REMOVAL PROCEEDINGS

• DHS' Burden to Prove Alienage
• Immigration Court Generally
• Jurisdiction & Commencement of Proceedings
• Legal Citations in EOIR
• Immigration Court
• Applications for Relief
• ASYLUM (defensive)
• Form 42A, Cancellation of Removal for Permanent Residents
• Motions
• Motions Generally
• Motion to Continue
• Motion to Administratively Close
• Motion to Terminate
• Motion for Severance
• Motion to Withdraw
• PROCEDURAL
• Service on ICE
• Notice to Appear (NTA)
• Objection to a Noncompliant NTA
• Remedy for Putative NTA
• Legal Burdens & Determinations to be Made
• Burden of Proof
• ECAS
• EOIR Courts & Appeals System (ECAS)
• ALTERNATIVE OUTCOMES
• Voluntary Departure
• Reinstatement of Removal
• Termination of Proceedings

DHS' Burden to Prove Alienage

DHS' Burden to Prove Alienage is by "Clear, Unequivocal and Convincing Evidence"

The First Circuit has determined that Homeland Security must prove alienage by "clear, unequivocal, and convincing” evidence, and that this standard is higher than “clear and convincing” evidence.

The full text of Rosa v. Bondi can be found here:

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-1240P-01A.pdf

Immigration Court Generally

Jurisdiction & Commencement of Proceedings

8 CFR § 1003.14 Jurisdiction and commencement of proceedings

Title 8 Chapter V Subchapter A Part 1003 Subpart C § 1003.14

https://www.ecfr.gov/current/title-8/section-1003.14

§ 1003.14 Jurisdiction and commencement of proceedings.

(a) Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service. The charging document must include a certificate showing service on the opposing party pursuant to § 1003.32 which indicates the Immigration Court in which the charging document is filed. However, no charging document is required to be filed with the Immigration Court to commence bond proceedings pursuant to §§ 1003.19, 1236.1(d) and 1240.2(b) of this chapter.

(b) When an Immigration Judge has jurisdiction over an underlying proceeding, sole jurisdiction over applications for asylum shall lie with the Immigration Judge.

(c) Immigration Judges have jurisdiction to administer the oath of allegiance in administrative naturalization ceremonies conducted by the Service in accordance with § 1337.2(b) of this chapter.

(d) The jurisdiction of, and procedures before, immigration judges in exclusion, deportation and removal, rescission, asylum-only, and any other proceedings shall remain in effect as it was in effect on February 28, 2003, until the regulations in this chapter are further modified by the Attorney General. Where a decision of an officer of the Immigration and Naturalization Service was, before March 1, 2003, appealable to the Board or an immigration judge, or an application denied could be renewed in proceedings before an immigration judge, the same authority and procedures shall be followed until further modified by the Attorney General.

Legal Citations in EOIR

Legal Citations Generally

When filing papers before EOIR, parties should keep in mind that accurate and complete legal citations strengthen the argument made in the submission. This Appendix provides guidelines for frequently cited sources of law. EOIR generally follows A Uniform System of Citation (also known as the “Blue Book”) but diverges from that convention in certain instances. EOIR appreciates but does not require citations that follow the examples used in this Appendix. Note that, for the convenience of filing parties, some of the citation formats in this Appendix are less formal than those used in the published cases of the BIA. Once a source has been cited in full, the objective is brevity without compromising clarity. This Appendix concerns the citation of legal authority. For guidance on citing to the record and other sources, see ICPM, Chapter 3.3(e) (Source Materials), Chapter 4.19(f) (Citation); BIA PM Chapter 3.3(e) (Source Materials), Chapter 4.6(d) (Citation). As a practice, EOIR prefers italics in case names and publication titles, but underlining is an acceptable alternative.

Abbreviations in case names

As a general rule, well-known agency abbreviations (e.g., DHS, INS, FBI, DOJ) may be used in a case name, but without periods.  If an agency name includes reference to the “United States,” it is acceptable to abbreviate it to “U.S.”  However, when the “United States” is named as a party in the case, do not abbreviate “United States.”  For example: DHS v. Smith not D.H.S. v. Smith; U.S. Dep’t of Justice v. Smith not United States Department of Justice v. Smith; United States v. Smith not U.S. v. Smith.

Short Form of Case Names

After a case has been cited in full, a shortened form of the name may be used thereafter, with a reference to the specific page number that is cited.  For example: INS v. Phinpathya, 464 U.S. 183 (1984); Phinpathya, 464 U.S. at 185; Matter of Nolasco, 22 I&N Dec. 632 (BIA 1999); Nolasco, 22 I&N Dec. at 635.

Citations to a Specific Point

****Citations to a specific point should include the precise page number(s) on which the point appears.  For example: Matter of Artigas, 23 I&N Dec. 99, 100 (BIA 2001).

Citations to a Dissent or Concurrence

Citations to a dissent or concurrence should be indicated in a parenthetical notation.  For example: Matter of Artigas, 23 I&N Dec. 99, 109-110 (BIA 2001) (dissent).

Board of Immigration Appeals Decisions

Published Decisions

Precedent decisions by the BIA are binding on the immigration courts, unless modified or overruled by the Attorney General or a federal court.  All precedent BIA decisions are available on the EOIR website.  Precedent decisions should be cited in the “I&N Dec.” form illustrated below.  The citation must identify the adjudicator (BIA, A.G., etc.) and the year of the decision.  Note that there are no spaces in “I&N” and that only “Dec.” has a period. For example: Matter of Balsillie, 20 I&N Dec. 486 (BIA 1992).

"Matter of" not "In re”

All precedent decisions should be cited as “Matter of.”  The use of “In re” is disfavored.  For example:  Matter of Yanez, not In re Yanez.

Unpublished Decisions

Citation to non-precedent Board cases by parties not bound by the decision is discouraged.  When it is necessary to refer to an unpublished decision, the citation should include the initials of the respondent’s full name separated by hyphens, the A-number with all but the last three digits of the number replaced with X’s, and a parenthetical containing the abbreviation “BIA” as the adjudicating body, as well as an abbreviation of the month as part of the precise date of the decision.  Because the Board uses “Matter of” as a signal for a published or precedent case, do not use “Matter of.”

• For example: John Jonathan Smith, A123-456-789, BIA 12/20/2020 would become J-J-S-, AXXX-XXX-789 (BIA Dec. 20, 2020).

Unpublished BIA Decisions from the EOIR FOIA Reading Room

Where an unpublished Board decision is obtained from EOIR’s FOIA Reading Room, the citation should be placed within a parenthetical containing the assigned Folder Name (also known as Title or File number assigned to Download Folder), the abbreviation “BIA” as the adjudicating body, and an abbreviation of the month as part of the precise date of the decision.  As noted above, because the Board uses “Matter of” of as a signal for published or precedent case, do not use “Matter of.”

• For example: Folder Name 1234567, Decision Date 10/2/2023 would become (1234567, BIA Oct. 2, 2023).

When citing to an Unpublished BIA decision, a full copy of the unpublished decision should be provided as an attachment to the brief/motion if possible.

Interim decisions

While the BIA still assigns precedent decisions an interim decision number for administrative reasons, the proper citation is always to the volume and page number of the bound volume – the I&N Decision citation.

While the BIA still assigns precedent decisions an interim decision number for administrative reasons, the proper citation is always to the volume and page number of the bound volume – the I&N Decision citation.

Attorney General Decisions

Precedent decisions by the Attorney General are binding on the immigration court and the BIA and should be cited in accordance with the rules for precedent decisions by the BIA.  All precedent decisions by the Attorney General are available on the EOIR website.  Matter of Y-L-, 23 I&N Dec. 270 (AG 2002).

Federal and State Courts

Generally

Federal and state court decisions should generally be cited according to the standard legal convention, as set out in the latest edition of A Uniform System of Citation (also known as the “Blue Book”).  For example: Taylor v. United States, 495 U.S. 575 (1990); Singh v. Holder, 749 F.3d 622 (7th Cir. 2014); Velasquez-Escovar v. Holder, F.3d, No. 10-73714 (9th Cir. 2014); United States v. Madera, 521 F. Supp. 2d 149 (D. Conn. 2007).

U.S. Supreme Court

The Supreme Court Reporter citation (“S. Ct.”) should be used only when the case has not yet been published in the United States Reports (“U.S.”).

Unpublished Cases

Citation to unpublished state and federal court cases is discouraged.  When citation to an unpublished decision is necessary, a copy of the decision should be provided, and the citation should include the docket number, court, and precise date.  Parties are also encouraged to provide the LexisNexis or Westlaw number.  For example: Bratco v. Mukasey, No. 04-726367, 2007 WL 4201263 (9th Cir. Nov. 29, 2007) (unpublished).

Precedent Cases Not Yet Published

When citing to recent precedent cases that have not yet been published in the Federal Reporter or other print format, parties should provide the docket number, court, and year.  Parties are also encouraged to provide the LexisNexis or Westlaw number.  For example: Grullon v. Mukasey, __ F.3d __, No. 05-4622, 2007 U.S. App. LEXIS 27325 (2d Cir. 2007).

DHS Decisions

Precedent decisions by DHS and the former INS should be cited in accordance with the rules for precedent decisions by the BIA.

Citing to the Record (Briefs and Exhibits)

Text from briefs

If referring to text from a brief, the brief should be cited.  The citation should state the filing party’s identity, the nature of proceedings, the page number, and the date.  For example: Respondent’s Bond Appeal Brief at 5 (Dec. 12, 2008).  For OCAHO, the case caption should be cited, i.e., [Complainant name] v. [Respondent name],  the title of the brief, [e.g., Respondent’s Motion for Summary Judgment], the page number and the date.

Exhibits

Exhibits designated during a hearing should be cited as they were designated by the immigration judge or ALJ.  For example: Exh. 3. Exhibits accompanying a brief should be cited by alphabetic tab or page number.  For example: Respondent’s Pre-Hearing Brief, Tab A.  For OCAHO, exhibits to a brief should be cited by party and alphabetic or numeric tab and page, e.g., Respondent’s Exhibit 3 at 5.

Citing to Regulations

General

There are two kinds of publications in the Federal Register: those that are simply informative in nature (such as “notices” of public meetings) and those that are regulatory in nature (referred to as “rules”).  There are different types of “rules,” including “proposed,” “interim,” and “final.”  The type of rule will determine whether or not (and for how long) the regulatory language contained in that rule will be in effect.  Generally speaking, proposed rules are not law and do not have any effect on any case, while interim and final rules do have the force of law and, depending on timing, may affect a given case.

Regulations appear first in the Federal Register (Fed. Reg.) and then in the Code of Federal Regulations (C.F.R.).  Once regulations appear in a volume of the C.F.R., do not cite to the Federal Register unless there is a specific reason to do so (discussed below).

Code of Federal Regulations (C.F.R.)

For the Code of Federal Regulations, always identify the volume, the section number, and the year.  The year need not be given after the first citation, unless a subsequent citation refers to a regulation published in a different year.  Always use periods in the abbreviation “C.F.R.” For example: full - 8 C.F.R. § 1003.1 (2002); short - 8 C.F.R. § 1003.1.

Federal Register (Fed. Reg.)

Citations to regulatory material in the Federal Register should be used only when:

a. the citation is to information that will never appear in the C.F.R., such as a public notice or announcement;

b. the rule contains regulatory language that will be, but is not yet, in the C.F.R.;

c. the citation is to information associated with the rule but that will not appear in the C.F.R. (e.g., a preamble or introduction to a rule); or

d. the rule contains proposed or past language of a regulation that is pertinent in some way to the filing or argument.

The first citation to the Federal Register should always include (i) the volume, (ii) the abbreviated form “Fed. Reg.”, (iii) the page number, (iv) the date, and (v) important identifying information such as “proposed rule,” “interim rule,” “supplementary information,” or the citation where the rule will appear.  For example: full - 67 Fed. Reg. 52627 (Aug. 13, 2002) (proposed rule); full - 67 Fed. Reg. 38341 (June 4, 2002) (to be codified at 8 C.F.R. §§ 100, 103, 236, 245a, 274a, and 299); short - 67 Fed. Reg. at 52627-28; 67 Fed. Reg. at 38343.

Since the Federal Register does not use commas in its page numbers, do not use a comma in page numbers.  Use abbreviations for the month.

When citing the preamble to a rule, identify it exactly as it is titled in the Federal Register, e.g., 67 Fed. Reg. 54878 (Aug. 26, 2002) (supplementary information).

Statutes and Public Laws

General Guidance

Full Citations

Whenever citing a statute for the first time, be certain to include all the pertinent information, including the name of the statute, its public law number, statutory cite, and a parenthetical identifying where the statute was codified (if applicable), e.g., Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631.  The only exception is the Immigration and Nationality Act, which is illustrated below.

Short Citations

The use of short citations is encouraged, but only after the full citation has been used.

b. Special Rule for the INA - Given the regularity with which the Immigration and Nationality Act is cited before EOIR, there is generally no need to provide the Public Law Number, the Stat. citation, or U.S.C. citation.  EOIR will presume INA citations refer to the current language of the INA unless the year is provided. full - section xxx of the Immigration and Nationality Act; short - INA § xxx.

State Statutes

State statutes should be cited as provided in A Uniform System of Citation (also known as the “Blue Book”).

Sections of Law

Full citations are often lengthy, and filing parties are sometimes uncertain where to put the section number in the citation.  For the sake of simplicity, use the word “section” and give the section number in front of the full citation to the statute.  Once a full citation has been given, use the short citation form with a section symbol “§.”  This practice applies whether the citation is used in a sentence or after it.  For example: The definition of the term “alien” in section 101(a)(3) of the Immigration and Nationality Act applies to persons who are not citizens or nationals of the United States.  The term “national of the United States” is expressly defined in INA § 101(a)(22), but the term “citizen” is more complex. See INA §§ 301-309, 316, 320.

U.S. Code (U.S.C.)

Citations to the United States Code, always identify the volume, the section number, and the year.  The year need not be given after the first citation, unless a subsequent citation refers to a section published in a different year.  Always use periods in the abbreviation “U.S.C.”  For example: full - 18 U.S.C. § 16 (2006); short - 18 U.S.C. § 16.

Frequently Cited Statutes

ADAA

Full: Section xxx of Anti-Drug Abuse Act of 1988 (ADAA), Pub. L. No. 100-690, 102 Stat. 4181

Short: ADAA § xxx

AEDPA

Full: Section xxx of Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214

Short: AEDPA § xxx

CCA

Full: Section xxx of Child Citizenship Act of 2000 (CCA), Pub. L. No. 106-395, 114 Stat. 1631

Short: CCA § xxx

CPSA

Full: Section xxx of Adam Walsh Child Protection Act and Safety Act of 2006 (CPSA or Adam Walsh Act), Pub. L. No. 109-248, 120 Stat. 587.

Short: CPSA § xxx

Short: Adam Walsh Act § xxx

CSPA

Full: section xxx of Child Status Protection of 2002 (CSPA), Pub. L. No. 107-208, 116 Stat. 927

Short: CSPA § xxx

IIRIRA

Full: section xxx of Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Division C of Pub. L. No. 104-208, 110 Stat. 3009-546

Short: IIRIRA § xxx

IMFA

Full: section xxx of Immigration Marriage Fraud Amendments of 1986 (IMFA), Pub. L. No. 99-639, 100 Stat. 3537

Short: IMFA § xxx

IMMACT90

Full: section xxx of Immigration Act of 1990 (IMMACT90), Pub. L. No. 101-649, 104 Stat. 4978

Short: IMMACT90 § xxx

INTCA

Full: section xxx of Immigration and Nationality Technical Corrections Act of 1994 (INTCA), Pub. L. No. 103.416, 108 Stat. 4305, amended by Pub. L. No. 105-38, 111 Stat. 1115 (1997)

Short: INTCA § xxx

IRCA

Full: section xxx of Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359

Short: IRCA § xxx

IRFA

Full: section xxx of International Religious Freedom Act of 1988 (IRFA), Pub. L. No. 105-292, 112 Stat. 2787

Short: IRFA § xxx

LIFE

Full: section xxx of Legal Immigration and Family Equity Act (LIFE), Pub. L. No. 106-553, 114 Stat. 2762 (2002), amended by Pub. L. No. 106-554, 114 Stat. 2763 (2000)

Short: LIFE Act § xxx

MTINA

Full: section xxx of Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), Pub. L. No. 102-232, 105 Stat. 1733

Short: MTINA § xxx

NACARA

Full: section xxx of Nicaraguan Adjustment and Central American Relief Act (NACARA), Pub. L. No. 105-100, tit. II, 111 Stat. 2193 (1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997)

Short: NACARA § xxx

TVPRA

Full: section xxx of William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA 2008), Pub. L. No. 110-457, 122 Stat. 5044

Short: TVPRA § xxx

USA PATRIOT

Full: section xxx of Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT), Pub. L. No. 107-56, 115 Stat. 272

Short: USA PATRIOT Act § xxx

VAWA

Full: section xxx of Violence Against Women and Department of Justice Reauthorization Act of 2013 (VAWA 2013), Pub. L. No. 113-4, 127 Stat. 54

Short: VAWA (2013) § xxx

Treaties and International Materials

Commonly Cited Treaties and International Materials

CAT

Full:    Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988)

Short:   Convention Against Torture, art. 3

UNHCR Handbook

Full:    Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva 1992)

Short:   UNHCR Handbook ¶ xxx

or

UNHCR Handbook para.

U.N. Protocol  on Refugees

Full:     Article xxx of the United Nation’s Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223

Short:   U.N. Refugee Protocol, art. xxx

Publications and Communications by Government Agencies

General Guidance

In immigration proceedings, parties cite to a wide variety of administrative agency publications and communications, and there is no one format that fits all such documents.  For that reason, parties should use common sense when citing agency documents and err on the side of more information, rather than less.  If the document may be difficult for EOIR to locate, include a copy of the document with your filing.  If a document is posted on the Internet, identify the website where the document can be found or include a copy of the document with a legible Internet website.

EOIR Practice Manuals

EOIR’s practice manuals, including the Immigration Court Practice Manual, BIA Practice Manual, and OCAHO Practice Manual are not legal authorities.  However, if there is reason to cite them, the preferred form is to identify the specific provision by manual, chapter, and section along with the date at the bottom of the page on which the cited section appears. For example:

Full:     Immigration Court Practice Manual, Chapter 3.1(a) (DATE)

Short:   ICPM, Chap. 3.1(a)

Forms

Forms should first be cited according to their full name and number.  A short citation form may be used thereafter.  See Appendix D: Forms for a list of common immigration forms.  For example:

Full:     Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26)

Short:   Notice of Appeal or Form EOIR-26

If a form does not have a name, use the form number as the citation.

Country Reports

State Department country reports appear both as compilations in Congressional committee prints and as separate reports and profiles.  Citations to country reports should always contain the publication date and the specific page numbers (if available).  Provide an internet address when available.  The first citation to any country report should contain all identifying information, and a short citation form may be used thereafter.  For example:

Full:     Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, Nigeria 2017 Human Rights Report (Apr. 2018), available at https://www.state.gov/documents/organization/277277.pdf

Short:   2017 Nigeria Human Rights Report

Full:     Committees on  Foreign  Relations  and  International Relations, 104th Cong., 1st Sess., Country Reports on Human Rights Practices for 1994 xxx (Joint Comm Print 1995)

Short:   1994 Country Reports at page xxx

Full:     Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, The Philippines – Profile of Asylum Claims and Country Conditions xxx (June 1995)

Short:   1995 Philippines Profile at page xxx

Visa Bulletin

Citations to the State Department’s Visa Bulletin should include the volume, number, month, and year of the specific issue being cited.  For example:

Full:     U.S. Dep’t of State Visa Bulletin, Vol. VIII, No. 55 (March 2003)

Short:   Visa Bulletin (March 2003)

Foreign Affairs Manual

Citations to the State Department’s Foreign Affairs Manual should include the section number, and if applicable, the note number.  For example:

Full: Vol. 9, Foreign Affairs Manual § 41.81 note 9.1

Short: 9 FAM 41.81

Religious Freedom Reports

The International Religious Freedom Act of 1998 (IRFA) mandates that the Department of State issue an Annual Report on International Religious Freedom (State Department Report).  IRFA further authorizes immigration judges to use the State Department Report as a resource in asylum adjudications.  The State Department Report should be cited as follows:

Full:     Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State, Annual Report on International Religious Freedom (Sept. 2007)

Short:   2007 Religious Freedom Report at page xxx

IRFA also mandates the issuance of an Annual Report by the United States Commission on International Religious Freedom (USCIRF Report).  The USCIRF is a government body that is independent of the executive branch. Citations to the USCIRF Report should be distinguishable from citations to the Department of State report:

Full:     United States Commission on International Religious Freedom, Annual Report of the United States Commission on International Religious Freedom, xxx (May 2007)

Short:   2007 USCIRF Annual Report at page xxx

Internal Documents

A citation to an internal government document, such as a memo or cable, should contain as much identifying information as possible.  Be sure to include any identifying heading (e.g., the “re” line in a memo) and the precise date of the document being cited. Include a copy of the document with the filing or indicate where it has been reprinted publicly.  For example:

Full:     Memorandum from Donald Neufeld, Acting Assoc. Dir. of Domestic Operations, USCIS, to Field Leadership, re: Applicability of Section 245(k) to Certain Employment-Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act, at x (July 14, 2008*), available at* http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives 1998-2008/2008/245(k)_14jul08.pdf

Short:   Neufeld Memo (July 2008)

Commonly Cited Commercial Publications

General Guidance

(i) No universal citation form - In immigration proceedings, parties cite to a wide variety of commercial texts and publications.  If a document is difficult to locate, parties should include a copy of the document with filings (or a website for it) and make clear reference to that document in the filing.

(ii) No endorsements or disparagements - The specific publications listed below are frequently cited in filings before the BIA.  Their inclusion in this guidance is not an endorsement of the publication, nor is omission from this guidance a disparagement of any other publication.

(iii) Use of quotation marks, italics or underlining, and first initials - For purposes of appeals, motions, briefs, and other filings, EOIR recommends using a single format for all publications – quotation marks around any article title (whether in a book, law review, or periodical), italics or underlining for the name of any publication (whether a book, treatise, or periodical), and reference to authors’ last names only (use of first initials is appropriate where multiple authors share the same last name).

(iv) Shortened names - Many publications have long titles.  It is acceptable to use a shortened form of the title after the full title has been used.  Use a short form that clearly refers to the full citation.  Always use page and/or section numbers, whether the publication is cited in full or in shortened form.

(v) Articles in books - Articles in books should identify the author (by last name only), title of the article, and the publication that contains that article (including the editor and year).  For example:

Full:     Massimino, “Relief from Deportation Under Article 3 of the United Nations Convention Against Torture,” in 2 1997-98 Immigration & Nationality Law Handbook 467 (American Immigration Lawyers Association, ed., 1997)

Short:   Massimino at 469

(vi) Bender's Immigration Bulletin - Bender’s Immigration Bulletin should be cited by author (last name only), article, volume, publication, month, and year.  For example:

Full:     Sullivan, “When Representations Cross the Line,” 1 Bender’s Immigration Bulletin (Oct. 1996)

Short:   Sullivan at 3

(vii) Immigration Briefings - This publication should be cited by author (last name only), article, volume, publication, month, and year.  For example:

Full:     Elliot, “Relief From Deportation: Part I, “88-8 Immigration Briefings (Aug. 1988)

Short:   Elliot at 18

(viii) Immigration Law and Procedure - Citations to treatises require particular attention to detail because their pagination is often complex.  The first citation to this treatise must be in full and contain the volume number, the section number, the page number, the edition, and year.  For example:

Full:     2 Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 51.01(1)(a), at 51-3 (rev. ed. 1997)

Short:   2 Immigration Law and Procedure § 51.01(1)(a), at 51-3

(ix) Interpreter Releases - Citations to this publication should indicate volume, title, page, number(s), and precise date.  Provide a parenthetical explanation for the citation when appropriate.  For example:

Full:     75 Interpreter Releases 275-76 (Feb. 23, 1998) (regarding INS guidelines on when to consent to reopening of proceedings)

Short:   75 Interpreter Releases at 276

(x) Law reviews - Law review articles should identify the author (by last name) and the title of the article, followed by the volume, name, page number(s), and year of the publication.  For example:

Full:     Hurwitz, “Motions Practice Before the Board of Immigration Appeals,” 20 San Diego L. Rev. 79 (1982)

Short:   Hurwitz, 20 San Diego L. Rev. at 80

Immigration Court

ECAS: https://case-access.eoir.justice.gov/casedetails

Automated Case Status System: https://acis.eoir.justice.gov/en/

Automated Case Status Phone: 1-800-898-7180

Applications for Relief

ASYLUM (defensive)

REGULATIONS

8 CFR §1208.4 Filing the application

8 CFR § 1208.4(a)(4) Changed Circumstances

8 CFR § 1208.13 Establishing asylum eligibility.

8 CFR §1208.16 Withholding of removal under section 241(b)(3)(B) of the Act and withholding of removal under the Convention Against Torture.

8 CFR §1208.17 Deferral of removal under the Convention Against Torture.

ASYLUM GENERALLY

1. Asylum Generally
   1. Eligibility
      1. Persecution
      2. Particular Social Group
   2. Bars to Asylum
      1. One-Year Rule
      2. Aggravated Felonies
      3. Other Criminal Convictions
      4. Safe Third Country
      5. Important Case Law
2. Affirmative Asylum Process
3. Defensive Asylum Process
4. Credible Fear
5. Alternatives to Asylum
   1. Withholding of Removal
   2. CAT Protection

SEE ALSO

ASYLUM

What Is Asylum?

Affirmative Asylum

Defensive Asylum

ASYLUM PROCESSING RULE

ONE-YEAR FILING DEADLINE

PROVING ASYLUM

Demeanor and Credibility

the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.

Respondent Has Burden to Explain Inconsistencies

“Credible” and “Reasonable” Fear Interviews

• In Fiscal Year (FY) 2023 (a year in which the Title 42 pandemic border expulsion policy was in effect for eight out of 12 months), USCIS found 53,965 individuals to have credible fear. These individuals, many of whom were detained during this screening process, will be afforded an opportunity to apply for asylum defensively and establish that they meet the refugee definition.
• The number of credible fear cases has skyrocketed since the procedure was implemented—in FY 2009, USCIS completed 5,523 cases. Case completions reached an all-time high in FY 2023 at 148,440.
• In FY 2023, two-thirds of which occurred during Title 42, USCIS found 1,950 individuals to have reasonable fear.

Form 42A, Cancellation of Removal for Permanent Residents

42A CANCELLATION OF REMOVAL

Practice Advisory

INA § 240(A)(a)

You can apply for LPR Cancellation of Removal under INA § 240(A)(a) if…

A. You obtained LPR status lawfully (not through fraud)

B. You have not been convicted of an aggravated felony.

C. You have been an LPR for at least five years.

D. You have accrued seven years of continuous residence in the United States since admission in any status.

The Stop Time Rule

1. Clock Starts With ANY Admission
2. Clock Stops With Issuance of NTA or Commission of Offense Under INA §212(a)(2) or INA §237(a)(2) or §237(a)(4)

Which kinds of offenses stop the clock?

1. A conviction of, or qualifying admission of committing, a single CIMT, unless it comes within the petty offense or youthful offender exceptions. If the first CIMT comes within one of those exceptions, the second CIMT will stop the clock. See subparts d, f below.
2. A conviction of, or qualifying admission of committing, a controlled substance offense. • This includes a conviction or simply an admission of possessing any amount of marijuana, even if this was permitted under state law.22 While the deportation ground has a statutory exception for possessing 30 grams or less of marijuana, the inadmissibility does not.
3. Conviction of two or more offenses of any kind, other than purely political offenses, with a total sentence imposed of at least five years.
4. Being found to have engaged in prostitution in the last ten years, or coming to the United States to engage in prostitution or commercialized vice.
5. Immigration authorities have reason to believe that the person aided or participated in: • Trafficking in controlled substances (plus certain family members who benefitted from this); • Severe trafficking in persons (plus certain family members who benefitted from this); or • Money laundering.
6. Foreign government officials who committed severe violations of religious freedom.

The Petty Offense and Youthful Offender Exceptions

Conviction for Possessing Any Amount of Marijuana

Admitting a CIMT or Drug Offense – Including “Legal” Marijuana – on the Stand or Elsewhere

Convictions from Before September 30, 1996 (or April 1, 1997) May Not Stop the Clock

Motions

Motions Generally

MOTIONS IN IMMIGRATION COURT

Motions to Reopen & Motions to Reconsider are NOT included in this motions section since those are motions that are filed after a final decision. Motions to Reopen and Reconsider are included in the Appeals & Post Order Relief section, which seemed more appropriate.

Motions must state with particularity the grounds on which the motion is based. In addition, motions must identify the relief or remedy sought by the filing party.

Immigration Court Practice Manual (ICPM)

(e) Evidence. — Statements made in a motion are not evidence. If a motion is based upon evidence that was not made part of the record by the Immigration Judge, that evidence should be submitted with the motion. Such evidence may include sworn affidavits, declarations under the penalties of perjury, and documentary evidence.

The Immigration Court will not suspend or delay adjudication of a motion pending the receipt of supplemental evidence. All evidence submitted with a motion must comply with the requirements of Chapter 3.3 (Documents).

(h) Visa Petitions - If a motion is based on an application for adjustment of status and there is an underlying visa petition that has been approved, a copy of the visa petition and the approval notice should accompany the motion.  When a petition is subject to visa availability, evidence that a visa is immediately available should also accompany the motion (e.g., a copy of the State Department’s Visa Bulletin reflecting that the priority date is “current”).

If a motion is based on adjustment of status and the underlying visa petition has not yet been adjudicated, a copy of that visa petition, all supporting documents, and the filing receipt (Form I-797) should accompany the motion.

Parties should note that, in certain instances, an approved visa petition is required for motions based on adjustment of status.  See, e.g., Matter of H‑A‑, 22 I&N Dec. 728 (BIA 1999), modified by Matter of Velarde, 23 I&N Dec. 253 (BIA 2002).

Filing fees for visa petitions are not paid to the Immigration Court and should not accompany the motion.  The filing fee for a visa petition is submitted to DHS when the petition is filed with DHS.

OPPOSITION TO MOTIONS

General Opposition to a Motion

Matter of Lamus, 25 I&N Dec. 61, 65 (BIA 2009) (concluding that a party’s opposition to a motion to reopen, “in and of itself, should [not] be dispositive of the motion without regard to the merit of that opposition”); Matter of Hashmi, 24 I&N Dec. 785, 791 (BIA 2009) (noting that the DHS’s “unsupported opposition” to a continuance “does not carry much weight”).

The Board in Matter of Avetisyan, determined for the first time that Immigration Judges and the Board have the authority to administratively close a case when appropriate, even if a party opposes it. Matter of Avetisyan, 25 I&N Dec. 688, 690-694 (BIA 2012). Matter of Avetisyan does not list court resources as a factor to consider in evaluating whether administrative closure is appropriate. In a similar context, we held that “[c]ompliance with . . . case completion goals . . . is not a proper factor in deciding a continuance request.” Matter of Hashmi, 24 I&N Dec. at 793–94.

Matter of C-B-, 25 I&N Dec. 888, 890 (BIA 2012) (noting that docket efficiency does not override an alien’s “invocation of procedural rights and privileges”).

Respondent's Right to Oppose Administrative Closure

To the extent that the Immigration Judge concluded that this matter does not present an “actual case[] in dispute,” we do not agree. An alien in removal proceedings has a right to seek asylum and related relief from persecution. See Matter of E-F-H-L-, 26 I&N Dec. 319, 321–23 (BIA 2014) (holding that an alien in removal proceedings generally has a right to a full evidentiary hearing on applications for relief from persecution); 8 C.F.R. § 1240.11(c)(3) (2016). Therefore, assuming that his application was properly filed and that he is eligible for the relief sought, the respondent has a right to a hearing on the merits of his claim. If his application is successful, he may be eligible for lawful status in the United States, while administrative closure provides him no legal status. This is not a case where an alien has filed for asylum with no intent to proceed on the application to a resolution.

MOTION LIMITS

Pre-decision motions (Motions filed during litigation and prior to the Judge's decision) are not number limited. You can file multiple motions for the same request so long as they are not frivolous. Pre-decision motions are time limited though. See the Time Limits Section for more information.

Post-decision motions (MTRO & MTRC) are time and number limited and discussed in more detail in the Motions to Reopen section.

MOTION BRIEFS

A brief is not required in support of a motion. However, if a brief is filed, it should accompany the motion. See 8 C.F.R. § 1003.23(b)(1)(ii). In general, motion briefs should comply with the requirements of Chapters 3.3 (Documents) and 4.19 (Pre-Hearing Briefs). A brief filed in opposition to a motion must comply with the filing deadlines for responses. See Chapter 3.1(b) (Timing of submissions).

CONTENTS OF ALL PRE-DECISION MOTIONS

(1) Form EOIR-28 (if required)
(2) Cover page (w/ the name of every respondent)
(3) If applicable, fee receipt (stapled to the filing) or motion for a fee waiver
(4) The filing
(5) Supporting documentation (if any) with table of contents
(6) If a motion, a proposed order for the Immigration Judge’s signature
(7) Proof of service

Motions must always be paginated by consecutive numbers placed at the bottom center or bottom right hand corner of each page. Whenever proposed exhibits or supporting documents are submitted, the filing party should include a table of contents with page numbers identified. See Appendix P (Sample Table of Contents).

* MOTIONS MUST HAVE COVER PAGE & CAPTION LIKE ALL OTHER SUBMISSIONS TO EOIR.

* MUST COMPLY WITH ALL OTHER REQUIREMENTS FOR AN EOIR SUBMISSION (single sided, white paper,

MULTIPLE MOTIONS

(Motions Requesting that the Court Do More Than One Thing)

Multiple Motions When multiple motions are filed, the motions should be accompanied by a cover letter listing the separate motions. In addition, each motion must include a cover page and comply with the deadlines and requirements for filing. See Chapter 5.2(b) (Form), Appendix F (Sample Cover Page).

Parties are strongly discouraged from filing compound motions, which are motions that combine two separate requests. Many Judges will deny or reject compound motions.

Further, time and number limits apply to motions even when submitted as part of a compound motion. For example, if a motion seeks both reopening and reconsideration, and is filed more than 30 days after the Immigration Judge’s decision (the deadline for reconsideration) but within 90 days of that decision (the deadline for reopening), the portion that seeks reconsideration is considered untimely.

SPECIFIC MOTIONS

(a) Motion to continue. — A request for a continuance of any hearing should be made by written motion. Oral motions to continue are discouraged. The motion should set forth in detail the reasons for the request and, if appropriate, be supported by evidence. See Chapter 5.2(e) (Evidence). It should also include the date and time of the hearing, as well as preferred dates that the party is available to re-schedule the hearing. However, parties should be mindful that the Immigration Court retains discretion to schedule continued cases on dates that the court deems appropriate.

The motion should be filed with a cover page labeled “MOTION TO CONTINUE” and comply with the deadlines and requirements for filing. See Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover Page).

The filing of a motion to continue does not excuse the appearance of an alien or representative at any scheduled hearing. Therefore, until the motion is granted, parties must appear at all hearings as originally scheduled.

(b) Motion to advance. — A request to advance a hearing date (move the hearing to an earlier date) should be made by written motion. Motions to advance are disfavored. Examples of circumstances under which a hearing date might be advanced include:

A motion to advance should completely articulate the reasons for the request and the adverse consequences if the hearing date is not advanced.

The motion should be filed with a cover page labeled “MOTION TO ADVANCE” and

comply with the deadlines and requirements for filing. See Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover Page).

(c) Motion to change venue. — A request to change venue should be made by written motion. The motion should be supported by documentary evidence. See Chapter 5.2(e) (Evidence). The motion should contain the following information: o the date and time of the next scheduled hearing o an admission or denial of the factual allegations and charge(s) in the Notice to Appear (Form I-862) o a designation or refusal to designate a country of removal o if the alien will be requesting relief from removal, a description of the basis for eligibility o a fixed street address where the alien may be reached for further hearing notification o if the address at which the alien is receiving mail has changed, a properly completed Alien’s Change of Address Form (Form EOIR-33/IC)

o a detailed explanation of the reasons for the request See generally Matter of Rahman, 20 I&N Dec. 480 (BIA 1992), 8 C.F.R. § 1003.20. The motion should be filed with a cover page labeled “MOTION TO CHANGE VENUE,” accompanied by a proposed order for change of venue, and comply with the deadlines and requirements for filing. See Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover Page).

The filing of a motion to change venue does not excuse the appearance of an alien or representative at any scheduled hearing. Therefore, until the motion is granted, parties must appear at all hearings as originally scheduled.

(d) Motion for substitution of counsel. — See Chapter 2.3(i)(Change in representation).

(e) Motion to withdraw as counsel. — See Chapter 2.3(i) (Change in representation).

(f) Motion for extension. — See Chapter 3.1(c)(iv) (Motions for extensions of filing deadlines).

(g) Motion to accept an untimely filing. — See Chapter 3.1(d)(ii) (Untimely filings).

(h) Motion for closed hearing. — See Chapter 4.9 (Public Access).

(i) Motion to waive representative’s appearance. — See Chapter 4.15 (Master Calendar Hearing).

(j) Motion to waive respondent’s appearance. — See Chapter 4.15 (Master Calendar Hearing).

(k) Motion to permit telephonic appearance. — See Chapter 4.15 (Master Calendar Hearing).

(l) Motion to request an interpreter. — See Chapter 4.15 (Master Calendar Hearing).

(m) Motion for video testimony. — See Chapter 4.15 (Master Calendar Hearing).

(n) Motion to present telephonic testimony. — See Chapter 4.15 (Master Calendar Hearing). (o) Motion for subpoena. — See Chapter 4.20 (Subpoenas).

(p) Motion for consolidation. — See Chapter 4.21 (Combining and Separating Cases). (q) Motion for severance. — See Chapter 4.21 (Combining and Separating Cases).

(r) Motion to stay removal or deportation. — See Chapter 8 (Stays).

(s) Motions in disciplinary proceedings. — Motions in proceedings involving the discipline of an attorney or representative are discussed in Chapter 10 (Discipline of Practitioners).

(t) Motion to recalendar. — When proceedings have been administratively closed and a party wishes to reopen the proceedings, the proper motion is a motion to recalendar, not a motion to reopen. A motion to recalendar should provide the date and the reason the case was closed. If available, a copy of the closure order should be attached to the motion. The motion should be filed with a cover page labeled “MOTION TO RECALENDAR” and comply with the requirements for filing. See Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover Page). To ensure that the Immigration Court has the alien’s current address, an Alien’s Change of Address Form (EOIR-33/IC) should be filed with the motion. Motions to recalendar are not subject to time and number restrictions.

(u) Motion to amend. — The Immigration Judge entertains motions to amend previous filings in limited situations (e.g., to correct a clerical error in a filing). The motion should clearly articulate what needs to be corrected in the previous filing. The filing of a motion to amend does not affect any existing motion deadlines. The motion should be filed with a cover page labeled “MOTION TO AMEND” and comply with the requirements for filing. See Chapter 5.2 (Filing a Motion), Appendix F (Sample Cover Page).

(v) Other types of motions. — The Immigration Court entertains other types of motions as appropriate to the facts and law of each particular case, provided that the motion is timely, is properly filed, is clearly captioned, and complies with the general motion requirements. See Chapters 5.2 (Filing a Motion), Appendix F (Sample Cover Page).

TIME LIMITS

Untimely filings are treated as described in subsection (d)(ii), below. Failure to timely respond to a motion may result in the motion being deemed unopposed. See Chapter 5.12 (Response to Motion). Immigration Judges may deny a motion before the close of the response period without waiting for a response from the opposing party. See Chapter 5.12 (Response to Motion). “Day” is constructed as described in subsection (c), below. (i) Master calendar hearings. —

(A) Unrepresented, non-detained aliens. — For master calendar hearings involving unrepresented, non-detained aliens, filings must be submitted at least fifteen (15) days in advance of the hearing if requesting a ruling at or prior to the hearing. Otherwise, filings may be made either in advance of the hearing or in open court during the hearing.

When a filing is submitted at least fifteen days prior to a master calendar hearing, the response must be submitted within ten (10) days after the original filing with the Immigration Court. If a filing is submitted less than fifteen (15) days prior to a master calendar hearing, the response may be presented at the master calendar hearing, either orally or in writing.

(B) Represented, non-detained aliens. — In proceedings in which the Form EOIR-28 is filed at least fifteen (15) days prior to a master calendar hearing, the presence of the respondent and his or her representative at the hearing will be waived and the hearing vacated. The Immigration Judge will issue a scheduling order that establishes the deadlines by which the parties must submit written pleadings, any evidence related to the charges of removability, and any application(s) for relief or protection sought by the respondent.

In proceedings in which the Form EOIR-28 is filed less than fifteen (15) days prior to the master calendar hearing, or at the master calendar hearing itself, the representative and the respondent must appear at the scheduled hearing. If needed, the Immigration Judge will issue a scheduling order at the master calendar hearing.

Cases not yet filed with the Immigration Court

Except for requests for bond redetermination proceedings, the Immigration Court cannot entertain motions if a charging document (i.e., a Notice to Appear) has not been filed with the court. See Chapters 4.2 (Commencement of Removal Proceedings), 9.3(b) (Jurisdiction).

FILING FEES FOR MOTIONS

When Required

The following motions require a filing fee:

o a motion to reopen (except a motion that is based exclusively on a claim for asylum)

o a motion to reconsider (except a motion that is based on an underlying claim for asylum)

8 C.F.R. §§ 1003.23(b)(1), 1003.24, 1103.7. For purposes of determining filing fee requirements, the term “asylum” here includes withholding of removal (“restriction on removal”), withholding of deportation, and claims under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.

Where a filing fee is required, the filing fee must be paid in advance to the Department of Homeland Security and the fee receipt must be submitted with the motion. If a filing party is unable to pay the fee, he or she should request that the fee be waived. See subsection (d), below.

When NOT required. —

The following motions do not require a filing fee: o a motion to reopen that is based exclusively on a claim for asylum

o a motion to reconsider that is based on an underlying a claim for asylum

o a motion filed while proceedings are pending before the Immigration Court

o a motion requesting only a stay of removal, deportation, or exclusion o a motion to recalendar

o any motion filed by the Department of Homeland Security o a motion that is agreed upon by all parties and is jointly filed (“joint motion”)

o a motion to reopen a removal order entered in absentia if the motion is filed under INA § 240(b)(5)(C)(ii)

o a motion to reopen a deportation order entered in absentia if the motion is filed under INA § 242B(c)(3)(B), as it existed prior to April 1, 1997

o a motion filed under law, regulation, or directive that specifically does not require a filing fee 8 C.F.R. §§ 1003.23(b)(1), 1003.24, 1103.7.

For purposes of determining filing fee requirements, the term “asylum” here includes withholding of removal (“restriction on removal”), withholding of deportation, and claims under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.

RESPONDING TO MOTIONS

Responses to motions must comply with the deadlines and requirements for filing. See 8 C.F.R. § 1003.23(a), Chapter 3 (Filing with the Immigration Court). A motion is deemed unopposed unless timely response is made. Parties should note that unopposed motions are not necessarily granted. Immigration Judges may deny a motion before the close of the response period without waiting for a response from the opposing party if the motion does not comply with the applicable legal requirements.

Examples include:

o Denial of a motion to withdraw as counsel of record that does not contain a statement that the attorney has notified the respondent of the request to withdraw as counsel or, if the respondent could not be notified, an explanation of the efforts made to notify the respondent of the request. See Chapter 2.3(i)(ii) (Withdrawal of counsel).

o Denial of a motion to change venue that does not identify the fixed address where the respondent may be reached for further hearing notification. See Chapter 5.10(c) (Motion to change venue), 8 C.F.R. § 1003.20(b).

Motion to Continue

REGULATIONS

A continuance may be granted for good cause pursuant to 8 C.F.R. §§ 1003.29, 1003.10(b).

Two regulations authorize continuances in removal cases: 8 C.F.R. § 1003.29, which permits IJs to continue a hearing for good cause shown, and 8 C.F.R. § 1240.6, which permits IJs to grant a “reasonable adjournment at his or her own instance” or for good cause shown by a requesting party. Though the regulations do not provide guidance as to what factors constitute “good cause” for a continuance, the BIA has laid out specific factors that an IJ must consider in evaluating whether “good cause” exists where the respondent is pursuing collateral relief.

CASE LAW

Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018)

Matter of Hashmi, 24 I&N Dec. 785, 790-91 (BIA 2009) (family-based petition)

Matter of Rajah, 25 I&N Dec. 127, 135-36 (BIA 2009) (an employment petition)

Matter of Sanchez Sosa, 25 I&N Dec. 807, 812-13 (BIA 2012) (U visa petition)

Practice Advisory for Matter of L-A-B-R

https://www.cliniclegal.org/resources/removal-proceedings/practice-advisory-matter-l-b-r-27-dec-405-ag-2018

Motion for Continuance Practice Advisory

Matter of L-A-B-R- and continuances to pursue collateral matters On August 16, 2018, Attorney General Sessions issued a decision in Matter of L-A-B-R-, a case addressing when “good cause” exists to grant a continuance for a respondent to pursue a collateral proceeding. The decision does not overturn previous case law establishing a multifactor test for determining “good cause,” but cautions against “unjustified continuances,” describing them as a “significant and recurring problem” and the L-A-B-R- decision as necessary guidance to protect against “abuse” of continuances. L-A-B-R emphasizes the holding in Matter of Hashmi, that an immigration judge should rely primarily on two factors in making a good cause determination:

Two Primary Factors for Continuances:

1) the likelihood the respondent will receive the collateral relief sought, and

2) whether the relief will materially affect the outcome of the removal proceedings.

Other factors to be considered in a decision to grant or deny a motion for continuance include:

1) the respondent’s diligence in seeking collateral relief;
2) DHS’s position on the motion;
3) administrative efficiency;
4) the length of continuance requested;
5) the number of hearings held and continuances granted previously; and
6) the timing of the continuance motion. Though the immigration judge must use discretion in balancing the relevant factors supporting a continuance grant, L-A-B-R states that due diligence may be absent when the respondent intends to pursue collateral relief at a future date or “appears to have unreasonably delayed filing for collateral relief” until just prior to a hearing. If there was a diligent good faith effort to proceed, however, the respondent will meet this prong. In addition, under L-A-B-R- DHS’ decision to consent, oppose or fail to take a position on a continuance motion should not be dispositive. Citing the 2017 EOIR memo, L-A-B-R emphasizes efficiency in the good cause analysis. Immigration judges’ interpretation of this part of the decision will be critical in how L-A-B-R.

See Administrative Closure pursuant to  8 CFR 1003.18 for what is essentially an indefinite continuance.

Motion to Administratively Close

Quick Summary

The Attorney General overruled Matter of Castro-Tum in Matter of Cruz-Valdez in 2021. Although Matter of Cruz-Valdez did not, in and of itself, establish a new administrative closure scheme, it restored the Board’s earlier decisions in Matter of Avetisyan and Matter of W-Y-U- to the status of binding precedents and instructed immigration judges to apply the administrative closure rules from those cases. Matter of Avetisyan and Matter of W-Y-U- are detailed below.

Admin Closure Factors

In sum the Board instructed immigration judges to consider the following factors in deciding whether to grant administrative closure in a given case:

1. the reason it is sought
2. the basis for any opposition <- The most important factor
3. the likelihood the respondent will succeed (on any pending relief)
4. duration
5. responsibility of either party (if anyone contributed to current or anticipated delay) and
6. the impact it will have on the outcome of the proceedings.

BIA Precedent and the Rules Have Been in Flux

Matter of W-Y-U- provided specific guidance to immigration judges on adjudicating motions for administrative closure where one party (most often the government) objects. In such cases, immigration judges should consider whether the opposing party provided a persuasive reason to proceed to resolving the removal proceedings on the merits.

Because Matter of S-O-G- & F-D-B- closely followed Matter of Castro-Tum, it was placed on shaky ground by the decision to overrule the latter. Moreover, one could argue it was effectively, if not expressly, abrogated by the direction in Matter of Cruz-Valdez to follow Matter of Avetisyan and Matter of W-Y-U with regard to motions to administratively close proceedings. It would be difficult to say the least to try to reconcile Matter of S-O-G- & F-D-B- with Avetisyan and W-Y-U-.

In Matter of Coronado Acevedo, Attorney General Garland made what was arguably implicitly clear in Matter of Cruz Valdez explicit and overruled Matter of S-O-G- & F-D-B-. While Matter of S-O-G- & F-D-B- is not identical to Matter of Castro-Tum, the Attorney General explained that its analysis followed directly from the central premises of the latter.

Admin Closure

Administrative Closure is a procedural mechanism in which the Court may take a case off of the the calendar for an indefinite period of time allowing for either party (DHS or Respondent) to request that the Court return the case to the Court's calendar at any time. It works as a continuance with no return date or return date to be set later once the parties are prepared for the case to be returned to the Court's calendar.

Administrative Closure is extremely useful in situations where a Respondent has a pending visa petition or waiver before USCIS. The proceedings can be administratively closed while USCIS adjudicates that petition/application and only scheduled for another hearing after it has either been approved or denied. Since neither party nor the judge can accurately predict how long it will take USCIS to adjudicate it administrative closure avoids the need for parties to return to court repeatedly just to continue the proceedings multiple times to achieve the same result.

Admin Closure is Particularly Useful in the Context of SIJS Approvals. If DHS opposes administrative closure because of the SIJS adjustment backlog, practitioners can use Matter of W-Y-U- to argue that DHS has not provided a persuasive reason for its opposition and that any reliance on its current enforcement priorities is irrelevant. Note that even before the Matter of W-Y-U- decision, the BIA, in unpublished decisions, has found administrative closure appropriate for children with approved SIJS petitions awaiting visa availability. See, e.g, J-A-A-G-, AXXX XXX 844 (BIA Mar. 8, 2017); A-L-M-D-, AXXX XXX 671 (BIA Oct. 26, 2016).

Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)

(1) The primary consideration for an Immigration Judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.

(2) In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.

Summary of Matter of W-Y-U-

In Matter of W-Y-U-, the pro se respondent, a Chinese citizen, filed for asylum with the immigration court. The Department of Homeland Security asked the court to administratively close the respondent’s removal proceedings. The immigration court granted administrative closure over the respondent’s opposition, and the respondent then filed an interlocutory appeal to the BIA. He challenged the administrative closure of his case because he wanted to have his asylum claim heard by the immigration judge.

The BIA sustained the appeal and vacated the judge’s administrative closure decision. In its ruling, the BIA noted the following:

• Administrative closure is not a form a relief from removal and does not provide the respondent with any immigration status;
• BIA precedent establishes that immigration courts can grant administrative closure even if one party opposes it. In evaluating a request for administrative closure, immigration courts should conduct an individualized determination looking at several factors;
  • These factors apply equally to respondents and the DHS;
  • The immigration court’s limited resources are a secondary consideration to a party’s interest in having the case resolved;
  • “[I]n considering administrative closure, an immigration judge cannot review whether an alien falls within the DHS’s enforcement priorities or will actually be removed from the United States.”
• The public interest in resolving removal proceedings is particularly strong when the respondent opposes administrative closure and wants his case to proceed to a conclusion on the merits;
• In evaluating administrative closure, the “primary consideration” is “whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.”

BIA's Full Decision at https://www.justice.gov/eoir/page/file/958526/dl

Factors Considered for Motion to Administratively Close

Matter of W-Y-U- is an important expansion of an earlier BIA precedent decision on administrative closure, Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). In that case, the BIA ruled that immigration courts can grant administrative closure “in the exercise of independent judgment and discretion” even where one party opposes and overruled prior precedent on this issue. Matter of Avetisyan held that in deciding whether to administratively close proceedings, courts should weigh relevant factors, including but not limited to the following:

“(1) the reason administrative closure is sought;

“(2) the basis for any opposition to administrative closure;

“(3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings;

“(4) the anticipated duration of the closure;

“(5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and

“(6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared. . . ”

Id. at 696. Matter of W-Y-U- holds that when a court is considering a contested request for administrative closure, the most important of these factors is whether the party opposing closure has provided a persuasive reason for the case to proceed. It also clarifies that DHS’s position on how the respondent falls within its current enforcement priorities is not a factor that immigration courts can consider.

While Matter of Avetisyan provides a list of factors to be considered, we now clarify that decision and hold that the primary consideration for an Immigration Judge in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits.

Important Public Interest in Finality of Immigration Proceedings

There is an important public interest in the finality of immigration proceedings. INS v. Abudu, 485 U.S. 94, 107 (1988) (“There is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases.”). That interest is particularly clear here, since it is the respondent who is opposed to continuing administrative closure for an indefinite period and requests that his case proceed to a conclusion on the merits. An unreasonable delay in the resolution of the proceedings may operate to the detriment of aliens by preventing them from obtaining relief that can provide lawful status or, on the other hand, it may “thwart the operation of statutes providing for removal” by allowing aliens to remain indefinitely in the United States without legal status. Ukpabi v. Mukasey, 525 F.3d 403, 408 (6th Cir. 2008) (discussing the competing interests to be considered in evaluating a motion for continuance). The considerations regarding administrative closure should apply equally to respondents and the DHS.

LINKS

Admin Closure, a Tool for Immigration Court.

Practice Advisory

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AG Eliminates Precedent Restricting Administrative Closure

On November 17, 2022, U.S. Attorney General Merrick Garland published an immigration precedent decision in the Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022) [PDF version]. The Attorney General overruled a prior Attorney General precedent, Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) [PDF version], which had been published by former Attorney General Jeff Sessions in 2018. Matter of S-O-G- & F-D-B- limited the circumstances in which an immigration judge could dismiss or terminate removal proceedings through administrative closure. This decision generally disfavored alien respondents by precluding immigration judges from dismissing proceedings to allow them to obtain status or other forms of relief without departing or being removed from the United States. Matter of Coronado Acevedo is generally favorable to aliens in proceedings insofar as it returns the understanding of the immigration judge’s authority to dismiss proceedings to what it was before the Attorney General decision in Matter of S-O-G- & F-D-B- and Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018) [PDF version], the latter of which was previously vacated by Attorney General Garland in Matter of Cruz-Valdez, 27 I&N Dec. 271 (A.G. 2018) [PDF version].

Motion to Terminate

Motion to Terminate

As the Attorney General has stated, and as provided in the INA and Regulations, “[i]mmigration judges . . . possess the authority to terminate removal proceedings where the charges of removability against a respondent have not been sustained.” See Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 468 (A.G. 2018); see INA § 240(c)(1)(A).  The Immigration Judge “shall decide whether the alien is removable”); 8 C.F.R. § 1240.12(c) and may  “direct . . . the termination of the proceedings”). Termination is proper “‘when the DHS cannot sustain the charges [of removability] or in other specific circumstances consistent with the law and applicable regulations.’” See Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168, 169 (BIA 2017) (quoting Matter of Sanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012)) (alterations in original). Because the single charge of removability can no longer be sustained, this Court should terminate proceedings.

This honorable Court has the authority to terminate these removal proceedings over the objection of the Department of Homeland Security. The Attorney General expressly addressed this in Matter of Coronado Acevedo, explaining that the reason for the issuance of that decision was to ensure that Immigration Judges could use termination in situations, “where the pendency of removal proceedings causes adverse immigration consequences for a respondent who must travel abroad to obtain a visa; or where, as here, termination is necessary for the respondent to be eligible to seek immigration relief before USCIS.” See Matter of Coronado Acevedo, 28 I&N Dec. 648 at 651 (A.G. 2022)(emphasis added).  The Attorney General further states, “Pending the outcome of the rulemaking process, immigration judges and the Board should be permitted to consider and, where appropriate, grant termination in these types of limited circumstances.” Id. at 652. The decision addresses the exact circumstances present in this case and finds that termination in such a scenario is squarely within the Court’s authority.

Motion for Severance

BASICS

The Immigration Court Practice Manual states that it should be titled "Motion for Severance" and should follow the regular rules regarding the timing of motions.

STATUTORY AUTHORITY

An Immigration Judge has the discretion to consolidate or sever proceedings, when appropriate, under 8 CFR §1240.1(a)(iv) (“take any other action consistent with applicable law and regulations as may be appropriate”) and the Immigration Court Practice Manual, Chapter 4.21(b). Consolidation is appropriate when hearings share substantially similar evidence and material issues. See 28 C.F.R. § 68.16

CASE LAW

An Immigration Judge has the discretion to consolidate or sever proceedings, when appropriate, under 8 CFR §1240.1(a)(iv) (“take any other action consistent with applicable law and regulations as may be appropriate”) and the Immigration Court Practice Manual, Chapter 4.21(b).  Consolidation is appropriate when hearings share substantially similar evidence and material issues. See 28 C.F.R. § 68.16; Matter of Taerghodsi, 16 I. & N. Dec. 260, 262-63 (BIA 1977). An Immigration Judge may consolidate proceedings for purposes of judicial efficiency and convenience only if it does not deny a respondent the right to fully litigate their claims. Id. at 263. The Board, in Matter of Taerghodsi addressed this issue:

We conclude, therefore, that it is within the power of the immigration judge to consolidate proceedings, if such consolidation does not serve to deny the respondent the right to fully and clearly litigate his claims. Necessarily, then, each case in which there has been a consolidation must be considered on its own record, with scrutiny of the respondent's opportunity at the hearing to have his case clearly presented before the immigration judge. Cf. Williams v. United States, 416 F.2d 1064, 1068 (8 Cir. 1969); Tillman v. United States, 406 F.2d 930, 934 (5 Cir. 1969).

Id. at 263.

EXAMPLE MOTION FOR SEVERANCE

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE OF IMMIGRATION REVIEW

IMMIGRATION COURT

201 VARICK ST

NEW YORK, NY

RIDER RESPONDENTS’ MOTION FOR SEVERANCE

The Rider Respondents in this case, redacted(hereinafter, "Rider Respondents"), through their counsel, hereby move this Court to sever their removal proceedings from that of the lead respondent, redacted hereinafter, "Lead Respondent").

All three Respondents are scheduled for an individual hearing on May 6, 2025, at 8:30 AM before Immigration Judge redacted. The Rider Respondents are requesting severance because USCIS has approved their Form I-360 petitions for special immigrant juvenile status under section 1101(a)(27)(J) of the Immigration and Nationality Act, and granted them deferred action. (See Exhibit A: Copies of the Form I-360 Approval Notices). As a result, the Rider Respondents are prima facie eligible for adjustment of status upon visa availability pursuant to INA §§245(h), 245(a). Rider Respondents’ eligibility for adjustment of status is further detailed in a concurrently filed Motion to Terminate or Administratively Close in the Alternative pursuant to  Matter of Coronado Acevedo, 28 I&N Dec. 648 (A.G. 2022). 

Given the Rider Respondents’ grant of deferred action and categorization as special immigrant juveniles, it is no longer in their best interest to remain as riders on the Lead Respondent's asylum application. An Immigration Judge has the discretion to consolidate or sever proceedings, when appropriate, under 8 CFR §1240.1(a)(iv) (“take any other action consistent with applicable law and regulations as may be appropriate”) and the Immigration Court Practice Manual, Chapter 4.21(b).  Consolidation is appropriate when hearings share substantially similar evidence and material issues. See 28 C.F.R. § 68.16; Matter of Taerghodsi, 16 I. & N. Dec. 260, 262-63 (BIA 1977). An Immigration Judge may consolidate proceedings for purposes of judicial efficiency and convenience only if it does not deny a respondent the right to fully litigate their claims. Id. at 263. The Board, in Matter of Taerghodsi addressed this issue:

We conclude, therefore, that it is within the power of the immigration judge to consolidate proceedings, if such consolidation does not serve to deny the respondent the right to fully and clearly litigate his claims. Necessarily, then, each case in which there has been a consolidation must be considered on its own record, with scrutiny of the respondent's opportunity at the hearing to have his case clearly presented before the immigration judge. Cf. Williams v. United States, 416 F.2d 1064, 1068 (8 Cir. 1969); Tillman v. United States, 406 F.2d 930, 934 (5 Cir. 1969).

Id. at 263.

Since the Rider Respondents' and Lead Respondent's cases no longer require substantially similar evidence and are not substantially related, severance is necessary to ensure the Rider Respondents' right to fully litigate their claims. Id. The Rider Respondents are seeking different relief than the Lead Respondent.  The Rider Respondents will not be providing testimony in the Lead Respondent’s case and the Lead Respondent would not  need to provide any testimony in the Rider Respondents’ case.  Further, all three Respondents were put into removal proceedings through the issuance of a Notice to Appear charging them as removable pursuant to INA § 212(a)(6)(A)(i) as aliens that are present in the United States without having been admitted or paroled.  See the Notice to Appear.  The Lead Respondent is inadmissible under INA § 212(a)(6)(A)(i)  as conceded in pleadings. The Rider Respondents, however, are no longer inadmissible under that charge since they have been paroled pursuant to INA §§245(h) and 1101(a)(27)(J)  as special immigrant juveniles. See also 8 C.F.R. § 1245.1(a). Whether the Rider Respondents may be ordered removed based on a ground of inadmissibility which Congress expressly exempted special immigrant juveniles, is a fundamental aspect of the Rider Respondents’ case that is completely divorced from the Lead Respondent’s. 

The two cases–the Lead Respondent’s and the Rider Respondents’–involve independent facts that do not overlap or rely on the same witnesses. Additionally, the cases present unique questions of law. Since the cases have virtually no overlap, their consolidation does not benefit either party nor the Court. Keeping the Rider Respondents’ case consolidated with the Lead Respondent may raise due process concerns regarding their ability to fully litigate their claims. Id. The Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018) factors for establishing good cause for a continuance and the Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017) factors for establishing grounds for administrative closure pending factors outside the parties’ control  would both be significantly impacted by the inclusion the Lead Respondent in the analysis.  Further, the Rider Respondents 

Severance will not prejudice the Department or delay the Lead Respondent's proceedings, which will not be affected by the severance of the Rider Respondents. For these reasons, the Rider Respondents, through counsel, request that this Court grant this Motion for Severance.

            Respectfully submitted,

redacted

                                                                                        by ________________________     
redacted

Motion to Withdraw

Motion to Withdraw as Attorney of Record

A motion to withdraw as counsel must comply with Matter of Rosales (BIA 1988).

Counsel must file a motion with the Court providing:

1. Evidence that counsel attempted to contact the Respondent at their last known address with the following information: Date, time, and place, of scheduled hearing.
2. The Respondent's last known address.

If those requirements are not met then the motion to draw may only be conditionally granted.

Matter of Rosales, Interim Decision #3064 (BIA 1988)

A-27188547 | Decided by Board April .21, 1988

(1) Where an attorney asks to withdraw from representation of an alien, his request for withdrawal should include evidence that he attempted to advise his client, at his last known address, of the date, time, and place of the scheduled hearing, and he should also provide the immigration judge with the alien's last known address, assuming it is more current than any address previously provided to the immigration judge.

(2) Unless these requirements are met, counsel's withdrawal should be only conditionally granted, that is, granted for all purposes except receipt of service of documents.

PROCEDURAL

Service on ICE

CERTIFICATE OF SERVICE

On ______________________I, _____________________________, uploaded a copy of this, “Respondent's _______________________________” and attached pages to the EOIR online portal. This document was electronically filed and both parties are participating in ECAS.  Therefore, no separate service was completed. See  ICPM 3.2(a); 8 C.F.R. §1003.2(g)(9)(i). 

_______________________

[Name of Person Who Uploaded]

Notice to Appear (NTA)

The commencing of removal proceedings is the Department of Homeland Security's issuance of a Notice to Appear, which lays out the factual allegations and the charges being made against the respondent. It must be signed by a DHS official and contain a time and date for the hearing.

Objection to a Noncompliant NTA

Objection to A Defect in the NTA

The Board has held in Matter of Fernandes, 28 I&N Dec. 605, 610–11 (BIA 2022), that an objection to a noncompliant notice to appear will generally be considered timely if raised prior to the close of pleadings. That decision was not a change in law, and thus Matter of Fernandes applies retroactively.

Section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), provides that a “written notice” in the form of “a ‘notice to appear’[] shall be given . . . to the alien” in removal proceedings, specifying, among other things, “[t]he time and place at which the proceedings will be held.” In Pereira v. Sessions, 585 U.S. 198, 208–09 (2018), and Niz-Chavez v. Garland, 593 U.S. 155, 160–61, the Supreme Court held that a notice to appear that does not comply with this requirement would not trigger the so-called “stop-time” rule under section 240A(d)(1)(A) of the INA, 8 U.S.C. § 1229b(d)(1)(A) (2018). In both cases, the Supreme Court relied on what it determined was the plain statutory language of sections 239(a) and 240A(d)(1)(A) of the INA, 8 U.S.C. §§ 1229(a), 1229b(d)(1)(A), language which had been in the statute for decades.

Following the Supreme Court’s decisions in Pereira and Niz-Chavez, the Board—consistent with all the courts of appeals that had addressed the matter—held that section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), is not a jurisdictional requirement and that noncompliant notices to appear do not affect the Immigration Court’s jurisdiction over the removal proceedings. Matter of Arambula-Bravo, 28 I&N Dec. 388, 389–92 (BIA 2021), aff’d, No. 21-826, 2024 WL 1299986 (9th Cir. Mar. 27, 2024). We reaffirmed that holding in Matter of Fernandes, 28 I&N Dec. at 607.

Published decisions of the Board also recognized the time and place requirement in a notice to appear as a claim-processing rule. See Matter of Fernandes, 28 I&N Dec. at 608–09; Matter of Nchifor, 28 I&N Dec. 585, 586–88, 586 n.4 (BIA 2022) (interpreting the regulatory requirements for a notice to appear); Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec 745, 749, 751–52 (BIA 2020) (same). In Matter of Fernandes, consistent with decisions of courts of appeals that addressed this issue, we concluded that section 239(a)(1) of the INA, 8 U.S.C. § 1229(a)(1), is a claim-processing rule. 28 I&N Dec. at 608. We also held, consistent with Supreme Court and courts of appeals case law addressing claim-processing rules, that “if a respondent does not raise an objection to a defect in the notice to appear in a timely manner, such an objection is waived or forfeited.” Id. at 609. We determined that a claim-processing rule objection “will generally . . . be timely if it is raised prior to the closing of pleadings before the Immigration Judge.” Id. 610–11. In doing so, we characterized this as “a useful guideline regarding . . . timeliness.” Id. at 610.

This Applies Retroactively

A published Board decision that interprets a previously unclear statute, for example, does not constitute a change in law for retroactivity purposes. See Olivas-Motta v. Whitaker, 910 F.3d 1271, 1279 (9th Cir. 2018); Matter of Cordero-Garcia, 27 I&N Dec. at 656. Treating precedents as only prospective runs contrary to the principle that judicial or administrative decisions simply say what the law is and generally are retroactive in application. See Reyes, 11 F.4th at 990–91; see also Chenery Corp., 332 U.S. at 203 (“Every case of first impression has a retroactive effect, whether the new principle is announced by a court or by an administrative agency”).

The test for whether a published decision constitutes a change in law, and thus triggers a retroactivity analysis, is whether the Board “‘consciously overrules or otherwise alters its own rule or regulation,’ or ‘expressly considers and openly departs from a circuit court decision.’” Matter of Cordero-Garcia, 27 I&N Dec. at 656 (quoting Olivas-Motta, 910 F.3d at 1277). Whether a decision has retroactive effect is a question of law we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2024).

Application of the “Change in Law” Test

Matter of Fernandes does not constitute a change in law requiring a retroactivity analysis. As an initial matter, our holding in Matter of Fernandes that the time and place requirement in the notice to appear is a claim-processing rule was consistent with decisions by courts of appeals that previously addressed this issue, as well as the Board’s prior decisions. Likewise, our determination that an objection to a noncompliant notice to appear is waived or forfeited if not timely raised is not a change in law because it was based on prior Board, courts of appeals, and Supreme Court precedents regarding claim-processing rules. 3 See Matter of Fernandes, 28 I&N Dec. at 609. Turning to the timeliness issue, in Matter of Fernandes we provided a guideline for determining when a claim-processing rule objection is timely. Id. at 610–11. We observed that neither the statutory text nor the Supreme Court’s jurisprudence addressing claim-processing rules in different contexts provided specific guidance. Id. at 609. We further acknowledged that the Board’s decision in Matter of Nchifor, 28 I&N Dec. at 589, which involved an objection raised for the first time in a motion to reopen, had not previously decided at what point an objection will be considered timely. Matter of Fernandes, 28 I&N Dec. at 610. Although we considered circuit court decisions that had addressed timeliness, none of these decisions had definitely decided at what point in the proceeding an objection must be made in order to be timely. See id. at 609–10, 609 n.3; see also Arreola-Ochoa v. Garland, 34 F.4th 603, 609 (7th Cir. 2022) (suggesting a range of factors to consider when determining the timeliness of an objection); Pierre-Paul, 930 F.3d at 693 & n.6 (holding that an objection to a noncompliant notice to appear raised for the first time in a petition for review was untimely and noting that “an alien who fails to object to the notice to appear and concedes his removability” waives the objection.

Based on the above, we conclude that the Board’s holding in Matter of Fernandes, 28 I&N Dec. at 610–11, that an objection to a noncompliant notice to appear will generally be considered timely if raised prior to the close of pleadings is not a change in law for purposes of retroactivity. Accordingly, we need not apply the multi-factor retroactivity analysis discussed in Matter of Cordero-Garcia, 27 I&N Dec. at 658, 466 F.2d at 390. Matter of Fernandes applies retroactively.

Our guidance in Matter of Fernandes as to the timeliness of the claim-processing rule objection to a noncompliant notice to appear applies retroactively. The respondents did not object to the missing information in their notices to appear before the close of pleadings and have not otherwise demonstrated that their objection should be considered timely. Thus, they have forfeited their objection. We will sustain DHS’ appeal, vacate the Immigration Judge’s decision, and remand for further proceedings

Claim-Processing Rule

Remedy for Putative NTA

The Board of Immigration Appeals has determined that Homeland Security can “cure” a defective Notice to Appear (NTA) by moving the Immigration Judge to make written amendments to the NTA by adding the date and time of a future hearing.

The full text of Matter of R-T-P- can be found here:

https://www.justice.gov/d9/2024-09/4079.pdf

Legal Burdens & Determinations to be Made

Burden of Proof

APPENDIX

Section 101 of the REAL ID Act of 2005, PL 109–13, 119 Stat. 231, 302–06 (boldface added to section and subsection headings):

SEC. 101. PREVENTING TERRORISTS FROM OBTAINING RELIEF FROM REMOVAL.

“(B) BURDEN OF PROOF.—

“(i) IN GENERAL.—The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A). To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.

“(ii) SUSTAINING BURDEN.—The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

“(iii) CREDIBILITY DETERMINATION.—Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.”.

(b) EXCEPTIONS TO ELIGIBILITY FOR ASYLUM.—Section 208(b)(2)(A)(v) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(2)(A)(v)) is amended—(1) by striking “inadmissible under” each place such term appears and inserting “described in”; and (2) by striking “removable under”.

(c) WITHHOLDING OF REMOVAL.—Section 241(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(3)) is amended by adding at the end the following:

“(C) SUSTAINING BURDEN OF PROOF; CREDIBILITY DETERMINATIONS.—In determining whether an alien has demonstrated that the alien's life or freedom would be threatened for a reason described in subparagraph (A), the trier of fact shall determine whether the alien has sustained the alien's burden of proof, and shall make credibility determinations, in the manner described in clauses (ii) and (iii) of section 208(b)(1)(B).”.

(d) OTHER REQUESTS FOR RELIEF FROM REMOVAL.—Section 240(c) of the Immigration and Nationality Act (8 U.S.C. 1230(c)) is amended—(1) by redesignating paragraphs (4), (5), and (6) as paragraphs (5), (6), and (7), respectively; and (2) by inserting after paragraph (3) the following:

“(4) APPLICATIONS FOR RELIEF FROM REMOVAL.—

(A) IN GENERAL.—An alien applying for relief or protection from removal has the burden of proof to establish that the alien—

“(i) satisfies the applicable eligibility requirements; and

“(ii) with respect to any form of relief that is granted in the exercise of discretion, that the alien merits a favorable exercise of discretion.

(B) SUSTAINING BURDEN.—The applicant must comply with the applicable requirements to submit information or documentation in support of the applicant's application for relief or protection as provided by law or by regulation or in the instructions for the application form. In evaluating the testimony of the applicant or other witness in support of the application, the immigration judge will determine whether or not the testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant has satisfied the applicant's burden of proof. In determining whether the applicant has met such burden, the immigration judge shall weigh the credible testimony along with other evidence of record. Where the immigration judge determines that the applicant should provide evidence which corroborates otherwise credible testimony, such evidence must be provided unless the applicant demonstrates that the applicant does not have the evidence and cannot reasonably obtain the evidence.

(C) CREDIBILITY DETERMINATION.—Considering the totality of the circumstances, and all relevant factors, the immigration judge may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.”.

(e) STANDARD OF REVIEW FOR ORDERS OF REMOVAL.—Section 242(b)(4) of the Immigration and Nationality Act (8 U.S.C. 1252(b)(4)) is amended by adding at the end, after subparagraph (D), the following:”No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in section 208(b)(1)(B), 240(c)(4)(B), or 241(b)(3)(C), unless the court finds, pursuant to section 242(b)(4)(B), that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.”.

(f) CLARIFICATION OF DISCRETION.—Section 242(a)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1252(a)(2)(B)) is amended—

(1) by inserting “or the Secretary of Homeland Security” after “Attorney General” each place such term appears; and

(2) in the matter preceding clause (i), by inserting”and regardless of whether the judgment, decision, or action is made in removal proceedings,” after “other provision of law,”.

(g) REMOVAL OF CAPS.—

(1) ASYLEES.—Section 209 of the Immigration and Nationality Act (8 U.S.C. 1159) is amended—

(A) in subsection (a)(1)—(i) by striking “Service” and inserting “Department of Homeland Security”; and

(ii) by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security or the Attorney General”;

(B) in subsection (b)—(i) by striking “Not more” and all that follows through “asylum who—“ and inserting “The Secretary of Homeland Security or the Attorney General, in the Secretary's or the Attorney General's discretion and under such regulations as the Secretary or the Attorney General may prescribe, may adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum who—“; and

(ii) in the matter following paragraph (5), by striking “Attorney General” and inserting “Secretary of Homeland Security or the Attorney General”; and

(C) in subsection (c), by striking “Attorney General” and inserting “Secretary of Homeland Security or the Attorney General”.

(2) PERSONS RESISTING COERCIVE POPULATION CONTROL METHODS.—Section 207(a) of the Immigration and Nationality Act (8 U .S.C. 1157(a)) is amended by striking paragraph (5).

(h) EFFECTIVE DATES.—

(1) The amendments made by paragraphs (1) and (2) of subsection (a) shall take effect as if enacted on March 1, 2003.

(2) The amendments made by subsections (a)(3), (b), (c), and (d) shall take effect on the date of the enactment of this division and shall apply to applications for asylum, withholding, or other relief from removal made on or after such date.

(3) The amendment made by subsection (e) shall take effect on the date of the enactment of this division and shall apply to all cases in which the final administrative removal order is or was issued before, on, or after such date.

(4) The amendments made by subsection (f) shall take effect on the date of the enactment of this division and shall apply to all cases pending before any court on or after such date.

(5) The amendments made by subsection (g) shall take effect on the date of the enactment of this division.

(i) REPEAL.—Section 5403 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458) is repealed.

ECAS

EOIR Courts & Appeals System (ECAS)

The EOIR Courts & Appeals System (ECAS) is part of an overarching information technology modernization effort at EOIR. ECAS was first introduced in July 2018 to phase out paper filing and processing, and to retain all records and case-related documents in electronic format. Now fully implemented at all immigration courts and adjudication centers and the Board of Immigration Appeals (BIA), ECAS supports the full life cycle of an immigration case including: electronic filing of court and appeals documents, processing and receiving filings, maintaining electronic Records of Proceedings (ROPs), preparing case information, conducting a hearing, and adjudicating appeals, while providing cost and time savings for all parties.

ECAS is composed of multiple applications dedicated to different stakeholders, including:

• ECAS Case Portal for attorneys and accredited representatives.
• ECAS DHS Portal for Department of Homeland Security (DHS) users.
• ECAS Payment Portal for those paying filing fees related to appeals.
• Respondent Access for unrepresented (pro se) individuals.

GUIDELINES FOR UPLOADING DOCUMENTS

https://case-access.eoir.justice.gov/assets

1. An electronically filed document must be 25 megabytes (MB) or less. Documents larger than 25MB must be split into multiple files and uploaded separately. If a submission includes multiple files, each document name should be numbered indicating the part and order of the submission (e.g., Johnson_Brief_Part1, Johnson_Brief_Part2).
   Separate submissions cannot be combined into a single file (i.e., do not combine submissions for different document types from the dropdown into one uploaded file). For example, if a user wants to file an asylum application, a supporting brief, and country conditions documentation, the user should separately file: (1) the application; (2) then the brief; and (3) then the country conditions evidence.
2. A Certificate of Service must be included for each document uploaded.
3. Uploaded documents cannot contain active hyperlinks to non EOIR websites.
4. Representative signatures: Representatives may submit documents with a scanned copy of their handwritten signature, a conformed signature, or an electronic signature. Representatives are not required to provide a signature attestation as all documents submitted under the representative's login are automatically considered attested to by that representative. CONFORMED SIGNATURE EXAMPLE: /S/ John Doe
   Noncitizen signatures: A representative who is electronically filing a document that requires the noncitizen's signature may submit a scanned copy of the document containing the noncitizen's handwritten ink signature. The representative may also use a conformed signature for the noncitizen as long as the representative maintains a copy of the document with the noncitizen's handwritten ink signature. In all cases, the representative must bring the document with the noncitizen's handwritten signature on it to their court hearings. CONFORMED SIGNATURE EXAMPLE: /S/ John Doe
   If using a conformed signature for the noncitizen, the representative must include a signature attestation with the filing. The signature attestation must be attached to the end of the electronically filed document and is required to state that the representative has the document containing the noncitizen's handwritten signature on-file.
   SIGNATURE ATTESTATION EXAMPLE: I hereby attest that I have on file all original handwritten signatures corresponding to any signatures indicated by a conformed signature (/S/ Name) within this electronically filed document.
5. Scanned documents must be at a resolution of 300 dots per inch (DPI) or higher. Users should use a reasonable resolution that minimizes file size while still providing clear readability.
6. PDF is the preferred format for all submissions. JPEG (or JPG) may also be used, but should be limited to submissions that cannot be submitted in PDF, such as photographs. For ease of navigation, bookmarking PDF submissions is recommended. For example, if uploading a country conditions packet consisting of multiple reports and articles, bookmarking each piece of the submission is recommended.
7. All multi-page documents must have page numbers.
8. When scanning and uploading documents, please make sure the pages do not appear upside down.
9. Before uploading a document, please make sure the page format is set to 8.5 x 11 inches in either portrait or landscape page orientation.
10. “Emergency Stay” should be selected in the upload menu when requesting a stay of removal if the execution of a removal order is imminent.
11. Bond requests must be uploaded separately under the “Bond Redetermination Request” screen. Bond requests should not be uploaded within a removal proceeding as a motion or other filing.
12. Filers must maintain the originals of any documents that are electronically filed and must make the originals available for production for the court or the BIA, if so ordered, or for inspection upon request by a party.

Case Portal Download Guidelines

1. An attorney or accredited representative can view and download individual documents in an eROP or download a copy of the entire eROP.
2. To view and download individual documents within an eROP, the user must select the relevant case in the left hand pane of that noncitizen's case page. All documents in that eROP will then be displayed for viewing and downloading on the right hand pane under "All Documents."
3. To download a copy of the entire eROP, the user must select the “Download eROP” button for the relevant eROP. Once the eROP is ready for download, it will only be available for 24 hours. The download consists of one consolidated, zipped file containing all of the documents that have been accepted into the official record of proceeding. Each unique eROP (e.g., bond, merits) that falls under an A-Number is available for download in separate zip files.

ECAS Outage Log

For technical support, email ECAS.techsupport@usdoj.gov or call 1-877-388-3842 Monday through Friday, except federal holidays, from 6 a.m. – 8 p.m. Eastern Time.

ALTERNATIVE OUTCOMES

Voluntary Departure

WARNING: Overstaying a voluntary departure period brings severe, unwaivable consequences.

See Practice Advisory on Voluntary Departure.

8 CFR § 1240.26 - Voluntary Departure

§ 1240.26 Voluntary departure—authority of the Executive Office for Immigration Review.

(a) General Eligibility

(a) Eligibility: general. A noncitizen previously granted voluntary departure under section 240B of the Act, including by DHS under § 240.25, and who fails to depart voluntarily within the time specified, shall thereafter be ineligible, for a period of ten years, for voluntary departure or for relief under sections 240A, 245, 248, and 249 of the Act.

(b) Prior to completion of removal proceedings

(b) Prior to completion of removal proceedings—(1) Grant by the immigration judge.

(i) A noncitizen may be granted voluntary departure by an immigration judge pursuant to section 240B(a) of the Act only if the noncitizen:

(A) Makes such request prior to or at the master calendar hearing at which the case is initially calendared for a merits hearing;

(B) Makes no additional requests for relief (or if such requests have been made, such requests are withdrawn prior to any grant of voluntary departure pursuant to this section);

(C) Concedes removability;

(D) Waives appeal of all issues; and

(E) Has not been convicted of a crime described in section 101(a)(43) of the Act and is not deportable under section 237(a)(4).

(ii) The judge may not grant voluntary departure under section 240B(a) of the Act beyond 30 days after the master calendar hearing at which the case is initially calendared for a merits hearing, except pursuant to a stipulation under paragraph (b)(2) of this section.

(2) Stipulation. At any time prior to the completion of removal proceedings, the DHS counsel may stipulate to a grant of voluntary departure under section 240B(a) of the Act.

(3) Conditions.

(i) The judge may impose such conditions as he or she deems necessary to ensure the noncitizen's timely departure from the United States, including the posting of a voluntary departure bond to be canceled upon proof that the noncitizen has departed the United States within the time specified. The alien shall be required to present to DHS, for inspection and photocopying, the noncitizen's passport or other travel documentation sufficient to assure lawful entry into the country to which the noncitizen is departing, unless:

(A) A travel document is not necessary to return to the noncitizen's native country or to which country the noncitizen is departing; or

(B) The document is already in the possession of DHS.

(ii) DHS may hold the passport or documentation for sufficient time to investigate its authenticity. If such documentation is not immediately available to the noncitizen, but the immigration judge is satisfied that the noncitizen 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 noncitizen within 60 days must secure such documentation and present it to DHS. DHS in its discretion may extend the period within which the noncitizen must provide such documentation. If the documentation is not presented within the 60-day period or any extension thereof, the voluntary departure order shall vacate automatically and the alternate order of removal will take effect, as if in effect on the date of issuance of the immigration judge order.

(iii) If the noncitizen files a post-decision motion to reopen or reconsider during the period allowed for voluntary departure, the grant of voluntary departure shall be terminated automatically, and the alternate order of removal will take effect immediately. The penalties for failure to depart voluntarily under section 240B(d) of the Act shall not apply if the noncitizen has filed a post-decision motion to reopen or reconsider during the period allowed for voluntary departure. Upon the granting of voluntary departure, the immigration judge shall advise the noncitizen of the provisions of this paragraph (b)(3)(iii).

(iv) The automatic termination of a grant of voluntary departure and the effectiveness of the alternative order of removal shall not affect, in any way, the date that the order of the immigration judge or the Board became administratively final, as determined under the provisions of the applicable regulations in this chapter.

(c) At the conclusion of the removal proceedings

(c) At the conclusion of the removal proceedings—(1) Required findings. An immigration judge may grant voluntary departure at the conclusion of the removal proceedings under section 240B(b) of the Act, if he or she finds that:

(i) The alien has been physically present in the United States for period of at least one year preceding the date the Notice to Appear was served under section 239(a) of the Act;

(ii) The alien is, and has been, a person of good moral character for at least five years immediately preceding the application;

(iii) The alien has not been convicted of a crime described in section 101(a)(43) of the Act and is not deportable under section 237(a)(4); and

(iv) The alien has established by clear and convincing evidence that the noncitizen has the means to depart the United States and has the intention to do so.

(2) Travel documentation. Except as otherwise provided in paragraph (b)(3) of this section, the clear and convincing evidence of the means to depart shall include in all cases presentation by the noncitizen of a passport or other travel documentation sufficient to assure lawful entry into the country to which the noncitizen is departing. DHS shall have full opportunity to inspect and photocopy the documentation, and to challenge its authenticity or sufficiency before voluntary departure is granted.

(3) Conditions. The immigration judge may impose such conditions as he or she deems necessary to ensure the noncitizen's timely departure from the United States. The immigration judge shall advise the noncitizen of the conditions set forth in this paragraph (c)(3)(i)-(iii). If the immigration judge imposes conditions beyond those specifically enumerated below, the immigration judge shall advise the noncitizen of such conditions before granting voluntary departure. Upon the conditions being set forth, the noncitizen shall be provided the opportunity to accept the grant of voluntary departure or decline voluntary departure if he or she is unwilling to accept the amount of the bond or other conditions. In all cases under section 240B(b) of the Act:

(i) The alien shall be required to post a voluntary departure bond, in an amount necessary to ensure that the noncitizen departs within the time specified, but in no case less than $500. Before granting voluntary departure, the immigration judge shall advise the noncitizen of the specific amount of the bond to be set and the duty to post the bond with the ICE Field Office Director within 5 business days of the immigration judge's order granting voluntary departure.

(ii) A noncitizen who has been granted voluntary departure shall, within 30 days of filing of an appeal with the Board, submit sufficient proof of having posted the required voluntary departure bond. If the noncitizen does not provide timely proof to the Board that the required voluntary departure bond has been posted with DHS, the Board will not reinstate the period of voluntary departure in its final order.

(iii) Upon granting voluntary departure, the immigration judge shall advise the noncitizen that if the noncitizen files a post-order motion to reopen or reconsider during the period allowed for voluntary departure, the grant of voluntary departure shall terminate automatically and the alternate order of removal will take effect immediately.

(iv) The automatic termination of an order of voluntary departure and the effectiveness of the alternative order of removal shall not impact, in any way, the date that the order of the immigration judge or the Board became administratively final, as determined under the provisions of the applicable regulations in this chapter.

(v) If, after posting the voluntary departure bond the noncitizen satisfies the condition of the bond by departing the United States prior to the expiration of the period granted for voluntary departure, the noncitizen may apply to the ICE Field Office Director for the bond to be canceled, upon submission of proof of the noncitizen's timely departure by such methods as the ICE Field Office Director may prescribe.

(vi) The voluntary departure bond may be canceled by such methods as the ICE Field Office Director may prescribe if the noncitizen is subsequently successful in overturning or remanding the immigration judge's decision regarding removability.

Provisions Relating to Bond

(4) Provisions relating to bond. The voluntary departure bond shall be posted with the ICE Field Office Director within 5 business days of the immigration judge's order granting voluntary departure, and the ICE Field Office Director may, at the ICE Field Office Director's discretion, hold the noncitizen in custody until the bond is posted. Because the purpose of the voluntary departure bond is to ensure that the noncitizen does depart from the United States, as promised, the failure to post the bond, when required, within 5 business days may be considered in evaluating whether the noncitizen should be detained based on risk of flight, and also may be considered as a negative discretionary factor with respect to any discretionary form of relief. The noncitizen's failure to post the required voluntary departure bond within the time required does not terminate the noncitizen's obligation to depart within the period allowed or exempt the noncitizen from the consequences for failure to depart voluntarily during the period allowed. However, if the noncitizen had waived appeal of the immigration judge's decision, the noncitizen's failure to post the required voluntary departure bond within the period allowed means that the alternate order of removal takes effect immediately pursuant to 8 CFR 1241.1(f), except that a noncitizen granted the privilege of voluntary departure under 8 CFR 1240.26(c) will not be deemed to have departed under an order of removal if the noncitizen:

(i) Departs the United States no later than 25 days following the failure to post bond;

(ii) Provides to DHS such evidence of the noncitizen's departure as the ICE Field Office Director may require; and

(iii) Provides evidence DHS deems sufficient that he or she remains outside of the United States.

Alternate Order of Removal

(d) Alternate order of removal. Upon granting a request made for voluntary departure either prior to the completion of proceedings or at the conclusion of proceedings, the immigration judge shall also enter an alternate order or removal.

AMOUNT OF TIME

(e) Periods of time. If voluntary departure is granted prior to the completion of removal proceedings, the immigration judge may grant a period not to exceed 120 days. If voluntary departure is granted at the conclusion of proceedings, the immigration judge may grant a period not to exceed 60 days.

If granted PRIOR TO COMPLETION OF PROCEEDINGS the Judge may grant a period of up to 120 days.

If granted AFTER COMPLETION OF PROCEEDINGS then the Judge cannot grant a period any longer than 60 days.

Effects of Motion to Reopen/Reconsider or Appeal

(1) Motion to reopen or reconsider filed during the voluntary departure period. The filing of a motion to reopen or reconsider prior to the expiration of the period allowed for voluntary departure has the effect of automatically terminating the grant of voluntary departure, and accordingly does not toll, stay, or extend the period allowed for voluntary departure under this section. See paragraphs (b)(3)(iii) and (c)(3)(ii) of this section. If the noncitizen files a post-order motion to reopen or reconsider during the period allowed for voluntary departure, the penalties for failure to depart voluntarily under section 240B(d) of the Act shall not apply. The Board shall advise the noncitizen of the condition provided in this paragraph in writing if it reinstates the immigration judge's grant of voluntary departure.

(2) Motion to reopen or reconsider filed after the expiration of the period allowed for voluntary departure. The filing of a motion to reopen or a motion to reconsider after the time allowed for voluntary departure has already expired does not in any way impact the period of time allowed for voluntary departure under this section. The granting of a motion to reopen or reconsider that was filed after the penalties under section 240B(d) of the Act had already taken effect, as a consequence of the noncitizen's prior failure voluntarily to depart within the time allowed, does not have the effect of vitiating or vacating those penalties, except as provided in section 240B(d)(2) of the Act.

(f) Extension of time to depart. Authority to extend the time within which to depart voluntarily specified initially by an immigration judge or the Board is only within the jurisdiction of the district director, the Deputy Executive Associate Commissioner for Detention and Removal, or the Director of the Office of Juvenile Affairs. An immigration judge or the Board may reinstate voluntary departure in a removal proceeding that has been reopened for a purpose other than solely making an application for voluntarily departure if reopening was granted prior to the expiration of the original period of voluntary departure. In no event can the total period of time, including any extension, exceed 120 days or 60 days as set forth in section 240B of the Act. The filing of a motion to reopen or reconsider does not toll, stay, or extend the period allowed for voluntary departure. The filing of a petition for review has the effect of automatically terminating the grant of voluntary departure, and accordingly also does not toll, stay, or extend the period allowed for voluntary departure.

(g) Administrative Appeals. No appeal shall lie regarding the length of a period of voluntary departure (as distinguished from issues of whether to grant voluntary departure).

(h) Reinstatement of voluntary departure. An immigration judge or the Board may reinstate voluntary departure in a removal proceeding that has been reopened for a purpose other than solely making application for voluntary departure, if reopening was granted prior to the expiration of the original period of voluntary departure. In no event can the total period of time, including any extension, exceed 120 days or 60 days as set forth in section 240B of the Act and paragraph (a) of this section.

(i) Effect of filing a petition for review. If, prior to departing the United States, the noncitizen files a petition for review pursuant to section 242 of the Act (8 U.S.C. 1252) or any other judicial challenge to the administratively final order, any grant of voluntary departure shall terminate automatically upon the filing of the petition or other judicial challenge and the alternate order of removal entered pursuant to paragraph (d) of this section shall immediately take effect, except that a noncitizen granted the privilege of voluntary departure under 8 CFR 1240.26(c) will not be deemed to have departed under an order of removal if the noncitizen departs the United States no later than 30 days following the filing of a petition for review, provides to DHS such evidence of the noncitizen's departure as the ICE Field Office Director may require, and provides evidence DHS deems sufficient that he or she remains outside of the United States. The Board shall advise the noncitizen of the condition provided in this paragraph in writing if it reinstates the immigration judge's grant of voluntary departure. The automatic termination of a grant of voluntary departure and the effectiveness of the alternative order of removal shall not affect, in any way, the date that the order of the immigration judge or the Board became administratively final, as determined under the provisions of the applicable regulations in this chapter. Since the grant of voluntary departure is terminated by the filing of the petition for review, the noncitizen will be subject to the alternate order of removal, but the penalties for failure to depart voluntarily under section 240B(d) of the Act shall not apply to a noncitizen who files a petition for review, and who remains in the United States while the petition for review is pending.

(j) [Reserved]

BIA's ABILITY TO GRANT VD

(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) If the Board finds that an immigration judge incorrectly denied a noncitizen's request for voluntary departure or failed to provide appropriate advisals, the Board may consider the noncitizen'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 in which a noncitizen has appealed an immigration judge's decision or in which DHS and the noncitizen have both appealed an immigration judge's decision, the Board shall not grant voluntary departure under section 240B(a) 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 noncitizen timely appealed;

(ii) The noncitizen's notice of appeal specified that the noncitizen is appealing the immigration judge's denial of voluntary departure and identified the specific factual and legal findings that the noncitizen is challenging;

(iii) The Board finds that the immigration judge's decision was in error; and

(iv) The Board finds that the noncitizen 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(b) 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 noncitizen's request;

(ii) The immigration judge either granted the request or did not rule on it; and,

(iii) The Board finds that the noncitizen 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 noncitizen'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 noncitizen in writing of the conditions set by the Board, consistent with the conditions set forth in paragraphs (b) through (e), (h), and (i) of this section (other than paragraph (c)(3)(ii) of this section), except that the Board shall advise the noncitizen of the duty to post the bond with the ICE Field Office Director within 30 business days of the Board's order granting voluntary departure. If documentation sufficient to assure lawful entry into the country to which the noncitizen is departing is not contained in the record, but the noncitizen continues to assert a request for voluntary departure under section 240B of the Act and the Board finds that the noncitizen 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 noncitizen 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 noncitizen in writing of such conditions. The noncitizen may accept or decline the grant of voluntary departure and may manifest a declination either by written notice to the Board, 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 noncitizen of a motion to reopen or reconsider the Board's decision, or by filing a timely petition for review of the Board's decision. The noncitizen may decline voluntary departure when unwilling to accept the amount of the bond or other conditions.

a rebuttable presumption that the civil penalty for failure to depart, pursuant to section 240B(d)(1)(A) of the Act, shall be set at $3,000

Penalty for Failure to Depart After Taking Voluntary Departure

(l) Penalty for failure to depart. There shall be a rebuttable presumption that the civil penalty for failure to depart, pursuant to section 240B(d)(1)(A) of the Act, shall be set at $3,000 unless the immigration judge or the Board specifically orders a higher or lower amount at the time of granting voluntary departure within the permissible range allowed by law. The immigration judge or the Board shall advise the noncitizen of the amount of this civil penalty at the time of granting voluntary departure.

[62 FR 10367, Mar. 6, 1997, as amended at 67 FR 39258, June 7, 2002; 73 FR 76937, Dec. 18, 2008; 85 FR 81655, Dec. 16, 2020; 86 FR 70724, Dec. 13, 2021; 89 FR 46795, May 29, 2024]

Consequences of Not Departing After VD

Any respondent who is granted voluntary departure is subject to civil penalties if he or she “fails voluntarily to depart the United States within the time period specified….” See INA § 240B(d). The respondent may be subject to a monetary fine of up to $5,000 and will be barred for ten years from being granted cancellation of removal, adjustment of status, change of status, registry, and voluntary departure. See INA § 240B(d).

There is a rebuttable presumption that the penalty for failure to depart shall be set at $3,000 under 8 C.F.R. § 1240.26(j).

8 CFR 240

Subpart C—Voluntary Departure

§ 240.25 Voluntary departure—authority of the Service.

(a) Authorized officers. The authority contained in section 240B(a) of the Act to permit aliens to depart voluntarily from the United States may be exercised in lieu of being subject to proceedings under section 240 of the Act by district directors, assistant district directors for investigations, assistant district directors for examinations, officers in charge, chief patrol agents, the Deputy Executive Associate Director for Enforcement and Removal Operations, the Director of the Office of Juvenile Affairs, service center directors, and assistant service center directors for examinations.

(b) Conditions. The Service may attach to the granting of voluntary departure any conditions it deems necessary to ensure the alien's timely departure from the United States, including the posting of a bond, continued detention pending departure, and removal under safeguards. The alien shall be required to present to the Service, for inspection and photocopying, his or her passport or other travel documentation sufficient to assure lawful entry into the country to which the alien is departing. The Service may hold the passport or documentation for sufficient time to investigate its authenticity. A voluntary departure order permitting an alien to depart voluntarily shall inform the alien of the penalties under section 240B(d) of the Act.

(c) Decision. The authorized officer, in his or her discretion, shall specify the period of time permitted for voluntary departure, and may grant extensions thereof, except that the total period allowed, including any extensions, shall not exceed 120 days. Every decision regarding voluntary departure shall be communicated in writing on Form I-210, Notice of Action—Voluntary Departure. Voluntary departure may not be granted unless the alien requests such voluntary departure and agrees to its terms and conditions.

(d) Application. Any alien who believes himself or herself to be eligible for voluntary departure under this section may apply therefor at any office of the Service. After the commencement of removal proceedings, the application may be communicated through the Service counsel. If the Service agrees to voluntary departure after proceedings have commenced, it may either:

(1) Join in a motion to terminate the proceedings, and if the proceedings are terminated, grant voluntary departure; or

(2) Join in a motion asking the immigration judge to permit voluntary departure in accordance with § 240.26.

(e) Appeals. An appeal shall not lie from a denial of an application for voluntary departure under this section, but the denial shall be without prejudice to the alien's right to apply to the immigration judge for voluntary departure in accordance with § 240.26 or for relief from removal under any provision of law.

(f) Revocation. If, subsequent to the granting of an application for voluntary departure under this section, it is ascertained that the application should not have been granted, that grant may be revoked without advance notice by any officer authorized to grant voluntary departure under § 240.25(a). Such revocation shall be communicated in writing, citing the statutory basis for revocation. No appeal shall lie from revocation.

Can the Departure Period be Extended?

Only DHS has jurisdiction to extend a final order of voluntary departure. A request to extend the departure period should be addressed to the District Director, the Deputy Executive Associate Commissioner for Detention and Removal, or the Director of the Office of Juvenile Affairs and may extend the period up to “120 days or 60 days as set forth in section 240B of the Act.” See 8 C.F.R. § 1240.57.

If a respondent is given 120 days then there is no way to extend it any further.

Proof of Posting Bond on Appeal

See Matter of A-M-, 23 I&N Dec. at 744. Pursuant to voluntary departure rules that went into effect on January 20, 2009, a voluntary departure applicant is required to provide the BIA with proof of having posted the voluntary departure bond within 30 days of filing the notice of appeal. See 8 C.F.R. § 1240.26(c)(3)(ii). If the person does not provide proof, the BIA will not reinstate the voluntary departure order following an unsuccessful appeal. See Matter of Velasco, 25 I&N Dec. 143 (BIA 2009) (holding that the requirement in 8 C.F.R. § 1240.26(c)(3)(ii) applies to all voluntary departure orders entered after January 20, 2009). Individuals who decide that they do not want voluntary departure should not provide proof of payment, thus indicating their intent to withdraw their request for voluntary departure.

Failure to Post Bond Within Five Business Days. If an individual fails to post the required voluntary departure bond within five business days, an alternate order of removal goes into effect. For respondents who waived appeal, failure to post the bond within five days automatically triggers the alternate order of removal, as well as the consequences of failure to depart. However, respondents who fail to post the voluntary departure bond within five days may still avoid these consequences if they (1) depart within twenty-five days of the failure to post bond (2) provide evidence to DHS that they departed within the appropriate time, and (3) provide evidence that they remain outside of the United States.

Involuntary Failure to Depart

Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the consequences of failing to depart did not apply to any respondent whose failure to depart was because of “exceptional circumstances.” This language was removed in IIRIRA and replaced with the language in INA § 240B(d) that attached penalties where a respondent “voluntarily fails to depart.” In Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007), the BIA first interpreted this new language, and found that it created a new “voluntariness” exception.

Where a respondent “through no fault of his or her own, is unaware of the voluntary departure order or is physically unable to depart” the consequences do not apply. The BIA “emphasize[d] that the ‘voluntariness' exception is not a substitute for the repealed ‘exceptional circumstances' exception” but a “much narrower” one.

However, in other cases, where the BIA has determined a level of responsibility lies with respondent for failing to depart, the BIA has denied access to the “voluntariness” exception. Thus, even where a respondent failed to depart because he was indicted during the voluntary departure period and was ordered not to depart the country, his failure to depart was deemed “voluntary” because “his inability to timely depart stemmed from his own criminal conduct….” Similarly, the BIA found a failure to depart “voluntary” where a SIJS-eligible respondent failed to depart because his father told him “not to depart because the respondent's mother abandoned him in Guatemala and he was the respondent's sole support.”

For respondents citing ineffective assistance of counsel to support a claim that the failure to depart was involuntary, the BIA has required that respondents adhere to the requirements for claiming ineffective assistance of counsel laid out in Matter of Lozada, 19 I&N Dec. 637 (BIA 1998)

Reinstatement of Removal

Reinstatement of Removal

If an alien is found to have reentered the United States illegally after having been previously removed or having left under a grant of voluntary departure under a removal order, the alien may be subject to reinstatement of removal. Reinstatement of removal is a procedure where the Department of Homeland Security (DHS) reviews the previous removal order, and in its discretion, reinstates that prior removal order. Aliens ultimately subject to reinstatement of removal will not have the opportunity to have the reinstatement reviewed by an immigration judge. Where DHS is considering reinstatement of removal, an alien, depending on the facts of his or her situation, may have limited avenues to seek relief from reinstatement of removal.

Rules and Regulations for Reinstatement of Removal

Section 241(a)(5) of the Immigration and Nationality Act (INA) provides only that where the Attorney General finds that an alien has committed an illegal reentry into the United States after having previously been removed or been granted and left pursuant to a grant of voluntary departure, the prior order of removal shall be reinstated and is not subject to reopening or review. The statute continues to add that the alien may not apply for any form of relief, and shall be removed pursuant to the reinstated removal order.

Regulations found in 8 C.F.R. 241.8 list the three factors that the immigration officer should ascertain in order to establish whether an alien should be subject to reinstatement of removal:

1. Whether the alien has been subject to a prior order of removal;
2. Verification of the alien’s identity to confirm whether the alien in question is the alien was subject to a prior order of removal;
3. Whether the alien entered the United States unlawfully.

Withholding Only Proceedings

An alien subject to reinstatement of removal may seek withholding of removal and a claim based upon the Convention Against Torture (CAT) by attempting to demonstrate that he or she would face a high likelihood of torture upon removal. The alien may attest to having a fear of persecution if he or she is returned to home country. In this scenario, the alien will be granted a credible fear interview with an asylum officer. See 8 C.F.R. §§ 208.31, 241,8(d).

If the asylum officer determines that the alien does not have a credible fear of persecution or torture, the alien may obtain review from an immigration judge. However, it is important to note that asylum may be barred if the alien is subject to a mandatory bar to applying or being granted asylum. The alien may lodge a constitutional or legal challenge against the original removal proceeding.

Case Law

Delgado v. Mukasey, 516 F.3d 65, 67 (2d Cir. 2008)

Ponta-Garcia v. Att’y Gen. of the U.S., 557 F.3d 158, 161-64 (3d Cir. 2009)

Herrera-Molina v. Holder, 597 F.3d 128, 138-40 (2d Cir. 2010)

Debato v. Att’y Gen. of the U.S., 505 F.3d 231 (3d Cir. 2007)

Termination of Proceedings

-> . /. See also Motion to Terminate.