Biden Administration Action: Revoked/Replaced

2024.5.16 Efficient Case and Docket Management in Immigration Proceedings

This Biden Administration action finalizes the revocation of the Trump Administration action identified in this entry. EOIR largely adopted the provisions of a proposed rule from September 2023, but with specific, significant changes.

1. EOIR adjudicators must consider a list of nonexhaustive factors when adjudicating administrative closure and recalendaring. That list includes the detention status of the noncitizen.
2. An EOIR adjudicator cannot sua sponte terminate proceedings in the exercise of discretion. A motion from one of the parties is required, and the adjudicator must consider the basis for any opposition raised.
3. For asylum applications filed by unaccompanied children under INA § 208(b)(3)(C), 8 U.S.C. § 1158(b)(3)(C), USCIS has initial jurisdiction not only when a child is determined by EOIR to be unaccompanied under 8 CFR § 1001.1(hh), but also whenever a child would be considered unaccompanied by USCIS. Also, before an EOIR adjudicator may grant discretionary termination for USCIS to assume jurisdiction, an asylum application must already have been filed with USCIS.
4. A noncitizen cannot seek discretionary termination based on a petition, application, or other request for action before USCIS until that application, petition, or other request for action has been filed with USCIS.
5. Where a noncitizen moves to terminate proceedings on the basis of prima facie eligibility to naturalize, an EOIR adjudicator cannot grant that motion if DHS opposes it.
6. An EOIR adjudicator may not terminate proceedings to allow a noncitizen to apply for asylum before USCIS, unless the noncitizen is an unaccompanied child, as defined in 8 CFR § 1001.1(hh).
7. The Board of Immigration Appeals must advise the noncitizen of the duty to post any voluntary departure bond with the appropriate ICE Field Office Director within 30 business days of the Board’s order granting voluntary departure.
8. The regulatory term “noncitizen” is synonymous with the statutory term “alien.”
9. Matter of Thomas & Thompson should not be applied retroactively to noncitizens who took certain actions before that precedent was issued. EOIR adjudicators must give effect to an order that (a) corrects a genuine ambiguity, mistake, or typographical error on the face of the original conviction or sentencing order and (b) was entered to give effect to the intent of the original order.

(Note: While the proposed rule contemplated discretionary termination in the context of T and U visas, that topic was not included in the final rule.)