
identified by commenters, 8 CFR 212.7(e)(4)(iii), has no analogue in 
chapter V of title 8, and that regulation is not binding on the 
Department. Further, such a waiver is both ``provisional'' and 
``discretionary,'' 8 CFR 212.7(e)(2)(i), and like administrative 
closure itself, an alien has no right to such a waiver. Further, 
although aliens in removal proceedings (unless administratively closed) 
and aliens with administratively final orders of removal are barred 
from obtaining the waiver, 8 CFR 212.7(e)(4)(iii) and (iv), an alien 
with an administratively final order of voluntary departure is not, and 
by definition, aliens must voluntarily depart the United States in 
order to receive the benefit of such a waiver. Although the Department 
has considered the link between such waivers and administrative 
closure--just as the Attorney General did in Matter of Castro-Tum--that 
link is too attenuated to outweigh the significant legal and policy 
concerns raised by the Department regarding administrative closure.\77\
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    \77\ For similar reasons, the Department finds that this rule 
does not violate Executive Order 13563 regarding harmonization. To 
the contrary, the final rule promotes regulatory harmonization 
because it establishes consistency--and eliminates superfluousness--
with the authority of the Board Chairman and the Chief Immigration 
Judge to defer case adjudications as established in 8 CFR 
1003.1(a)(2)(i)(C) and 8 CFR 1003.9(b)(3). As discussed, supra, it 
also harmonizes briefing schedules between detained and non-detained 
appeals and harmonizes the starting point for the adjudicatory 
deadlines for appeals heard by single BIA members and by three-
member panels. In short, the rule promotes harmonization of 
regulatory requirements in multiple ways.

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[[Page 81645]]

    Similarly, concerns about putative reliance interests are 
misplaced. First, as discussed, infra, the rule applies, in general, 
only prospectively, so it does not disturb cases that have already been 
administratively closed. Second, and relatedly, all changes in the law 
may impact matters of attorney strategy in interactions with clients, 
but that is an insufficient basis to decline to change the law.\78\ To 
find otherwise would effectively preclude any law from ever being 
changed. Third, nothing in the rule prohibits a practitioner from 
seeking administrative closure; rather, it more clearly delineates the 
situations in which administrative closure is legally authorized. 
Fourth, a representative may not ethically guarantee any result in a 
particular case; thus, to the extent commenters suggest that the final 
rule restricts or interferes with an attorney's ability to guarantee an 
alien both a grant of administrative closure and the approval of a 
provisional waiver, the Department finds such a suggestion unavailing. 
See Model Rules Prof'l Conduct R. 7.1 cmt. 3 (2020) (``A communication 
that truthfully reports a lawyer's achievements on behalf of clients or 
former clients may be misleading if presented so as to lead a 
reasonable person to form an unjustified expectation that the same 
results could be obtained for other clients in similar matters without 
reference to the specific factual and legal circumstances of each 
client's case.''), cmt. 4 (``It is professional misconduct for a lawyer 
to engage in conduct involving dishonesty, fraud, deceit or 
misrepresentation.'') (quoting r. 8.4(c)), and r.8.4(e) (``It is 
professional misconduct for a lawyer to . . . state or imply an ability 
to influence improperly a government agency or official or to achieve 
results by means that violate the Rules of Professional Conduct or 
other law'').
---------------------------------------------------------------------------

    \78\ Furthermore, as Matter of Castro-Tum was issued in 2018, 
aliens and their representatives in jurisdictions following Castro-
Tum should not be currently relying on the expectation of 
administrative closure to pursue provisional unlawful presence 
waivers.
---------------------------------------------------------------------------

    In short, the Department appropriately considered potential 
alternatives as well as the relevant interests and alleged costs in 
issuing the final rule regarding administrative closure. On balance, 
however, the alternatives are either unavailing or would not resolve 
the issues identified by the Department, and the concerns raised by 
commenters are far outweighed by both the significant legal and policy 
issues raised by the Department in the NPRM regarding administrative 
closure and the increased efficiency and consistency that a formal 
clarification of its use will provide.
    With regards to the costs to persons in removal proceedings who may 
no longer be eligible to obtain a provisional unlawful presence waiver 
without administrative closure, the Department believes that the strong 
interest in the efficient adjudication of cases and the legal and 
policy issues identified in the NPRM outweigh the potential inability 
of these persons to obtain provisional unlawful presence waivers, 
something to which they are not entitled to in the first instance. The 
Department notes that these persons may still apply for an unlawful 
presence waiver from outside the United States, and that DHS may 
choose, as a matter of policy, to amend their regulations to remove the 
administrative closure requirement for persons in removal proceedings 
applying for a provisional waiver. Moreover, as Matter of Castro-Tum 
was issued in 2018, aliens and their representatives in jurisdictions 
following Castro-Tum should not be currently relying on the expectation 
of administrative closure to pursue provisional unlawful presence 
waivers.
    The Department also disagrees that the general prohibition on 
administrative closure does not harmonize with DHS regulations 
regarding provisional unlawful presence waivers. The Department 
considered the interplay of EOIR and DHS's regulations and, due to the 
strong equities in favor of limiting administrative closure, decided to 
continue with a general prohibition on administrative closure in 
immigration proceedings before EOIR. DHS chose to limit the eligibility 
for provisional unlawful presence waivers as a matter of policy, and 
DHS may choose to update their more specific regulations accordingly as 
a result of this rule.
    In sum, the Department's analysis fully complied with all relevant 
Executive Orders, and OMB has appropriately reviewed the rule.\79\
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    \79\ The Department notes that in formulating the NPRM, it also 
considered other alternatives as well to promote more efficient BIA 
processing of appeals. For example, the BIA reviewed prior 
suggestions to charge respondents filing and transcript fees more 
commensurate with the actual costs of the proceedings or to make all 
appeals to the BIA discretionary. 67 FR at 54900. Although the 
Department may revisit those proposals in the future, they were not 
incorporated into the NPRM and are not being included in the final 
rule accordingly.
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    Comment: At least one commenter stated that the Department failed 
to adequately consider the costs of the rule on small entities, 
particularly immigration practitioners, under the Regulatory 
Flexibility Act (RFA). The commenter predicted that the rule would have 
a variety of effects of the finances of these practitioners, such as 
the need for additional appeals in Federal courts or limits on the 
number of cases a practitioner can ethically accept due to shortened 
filing deadlines.
    Response: As the Department stated in the proposed rule, this rule 
``does not limit the fees [practitioners] may charge, or the number of 
cases a representative may ethically accept under the rules of 
professional responsibility.'' 85 FR at 52509. Moreover, the comments 
assume, without evidence, that the rule will lead only to adverse 
outcomes for aliens and, thus, more appeals to Federal court. As noted, 
supra, that unsubstantiated generalization presumes that cases will be 
adjudicated either unethically or incompetently, and the Department 
declines to engage in such unfounded conjecture. As also noted, supra, 
the change in filing deadlines falls principally on DHS, and commenters 
neither acknowledged that point nor explained why a change in filing 
deadlines that affects few non-government practitioners would have a 
widespread effect of limiting many practitioners' caseloads. 
Additionally, although the shortened filing deadlines may change when a 
particular brief is due to the BIA, the Department disagrees with the 
commenter's speculation that it would change the overall amount of time 
required to prepare that brief or related filings, which is determined 
by the relative complexity of the case.
    The rule sets no limits on how many cases an ethical and competent 
attorney may accept, all courts set filing deadlines, and all ethical 
and competent attorneys will adjust their practices as needed 
accordingly. Contrary to an implicit assertion by commenters, the 
intent of the Board's current practices is not to provide or ensure a 
minimum level of employment for practitioners; rather, the intent is to 
provide a fair and efficient system for adjudicating appeals. 
Consequently, any effects on employment of practitioners due to changes 
in those procedures are both minimal and incidental or ancillary at 
most; moreover, to the extent that an ancillary effect would be the 
provision

[[Page 81646]]

of representation by a larger cohort of practitioners, as logically 
intimated by commenters who claim that the rule will limit cases 
handled by individual practitioners, commenters did not explain why 
such an effect is necessarily unwelcome. In short, despite commenters' 
unfounded speculation, the Department finds that further analysis under 
the RFA is not warranted.
    The Department has reviewed this rule in accordance with the RFA, 5 
U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement 
Fairness Act of 1996, Public Law 104-121, tit. II, Mar. 29, 1996, 110 
Stat. 847, and has determined that this rule would not have a 
significant economic impact on a substantial number of small entities. 
The rule will not economically impact representatives of aliens in 
immigration proceedings. It does not limit the fees they may charge or 
the number of cases a representative may ethically accept under the 
rules of professional responsibility.
    Moreover, this determination is consistent with the Department's 
prior determination regarding much more sweeping changes to procedures 
before the Board. See 67 FR at 54900 (``The Attorney General, in 
accordance with 5 U.S.C. 605(b), has reviewed this rule and, by 
approving it, certifies that it affects only Departmental employees, 
aliens, or their representatives who appear in proceedings before the 
Board of Immigration Appeals, and carriers who appeal decisions of 
[DHS] officers. Therefore, this rule does not have a significant 
economic impact on a substantial number of small entities.''). The 
Department is unaware of any challenge to that determination regarding 
its 2002 rulemaking which significantly streamlined Board operations 
and made greater changes to Board procedures, including altering the 
Board's standard of review for credibility determinations, than this 
final rule. The Department thus believes that the experience of 
implementing that prior, broader rule also supports its conclusion that 
there is no evidence that this final will have a significant impact on 
small entities as contemplated by the RFA.
    Additionally, the portions of the rule related to administrative 
closure would not regulate ``small entities'' as that term is defined 
in 5 U.S.C. 601(6). That portion of the rule applies to aliens in 
immigration proceedings, who are individuals, not entities. See 5 
U.S.C. 601(6). Nothing in that portion of the rule in any fashion 
regulates the legal representatives of such individuals or the 
organizations by which those representatives are employed, and the 
Departments are unaware of cases in which the RFA's requirements have 
been applied to legal representatives of entities subject to its 
provisions, in addition to or in lieu of the entities themselves. See 5 
U.S.C. 603(b)(3) (requiring that an RFA analysis include a description 
of and, if feasible, an estimate of the number of ``small entities'' to 
which the rule ``will apply''). To the contrary, case law indicates 
that indirect effects on entities not regulated by a proposed rule are 
not subject to an RFA analysis. See, e.g., Mid-Tex Elec. Co-op, Inc. v. 
FERC, 773 F.2d 327, 342-43 (D.C. Cir. 1985) (``[W]e conclude that an 
agency may properly certify that no regulatory flexibility analysis is 
necessary when it determines that the rule will not have a significant 
economic impact on a substantial number of small entities that are 
subject to the requirements of the rule . . . . Congress did not intend 
to require that every agency consider every indirect effect that any 
regulation might have on small businesses in any stratum of the 
national economy. That is a very broad and ambitious agenda, and we 
think that Congress is unlikely to have embarked on such a course 
without airing the matter.''); Cement Kiln Recycling Coalition v. EPA, 
255 F.3d 855, 869 (D.C. Cir. 2001) (``Contrary to what [petitioner] 
supposes, application of the RFA does turn on whether particular 
entities are the `targets' of a given rule. The statute requires that 
the agency conduct the relevant analysis or certify `no impact' for 
those small businesses that are `subject to' the regulation, that is, 
those to which the regulation `will apply.'. . . The rule will 
doubtless have economic impacts in many sectors of the economy. But to 
require an agency to assess the impact on all of the nation's small 
businesses possibly affected by a rule would be to convert every 
rulemaking process into a massive exercise in economic modeling, an 
approach we have already rejected.'' (citing Mid-Tex, 773 F.2d 327 at 
343)); see also White Eagle Co-op Ass'n v. Conner, 553 F.3d 467, 480 
(7th Cir. 2009) (``The rule that emerges from this line of cases is 
that small entities directly regulated by the proposed [rulemaking]--
whose conduct is circumscribed or mandated--may bring a challenge to 
the RFA analysis or certification of an agency . . . . However, when 
the regulation reaches small entities only indirectly, they do not have 
standing to bring an RFA challenge.'').
    Further, the Department has consistently maintained this position 
regarding immigration regulations aimed at aliens, rather than 
practitioners who represent aliens, including much broader and more 
sweeping rulemakings. See, e.g., Inspection and Expedited Removal of 
Aliens; Detention and Removal of Aliens; Conduct of Removal 
Proceedings; Asylum Procedures, 62 FR 444, 453 (Jan. 3, 1997) 
(certifying that the rule would not have a significant impact on a 
substantial number of small entities because it ``affects only Federal 
government operations'' by revising the procedures for the 
``examination, detention, and removal of aliens''). That conclusion was 
reiterated in the interim rule, 62 FR at 10328, which was adopted with 
no noted challenge or dispute. The parts of this final rule related to 
administrative closure are similar, in that they, too, affect only the 
operations of the Federal government. In short, the Department 
reiterates its determination that there is no evidence that this final 
will have a significant impact on small entities as contemplated by the 
RFA.
6. Miscellaneous
a. Retroactivity Concerns
    Comment: Some commenters expressed concerns that the rule will have 
an impermissible retroactive effect. First, at least one commenter 
argued that making the provisions regarding changes to administrative 
closure and sua sponte reopening authority effective on the date of 
publication to pending cases would have impermissible retroactive 
effect because doing so would impair the rights that asylum applicants 
have under current law. Second, at least one other commenter noted that 
even making changes applicable only to new appellate filings fails to 
account for downstream effects of the rule that could influence a 
respondent's filings or other decisions before the immigration judge. 
Finally, at least one commenter stated that the Department has not 
sufficiently considered the costs to respondents of the retroactive 
elements of the rule.
    Response: As noted, supra, the Department is clarifying the 
generally prospective temporal application of the rule. The provisions 
of the rule applicable to appellate procedures and internal case 
processing at the BIA apply only to appeals filed, motions to reopen or 
reconsider filed, or cases remanded to the Board by a Federal court on 
or after the effective date of the final rule. As the withdrawal of a 
delegation of authority by the Attorney General, the provisions of the 
rule related to the restrictions on sua sponte

[[Page 81647]]

reopening authority are effective for all cases, regardless of posture, 
on the effective date.\80\ The provisions of the rule related to 
restrictions on the BIA's certification authority are effective for all 
cases in which an immigration judge issues a decision on or after the 
effective date. The provisions of the rule regarding administrative 
closure are applicable to all cases initiated by a charging document 
filed by DHS, reopened, or recalendared on or after the effective 
date.\81\
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    \80\ As discussed, supra, neither party possesses a right to 
file a ``motion to reopen sua sponte,'' and such a motion is, in 
fact, an ``oxymoron.'' Thus, the restrictions on the use of that 
authority have no impact on the parties' ability to seek use of that 
authority, regardless of the current status of a case.
    \81\ To the extent that the rule merely codifies existing law or 
authority, however, nothing in the rule precludes adjudicators from 
applying that existing authority to pending cases independently of 
the generally prospective application of the rule. For example, the 
Department notes that independent of the final rule, the Attorney 
General's decision in Matter of Castro-Tum, 27 I&N Dec. 271, remains 
binding and applicable to all pending cases, except in the Fourth 
and Seventh Circuits. See INA 103(a)(1), 8 U.S.C. 1103(a)(1) 
(``[D]etermination and ruling by the Attorney General with respect 
to all questions of law [as to the INA and other laws relating to 
the immigration and naturalization of aliens] shall be 
controlling''); INA 103(g)(2), 8 U.S.C. 1103(g)(2) (``The Attorney 
General shall . . . review such administrative determinations in 
immigration proceedings . . . as the Attorney General determines to 
be necessary for carrying out [his authorities].''); 8 CFR 
1003.1(g)(1) (``[D]ecisions