Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure

CourtExecutive Office For Immigration Review
Citation85 FR 81588
Published date16 December 2020
Record Number2020-27008
Federal Register, Volume 85 Issue 242 (Wednesday, December 16, 2020)
[Federal Register Volume 85, Number 242 (Wednesday, December 16, 2020)]
                [Rules and Regulations]
                [Pages 81588-81656]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-27008]
                [[Page 81587]]
                Vol. 85
                Wednesday,
                No. 242
                December 16, 2020
                Part III Department of Justice-----------------------------------------------------------------------Executive Office for Immigration Review-----------------------------------------------------------------------8 CFR Parts 1003 and 1240Appellate Procedures and Decisional Finality in Immigration
                Proceedings; Administrative Closure; Final Rule
                Federal Register / Vol. 85 , No. 242 / Wednesday, December 16, 2020 /
                Rules and Regulations
                [[Page 81588]]
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                DEPARTMENT OF JUSTICE
                Executive Office for Immigration Review
                8 CFR Parts 1003 and 1240
                [Docket No. EOIR 19-0022; Dir. Order No. 05-2021]
                RIN 1125-AA96
                Appellate Procedures and Decisional Finality in Immigration
                Proceedings; Administrative Closure
                AGENCY: Executive Office for Immigration Review, Department of Justice.
                ACTION: Final rule.
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                SUMMARY: On August 26, 2020, the Department of Justice (``Department'')
                published a notice of proposed rulemaking (``NPRM'' or ``proposed
                rule'') that would amend the regulations of the Executive Office for
                Immigration Review (``EOIR'') regarding the handling of appeals to the
                Board of Immigration Appeals (``BIA'' or ``Board'').
                 The Department proposed multiple changes to the processing of
                appeals to ensure the consistency, efficiency, and quality of its
                adjudications.
                 The Department also proposed to amend the regulations to make clear
                that there is no freestanding authority of line immigration judges or
                BIA members to administratively close cases. Finally, the Department
                proposed to delete inapplicable or unnecessary provisions regarding the
                forwarding of the record of proceedings on appeal. This final rule
                responds to comments received in response to the NPRM and adopts the
                NPRM with minor changes as described below.
                DATES: This rule is effective on January 15, 2021.
                FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
                Office of Policy, Executive Office for Immigration Review, 5107
                Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-
                0289.
                SUPPLEMENTARY INFORMATION:
                I. Background
                A. Proposed Rule
                 On August 26, 2020, the Department published an NPRM that would
                amend EOIR's regulations regarding the BIA's handling of appeals.
                Appellate Procedures and Decisional Finality in Immigration
                Proceedings; Administrative Closure, 85 FR 52491 (Aug. 26, 2020).
                Through the NPRM, the Department proposed a number of changes to EOIR's
                regulations in 8 CFR parts 1003 and 1240 to ensure that cases heard at
                the BIA are adjudicated in a consistent and timely manner.
                B. Authority
                 The Department issued this final rule pursuant to section 1103(g)
                of the Immigration and Nationality Act (``INA'' or ``the Act,''), 8
                U.S.C. 1103(g).
                C. Final Rule
                 Following careful consideration of the public comments received,
                which are discussed in detail below in section II, the Department has
                determined to publish the provisions of the proposed rule as final with
                the following changes as noted below in sections I.C.3, I.C.4, I.C.5,
                I.C.8, I.C.9, and I.C.11 below.
                 The Department is also clarifying the generally prospective
                temporal application of the rule.\1\ The provisions of the rule
                applicable to appellate procedures and internal case processing at the
                BIA apply only to appeals filed, motions to reopen or reconsider filed,
                or cases remanded to the Board by a Federal court on or after the
                effective date of the final rule. The provisions of the rule related to
                the restrictions on sua sponte reopening authority are effective for
                all cases, regardless of posture, on the effective date. The provisions
                of the rule related to restrictions on the BIA's certification
                authority are effective for all cases in which an immigration judge
                issues a decision on or after the effective date. The provisions of the
                rule regarding administrative closure are applicable to all cases
                initiated by a charging document, reopened, or recalendared after the
                effective date.
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                 \1\ The Department notes that the NPRM confusingly indicated
                that some changes would apply ``on or after the effective date of
                publication,'' 85 FR at 52498 even though the effective date is 30
                days after the date of publication. To correct any confusion from
                that statement and to provide additional clarity, the Department
                offers a more delineated explanation of the temporal application of
                this rule herein.
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                 The rationale provided in the background of the proposed rule
                remains valid. Accordingly, the major provisions of the final rule are
                as follows:
                1. Briefing Extensions
                 The final rule will reduce the maximum allowable time for an
                extension of the briefing schedule for good cause shown from 90 days to
                14 days. 8 CFR 1003.3(c). Consistent with current BIA policy ``not to
                grant second briefing extension requests,'' the rule expressly limits
                the parties to one possible extension. EOIR, Board of Immigration
                Appeals Practice Manual, Ch. 4.7(c) (hereinafter BIA Practice Manual)
                (last updated Oct. 5, 2020).
                2. Simultaneous Briefing
                 The rule adopts simultaneous briefing schedules instead of
                consecutive briefing schedules for all cases. 8 CFR 1003.3(c).
                Previously, the BIA used consecutive briefing for cases involving
                aliens who are not in custody. The rule does not affect the BIA's
                ability to permit reply briefs in certain cases, but it does establish
                a 14-day deadline for their submission.
                3. BIA Remands for Identity, Law Enforcement, or Security
                Investigations or Examinations
                 The rule revises 8 CFR 1003.1(d)(6)(ii) to provide that, when a
                case before the BIA requires completing or updating identity, law
                enforcement, or security investigations or examinations in order to
                complete adjudication of the appeal, the exclusive course of action
                would be for the BIA to place the case on hold while identity, law
                enforcement, or security investigations or examinations are being
                completed or updated, unless DHS reports that identity, law
                enforcement, or security investigations or examinations are no longer
                necessary or until DHS does not timely report the results of completed
                or updated identity, law enforcement, or security investigations or
                examinations.
                 Additionally, the rule authorizes the BIA to deem an application
                abandoned when the applicant fails, after being notified by DHS, to
                comply with the requisite procedures for DHS to complete the identity,
                law enforcement, or security investigations or examinations within 90
                days of the BIA's notice that the case is being placed on hold for the
                completion of the identity, law enforcement, or security investigations
                or examinations. The rule also retains from the NPRM the exception to
                abandonment when the immigration judge determines that the alien
                demonstrates good cause for exceeding the 90-day allowance. Upon such a
                good cause finding, the immigration judge may grant the alien no more
                than 30 days to comply with the requisite procedures.
                 Following the review of public comments received,\2\ the final rule
                makes two changes from the proposed rule on this point. First, this
                rule contains an additional requirement that, if DHS is unable to
                independently update any required identity, law enforcement, or
                security investigations, DHS shall provide a notice to the alien with
                appropriate instructions, as DHS does before the immigration courts
                under 8 CFR 1003.47(d), and
                [[Page 81589]]
                simultaneously serve a copy of the notice with the BIA. Second, while
                the NPRM would have begun the alien's 90-day timeline for compliance
                with the biometrics update procedures began at the time the Board
                provided notice to the alien, the final rule aligns the 90-day time
                period to begin running at the time DHS submits the instructions notice
                to the alien, if such notice is applicable. The Department agrees with
                the commenters' concerns that without these changes, the provisions of
                the proposed rule could have resulted in situations where the alien may
                be unable to effectively comply with the biometrics requirements due to
                possible delays by DHS or lack of sufficient notice.
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                 \2\ See section II.C.3.e for a summary and response to the
                comments received on this topic.
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                4. Finality of BIA Decisions and Voluntary Departure Authority
                 In addition, the rule amends 8 CFR 1003.1(d)(7) to provide further
                guidance regarding the finality of BIA decisions. To begin with, the
                rule adds a new paragraph (d)(7)(i) to clarify that the BIA has
                authority to issue final orders when adjudicating an appeal, including
                final orders of removal when a finding of removability has been made by
                an immigration judge and an application for protection or relief from
                removal has been denied; grants of relief or protection from removal;
                and, orders to terminate or dismiss proceedings.
                 The rule further adds new Sec. 1003.1(d)(7)(ii) to provide
                instructions for the BIA regarding when the BIA may order a remand,
                rather than issuing a final order, after applying the appropriate
                standard of review to an immigration judge's decision. For example, the
                rule requires the BIA to first identify the standard of review that was
                applied and the specific error made by the immigration judge before
                remanding the proceeding. 8 CFR 1003.1(d)(7)(ii)(A). The final rule has
                one update from the same paragraph in the proposed rule to include a
                cross-reference to 8 CFR 1003.1(d)(6)(iii), which allows for BIA
                remands regarding information obtained as a result of the identity, law
                enforcement, or security investigations or examinations. The Department
                has included this cross-reference to prevent any unintended confusion
                that the remand procedures and options under 8 CFR 1003.1(d)(7)(ii) are
                the sole ones for the BIA.
                 Next, the rule adds new paragraph (d)(7)(iii) to 8 CFR 1003.1 to
                delegate clear authority to the BIA to consider issues relating to the
                immigration judge's decision on voluntary departure de novo and, within
                the scope of the BIA's review authority on appeal, to issue final
                decisions on requests for voluntary departure based on the record of
                proceedings. Additionally, the rule directly states that the BIA may
                not remand a case to the immigration court solely to consider a request
                for voluntary departure under section 240B of the Act, 8 U.S.C. 1229c.
                 The final rule makes three additional changes from the NPRM in
                response to public comments. First, in recognition of the fact that
                Board orders are generally served by mail--unlike orders of immigration
                judges which are frequently served in person--the final rule states
                that aliens will have 10 business days to post a voluntary departure
                bond if the Board's order of voluntary departure was served by mail.
                Further, as the Board is currently transitioning to an electronic
                filing system and expects to fully deploy that system within the next
                year, the final rule retains a period of five business days to post a
                voluntary departure bond if the Board's order is served electronically.
                 Second, in response to commenters' concerns about cases in which
                DHS appeals a separate grant of relief or protection, the Department is
                making edits from the NPRM to clarify the Board's procedure in that
                situation. Although cases in which an alien made multiple applications
                for relief or protection (including voluntary departure), an
                immigration judge granted at least one application but did not address
                the request for voluntary departure, DHS appealed the immigration
                judge's decision, the BIA determined that the immigration judge's
                decision was in error and that the alien's application(s) should be
                denied, and the BIA found a basis to deny all other applications
                submitted by the respondent without needing to remand the case, leaving
                only the request for voluntary departure unadjudicated, should be
                uncommon, the Department nevertheless makes clarifying edits to 8 CFR
                1240.26(k)(2) and (3) \3\ to indicate that the BIA may grant voluntary
                departure in cases in which DHS appeals provided that the alien
                requested voluntary departure from the immigration judge and is
                otherwise eligible.
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                 \3\ The Department also notes that 8 CFR 1240.26(k)(2) and (3)
                were duplicative in the NPRM and has further edited the provisions
                to remove the duplication since they apply to both types of
                voluntary departure under section 240B of the Act, 8 U.S.C 1229c.
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                 Third, in response to at least one commenter's concern regarding
                the expiration of an alien's travel documents, the Department is making
                changes to the final rule to make clear that if the record does not
                contain evidence of travel documentation sufficient to assure lawful
                entry into the country to which the alien is departing--and the alien
                otherwise has both asserted a request for voluntary departure and
                established eligibility under the other requirements--the Board may
                nevertheless grant voluntary for a period not to exceed 120 days,
                subject to the condition that the alien within 60 days must secure such
                documentation. This additional provision is consistent with similar
                authority already contained in 8 CFR 1240.26(b)(3)(ii).\4\
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                 \4\ This provision was, arguably, already incorporated by
                reference in the NPRM through 8 CFR 1240.26(k)(4) which adopts the
                provisions of 8 CFR 1240.26(c), (d), (e), (h), and (i) (with one
                exception) regarding voluntary departure requests before an
                immigration judge and makes them applicable to requests before the
                Board. Nevertheless, the Department is specifically incorporating it
                into the text of the final rule to be applicable to a grant of
                voluntary departure under either section 240B(a) or 240B(b) of the
                Act, 8 U.S.C. 1229c(a) or 1229c(b).
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                5. Prohibition on Consideration of New Evidence, Limitations on Motions
                To Remand, Factfinding by the BIA, and the Standard of Review
                 The rules make several changes to clarify the BIA's ability to take
                certain actions in adjudicating an appeal to ensure that appeals are
                adjudicated in a timely fashion without undue remands and consistent
                with the applicable law.
                 First, the rule limits the scope of motions to remand that the BIA
                may consider. Under new paragraph (d)(7)(v) to 8 CFR 1003.1, the BIA is
                prohibited from receiving new evidence on appeal, remanding a case for
                the immigration judge to consider new evidence in the course of
                adjudicating an appeal, or considering a motion to remand based on new
                evidence. Parties who wish to have new evidence considered in other
                circumstances may file a motion to reopen in accordance with the
                standard procedures for such motions, i.e., compliance with the
                substantive requirements for such a motion at 8 CFR 1003.2(c). These
                prohibitions have three exceptions for new evidence: (1) The result of
                identity, law enforcement, or security investigations or examinations,
                including civil or criminal investigations of immigration fraud; (2)
                pertaining to a respondent's removability under the provisions of
                sections 212 and 237 of the Act, 8 U.S.C. 1182 and 1227; and (3) that
                calls into question an aspect of the jurisdiction of the immigration
                courts, such as evidence pertaining to alienage \5\ or
                [[Page 81590]]
                EOIR's authority vis-[agrave]-vis DHS regarding an application for
                immigration benefits.\6\
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                 \5\ For example, EOIR has no jurisdiction over United States
                citizens with respect to removal proceedings; thus, evidence
                submitted on appeal regarding whether a respondent is a United
                States citizen may be a basis for a remand in appropriate cases. See
                Matter of Fuentes-Martinez, 21 I&N Dec. 893, 898 (BIA 1997).
                 \6\ As the NPRM noted, there are multiple situations in which a
                question of EOIR or DHS jurisdiction over an application may arise.
                See 85 FR at 52500.
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                 Second, the rule clearly delineates the circumstances in which the
                BIA may engage in factfinding on appeal. 8 CFR 1003.1(d)(3)(iv)(A) and
                (B). Although the rule maintains the general prohibition on factfinding
                by the BIA, the rule allows the BIA to take administrative notice of
                facts that are not reasonably subject to dispute, such as current
                events, the contents of official documents outside the record, or facts
                that can be accurately and readily determined from official government
                sources and whose accuracy is not disputed. If the BIA intends to
                administratively notice any such fact outside the record that would be
                the basis for overturning a grant of relief or protection issued by an
                immigration judge, the BIA must give notice to the parties and an
                opportunity for them to respond.
                 Third, the rule more clearly delineates the situations in which it
                is appropriate for the BIA to remand a case for further factfinding. 8
                CFR 1003.1(d)(3)(iv)(C) and (D). Specifically, the BIA may not sua
                sponte remand a case for further factfinding unless doing is necessary
                to determine whether the immigration judge had jurisdiction. Id. Sec.
                1003.1(d)(3)(iv)(C). Further, the BIA may not grant a motion to remand
                for further factfinding unless the party seeking the remand preserved
                the issue and previously attempted to provide such information to the
                immigration judge, the factfinding would alter the case's outcome and
                would not be cumulative of other evidence already in the record, and
                either the immigration judge's factual findings were clearly erroneous
                or remand to DHS is warranted. Id. Sec. 1003.1(d)(3)(iv)(D). Nothing
                in the rule, however, prohibits the BIA from remanding a case based on
                new evidence or information obtained after the date of the immigration
                judge's decision as a result of identity, law enforcement, or security
                investigations or examinations, including investigations occurring
                separate from those required by 8 CFR 1003.47.
                 Following review of public comments and in recognition of possible
                confusion regarding a situation in which additional factfinding would
                be a necessary adjunct of a remand due to an error of law, the final
                rule clarifies that, subject to other requirements, the Board may
                remand a case for additional factfinding in cases in which the
                immigration judge committed an error of law and that error requires
                additional factfinding on remand. For example, the Board may order
                additional factfinding on remand if it determines an immigration judge
                erred as a matter of law by not sufficiently developing the factual
                record for an alien proceeding without representation.
                 The rule also directly allows the BIA to affirm the decision of the
                immigration judge or DHS on any basis supported by the record,
                including a basis supported by facts that are not disputed. Id. Sec.
                1003.1(d)(3)(v).
                 Finally, the rule makes clear that the BIA cannot remand a case
                based solely on the ``totality of the circumstances'' as such a
                standard of review has never been contemplated by either the Act or the
                regulations. Id. Sec. 1003.1(d)(7)(ii)(B). Nonetheless, in light of
                the confusion evidenced by commenters regarding that point, the
                Department in the final rule is making clear that the Board cannot
                remand a case following a totality of the circumstances standard of
                review, though an immigration judge's consideration of the totality of
                the circumstances may be a relevant subject for review under an
                appropriate standard.
                6. Scope of a BIA Remand
                 The rule provides that the BIA may limit the scope of a remand
                while simultaneously divesting itself of jurisdiction on remand. Id.
                Sec. 1003.1(d)(7)(iii). Thus, a remand for a limited purpose--e.g.,
                the completion of identity, law enforcement, or security investigations
                or examinations--would be limited solely to that purpose consistent
                with the BIA's intent, and the immigration judge may not consider any
                issues beyond the scope of the remand.
                7. Immigration Judge Quality Assurance Certification of a BIA Decision
                 Additionally, to ensure the quality of BIA decision-making, the
                rule establishes a procedure for an immigration judge to certify BIA
                decisions reopening or remanding proceedings for further review by the
                Director in situations in which the immigration judge alleges that the
                BIA made an error. Id. Sec. 1003.1(k).
                 The certification process is limited only to cases in which the
                immigration judge believes the BIA erred in the decision by: (1) A
                typographical or clerical error affecting the outcome of the case; (2)
                a holding that is clearly contrary to a provision of the INA, any other
                immigration law or statute, any applicable regulation, or a published,
                binding precedent; (3) failing to resolve the basis for appeal,
                including being vague, ambiguous, internally inconsistent; or, (4)
                clearly not considering a material factor pertinent to the issue(s)
                before the immigration judge. Id. Sec. 1003.1(k)(1)(i)-(iv). In
                addition, in order to certify a BIA decision for review, the
                immigration judge must: (1) Issue the certification order, (a) within
                30 days of the BIA decision if the alien is not detained, and (b)
                within 15 days of the BIA decision if the alien is detained; (2)
                specify in the order the regulatory basis for the certification and
                summarize the underlying procedural, factual, or legal basis; and (3)
                provide notice of the certification to both parties. Id. Sec.
                1003.1(k)(2)(i)-(iii).
                 To ensure a neutral arbiter between the immigration judge and the
                BIA, the Director will review any such certification orders. Id. Sec.
                1003.1(k)(3). In reviewing such orders, the Director's delegated
                authority from the Attorney General permits him to dismiss the
                certification and return the case to the immigration judge or remand
                the case back to the BIA for further proceedings. The Director may not,
                however, issue an order of removal, grant a request for voluntary
                departure, or grant or deny an application for relief or protection
                from removal. Id. In response to a concern raised by at least one
                commenter, the final rule will allow the Director, in his or her
                discretion, to request briefs or filings from the parties when
                considering a case under this quality-control certification process.
                 This quality assurance certification process is a mechanism to
                ensure that BIA decisions are accurate and precise--not a mechanism
                solely to express disagreements with BIA decisions or to lodge
                objections to particular legal interpretations. Id. Sec. 1003.1(k)(4).
                8. Administrative Closure Authority
                 The rule amends 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to make clear
                that those provisions--and similar provisions in 8 CFR part 1240--
                provide no freestanding authority for immigration judges or Board
                members to administratively close immigration cases absent an express
                regulatory or judicially approved settlement basis to do so. For
                example, the rule amends 8 CFR 1003.1(d)(1)(ii) and 1003.10(b) to
                provide explicitly, for clarity, that the existing references in those
                paragraphs to ``governing standards'' refer to the applicable governing
                standards as set forth in the existing provisions of
                [[Page 81591]]
                Sec. Sec. 1003.1(d)(1)(i) and 1003.10(d), respectively and do not
                refer to some more general, free-floating administrative closure
                authority.
                 The final rule makes non-substantive change to 8 CFR
                1003.1(d)(1)(ii) and 1003.10(b) from the proposed rule by inserting the
                word ``defer'' in place of the word ``suspend'' in both paragraphs and
                by making conforming stylistic changes to ensure that the language is
                clear that an administrative closure of a case is a type of deferral of
                adjudication of that case. The Department has made this change to
                prevent any unintended confusion regarding whether there is a
                distinction between cases whose adjudication is deferred and those
                whose adjudication is suspended and to make clear that an
                administrative closure is not the only type of deferral of
                adjudication.\7\ The Department intended no distinctions and is
                clarifying that point by ensuring that the description of
                administrative closure as a type of deferral of adjudication is
                consistent throughout the rule.
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                 \7\ Administrative closure is not the only procedural mechanism
                for deferring adjudication of cases. For instance, EOIR deferred all
                non-detained removal hearings between March 17, 2020, and June 12,
                2020, due to the outbreak of COVID-19 but did not administratively
                close the cases.
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                9. Sua Sponte Authority
                 The rule removes the Attorney General's previous general delegation
                of sua sponte authority to the BIA and immigration judges to reopen or
                reconsider cases and instead limit such sua sponte reopenings only to
                correct minor mistakes, such as typographical errors or defects in
                service. 8 CFR 1003.2(a), 1003.23(b)(1).\8\ These changes do not
                preclude parties from filing joint motions, including in situations in
                which there has been a relevant change in facts or law. Moreover,
                nothing in the rule precludes the ability of a respondent to argue, in
                an appropriate case, that a time limit is inapplicable due to equitable
                tolling.
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                 \8\ The text of 8 CFR 1003.2(a) in the NPRM inadvertently
                removed the phrase ``or reconsider'' from the first sentence of that
                paragraph. This final rule reinserts that phrase to ensure that
                parties and the BIA are clear that the Board can reconsider a
                decision sua sponte in order to correct a typographical error or
                defect in service.
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                 In addition, to ensure that aliens whose removability is vitiated
                in toto prior to the execution of the removal order retain a mechanism
                for reopening their proceedings, the rule amends the regulations to
                allow the filing of a motion to reopen, notwithstanding the time and
                number bars, when an alien claims that an intervening change in law or
                fact renders the alien no longer removable at all and the alien has
                exercised diligence in pursuing his or her motion.\9\ Id. Sec. Sec.
                1003.2(c)(3)(v), 1003.23(b)(4)(v). Similarly, the rule amends the
                regulations to allow the filing of a motion to reopen, notwithstanding
                the time and number bars, when an individual claims that he or she is a
                United States citizen or national in recognition that the law provides
                jurisdiction only in removal proceedings for aliens. See INA 240(a)(1),
                8 U.S.C. 1229a(a)(1); see also 8 CFR 1003.2(c)(3)(vi),
                1003.23(b)(4)(v).
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                 \9\ This provision would apply only when the intervening change
                vitiated the alien's removability completely--an alien charged with
                multiple removability grounds would remain subject to the time and
                number bars unless the intervening change vitiated each removability
                ground. Additionally, this provision would apply only to grounds of
                removability. Aliens arguing that an intervening change in law or
                fact affected their eligibility for relief or protection from
                removal would remain subject to existing regulatory provisions on
                such motions.
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                 Finally, to address the effects of removal of sua sponte reopening
                authority on DHS, the rule clarifies that the filing of a motion to
                reopen with the BIA by DHS in removal proceedings or in proceedings
                initiated pursuant to 8 CFR 1208.2(c) is not subject to the time and
                numerical limits applicable to such motions. 8 CFR 1003.2(c)(3)(vii).
                10. Certification Authority
                 The rule also withdraws the BIA's delegated authority to review
                cases by self-certification, id. Sec. 1003.1(c), due to concerns over
                the lack of standards for such certifications, the lack of a consistent
                application of the ``exceptional'' situations criteria for purposes of
                utilizing self-certification, the potential for lack of notice of the
                BIA's use of certification authority, the overall potential for
                inconsistent application and abuse of this authority, and the strong
                interest in finality,
                11. Timeliness of Adjudication of BIA Appeals
                 The rule makes a variety of changes to ensure the timely
                adjudication of appeals. For example, the rule amends 8 CFR
                1003.1(e)(8)(i) to harmonize the time limits for adjudicating cases so
                that both the 90- and 180-day deadlines are set from the same starting
                point--when the record is complete.\10\ In addition, the rule
                established specific time frames for review by the screening panel,
                processing of transcripts, issuance of briefing schedules, and review
                by a single BIA member to determine whether a single member or a three-
                member panel should adjudicate the appeal, none of which were
                previously considered via regulation or tracked effectively to prevent
                delays. Id. Sec. 1003.1(e)(1), (8). It also adds tracking and
                accountability requirements for the Board Chairman, also known as the
                Chief Appellate Immigration Judge, in cases where the adjudication of
                appeals must be delayed to ensure that no appeals are overlooked or
                lost in the process. Id. Sec. 1003.1(e)(8)(v). Similarly, the rule
                establishes specific time frames for the adjudication of summary
                dismissals, providing substance to the current requirement at 8 CFR
                1003.1(d)(2)(ii) that such cases be identified ``promptly'' by the
                screening panel, and for the adjudication of interlocutory appeals,
                which are not currently addressed in the regulations, except insofar as
                they may be referred to a three-member panel for review. Id. Sec.
                1003.1(e)(1).
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                 \10\ For appeals, the record is complete upon the earlier of the
                filing of briefs by both parties or the expiration of the briefing
                schedule. For motions, the record is complete upon the filing of a
                response to the motion or the expiration of the response period. For
                remands, the record is complete upon either the date the remand is
                received by the BIA or, if the BIA elects to order briefing
                following the remand, the earlier of the filing of briefs by both
                parties or the expiration of the briefing schedule.
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                 Additionally, with two exceptions for cases subject to an extension
                under 8 CFR 1003.1(e)(8)(ii) or a hold under 8 CFR 1003.1(e)(8)(iii),
                the rule instructs the Board Chairman to refer appeals pending beyond
                335 days to the Director for adjudication. Id. Sec. 1003.1(e)(8)(v).
                Following the review of public comments received, including comments
                about the potential volume of cases subject to referral and the impact
                of other provisions of the rule, the final rule makes two changes from
                the NPRM.
                 First, it adds four further exceptions to 8 CFR 1003.1(e)(8)(v).
                Cases on hold pursuant to 8 CFR 1003.1(d)(6)(ii) to await the results
                of identity, law enforcement, or security investigations or
                examinations will not be subject to referral if the hold causes the
                appeal to remain pending beyond 335 days. Cases whose adjudication has
                been deferred by the Director pursuant to 8 CFR 1003.0(b)(1)(ii) will
                not be subject to referral if the deferral causes the appeal to remain
                pending beyond 335 days. Cases remanded by the Director under 8 CFR
                1003.1(k) will not be subject to referral if the case remains pending
                beyond 335 days after the referral. Cases that have been
                administratively closed pursuant to a regulation promulgated by the
                Department of Justice or a previous judicially approved settlement that
                expressly authorizes such an action will not be subject to referral if
                the administrative closure occurred prior to the elapse of 335 days and
                causes the appeal to remain pending beyond 335 days. These changes,
                which are incorporated through a stylistic
                [[Page 81592]]
                restructuring of 8 CFR 1003.1(e)(8)(v) for clarity, recognize
                additional situations in which a case may appropriately remain pending
                beyond 335 days without adjudication or when referral back to the
                Director would be incongruous because the Director had remanded the
                case in the first instance.
                 Second, the final rule makes edits to eliminate confusion over the
                scope of 8 CFR 1003.1(e). As both the title of that paragraph (``Case
                management system'') and its general introductory language (``The
                Chairman shall establish a case management system to screen all cases
                and to manage the Board's caseload.'') make clear, the provisions of
                the paragraph apply to ``cases.'' Id. Sec. 1003.1(e) (emphasis added).
                In turn, ``the term case means any proceeding arising under any
                immigration or naturalization law.'' Id. Sec. 1001.1(g). At the Board,
                cases may be initiated in one of three ways: (1) The filing of a Notice
                of Appeal, (2) the filing of a motion directly with the Board (e.g., a
                motion to reconsider or a motion to reopen), or (3) the receipt of a
                remand from a Federal court, the Attorney General, or--under this
                rule--the Director. In other words, the Board adjudicates multiple
                types of cases, not just appeals. Although the existing language of 8
                CFR 1003.1(e) is clear that it applies to all types of cases at the
                Board, regardless of how they are initiated, the inconsistent,
                subsequent use of ``appeals'' throughout that paragraph creates
                confusion as to its scope since appeals are not the only type of case
                the Board considers. See, e.g., id. Sec. 1003.1(e)(3) (in describing
                the Board's merits review process, using ``case'' in the first
                sentence, ``case'' and ``appeal'' in the second sentence, and
                ``appeal'' in the third sentence, all is describing a unitary process).
                To avoid continued confusion and to ensure that the scope of the other
                changes in the final rule regarding the Board's case management process
                are clear, the final rule makes edits to 8 CFR 1003.1(e) to ensure that
                it is clearly applicable to all cases before the Board, not solely
                cases arising through appeals.\11\
                ---------------------------------------------------------------------------
                 \11\ For similar reasons, the final rule also makes changes to 8
                CFR 1003.1(d)(3)(iv) to clarify that 8 CFR 1003.1(d)(3)(iv)(A)
                applies to all cases at the Board, whereas 8 CFR 1003.1(d)(3)(iv)(D)
                applies only to direct appeals of immigration judge decisions.
                ---------------------------------------------------------------------------
                12. Forwarding the Record on Appeal
                 The rule revises 8 CFR 1003.5(a) regarding the forwarding of the
                record of proceedings in an appeal to ensure that the transcription
                process and the forwarding of records do not cause any unwarranted
                delays. Specifically, the rule clarifies that the immigration judge
                does not need to forward the record of the proceedings to the BIA if
                the BIA already has access to the record electronically and removes the
                process for immigration judge review of the transcript. Id. Sec.
                1003.5(a).
                 In addition, the rule removes language in 8 CFR 1003.5(b), which
                describes procedures regarding appeals from DHS decisions that are
                within the BIA's appellate jurisdiction, that is not applicable to
                EOIR's adjudicators and replaces outdated references to the former
                Immigration and Naturalization Service. These changes do not
                substantively affect the BIA's adjudication of any appeals from DHS
                officers that are within the BIA's jurisdiction.
                II. Public Comments on the Proposed Rule
                A. Summary of Public Comments
                 The comment period for the NPRM ended on September 25, 2020, with
                1,284 comments received. The majority of comments were from individual
                and anonymous commenters, including coordinated campaigns. Other
                commenters included non-profit organizations, law firms, and members of
                Congress. While some commenters supported the NPRM, the majority of
                commenters expressed opposition to the rule, either in whole or part.
                 Many, if not most, comments opposing the NPRM either misunderstood
                what it actually provides, proceed from erroneous legal or factual
                premises--e.g., that the rule applies only to aliens and not DHS or
                that its changes apply more heavily to aliens than to DHS--are founded
                in policy disagreements, or simply repeat tendentious or spurious
                claims about the Department's motivations in issuing the rule. Further,
                many commenters opposing the rule failed to engage with the specific
                reasons and language put forth by the Department in lieu of broad
                generalizations or hyperbolic, unsupported presumptions. Additionally,
                many comments appeared rooted in a belief that EOIR's adjudicators are
                incompetent or unethical and are either incapable or unwilling to
                adhere to applicable law. Finally, most, if not all, commenters in
                opposition to the rule viewed its procedural changes wholly through a
                results-oriented lens such that a proposal that commenters
                speculatively believed would cause aliens to ``win'' fewer cases was
                deemed objectionable, even without evidence that such a result would
                follow. In other words, any change perceived to lead to aliens
                ``winning'' fewer cases was deemed unfair, arbitrary and capricious,
                biased, a violation of due process, or otherwise inappropriate,
                regardless of the Department's justification for the change or the
                relevant law. Such a results-oriented view both misapprehended the
                procedural nature of the changes and appeared to have been based on a
                tacit belief that aliens were entitled to specific outcomes in specific
                cases, notwithstanding the relevant evidence or law applicable to a
                case, and that the rule inappropriately required adjudicators to
                maintain partiality in adjudicating cases rather than continuing to
                provide what commenters viewed as favorable treatment toward aliens.
                 To the extent that commenters simply disagree as a policy matter
                that Board cases should be completed in a timely manner, see id.
                1003.1(d); cf. INS v. Doherty, 502 U.S. 314, 323 (1992) (``[A]s a
                general matter, every delay works to the advantage of the deportable
                alien who wishes merely to remain in the United States.''), or that the
                Department should take measures, consistent with due process, to ensure
                the timely completion of such cases, the Department finds such policy
                disagreements unpersuasive for the reasons given in the NPRM and
                throughout this final rule.
                 Similarly, the Department also categorically rejects any comments
                suggesting that adjudicators should provide favorable treatment to one
                party over another, e.g., by granting a sua sponte motion to reopen
                contrary to well-established law. The Department expects all of its
                adjudicators to treat both parties fairly and to maintain impartiality
                when adjudicating cases. 8 CFR 1003.1(d)(1) (``The Board shall resolve
                the questions before it in a manner that is timely, impartial, and
                consistent with the Act and regulations.'' (emphasis added)); 8 CFR
                1003.10(b) (``In all cases, immigration judges shall seek to resolve
                the questions before them in a timely and impartial manner consistent
                with the Act and regulations.'') (emphasis added)); 5 CFR
                2635.101(b)(8) (``Employees [of the Federal Government] shall act
                impartially and not give preferential treatment to any private
                organization or individual.''); EOIR, Ethics and Professionalism Guide
                for Members of the Board of Immigration Appeals sec. V (May 4, 2011)
                [hereinafter BIA Ethics and Professionalism Guide] (``A Board Member
                shall act impartially and shall not give preferential treatment to any
                organization or individual when adjudicating the merits of a particular
                case.''), available at https://
                [[Page 81593]]
                www.justice.gov/eoir/page/file/992726/download; EOIR, Ethics and
                Professionalism Guide for Immigration Judges sec. V (Jan. 26, 2011)
                [hereinafter IJ Ethics and Professionalism Guide] (``An Immigration
                Judge shall act impartially and shall not give preferential treatment
                to any organization or individual when adjudicating the merits of a
                particular case.''), available at https://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/EthicsandProfessionalismGuideforIJs.pdf. Further, the Department also
                rejects unsupported and almost ad hominem comments based on a belief
                that its adjudicators are incompetent or unethical, that they will fail
                to follow the law, or that they have some results-oriented view that
                will cause them to adjudicate cases in an inappropriate manner. See
                United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926) (``The
                presumption of regularity supports the official acts of public
                officers, and, in the absence of clear evidence to the contrary, courts
                presume that they have properly discharged their official duties.'').
                 In sum, the Department issued the NPRM for the reasons given in
                order to bring needed clarity to certain areas of law, improve
                efficiency at the BIA, ensure authority is appropriately exercised,
                reduce the risk of gamesmanship by parties, and promote impartial and
                timely adjudications consistent with the law. It did not do so for any
                nefarious purpose, nor did it intend for its procedural changes to have
                any substantive bearing on the outcomes of additional cases, which flow
                from the evidence and the law, not the Department's process. As
                discussed herein, nothing in the NPRM singles out specific populations
                of aliens, including unrepresented aliens,\12\ nor do any of its
                changes fall disproportionately upon such groups in an inappropriate
                manner. To the extent that commenters did not engage with the NPRM
                itself, provided unsupported assertions of fact or law, attacked--
                tacitly or explicitly--the motivations of the Department's
                adjudicators, or otherwise put forward suggestions based on their
                preferred results rather than an impartial process, the Department has
                nevertheless considered those comments but finds them unavailing. See
                Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 n.58 (D.C. Cir. 1977) (per
                curiam) (``In determining what points are significant, the `arbitrary
                and capricious' standard of review must be kept in mind. Thus only
                comments which, if true, raise points relevant to the agency's decision
                and which, if adopted, would require a change in an agency's proposed
                rule cast doubt on the reasonableness of a position taken by the
                agency. Moreover, comments which themselves are purely speculative and
                do not disclose the factual or policy basis on which they rest require
                no response. There must be some basis for thinking a position taken in
                opposition to the agency is true.''). Further, to the extent that
                commenters provided substantive analysis and raised important issues,
                the Department has considered all of them; however, on balance, except
                for changes noted below, it has determined that the policy and
                operational benefits of the rule expressed above--including
                consistency, impartiality, and efficiency--outweigh all of the issues
                raised by commenters. Accordingly, although the Department has reviewed
                all comments received, the vast majority of them fall into the
                groupings outlined above, and few of them are persuasive for reasons
                explained in more detail in Part II.C below.
                ---------------------------------------------------------------------------
                 \12\ The Department has fully considered the possible impacts of
                this rule on the relatively small pro se population of aliens with
                cases before the Board. As discussed below, however, the rule
                neither singles such aliens out for particular treatment under the
                Board's procedures, nor does it restrict or alter any of the many
                procedural avenues such aliens already have available to them in
                advancing their cases. Further, nothing in the rule inhibits the
                availability of pro bono counsel to assist such aliens as
                appropriate.
                ---------------------------------------------------------------------------
                B. Comments Expressing Support for the Proposed Rule
                 Comment: Commenters expressed general support for the rule and
                immigration reform. These commenters supported all aspects of the rule,
                which they stated would ``streamline'' BIA processes to help reduce the
                backlog and the number of frivolous appeals. One commenter stated that
                the rule ``will have a positive impact on immigration, especially
                limiting the burden placed on the system by pro se immigrants.''
                 Response: The Department appreciates the commenters' support for
                the rule.
                C. Comments Expressing Opposition to the Proposed Rule
                1. General Opposition
                 Comment: Many Commenters expressed general opposition to the
                rule.\13\ Several commenters asserted that the rule was motivated by
                politics and would ``enable politicized and biased decision-making.''
                Various commenters raised concerns that the rule would give the EOIR
                Director ``consolidated power over appeals.'' Similarly, several
                commenters voiced concern that the rule would turn the BIA into a
                ``political tool'' or that the changes would turn the BIA into a rubber
                stamp for deportation orders. Others were concerned that the rule would
                put increased pressure on immigration judges to decide cases quickly.
                ---------------------------------------------------------------------------
                 \13\ Commenters' specific concerns regarding different
                provisions of the rule are discussed separately below in section
                II.C.3.
                ---------------------------------------------------------------------------
                 Some commenters expressed concerns that the rule was an attempt to
                end legal immigration. Other commenters alleged that the rule was
                motivated by an attempt to foreclose respondents' access to relief from
                removal.
                 Many commenters were concerned that the rule would eliminate a
                robust and meaningful appeal process. For example, one commenter stated
                that ``[a]ny individual facing judicial decision making deserves to
                have a full and fair right to appeal.'' The commenter went on to claim
                that the rule seeks ``to erode that right by making it more difficult
                for individuals to actualize the right to appeal to the BIA.'' Another
                commenter was concerned that the rule would completely strip
                respondents of ``their right to meaningfully contest a poorly reasoned
                or legally invalided decision.''
                 Several commenters expressed concern about the rule's impact on
                respondents' safety and security. One commenter claimed that the rule
                ``would greatly reduce the rights of noncitizens appearing before EOIR
                and would result in . . . the potential death of asylum seekers who are
                removed to their home countries to be killed.'' Another commenter noted
                that taking away a respondent's ability to appeal their case ``exposes
                them to more violence and risk of death if they are deported.'' Other
                commenters were concerned that the rule would lead to permanent family
                separations.
                 A number of commenters also made the generalized claim that the
                rule would entirely reshape the immigration system. Others stated that
                the rule would create significant administrative burdens. Several other
                commenters alleged that the rule would lead to an increased case
                backlog and make EOIR less efficient. Multiple commenters raised
                concerns regarding the impact of the intersection of the rule with
                other rules recently promulgated by the Department and by DHS,
                particularly the Department's proposed rule to increase fees for
                motions to reopen and appeals.
                 Response: Commenters are incorrect that the rule is the product of
                political or biased decision-making or that the rule would turn the BIA
                into a ``political tool.'' As noted in the NPRM, the BIA has seen
                recent significant increases in
                [[Page 81594]]
                its pending caseload. 85 FR at 52492. The number of appeals pending is
                currently at a record high, with 84,673 case appeals pending as of the
                end of FY 2020. EOIR, Adjudication Statistics: Case Appeals Filed,
                Completed, and Pending, Oct. 13, 2020, available at https://
                www.justice.gov/eoir/page/file/1248501/download. Accordingly, the
                Department has reviewed EOIR's regulations regarding the procedures for
                BIA appeals to determine what changes can be implemented to promote
                increased efficiencies and taken steps to address the BIA's growing
                caseload. In this manner, this rule builds on prior similar procedural
                reviews and amendments to the BIA's regulations. See, e.g., Board of
                Immigration Appeals: Procedural Reforms To Improve Case Management, 67
                FR 54878 (Aug. 26, 2002) (final rule that revised the structure and
                procedures of the BIA, provided for an enhanced case management
                procedure, and expanded the number of cases referred to a single Board
                member for disposition).\14\
                ---------------------------------------------------------------------------
                 \14\ In addition, the Department notes that it and EOIR have
                taken numerous steps, both regulatory and sub-regulatory, to
                increase EOIR's efficiencies and address the pending caseload. See,
                e.g., Expanding the Size of the Board of Immigration Appeals, 85 FR
                18105 (Apr. 1, 2020) (interim final rule expanding the size of the
                BIA from 21 to 23 members); EOIR, Policy Memorandum 20-01: Case
                Processing at the Board of Immigration Appeals [hereinafter PM 20-
                01] (Oct. 1, 2019), available at https://www.justice.gov/eoir/page/file/1206316/download (explaining various agency initiatives,
                including an improved BIA case management system, issuance of
                performance reports, and a reiteration of EOIR's responsibility to
                timely and efficiently decide cases in serving the national
                interest); EOIR, Policy Memorandum 19-11: No Dark Courtrooms (Mar.
                29, 2019), available at https://www.justice.gov/eoir/file/1149286/download (memorializing policies to reduce and minimize the impact
                of unused courtrooms and docket time).
                ---------------------------------------------------------------------------
                 Similarly, commenters are incorrect that the rule is intended to
                have an effect on immigration rates or an alien's opportunity to be
                heard. As part of the Department of Justice, EOIR's mission remains to
                ``to adjudicate immigration cases by fairly, expeditiously, and
                uniformly interpreting and administering the Nation's immigration
                laws.'' EOIR, About the Office, Aug. 14, 2018, available at https://www.justice.gov/eoir/about-office. Instead, as part of the Department's
                intention to increase efficiencies, the Department believes that the
                rule will have the effect of reducing the time required for the
                adjudication of appeals by DHS in cases where the immigration judge or
                the BIA has found the alien merits relief or protection from removal.
                In short, the changes to the rule should help both meritorious claims
                be adjudicated more quickly, which will benefit aliens, and meritless
                claims adjudicated more quickly, which will benefit the public and the
                government.
                 Commenters' statements regarding possible effects on aliens who are
                denied relief or who may be subject to removal are purely speculative.
                Moreover, such speculative effects exist currently and independently of
                the rule, as alien appeals may be denied or dismissed under current
                procedures. Further, nothing in the rule prevents or inhibits case-by-
                case adjudication by the Board in accordance with the evidence and
                applicable law for each such case. Accordingly, the Department finds
                commenters' concerns on this point unpersuasive.
                 Finally, the Department acknowledges that it has published multiple
                proposed rules in 2020, including one that would increase the fee for
                an appeal to the BIA and for certain motions to reopen for the first
                time in over 30 years. See Executive Office for Immigration Review; Fee
                Review, 85 FR 11866 (Feb. 28, 2020). The Department also acknowledges
                that DHS has imposed a $50 fee for asylum applications, U.S.
                Citizenship and Immigration Services Fee Schedule and Changes to
                Certain Other Immigration Benefit Request Requirements, 85 FR 46788,
                46791 (Aug. 3, 2020),\15\ that would also be applicable in EOIR
                proceedings, 8 CFR 1103.7(b)(4)(ii), though that rule has been
                enjoined.\16\ Immigrant Legal Resource Ctr. v. Wolf, --F.Supp.3d--,
                2020 WL 5798269 (N.D. Cal. 2020); Nw. Immigrants Rights Proj. v. U.S.
                Citizenship & Immigration Servs., No. 19-3283 (RDM), 2020 WL 5995206
                (D.D.C. Oct. 8, 2020).
                ---------------------------------------------------------------------------
                 \15\ The DHS rule did not impose a fee for an asylum application
                filed by a genuine UAC who is in removal proceedings conducted by
                EOIR. 85 FR 46788 at 46809 (``Notably, unaccompanied alien children
                in removal proceedings who file an application for asylum with USCIS
                are exempt from the Form I-589 fee.''). Thus, contrary to some
                commenters' concerns, a genuine UAC who files a motion to reopen
                based exclusively on an asylum application is not subject to a fee
                for that motion. 8 CFR 1003.8(a)(2)(ii), 1003.24(b)(2)(i), (ii).
                 \16\ While the injunction of DHS's rule assessing a $50 fee for
                asylum applications is in effect, EOIR cannot charge a fee for
                asylum applications in its proceedings. Relatedly, while that
                injunction is in effect, it cannot charge a fee for a motion to
                reopen based exclusively on an asylum application. 8 CFR
                1003.8(a)(2)(ii), 1003.24(b)(2)(i), (ii). Because the ultimate
                resolution of that litigation is unknown--and, thus, there is a
                possibility that DHS's rule may never take effect--commenters'
                concerns about the potential relationship between that rule and this
                final rule are even more speculative. Nevertheless, as discussed,
                even if all of the relevant rules were in effect, the Department has
                concluded that the benefits of the final rule outweigh any
                substantiated costs identified by commenters.
                ---------------------------------------------------------------------------
                 The Department rejects any assertions, however, that it is
                proposing multiple rules for any sort of nefarious purpose. Each of the
                Department's rules stands on its own, includes explanations of their
                basis and purpose, and allows for public comment, as required by the
                APA. See Little Sisters of the Poor Saints Peter & Paul Home v.
                Pennsylvania, 140 S. Ct. 2367, 2385 (2020) (explaining that the APA
                provides the ``maximum procedural requirements'' that an agency must
                follow in order to promulgate a rule). Further, the interplay and
                impact of all of these rules is speculative at the present time due to
                both ongoing and expected future litigation--which may allow all, some,
                or none of the rules to ultimately take effect--and the availability of
                fee waivers, 8 CFR 1103.7(c), which may offset the impact of some of
                the increases. Nevertheless, to the extent commenters noted some
                potential overlap or joint impacts, the Department regularly considers
                the existing and potential legal framework when a specific rule is
                proposed or implemented. Moreover, even if all rules were in effect,
                the Department has concluded that the benefits of the instant rule
                discussed in the NPRM, e.g., 85 FR at 52509 and herein--as well as the
                benefits discussed in the other rules, e.g., 85 FR at 11870 \17\--
                ultimately outweigh any combined impact the rules may have on aliens,
                particularly vis-[agrave]-vis fee increases for appeals and motions to
                reopen.\18\
                ---------------------------------------------------------------------------
                 \17\ In issuing its proposed rule regarding fees for
                applications administered by EOIR, the Department acknowledged the
                balance between the costs of increased fees and the public benefit
                associated with such fees, in addition to the need to comply with
                applicable law and policy in conducting more regular fee reviews. 85
                FR at 11870 (``Although EOIR is an appropriated agency, EOIR has
                determined that it is necessary to update the fees charged for these
                EOIR forms and motions to more accurately reflect the costs for
                EOIR's adjudications of these matters. At the same time, however,
                EOIR recognizes that these applications for relief, appeals, and
                motions represent statutorily provided relief and important
                procedural tools that serve the public interest and provide value to
                those who are parties to the proceedings by ensuring accurate
                administrative proceedings. . . . As DHS is the party opposite the
                alien in these proceedings, EOIR's hearings provide value to both
                aliens seeking relief and the Federal interests that DHS represents.
                Given that EOIR's cost assessment did not include overhead costs or
                costs of non-salary benefits (e.g., insurance), recovery of the
                processing costs reported herein is appropriate to serve the
                objectives of the IOAA and the public interest. The proposed fees
                would help the Government recoup some of its costs when possible and
                would also protect the public policy interests involved. EOIR's
                calculation of fees accordingly factors in both the public interest
                in ensuring that the immigration courts are accessible to aliens
                seeking relief and the public interest in ensuring that U.S.
                taxpayers do not bear a disproportionate burden in funding the
                immigration system.'').
                 \18\ The Department also reiterates that the availability of fee
                waivers for appeals and motions to reopen, 8 CFR 1003.8(a)(3) and 8
                CFR 1003.24(d), addresses the principal concern raised by commenters
                regarding the instant rule's asserted impact on filing motions to
                reopen and the Department's proposed fee increase for motions to
                reopen.
                ---------------------------------------------------------------------------
                [[Page 81595]]
                 Comment: At least one commenter stated that the rule is pretext for
                restrictions on aliens' access to asylum or related relief. In support,
                the commenter argued that the rule provides preferential treatment to
                DHS versus aliens in proceedings and that the Department selectively
                compares the BIA at times to either Federal courts or other
                administrative tribunals, whichever best supports the restriction at
                issue. In addition, the commenter highlighted comments disparaging of
                immigrants or the immigration system by President Trump and the
                Attorney General.
                 Response: The rule is not a pretext for any nefarious motive
                targeting aliens for any reason, and it is appropriately supported by
                applicable law and examples. As discussed, supra, the rule generally
                applies to aliens and DHS equally and does not provide preferential
                treatment to either party. To the extent that commenters simply
                disagree with either the law or the examples provided, commenters did
                not provide a persuasive justification for why their particular policy
                preferences are superior to those adopted by the Department in the
                rule. Moreover, as explained in the NPRM and herein, this rule is just
                one example of the Department's actions, both recently and in the past,
                to increase efficiencies before the BIA and address the record pending
                caseload. The Department reiterates the reasoning set out in the
                proposed rule for the changes, and the discussion further below
                regarding commenters' concerns with particular provisions of the rule.
                2. Violates Due Process
                 Comment: Many commenters expressed broad concerns that the rule
                would erode aliens' due process rights in immigration court or BIA
                proceedings. Specifically, several commenters claimed that the rule
                favored efficiency over fairness. Commenters stated that the rule
                claimed to promote efficiency, but that its proposed changes ``would
                sacrifice fairness and due process for this increased efficiency.''
                Several commenters noted that due process should be more highly valued
                than efficiency in removal proceedings. For example, one commenter
                asserted that the rule ``has everything to do with efficiency and
                nothing to do with due process.'' A commenter also stated that that
                rule's ``goal should not be to create a more efficient production
                system for the rapid removal of litigants.'' Another commenter claimed
                that, under the rule, the BIA would put efficiency above its duties as
                an appellate body, which would thereby violate respondents' due process
                rights.
                 Furthermore, commenters voiced concern that the rule was attempting
                to inappropriately speed up and streamline procedures in a way that
                would negatively affect due process protections. One commenter stated
                that the streamlining of procedures ``will foster further inequities
                and affect due process for all people involved.'' A number of
                commenters pointed out that cases should not be decided quickly and
                that due process requires that attorneys be given a sufficient amount
                of time to prepare their clients' cases. Several other commenters
                raised concerns that the rule was an attempt by the Administration to
                prioritize deportations over due process protections.
                 Numerous commenters were also concerned with the possible
                consequences stemming from what they view as a potential erosion of due
                process protections. Commenters noted that the level of due process in
                immigration court proceedings can mean the difference between a
                respondent living safely in the United States and being returned to
                danger in another country.
                 Response: To the extent that commenters equate ``due process'' with
                an outcome favorable to the alien and an ``erosion'' of due process
                with an outcome adverse to the alien--and base their comments
                accordingly on that view--the Department declines to accept both that
                view of due process and the comments based on it. The foundation of due
                process is notice and an opportunity to be heard, and nothing in the
                rule eliminates either an alien's right to notice or an alien's
                opportunity to be heard on a case before the Board.\19\ See LaChance v.
                Erickson, 522 U.S. 262, 266 (1998) (``The core of due process is the
                right to notice and a meaningful opportunity to be heard.''). The
                Department does not evaluate due process based on outcomes for either
                party, and it accordingly declines to adopt comments premised on the
                intimation that due process occurs only when the outcome of a case is
                favorable to an alien. Cf. Pugel v. Bd. of Trs. of Univ. of Ill., 378
                F.3d 659, 666 (7th Cir. 2004) (``Due process did not entitle
                [appellant] to a favorable result . . . only to a meaningful
                opportunity to present [a case].'').
                ---------------------------------------------------------------------------
                 \19\ The Department notes that although the INA statutorily
                requires proceedings over which an immigration judge must preside to
                determine an alien's removability in many situations, under sections
                240(a)(1) and (3) of the Act, 8 U.S.C. 1229a(a)(1) and (3), and
                acknolwedges that an administrative appeal may be permitted, e.g.,
                INA 101(a)(47)(B) and 208(d)(5)(A)(iv), 8 U.S.C. 1101(a)(47)(B) and
                1158(d)(5)(A)(iv), there is no constitutional or statutory right to
                an administrative appeal to the BIA. See Albathani v. INS, 318 F.3d
                365, 376 (1st Cir. 2003) (``An alien has no constitutional right to
                any administrative appeal at all. Such administrative appeal rights
                as exist are created by regulations promulgated by the Attorney
                General.'' (citations omitted)); Guentchev v. INS, 77 F.3d 1036,
                1037-38 (7th Cir. 1996) (``The Constitution does not entitle aliens
                to administrative appeals. Even litigants in the federal courts are
                not constitutionally entitled to multiple layers of review. The
                Attorney General could dispense with the Board and delegate her
                powers to the immigration judges, or could give the Board discretion
                to choose which cases to review (a la the Appeals Council of the
                Social Security Administration, or the Supreme Court exercising its
                certiorari power).''); cf. Provisional Unlawful Presence Waivers of
                Inadmissibility for Certain Immediate Relatives, 78 FR 536, 554-55
                (Jan. 3, 2013) (``In upholding the BIA's practice of `affirmance
                without opinion' of immigration judge decisions, for example,
                several courts of appeals have recognized that Due Process does not
                require an agency to provide for administrative appeal of its
                decisions.''). Thus, the Department's administrative appellate
                process involving the BIA already provides more due process to
                aliens in removal proceedings than is required by either the INA or
                the Constitution, and the alteration of the BIA's procedures through
                regulations promulgated by the Attorney General is fully consonant
                with the provision of due process. See Barradas v. Holder, 582 F.3d
                754, 765 (7th Cir. 2009) (stating that immigration proceedings that
                meet the statutory and regulatory standards governing the conduct of
                such proceedings generally comport with due process).
                ---------------------------------------------------------------------------
                 As noted above, EOIR's mission is ``to adjudicate immigration cases
                by fairly, expeditiously, and uniformly interpreting and administering
                the Nation's immigration laws.'' These objectives are generally
                complementary; for example, unnecessary delays in the receipt of relief
                for meritorious aliens is itself a fairness concern. Moreover, there is
                nothing inherently unfair in ensuring that a case is adjudicated by the
                Board within approximately 11 months--i.e., 335 days--of its filing. To
                the contrary, excessive delay in adjudication, especially when issues
                of human welfare are at stake, may raise concerns themselves and
                increase the risk of litigation.\20\ See, e.g., Telecomms. Rsch.
                [[Page 81596]]
                and Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (outlining
                several factors for deciding unreasonable delay claims under the
                Administrative Procedures Act, including acknowledging ``delays that
                might be reasonable in the sphere of economic regulation are less
                tolerable when human health and welfare are at stake'').
                ---------------------------------------------------------------------------
                 \20\ The Department recognizes and agrees with the Supreme
                Court's observation that ``as a general matter, every delay works to
                the advantage of the deportable alien who wishes merely to remain in
                the United States.'' Doherty, 502 U.S. at 323. Thus, it is aware
                that many aliens likely prefer substantial delays in the
                adjudications of their appeals by the BIA and, accordingly, oppose
                any efforts to increase the efficiency of such adjudications.
                Nevertheless, the Department finds any rationale for encouraging or
                supporting the dilatory adjudication of cases both inherently
                unpersuasive and wholly outweighed by the importance of timeliness
                and fairness--especially to aliens with meritorious claims--in BIA
                adjudications.
                ---------------------------------------------------------------------------
                 Commenters are incorrect that the provisions of this rule impede
                aliens' due process rights in the manner alleged. Although the rule
                refines timing and other procedural requirements, the rule does not
                affect any party's fundamental rights to notice or an opportunity to be
                heard by the BIA. Moreover, the rule does not make proceedings before
                the BIA ``so fundamentally unfair that the alien was prevented from
                reasonably presenting his case.'' Gutierrez v. Holder, 662 F.3d 1083,
                1091 (9th Cir. 2011) (citations and quotation marks omitted). None of
                the changes in the rule limit aliens in immigration proceedings before
                EOIR from filing appeals, briefs, or other evidence such that it
                prevents aliens from reasonably presenting their appeal. Further, many
                commenters assessed the rule through only a one-sided lens related to
                aliens and did not acknowledge that (1) most of the changes apply
                equally to DHS and (2) some of the changes--e.g., the elimination of
                simultaneous briefing for non-detained cases--fall much more heavily on
                DHS than on aliens. In short, as the Department explained in the NPRM
                and reiterates in the final rule, the changes are designed for the
                benefit of all parties and the adjudicators and do not affect either
                party's entitlement to due process in immigration proceedings.
                3. Specific Concerns With the NPRM
                a. BIA Jurisdiction by Certification (8 CFR 1003.1(c))
                 Comment: Numerous commenters expressed concern over the
                Department's removal of the BIA's self-certification authority at 8 CFR
                1003.1(c).
                 At least one commenter expressed dismay as to why the Department
                would retract the BIA's self-certification authority rather than
                retaining the authority but defining ``exceptional circumstances,''
                which the commenter believed would be less costly and more beneficial.
                 Commenters were concerned that the removal of the BIA's self-
                certification authority will negatively impact aliens in proceedings,
                particularly pro se respondents. For example, a commenter explained
                that the changes would disproportionately impact pro se aliens because
                they are ``the parties least likely to have a sophisticated notion of
                when an appeal to the BIA is worth taking.'' Another commenter noted
                that removal of the self-certification authority would prevent the BIA
                from addressing defects in an alien's Notice of Appeal, which may be
                the result of factors outside the alien's control, such as mail delays,
                illness, or language ability.
                 One commenter characterized the change as removing an important
                check on immigration judge misconduct.
                 Taking issue with the Department's supposed analogy to Federal
                courts, another commenter claimed that Federal courts were distinct
                from immigration courts because the ``process of filing a notice of
                appeal in federal court is straightforward, [ ] the Federal Rules of
                Civil Procedure provide ample protection for pro se parties who make
                mistakes, [and] the stakes in most civil suits arising in federal
                district court are, unlike the stakes in most immigration court cases,
                not a matter of life and death.''
                 Response: As an initial point, the Department notes that many
                commenters objected to the limitation of the Board's certification
                authority solely because they perceived that authority to be beneficial
                only to respondents. Those comments, however, support the Department's
                concern about the inappropriate and inconsistent usage of that
                authority and its decision to limit that authority because it may be
                applied in a manner that benefits one party over the other.
                 As the Department discussed in the NPRM, the BIA's use of its self-
                certification authority has been subject to inconsistent usage, if not
                abuse, by the BIA in the past. For example, despite clear language that
                required the BIA to have jurisdiction in order to exercise its self-
                certification authority, BIA members often inverted that principle and
                used the self-certification authority to establish jurisdiction. See,
                e.g., Matter of Carlos Daniel Jarquin-Burgos, 2019 WL 5067262, at *1
                n.1 (BIA Aug. 5, 2019) (``On March 29, 2019, we accepted the
                respondent's untimely appeal. To further settle any issues of
                jurisdiction, we accept this matter on appeal pursuant to 8 CFR
                1003.1(c).''), Matter of Daniel Tipantasig-Matzaquiza, 2016 WL 4976725,
                at *1 (BIA Jul. 22, 2016) (``To settle any issues regarding
                jurisdiction, we will exercise our discretionary authority to accept
                this appeal on certification. See 8 CFR 1003.1(c).''), and Matter of
                Rafael Antonio Hanze Fuentes, 2011 WL 7071021, at *1 n.1 (BIA Dec. 29,
                2011) (``In order to avoid any question regarding our jurisdiction over
                this appeal, we take jurisdiction over this matter by certification
                pursuant to 8 CFR 1003.1(c).'').
                 Commenters' own suggestions that removing this authority would harm
                alien appellants because the BIA often uses its self-certification
                authority inappropriately and contrary to existing case law to avoid
                finding appeals untimely or correct filing defects provide further
                support for the Department's decision. See Matter of Jean, 23 I&N Dec.
                373, 380 n.9 (A.G. 2002) (the Board's certification authority, like its
                sua sponte authority, ``is not meant to be used as a general cure for
                filing defects or to otherwise circumvent the regulations, where
                enforcing them might result in hardship'' (internal citation and
                quotation marks omitted)). Further, commenters did not explain how the
                Board could exercise jurisdiction through certification without
                determining its jurisdiction in the first instance. See 85 FR at 52506.
                Finally, most commenters did not acknowledge that the withdrawal of
                certification authority would also impact cases in which it may have
                been used contrary to precedent to accept appeals in favor of DHS. In
                other words, as the Department has noted, the impact of this provision
                is equally applicable to both parties and is not directed at one over
                the other.
                 The Department finds that the same risks would continue should the
                Department provide further definition of ``exceptional circumstances''
                rather than remove the certification authority, as suggested by
                commenters. Indeed, the existence of a standard for ``exceptional
                circumstances'' applicable to BIA self-certification since at least
                2002, see Matter of Jean, 23 I&N Dec. at 380 n.9, has not precluded the
                Board members from disregarding that standard as both the NPRM, 85 FR
                at 52506, and commenters recognize. Accordingly, the Department finds
                that further attempts to refine that standard would likely be
                unhelpful, if not futile, especially because there is no effective
                check on its usage to ensure consistency. Moreover, creating an
                additional definitional standard for ``exceptional circumstances''
                would also create additional adjudicatory delays and arguments
                surrounding whether a case genuinely met that standard.
                 Regarding the possible impact of the rule on pro se aliens, the
                Department first notes that most aliens--i.e., 86 percent, EOIR,
                Current Representation Rates, Oct. 13, 2020 [hereinafter Representation
                Rates], available at https://www.justice.gov/eoir/page/file/
                [[Page 81597]]
                1062991/download--whose cases are considered by the Board have
                representation. For those who do not, there are multiple avenues they
                may pursue to obtain representation.\21\ For example, the Department
                maintains a BIA Pro Bono Project in which ``EOIR assists in identifying
                potentially meritorious cases based upon criteria determined by the
                partnering volunteer groups.'' EOIR, BIA Pro Bono Project, Oct. 16,
                2020, available at https://www.justice.gov/eoir/bia-pro-bono-project.\22\ Additionally, certain procedural doctrines, such as
                equitable tolling, may excuse noncompliance with filing deadlines for
                pro se aliens.\23\ Moreover, immigration judges have a duty to develop
                the record in cases involving pro se aliens which will assist such
                aliens in pursuing appeals if needed. See Mendoza-Garcia v. Barr, 918
                F.3d 498, 504 (6th Cir. 2019) (collecting cases). The Department has
                fully considered the possible impacts of this rule on the relatively
                small pro se population of aliens with cases before the Board. However,
                the rule neither singles such aliens out for particular treatment under
                the Board's procedures, nor does it restrict or alter any of the
                avenues noted above that may assist pro se aliens.
                ---------------------------------------------------------------------------
                 \21\ In an appeal to the Board in removal proceedings, ``the
                person concerned shall have the privilege of being represented (at
                no expense to the Government) by such counsel, authorized to
                practice in such proceedings, as he shall choose.'' INA 292, 8
                U.S.C. 1362. Despite this statutory right to counsel at no expense
                to the Government in appeals to the BIA in removal proceedings, the
                Department recognizes that some aliens do not obtain representation
                before the BIA. The Department understands that some aliens do not
                secure representation because they do not wish to pay the fee
                charged by a potential representative. The Department also
                understands that many representatives, due to ethical or
                professional responsibility obligations, will not take cases of
                aliens who are ineligible for any relief or protection from removal
                (e.g., an alien with an aggravated felony drug trafficking
                conviction who has no fear of persecution or torture in his or her
                home country) because they do not wish to charge money for
                representation when representation will not affect the outcome of
                the proceeding. These situations illustrate only that some aliens
                may not ultimately secure counsel for reasons common to issues of
                representation in all civil cases--i.e., the cost of the
                representation and the strength of the case--not that aliens are
                limited or prohibited from obtaining representation. See United
                States v. Torres-Sanchez, 68 F.3d 227, 231 (8th Cir. 1995)
                (``Although Torres-Sanchez expressed some frustration over his
                attempt to obtain counsel, that frustration, in our view of the
                record, stemmed from his realization that he faced the inevitable
                consequence of deportation, not from a lack of opportunity to retain
                counsel. In any event, the mere inability to obtain counsel does not
                constitute a violation of due process.''). As the Department is not
                involved in discussions between respondents and potential
                representatives, it cannot definitively state every reason that an
                alien who seeks representation may not obtain it. Nevertheless, it
                can state that this rule does not limit or restrict any alien's
                ability to obtain representation in accordance with section 292 of
                the Act, 8 U.S.C. 1362.
                 \22\ In addition, as discussed elsewhere in this rule, the
                Department emphasizes that EOIR provides numerous resources to
                assist pro se individuals with self-representation and participation
                in their proceedings. For example, EOIR's Office of Policy seeks to
                increase access to information and raise the level of representation
                for individuals in hearings before immigration courts and the BIA.
                See EOIR, Office of Legal Access Programs (Feb. 19, 2020), available
                at https://www.justice.gov/eoir/office-of-legal-access-programs. In
                addition, EOIR has developed a thorough electronic resource for
                individuals in proceedings. EOIR, Immigration Court Online Resource,
                available at https://icor.eoir.justice.gov/en/.
                 \23\ Although the Board has not formally adopted such a rule, by
                practice, it also construes pro se filings liberally. At least one
                court of appeals has held that the Board is legally required to
                liberally construe pro se filings. See Higgs v. Att'y Gen. of the
                U.S., 655 F.3d 333, 339-40 (3d Cir. 2011).
                ---------------------------------------------------------------------------
                 Ultimately, however, unless a doctrine such as equitable tolling is
                applicable, BIA procedures are not excused for pro se respondents, just
                as they are not excused generally for pro se civil litigants. See,
                e.g., McNeil v. United States, 508 U.S. 106, 113 (1993) (``[W]e have
                never suggested that procedural rules in ordinary civil litigation
                should be interpreted so as to excuse mistakes by those who proceed
                without counsel.''); Edwards v. INS, 59 F.3d 5, 8-9 (2d Cir. 1995)
                (rejecting a pro se alien litigant's arguments for being excused from
                Federal court procedural requirements due to his pro se status).
                Although the Department appreciates the challenges faced by pro se
                litigants and recommends that all aliens obtain representation, but see
                note 21, supra (explaining why aliens may not obtain representation),
                it declines to establish two separate procedural tracks for appeals
                depending on whether an alien has representation. Further, weighing the
                possibility of abuses of the certification process described above and
                in the NPRM, 85 FR at 52506-07, the size of the pro se population with
                cases before the BIA, and the well-established avenues of assistance
                for pro se aliens, the Department disagrees that it is necessary or
                appropriate to keep the certification process simply due to the
                possibility of its use as a means of relieving a party of his or her
                compliance with particular procedural requirements.
                 The Department is unsure why a commenter claimed the Department's
                underlying logic on this issue relied on an analogy to Federal court,
                as the entire section describing the changes is silent as to Federal
                appellate courts. Id. at 52506-07. Accordingly, the Department cannot
                provide an informed response to that comment.
                 As to removing a necessary procedural check on immigration judges,
                the Department notes that the regular appeals process to the BIA is
                unchanged, and parties that believe an immigration judge erred in his
                or her decision should seek an appeal at the BIA consistent with those
                procedures. Commenters did not provide an explanation as to why the
                certification process would provide a check that the regular appeal
                process would not, nor did they explain why EOIR's well-established
                complaint process for immigration judge misconduct would also not be a
                sufficient check on immigration judge behavior. See EOIR, Summary of
                EOIR Procedures for Handling Complaints Concerning EOIR Adjudicators,
                Oct. 15, 2018, available at https://www.justice.gov/eoir/page/file/1100946/download (last visited Nov. 24, 2020). In short, commenters did
                not persuasively explain why the BIA self-certification process, which
                is subject to inconsistent application and potential abuse, is superior
                to the normal appellate process and EOIR's immigration judge misconduct
                complaint process for monitoring immigration judge behavior;
                accordingly, the Department declines to accept the commenters'
                suggestions on that issue.
                b. Administrative Closure (8 CFR 1003.1(d)(1)(ii), 1003.10)
                 Comment: Commenters raised concerns with the rule's general
                prohibition on administrative closure, explaining that the prohibition
                would prevent adjudicators from efficiently organizing and prioritizing
                cases on their dockets, resulting in increased backlogs. For example,
                commenters stated that immigration judges would not be able to
                prioritize terrorism suspects over persons who overstayed visas and
                have apparent eligibility for relief.
                 Commenters further explained that eliminating administrative
                closure would result in unfairly harsh consequences for persons who
                have pending applications with the United States Citizenship and
                Immigration Services (``USCIS''), such as U visas and applications for
                Special Immigrant Juvenile Status. Instead of allowing for
                administrative closure of their removal proceedings while those
                applications are being processed by USCIS, the commenters explained
                that persons would likely be required to appeal a removal order or file
                a motion to reopen once USCIS approves their application, potentially
                while the person is outside the United States. Moreover, commenters
                noted that this would
                [[Page 81598]]
                create inefficiencies due to simultaneous adjudications by EOIR and
                USCIS. Similarly, commenters noted that the rule would also prejudice
                persons with pending matters in State or Federal courts as well, such
                as direct appeals of criminal convictions or other post-conviction
                relief.
                 Commenters raised multiple concerns about the rule's effects on
                persons applying for provisional unlawful presence waivers with DHS.
                Commenters alleged that the rule conflicts with section 212(a)(9)(B)(v)
                of the Act, 8 U.S.C. 1182(a)(9)(B)(v), which provides for an unlawful
                presence hardship waiver. Commenters explained that the Secretary of
                Homeland Security implemented regulations at 8 CFR 212.7(e)(4)(iii)
                interpreting the waiver statute as allowing persons in removal
                proceedings to apply for a provisional waiver if their removal
                proceeding is administratively closed. In implementing this rule, the
                commenter alleges that the Department is implicitly amending the DHS
                regulation by rendering DHS's administrative closure language
                superfluous. As a result, commenters believe that the rule infringes on
                the Secretary's authority to interpret section 212(a)(9)(B)(v) of the
                Act, 8 U.S.C. 1182(a)(9)(B)(v).
                 Moreover, commenters also stated that, as a practical matter, the
                rule would act as a bar to persons in removal proceedings from
                obtaining provisional unlawful presence waivers from DHS in order to
                consular process because the waiver applicants would no longer be able
                to receive administrative closure, as required by DHS regulations. One
                commenter noted that, instead of administrative closure, immigration
                courts have been recently using status dockets to handle cases that
                have applications pending with USCIS. However, the commenter noted that
                status dockets do not allow persons to apply for provisional unlawful
                presence waivers because their removal cases remain pending.
                 Relatedly, at least one commenter stated that the administrative
                closure prohibition will push more aliens into filing applications for
                cancellation of removal, since they will be unable to administratively
                close their removal proceedings in order to apply for a provisional
                unlawful presence waiver. The commenter stated this would raise costs
                for EOIR since adjudicating cancellation of removal applications costs
                more than administratively closing proceedings in order for DHS to
                adjudicate the waiver applications.
                 As a general matter, commenters alleged that the Department's
                explanation for the administrative closure changes were insufficient
                and incapable of justifying the changes under the APA, including
                claiming that EOIR relied on flawed and misleading statistics and that
                the Department's reliance on Matter of Castro-Tum, 27 I&N Dec. 271
                (A.G. 2018) is misplaced because Castro-Tum was wrongly decided.
                Commenters alleged that the Department's statements that prohibiting
                administrative closure will improve efficiency is not supported in the
                proposed rule and that administrative closure actually contributes to
                shrinking the backlog by allowing respondent to pursue ancillary
                relief. Moreover, commenters stated that the Department should have
                consulted with DHS to ensure that adjudications between the two
                agencies are consistent.
                 At least one commenter also raised constitutional concerns with the
                rule's administrative closure changes. The commenter alleged that the
                rule violates due process by depriving persons in removal proceedings
                of the right to submit applications for provisional unlawful presence
                waivers and by depriving United States citizens of the opportunity to
                live with their non-citizen spouse while the spouse's provisional
                unlawful presence waiver is being adjudicated by USCIS. The commenter
                similarly alleged that the rule violates the Equal Protection Clause
                because persons in removal proceedings will be prevented from applying
                for a provisional unlawful presence waiver simply because they are in
                removal proceedings when persons who have been ordered removed are
                allowed to apply for a waiver.
                 Response: EOIR is tasked with the efficient adjudication of
                immigration proceedings. See, e.g., 8 CFR 1003.10(b) (explaining that
                ``immigration judges shall seek to resolve the questions before them in
                a timely and impartial manner''). As such, indefinitely delaying
                immigration court proceedings in order to allow aliens to pursue
                speculative relief that may take years to resolve does not comport with
                EOIR's mission to expeditiously adjudicate cases before it. See, e.g.,
                Matter of L-A-B-R-, 27 I&N Dec. 405, 416 (A.G. 2018) (denying a
                continuance in part because an indefinite request would undermine
                administrative efficiency). With EOIR's pending caseload reaching
                record highs, EOIR simply cannot allow indefinite delays that prolong
                adjudication any longer than necessary for immigration judges to decide
                the issues squarely before them. See Hernandez-Serrano v. Barr, --
                F.3d--, 2020 WL 6883420, *3 (6th Cir. Nov. 24, 2020) (``The result of
                administrative closure, . . . is that immigration cases leave an IJ's
                active calendar and, more often than not, never come back. Thus the
                reality is that, in hundreds of thousands of cases, administrative
                closure has amounted to a decision not to apply the Nation's
                immigration laws at all.''). Therefore, the Department does not believe
                that administrative closure is a proper tool \24\ for efficiently
                adjudicating proceedings and, as a result, is using its authority to
                clarify its own regulations to preclude immigration judges and the BIA
                from granting administrative closure, with limited exceptions. See INA
                103(g)(2), 8 U.S.C. 1103(g)(2) (granting the Attorney General the
                authority to issue regulations as necessary for carrying out his
                authority as it relates to EOIR).
                ---------------------------------------------------------------------------
                 \24\ The Department notes that there are other potential tools
                available to respondents with pending relief or actions outside of
                EOIR, including requesting a continuance or working with DHS counsel
                to file a motion to dismiss. See 8 CFR 1003.29, 1239.2(c).
                ---------------------------------------------------------------------------
                 Additionally, the Department finds it necessary to provide this
                clarification to resolve competing interpretations of 8 CFR
                1003.1(d)(1)(ii) and 1003.10(b) that have resulted in the inconsistent
                nationwide application of administrative closure authority. Compare
                Matter of Castro-Tum, 27 I&N Dec. at 271 (holding that neither
                immigration judges nor the BIA have a general authority to indefinitely
                suspend immigration proceedings through administrative closure), and
                Hernandez-Serrano, 2020 WL 6883420 at *4 (``Indeed no one--neither
                Hernandez-Serrano, nor the two circuit courts that have rejected the
                Attorney General's decision in Castro-Tum--has explained how a general
                authority to close cases administratively can itself be lawful while
                leading to such facially unlawful results.''), with Meza Morales v.
                Barr, 973 F.3d 656 (7th Cir. 2020) (rejecting Castro-Tum and holding
                that immigration judges are not precluded from administratively closing
                cases), and Romero v. Barr, 937 F.3d 282 (4th Cir. 2019) (same). These
                conflicting decisions, and the possibility of additional such
                decisions, create uncertainty for immigration judges and the BIA, which
                this rule seeks to remedy through a consistent nationwide policy. Cf.
                Meza Morales, 973 F.3d at 667 (noting that the Attorney General may
                amend the regulations through the proper procedures to remove any
                perceived administrative closure authority).
                 The Department disagrees with commenters that the agency did not
                provide sufficient reasons for the change in the NPRM, or that the
                given reasons were false, erroneous, or relied on incorrect or
                misleading statistics.
                [[Page 81599]]
                Rather, the Department explained that the general authority to
                administratively close cases ``failed as a policy matter and is
                unsupported by the law.'' See 85 FR at 52504. In the NPRM, the
                Department noted that, following the expansion of administrative
                closure in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), the backlog
                of immigration court cases has grown significantly. See also
                Adjudication Statistics: Pending Cases, New Cases, and Total
                Completions, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/1242166/download. While the use of administrative closure is
                not solely responsible for this growth, the need for prompt
                adjudication of pending cases has only increased. Administrative
                closure merely delays a decision until an unknown future date, thus
                allowing the total number of cases at the immigration courts to grow,
                rather than requiring the immigration judge to adjudicate the issues
                before them in order to promptly move cases to completion.
                 The Department also explained in the NPRM that the agency believes
                the Attorney General's holding in Matter of Castro-Tum is correct that
                8 CFR 1003.1(d)(1)(ii) and 1003.10(b) do not provide for general
                administrative closure authority, citing the Attorney General's
                explanations that general administrative closure authority conflicts
                with the regulatory ``timely'' requirements, 27 I&N Dec. at 284; that
                the regulations do not ordinarily include the authority to suspend
                cases indefinitely, id. at 285; and that specific delegations that
                prior Attorneys General have made would be rendered superfluous, id. at
                287-88, among others. See also Hernandez-Serrano, 2020 WL 6883420 at
                *1, *4 (stating that ``[a]s of October 2018, more than 350,000 of those
                [administratively closed] cases had not been reopened. An adjudicatory
                default on that scale strikes directly at the rule of law'' and that
                ``[t]he result of administrative closure, . . . is that immigration
                cases leave an IJ's active calendar and, more often than not, never
                come back. Thus the reality is that, in hundreds of thousands of cases,
                administrative closure has amounted to a decision not to apply the
                Nation's immigration laws at all.'').
                 Further, the Department also explained in the NPRM that the agency
                believes general administrative closure authority improperly allows
                immigration judges to determine which immigration cases should be
                adjudicated and which ones should not. See 85 FR at 52503. Similar to
                continuances, administrative closure is a tool to delay cases in
                certain instances. However, in practice, unlike continuances,
                administrative closure has at times been used to effectively terminate
                cases through indefinite delay. Thus, the Department believes that such
                authority is improper as a policy matter unless expressly provided for
                by regulation or judicially approved settlement.
                 Lastly, the Department also explained in the NPRM that existing
                regulations make clear that authority to defer the adjudication of
                cases lies with EOIR leadership and not with individual members of the
                BIA or immigration judges. See 8 CFR 1003.0(b)(1)(ii),
                1003.1(a)(2)(i)(C), 1003.9(b)(3).
                 The Department also disagrees with commenters that this rule
                conflicts with section 212(a)(9)(B)(v) of the Act, 8 U.S.C.
                1182(a)(9)(B)(v), as interpreted by DHS in 8 CFR 212.7(e)(4)(iii),
                which makes a person in removal proceedings ineligible for a
                provisional unlawful presence hardship waiver unless the proceedings
                are administratively closed. Regulations solely promulgated by and
                binding on DHS do not confer independent authority on immigration
                judges or the Board, and DHS does not have the power to provide
                immigration judges with the general authority to grant administrative
                closure or to prohibit EOIR from interpreting its own regulations, so
                any interpretation of Sec. 212.7(e)(4)(iii) attempting to do sowould
                be erroneous. See INA 103(a)(1), 8 U.S.C. 1103(a)(1) (providing the
                Attorney General with the authority to make ``controlling''
                determinations of the immigration laws); see also Castro-Tum, 27 I&N
                Dec. at 287 n.9 (``Because only the Attorney General may expand the
                authority of immigration judges or the Board, that regulation [8 CFR
                212.7(e)(4)(iii)] cannot be an independent source of authority for
                administrative closure.''). The Department has considered the interplay
                of EOIR and DHS's regulations regarding provisional unlawful presence
                waivers and has decided to continue with a general prohibition on
                administrative closure in immigration proceedings before EOIR. DHS
                chose to limit the eligibility for provisional unlawful presence
                waivers as a matter of policy. See 78 FR at 544 (explaining that DHS
                chose to limit eligibility to aliens with administratively closed
                removal proceedings in order to be ``consistent with [DHS's]
                established enforcement priorities''). DHS may choose to update their
                regulations as a result of the Department's amendments regarding
                administrative closure authority, but any concerns with DHS's policy
                decisions are outside the scope of this rule.
                 Commenters did not identify an explicit conflict between the
                language of INA 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), and the
                Department is unaware of any. That statutory provision refers to a
                waiver of inadmissibility based on an alien's unlawful presence in the
                United States, and this final rule does not purport to interpret,
                alter, or even address that provision. Rather, commenters assert that
                this rule's restriction on the use of administrative closure presents
                an undesirable policy choice to the extent that it may limit
                eligibility for that waiver based on DHS's current regulatory language.
                The Department acknowledges commenters' policy disagreement and has
                considered it. Nevertheless, the benefits of the final rule far
                outweigh its alleged costs, even crediting commenters' speculative
                assertions.\25\ Moreover, regardless of policy preferences, the
                Attorney General has determined that the expansive version of
                administrative closure preferred by commenters is incompatible with
                existing law and does not warrant a delegation of such authority.
                Matter of Castro-Tum, 27 I&N Dec. at 292 (``The current practice of
                administrative closure lacks a valid legal foundation, and I do not
                believe it would be appropriate to delegate such authority.''); cf.
                Hernandez-Serrano, 2020 WL 6883420 at *4 (``Those concessions imply
                that the permanent closure of some 350,000 immigration cases was
                largely contrary to law. Indeed no one--neither Hernandez-Serrano, nor
                the two circuit courts that have rejected the Attorney General's
                decision in Castro-Tum--has explained how a general authority to close
                cases administratively can itself be lawful while leading to such
                facially unlawful results.''). In short, the Department finds no basis
                to contradict the Attorney General and adopt commenters' policy
                preferences.
                ---------------------------------------------------------------------------
                 \25\ The final rule does not prohibit administrative closure
                altogether, and commenters did not generally acknowledge or account
                for those aliens who may still benefit from administrative closure
                under the rule in their assertions about the rule's impact.
                ---------------------------------------------------------------------------
                 The Department believes that any increase in cancellation of
                removal applications in response to this unrelated rule is purely
                speculative. Further, even if commenters' predictions turn out to be
                accurate, the Department is well-equipped to handle an increase in such
                applications as its adjudicators have considered them for decade and
                the relevant law is well-established. Additionally, commenters'
                speculation on this point implies that the majority of such
                applications would
                [[Page 81600]]
                be meritless; otherwise, the aliens would have already filed such
                applications because an approved application for cancellation of
                removal for non-permanent residents provides lawful permanent residence
                which is a preferable outcome to the limbo-like nature of
                adnministrative closure. The Department finds that a potential increase
                in meritless applications for relief is not a persuasive reason for
                altering this final rule, and any adjudicatory costs associated with
                such an increase are outweighed by the benefits of the rule.
                 The Departments disagree that the administrative closure provisions
                raise any constitutional concerns. There is no cognizable due process
                interest in access to or eligibility for a discretionary, provisional
                unlawful presence waiver of inadmissibility. See, e.g., Champion v.
                Holder, 626 F.3d 952, 957 (7th Cir. 2010) (``To articulate a due
                process claim, [the individual] must demonstrate that she has a
                protected liberty or property interest under the Fifth Amendment.
                Aliens have a Fifth Amendment right to due process in some immigration
                proceedings, but not in those that are discretionary.'') (citations
                omitted). Moreover, this rule's administrative closure changes do not
                violate the concept of equal protection--in either the Equal Protection
                Clause of the Fourteenth Amendment or as a component of the Fifth
                Amendment's Due Process Clause--as they do not impose any
                classifications that would invoke the doctrine. To the extent the
                administrative closure changes would have a disparate impact on persons
                in removal proceedings as compared to persons not in proceedings, the
                Departments note that the changes are rationally related to the
                Department's interest in efficiently allocating EOIR's limited
                adjudicatory capacity in order to decide cases in a timely manner. Cf.
                DeSousa v. Reno, 190 F.3d 175, 184 (3d Cir. 1995) (``[D]isparate
                treatment of different groups of aliens triggers only rational basis
                review under equal protection doctrine. Under this minimal standard of
                review, a classification is accorded `a strong presumption of
                validity'. . . .'' (internal citations omitted)).
                 Overall, as discussed in more detail, infra, the Department has
                weighed the relevant equities of the rule's administrative closure
                provision. The Department does not believe that the administrative
                closure provision will have a significant impact on the public, as most
                immigration courts--63 out of 67, all but those in Arlington,
                Baltimore, Charlotte, and Chicago \26\--currently follow either Matter
                of Castro-Tum itself or an applicable Federal court decisioning
                affirming it, e.g., Hernandez-Serrano, 2020 WL 6883420 at *5 (``In
                summary, therefore, we agree with the Attorney General that Sec. Sec.
                1003.10 and 1003.1(d) do not delegate to IJs or the Board `the general
                authority to suspend indefinitely immigration proceedings by
                administrative closure.''' (quoting Matter of Castro-Tum, 27 I&N Dec.
                at 272)). Therefore, the effect of this rule simply codifies the
                existing limitations on immigration judges' general authority to grant
                administrative closure.\27\ Moreover, to the extent that commenters
                simply disagree with the decision in Matter of Castro-Tum as a policy
                matter, the Department has explained that the legal and policy issues
                implicated by the free-floating use of administrative closure and the
                efficiency that would follow from clearly delineating the circumstances
                of its usage outweigh the policy arguments advanced by commenters. See
                also Hernandez-Serrano, 2020 WL 6883420 at *1 (``A regulation
                delegating to immigration judges authority to take certain actions
                `[i]n deciding the individual cases before them' does not delegate to
                them general authority not to decide those cases at all. Yet in more
                than 400,000 cases in which an alien was charged with being subject to
                deportation or (after April 1, 1997) removal, immigration judges or the
                Board of Immigration Appeals have invoked such a regulation to close
                cases administratively--meaning the case was removed from the IJ's
                docket without further proceedings absent some persuasive reason to
                reopen it. As of October 2018, more than 350,000 of those cases had not
                been reopened. An adjudicatory default on that scale strikes directly
                at the rule of law.'').
                ---------------------------------------------------------------------------
                 \26\ The Department notes that Matter of Castro-Tum did not
                incorporate all of the legal arguments presented in the NPRM
                regarding whether immigration judges and Board members have free-
                floating authority to defer adjudication of cases. E.g., 85 FR at
                52503 (discussing tension created by interpreting 8 CFR
                1003.1(d)(1)(ii) and 1003.10(b) to allow free-floating authority to
                administratively close cases with references in those provisions to
                the ``disposition'' of cases and with the provisions of 8 CFR
                1003.1(a)(2)(i)(C) and 8 CFR 1003.9(b)(3) which assign authority to
                defer case adjudications to the Board Chairman and the Chief
                Immigration Judge rather than to all Board members and all
                immigration judges); accord Hernandez-Serrano, 2020 WL 6883420 at *4
                (``To the contrary, the regulations expressly limit their delegation
                to actions `necessary for the disposition' of the case. And that
                more restricted delegation cannot support a decision not to decide
                the case for reasons of administrative `convenience' or the
                `efficient management of the resources of the immigration courts and
                the BIA.' '' (emphases in original). Thus, circuit court decisions
                abrogating Matter of Castro-Tum did not necessarily address all
                arguments surrounding administrative closure. Accordingly,
                independent of Matter of Castro-Tum, immigration judges and Board
                members may still come to the conclusion that they generally lack
                free-floating authority to administratively close cases.
                 \27\ Although this rule codifies the result of Matter of Castro-
                Tum, its bases are broader than just that decision. See supra text
                accompanying note 26.
                ---------------------------------------------------------------------------
                 Further, for those courts that are not bound by Matter of Castro-
                Tum, the Department disagrees that the change will result in
                unnecessary removal orders, as immigration judges are already tasked
                with resolving the proceedings before them, including determining
                removability and issuing removal orders if required. See, e.g., 8 CFR
                1003.10(b) (``In all cases, immigration judges shall seek to resolve
                the questions before them in a timely and impartial manner consistent
                with the Act and regulations.''). The Department declines to adopt
                commenters' speculation as to the counter-factual outcomes of cases
                that have been administratively closed, and commenters did not support
                their assertion that only cases in which an alien will be ordered
                removed are administratively closed.\28\ To the contrary, aliens have
                sought recalendaring of their proceedings in order to apply for relief
                from removal for which they believe they are eligible, suggesting that
                in many cases, aliens themselves do not believe that a case that has
                been administratively closed would necessarily have otherwise resulted
                in a removal order. See, e.g., Matter of W-Y-U-, 27 I&N Dec. 17 (BIA
                2017) (``[The respondent] filed a timely application for asylum and
                related relief and protection, which he seeks to have the Immigration
                Judge review in removal proceedings. The respondent argues that the
                administrative closure of his case prevents him from pursuing that
                relief.''), overruled by Matter of Castro-Tum, 27 I&N Dec. at 272.
                ---------------------------------------------------------------------------
                 \28\ The Department notes that simply delaying an alien's
                removal is not a compelling policy basis for declining to promulgate
                this rule. See Nken v. Holder, 556 U.S. 418, 436 (2009) (``There is
                always a public interest in prompt execution of removal orders: The
                continued presence of an alien lawfully deemed removable undermines
                the streamlined removal proceedings IIRIRA established, and permits
                and prolongs a continuing violation of United States law.''
                (internal citations and quotation marks omitted)).
                ---------------------------------------------------------------------------
                 As the Department asserted, free-floating authority to unilaterally
                administratively close cases is in significant tension with existing
                law, including regulations and longstanding Board case law. 85 FR at
                52503-05. To the extent that commenters suggested the Department should
                retain the status quo and its problematic tension with
                [[Page 81601]]
                existing law, the Department simply disagrees.
                 The question of unlawful presence waivers was already addressed by
                Matter of Castro-Tum, 27 I&N Dec. at 278 n.3, 287 n.9, and this final
                rule does not impact such waivers accordingly. Moreover, the regulation
                identified by commenters, 8 CFR 212.7(e)(4)(iii) has no analogue in
                chapter V of title 8, and that regulation is not binding on the
                Department. Additionally, such a waiver is both ``provisional'' and
                ``discretionary,'' 8 CFR 212.7(e)(2)(i); like administrative closure
                itself, an alien has no right to such a waiver; and, a provisional and
                discretionary waiver to which an alien lacks any entitlement cannot be
                seen as necessary to the disposition of the alien's case in immigration
                proceedings. See Gutierrez-Morales v. Homan, 461 F.3d 605, 610 (5th
                Cir. 2006) (``We have squarely held that `neither relief from removal
                under discretionary waiver nor eligibility for such discretionary
                relief is entitled to due process protection.' Stated differently, an
                alien has no due process right to a hearing to determine his
                eligibility for relief that is purely discretionary.'' (footnotes
                omitted, emphasis in original)).
                 Further, although aliens in removal proceedings (unless
                administratively closed) and aliens with administratively final orders
                of removal are barred from obtaining the waiver, 8 CFR 212.7(e)(4)(iii)
                and (iv), an alien with an administratively final order of voluntary
                departure is not, and by definition, aliens must voluntarily depart the
                United States in order to receive the benefit of such a waiver. Thus,
                the availability of administrative closure has no bearing on an alien's
                ability to receive and effectuate an order of voluntary departure,
                which is a practical prerequisite for obtaining the benefit of the
                waiver, and commenters did not explain why the restriction on
                administrative closure would have any impact at all on an alien's
                ability to obtain an order of voluntary departure and then a
                provisional waiver before departing to receive the final waiver abroad.
                Although the Department has considered the link between such waivers
                and administrative closure--just as the Attorney General did in Matter
                of Castro-Tum--that link is too attenuated to outweigh the significant
                legal and policy concerns raised by the Department regarding
                administrative closure.
                 Similarly, concerns about putative reliance interests are
                misplaced. First, as discussed, infra, the rule applies, in general,
                only prospectively, so it does not disturb cases that have already been
                administratively closed. Second, and relatedly, all changes in the law
                may impact matters of attorney strategy in interactions with clients,
                but that is an insufficient basis to decline to change the law.\29\ To
                find otherwise would effectively preclude any law from ever being
                changed. Third, nothing in the rule prohibits a practitioner from
                seeking administrative closure; rather, it more clearly delineates the
                situations in which administrative closure is legally authorized.
                Fourth, a representative may not ethically guarantee any result in a
                particular case; thus, to the extent commenters suggest that the final
                rule restricts or interferes with an attorney's ability to guarantee an
                alien both a grant of administrative closure and the approval of a
                provisional waiver, the Department finds such a suggestion unavailing.
                See Model Rules of Prof'l Conduct R. 7.1 cmt. 3 (2020) (``A
                communication that truthfully reports a lawyer's achievements on behalf
                of clients or former clients may be misleading if presented so as to
                lead a reasonable person to form an unjustified expectation that the
                same results could be obtained for other clients in similar matters
                without reference to the specific factual and legal circumstances of
                each client's case.''); id. cmt. 4 (``It is professional misconduct for
                a lawyer to engage in conduct involving dishonesty, fraud, deceit or
                misrepresentation.'') (quoting R. 8.4(c)); id. R. 8.4(e) (``It is
                professional misconduct for a lawyer to . . . state or imply an ability
                to influence improperly a government agency or official or to achieve
                results by means that violate the Rules of Professional Conduct or
                other law.'').
                ---------------------------------------------------------------------------
                 \29\ Furthermore, as reiterated herein, because Matter of
                Castro-Tum was issued in 2018, aliens and their representatives in
                jurisdictions following Castro-Tum should not be currently relying
                on the expectation of administrative closure to pursue provisional
                unlawful presence waivers.
                ---------------------------------------------------------------------------
                 In short, the Department appropriately considered potential
                alternatives as well as the relevant interests and alleged costs in
                issuing the final rule regarding administrative closure. On balance,
                however, commenters' suggestions would not resolve the issues
                identified by the Department, and the concerns raised by commenters are
                far outweighed by both the significant legal and policy issues raised
                by the Department in the NPRM regarding administrative closure and the
                increased efficiency that a formal clarification of its use will
                provide.
                 With regards to the alleged costs to persons in removal proceedings
                who allegedly may no longer be eligible to obtain a provisional
                unlawful presence waiver without administrative closure, the Department
                first reiterates that situation is already the status quo in all but
                four immigration courts and has been so since 2018. As Matter of
                Castro-Tum was issued in 2018, aliens and their representatives in
                jurisdictions following Castro-Tum should not be currently relying on
                the expectation of administrative closure to pursue provisional
                unlawful presence waivers. Consequently, this final rule does not
                change the status quo regarding the availability of a provisional
                unlawful presence waiver for the overwhelming majority of aliens
                currently in removal proceedings, and commenters generally did not
                distinguish the reality of the status quo in making their speculative
                projections. Further, the Department believes that the strong interest
                in the efficient adjudication of cases and the legal and policy issues
                identified in the NPRM outweigh the potential inability of aliens at 4
                out of 67 immigration courts to obtain provisional unlawful presence
                waivers, something to which they are not entitled to in the first
                instance. The Department notes that these persons may still apply for
                an unlawful presence waiver from outside the United States, and that
                DHS may choose, as a matter of policy, to amend their regulations to
                remove the administrative closure requirement for persons in removal
                proceedings applying for a provisional waiver.
                 The Department also disagrees that the general prohibition on
                administrative closure does not harmonize with DHS regulations
                regarding provisional unlawful presence waivers. As a Federal circuit
                court recently noted, the presence of references to administrative
                closure in existing regulations ``presuppose only the existence of a
                general practice of administrative closure, not its legality.''
                Hernandez-Serrano, 2020 WL 6883420 at *4. Thus, assuming counter-
                factually--but as commenters asserted--that 8 CFR 212.7(e)(4)(iii)
                controlled the Department and that no aliens would be eligible to have
                their cases administratively closed after this final rule--and, thus,
                no aliens in immigration proceedings were eligible for a provisional
                waiver under 8 CFR 212.7(e)(4)(iii)--those factors, even if factually
                accurate, would not provide a strong policy basis to overrule the
                Attorney General's decision in Matter of Castro-Tum for all of the
                reasons given by the Department in the NPRM and this final rule. See
                also Hernandez-Serrano, 2020 WL 6883420 at *4 (``neither the IJs nor
                the Board [nor parties] enjoy a right of adverse possession as to the
                Attorney General's
                [[Page 81602]]
                regulations.''). The Department considered the interplay of EOIR and
                DHS's regulations and, due to the strong equities in favor of limiting
                administrative closure, decided to continue with a general prohibition
                on administrative closure in immigration proceedings before EOIR. DHS
                chose to limit the eligibility for provisional unlawful presence
                waivers as a matter of policy, and DHS may choose to update their more
                specific regulations accordingly as a result of this rule.
                c. Enhanced BIA Factfinding (8 CFR 1003.1(d)(3)(iv))
                i. Administrative Notice
                 Comment: As a general matter, many commenters asserted that the
                provisions regarding administrative notice were biased in favor of DHS,
                thereby demonstrating the allegedly partisan nature of the BIA and,
                more broadly, the Department. Similarly, one commenter explained that
                the administrative notice provisions were ``problematic'' because, as
                the commenter alleged, DHS could submit new evidence but the alien was
                not permitted to submit counter evidence under the new rules.
                 Commenters expressed concern about the types of items the rule
                would allow the BIA to administratively notice items ``not reasonably
                subject to dispute.'' 8 CFR 1003.1(d)(3)(iv)(A). Overall, commenters
                predicted disputes at both the BIA and the Federal courts over whether
                particular facts fit any of the listed exemplary categories of such
                evidence or otherwise constitute such items. 8 CFR
                1003.1(d)(3)(iv)(A)(1)-(4). Such disputes, commenters alleged, would
                undermine the efficiency goals of the rule. One commenter explained
                that ``[m]ost of this information--especially that contained within
                government documents--will be adverse to respondents. The rule thus
                creates a one-sided system in which information favorable to DHS may be
                considered by the BIA, but information favorable to respondents may not
                be.'' Commenters claimed that the rule's inclusion of all of these
                facts was arbitrary and capricious.
                 Further, commenters specifically alleged that the ``the contents of
                official documents outside the record,'' 8 CFR 1003.1(d)(3)(iv)(A)(2),
                are subject to reasonable dispute because DHS records, including
                records from CBP and ICE, ``routinely contain [ ] egregious errors and
                coerced statements.'' Commenters also stated that current events, 8 CFR
                1003.1(d)(3)(iv)(A)(1), could similarly be subject to reasonable
                dispute. Commenters stated that the contours of the category of facts
                from government sources was unclear, despite it being limited to
                ``facts that can be accurately and reliably determined,'' 8 CFR
                1003.1(d)(3)(iv)(A)(3), because DHS records are unreliable. In
                addition, at least one commenter stated that the rule did not explain
                why facts that can be administratively noticed by the BIA may only be
                sourced from official or universally acclaimed documents.
                 At least one commenter alleged that the administrative notice
                provisions would allow the BIA to consider and act upon facts not
                raised by either party, thereby considering ``facts that did not
                constitute part of the immigration judge's decision-making.'' The
                commenter alleged that this would allow the BIA to act as prosecutor
                instead of a neutral arbiter. The commenter explained that because DHS
                rarely submits a brief on appeal, the administrative notice changes
                would disproportionately affect pro se individuals.
                 Several commenters stated that the provisions regarding notice and
                an opportunity to respond were insufficient because a response may
                require witnesses and additional clarifying evidence. Commenters
                explained that witnesses and additional evidence were more
                appropriately introduced at the immigration court level, given the
                immigration judge's unique position to assess facts and determine
                credibility and the general prohibition against factfinding by the BIA.
                Commenters also emphasized that the rule failed to consider that the
                BIA would need to give notice to the parties and an opportunity to
                respond if the BIA intended to administratively notice a fact that was
                outside the record and would serve as the basis for overturning a
                removal order or denial of relief. The commenter explained that the BIA
                does not appear to be neutral when it must only administratively notice
                facts that could be used to deny relief that was previously granted.
                 One commenter explained that the rule's changes to administrative
                notice would affect the standard of review for factual findings on
                appeal at the appellate court level. The commenter explained that the
                current use of the ``substantial evidence'' standard would not be
                justified, given that some factual findings would have been made only
                by the BIA in the first instance. Thus, the commenter suggested that
                the ``clearly erroneous'' standard replace the ``substantial evidence''
                standard in these cases.
                 Response: As an initial point, the Department notes that the
                Board's ability to take administrative notice of certain facts is
                already well-established in both existing regulations, e.g., 8 CFR
                1003.1(d)(3)(iv) (2019) (allowing the Board to take administrative
                notice of current events and the contents of official documents), and
                case law, e.g., Sankoh v. Mukasey, 539 F.3d 456, 465 (7th Cir. 2008)
                (``The Board has the authority to take administrative notice of
                uncontroverted facts, meaning facts that can be characterized as
                commonly acknowledged.'' (internal citation and quotation marks
                omitted)). Thus, to the extent that commenters assert the Board should
                not be able to take administrative notice of facts not reasonably
                subject to dispute, they did not explain why the Department should
                reverse the Board's longstanding authority to do so.
                 Similarly, commenters did not persuasively explain why Federal Rule
                of Evidence 201(b), which is well-established in Federal jurisprudence
                and governs judicial notice by appellate courts, In re Omnicare, Inc.
                Securities Litigation, 769 F.3d 455, 466 (6th Cir. 2014) (``[Federal
                Rule of Evidence 201(b)] applies to appellate courts taking judicial
                notice of facts supported by documents not included in the record on
                appeal.'' (quoting United States v. Ferguson, 681 F.3d 826, 834 (6th
                Cir. 2012)), was not an appropriate model for the Board to follow.
                Without such explanations as to why the Department should overturn
                these longstanding and well-established principles, the Department
                finds commenters' unsupported policy preferences on this point
                unpersuasive.
                 Additionally, commenters' suggestions about the allegedly ``one-
                sided'' nature of this change belie both a misunderstanding of the rule
                and an acknowledgement of its importance to ensure that only
                meritorious claims are granted. First, contrary to the assertions of
                many commenters, the rule applies equally to DHS and to respondents.
                Thus, the Board may take administrative notice of facts both favorable
                and adverse to either party, as long as those facts are not reasonably
                subject to dispute. Second, the broad, hyperbolic, and unsupported
                assertion that official government documents should not be
                administratively noticed because they contain only information adverse
                to respondents is both inaccurate factually, e.g., Dahal v. Barr, 931
                F.3d 15, 19 (1st Cir. 2019) (``Thus, far from undercutting Dahal's
                fears, the [Department of State] Country Report on the elections
                recognizes a remaining threat of Maoist persecution.''), and in tension
                with well-established Federal practice in which courts may take
                judicial notice of official government documents, e.g.,
                [[Page 81603]]
                Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d
                156, 166 (S.D.N.Y. 2015) (``Under Federal Rule of Evidence 201, a court
                may take judicial notice, at `any stage of the proceeding,' of any fact
                `that is not subject to reasonable dispute because' it `can be
                accurately and readily determined from sources whose accuracy cannot
                reasonably be questioned.' Fed. R. Evid. 201(b)(2), (d). . . . Pursuant
                to Rule 201, courts have considered newspaper articles, documents
                publicly filed with the SEC or FINRA, documents filed with a Secretary
                of State, documents filed with governmental entities and available on
                their official websites, and information publicly announced on certain
                non-governmental websites, such as a party's official website.'');
                Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.1991) (``[A] . .
                . court may take judicial notice of the contents of relevant public
                disclosure documents . . . as facts `capable of accurate and ready
                determination by resort to sources whose accuracy cannot reasonably be
                questioned.' '' (quoting Fed. R. Evid. 201(b)(2)).
                 Moreover, this suggestion misapprehends the nature of the rule
                and--perhaps unintentionally by the commenter--offers further support
                for maintaining it. The rule allows the Board to take administrative
                notice of ``[f]acts that can be accurately and readily determined from
                official government sources and whose accuracy is not disputed.'' 8 CFR
                1003.1(d)(3)(iv)(A)(3). Commenters did not explain why facts whose
                accuracy is not disputed and that are unfavorable to an alien should
                not be considered by individuals adjudicating claims made by aliens--
                except that ignoring such facts would potentially increase the
                likelihood that non-meritorious claims would be granted, which is an
                outcome preference tacitly supported by many commenters. The Department
                finds it vitally important that all undisputed, accurate facts bearing
                on a claim should be considered in order to reduce adjudication errors
                and to ensure that meritorious claims are granted in a timely manner
                while unmeritorious ones are efficiently addressed. In short, the
                Department disagrees with the implicit suggestion of commenters that
                the Board should intentionally turn a blind eye to relevant, undisputed
                facts, regardless of which party those facts allegedly favor.
                 The rule does not authorize the BIA to rely on facts that did not
                constitute part of the immigration judge's decision-making, except when
                such ``facts [ ] are not reasonably subject to dispute.'' 8 CFR
                1003.1(d)(3)(iv)(A) (proposed); see also Matter of J-Y-C-, 24 I&N Dec.
                260, 261 n.1 (BIA 2007) (providing that issues not raised before an
                immigration judge are waived). The BIA must take administrative notice
                of those facts. 8 CFR 1003.1(d)(3)(iv)(A). Further, if the BIA were to
                reverse a grant of relief or protection from removal based on such
                facts, the BIA must give the parties notice and not less than 14 days
                to respond. 8 CFR 1003.1(d)(3)(iv)(B). Accordingly, contrary to
                commenters' assertions, an alien whose grant of relief or protection
                may be subject to reversal will have an opportunity to respond,
                including by submitting additional arguments and evidence such as
                affidavits or declarations.
                 Furthermore, the administrative notice provisions are not the
                product of partisanship or favoritism toward DHS, and contrary to an
                implicit assertion made by most commenters, they apply equally to both
                parties. The BIA has long been able to take administrative notice of
                commonly known facts and official government records, and these changes
                build on this prior practice. Moreover, contrary to the assertion of at
                least one commenter, the Department intends to ensure that an alien
                receives notice and an opportunity to respond if the BIA were to rely
                on a fact outside the record to reverse a grant of relief or protection
                from removal. If anything, the provision treats respondents more
                favorably than DHS because it does not require the BIA to provide
                notice to DHS if it intends to rely on facts outside the record to
                reverse an immigration judge's denial of relief or protection, yet many
                commenters failed to acknowledge this discrepancy or to explain why the
                Department should not adopt such a provision.
                 The Department emphasizes that regulations, not statute, determine
                appellate procedures at the BIA. See generally 8 CFR part 1003, subpart
                A; see also 85 FR at 52492. Accordingly, the Department properly
                exercised its rulemaking authority under section 103(g)(2) of the Act,
                8 U.S.C. 1103(g)(2), to promulgate the administrative notice provisions
                to clarify appellate procedures at the BIA, with the overarching goal
                of increasing efficiencies and consistency in cases before the BIA.
                 The Department disagrees with commenters' suggestions that the
                regulation's list of facts that may be administratively noticed include
                disputable facts, as whether any given fact is ``disputable'' will
                depend on the putative fact at issue and the overall circumstances of
                the case. The Department recognizes that parties may disagree over
                whether a fact is truly undisputed, but factual disputes are already a
                common feature of immigration proceedings and can be resolved under
                existing law. Moreover, respondents will have at least 14 days to argue
                otherwise if the Board intends to rely on a fact ``not reasonably
                subject to dispute'' outside the record in order to reverse a rant of
                relief or protection. 8 CFR 1003.1(d)(3)(iv)(B).
                 Further, the Department rejects any allegation that official
                documents or government documents contain ``egregious errors'' and
                ``coerced statements,'' or are ``unreliable,'' as commenters claimed.
                Government documents, broadly speaking, provide reliable data and cite
                to reliable sources in support of the ideas presented and are meant to
                inform the public. Second, the Department disagrees with the
                commenters' concerns that all but paragraph (d)(3)(iv)(A)(4) could be
                disputable. The Department disagrees that administrative notice of any
                of those facts creates a biased system. Inclusion of these facts is not
                arbitrary or capricious; both ``current events'' and ``official
                documents'' were carried over from existing regulations. The ``official
                government sources'' category provides further clarification and
                distinction from the ``official documents'' category. In providing this
                list, the Department sought to delineate clear categories of facts that
                were indisputable, and the rule concurrently included the provision
                requiring notice and an opportunity to respond to ensure that both
                sides may address administratively noticed facts. Commenters' concerns
                regarding prolonged disputes at the BIA and the Federal courts are
                speculative, as are commenters' concerns regarding efficiency that stem
                from those litigation-related concerns. More specifically, all disputes
                at the BIA may potentially result in Federal litigation, including
                disputes over the appropriateness of the Board taking administrative
                notice of undisputed facts. The near-certainty of litigation, which has
                grown considerably in the immigration field well before the NPRM was
                published, is an insufficient basis, however, to decline to adopt the
                rule.
                 In regard to administratively noticed documents, those listed at 8
                CFR 1003.1(d)(3)(iv)(A)(1)-(4) are examples of documents, as indicated
                by the words ``such as'' preceding the list provided at paragraphs
                (d)(3)(iv)(A)(1)-(4), that would generally raise facts not reasonably
                subject to dispute. The rule did not require that sources be
                ``official'' or ``universally acclaimed,'' as commenters claimed.
                Rather, the rule required that administratively noticed facts,
                regardless of their sources, be ``not
                [[Page 81604]]
                reasonably subject to dispute.'' Although official or universally
                acclaimed documents typically raise facts that are not in dispute,
                those are not the exclusive sources from which the BIA may
                administratively notice facts.
                 Because facts that may administratively noticed are not reasonably
                subject to dispute, the BIA does not act as a ``prosecutor'' when it
                takes administrative notice of such facts. Further, the regulation
                requires the BIA to provide parties at least 14 days to respond if it
                takes administrative notice of facts. 8 CFR 1003.1(d)(3)(iv)(B). Thus,
                regardless of whether DHS files a brief on appeal and regardless of
                whether an alien is represented, the alien is afforded an opportunity
                to respond to administratively-noticed facts outside the record if
                those facts will be used to overturn a grant or relief or protection.
                This rule also does not impose any specific limits on such a response,
                though the Board's ordinary rules for service and filing would still
                apply.
                 Although the Department agrees that immigration courts are
                generally best-positioned to engage in factfinding, see generally 85 FR
                at 52500-01, there are circumstances--similar to those recognized by
                Federal courts--in which procedural efficiency counsels in favor of
                being noticed on appeal in order to avoid remanding a case to address a
                fact that is undisputed. Thus, the Department has determined that
                certain facts described in 8 CFR 1003.1(d)(3)(iv)(A)(1)-(4) may
                appropriately be raised before the BIA. See id. at 52501.
                 Some commenters alleged that the rule permits DHS to submit new
                evidence and prevents the alien from submitting new evidence to counter
                DHS's new evidence. However, the rule does not permit either party to
                submit new evidence in this regard. To the extent that commenters
                framed this concern as one regarding exceptions related to factual
                issues raised by identity, law enforcement, or security investigations
                or examinations, or other investigations noted in 85 FR at 52500 n.21,
                that issue is distinct from the issue of administratively noticed facts
                and, for asylum applications, has a statutory foundation, INA
                208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i) (``[A]sylum cannot be
                granted until the identity of the applicant has been checked against
                all appropriate records or databases maintained by the Attorney General
                and by the Secretary of State, including the Automated Visa Lookout
                System, to determine any grounds on which the alien may be inadmissible
                to or deportable from the United States, or ineligible to apply for or
                be granted asylum''). For further discussion on issues related to
                identity, law enforcement, or security investigations or examinations,
                see section II.C.3.e.
                 Commenters' concerns regarding use of the clearly erroneous
                standard in place of the substantial evidence standard is outside the
                scope of this rulemaking, as this rule does not propose or affect
                standards of review for factual findings at the appellate court level.
                The Department does not have the authority to issue a rule that would
                alter the standard of review employed by a Federal circuit court. This
                rule does not affect the commenters' ability to lobby Congress or
                advise other attorneys in regard to this concern.
                ii. BIA Factfinding Remands
                 Comment: Commenters opposed the rule's prohibition on the BIA to
                remand a case for further factfinding, explaining that oftentimes
                combining excluded evidence with evidence in the record could determine
                the outcome of a case. Overall, one commenter explained that the rule
                ``defied logic'' by categorically restricting the BIA from exercising
                discretion to determine whether additional facts must be adduced. The
                commenter stated that the Department provided no data to support the
                rule's changes to the BIA's long-standing factfinding efforts, nor did
                the rule explain how restricting the BIA's factfinding capabilities
                would increase efficiency and consistency.
                 Commenters voiced general concern for pro se individuals, alleging
                that the rule's removal of the BIA's ability to remand a case sua
                sponte for further factfinding ``appears designed to quickly, and with
                finality, remove those without representation who would be least likely
                to understand that they have the ability to seek remand and would
                therefore most heavily rely on EOIR to protect their rights.'' More
                specifically, especially in the case of pro se individuals, commenters
                were concerned that respondents who were unaware of what was necessary
                to meet their burden would also similarly not have attempted to
                ``adduce the additional facts before the immigration judge,'' as
                required by proposed 8 CFR 1003.1(d)(3)(iv)(D)(2) for the BIA to remand
                a case. One commenter further explained that this provision would
                ``require respondents to predict a future that will be created by
                actors beyond their control in order to obtain the lawful status that
                is otherwise statutorily available to them.''
                 Similarly, commenters opposed proposed 8 CFR 1003.1(d)(3)(iv)(D)(1)
                requiring that an issue be ``preserved'' before the immigration judge
                because, the commenters explained, the respondent would be unaware of
                what factfinding the immigration judge had conducted until the decision
                is issued. Accordingly, commenters alleged that the respondent would
                have to ``interrupt the IJ as the IJ is dictating her ruling. Or, even
                worse, the [r]espondent wouldn't even have the opportunity to object
                because he received his decision by postal mail.'' Citing the
                performance metrics for immigration judges, commenters were concerned
                that immigration judges would have ``little incentive'' to take the
                time to develop the record in cases ``where there is no possibility
                that the case could be remanded for failure to do so.''
                 Commenters also disagreed with proposed 8 CFR
                1003.1(d)(3)(iv)(D)(3), which requires the BIA to first determine
                whether additional factfinding would ``alter the outcome of the case.''
                Commenters alleged that making such determination constituted
                factfinding on the part of the BIA, contradicting the general
                opposition to factfinding by the BIA.
                 Commenters disagreed with the clearly erroneous standard in
                proposed 8 CFR 1003.1(d)(3)(iv)(D)(5). Commenters explained that it
                should not make a difference whether an immigration judge's findings
                were erroneous if an alien should have been granted asylum in the first
                instance. Other commenters voiced general support for the current
                system, which they explained required the BIA to determine whether an
                immigration judge made a clearly erroneous factual finding that
                prejudiced the alien. One commenter alleged that, under the rule, the
                BIA would be forced to issue ``poor decisions based on incomplete facts
                and conjecture.''
                 Response: Again, as an initial point, the Department notes that the
                assertions of many commenters reflect either an unsubstantiated,
                tendentious interpretation of the rule or a fundamental
                misunderstanding of the procedures of adversarial civil proceedings,
                including immigration proceedings. Except for issues related to
                identity, law enforcement, or security investigations or examinations,
                which are required by other regulations or statutes,\30\ the changes in
                the rule regarding factfinding apply to both
                [[Page 81605]]
                parties equally. Thus, both DHS and an alien must comply with the
                rule's provisions in order to seek a remand for factfinding.
                ---------------------------------------------------------------------------
                 \30\ Most applications cannot be granted in immigration
                proceedings--at the BIA or otherwise--without the completion and
                clearance of identity, law enforcement, or security investigations
                or examinations. 8 CFR 1003.47. A similar statutory restriction
                applies specifically to asylum applications. INA 208(d)(5)(A)(i), 8
                U.S.C. 1158(d)(5)(A)(i).
                ---------------------------------------------------------------------------
                 Because the parties themselves are responsible for meeting any
                applicable burdens of proof before the immigration judge, 8 CFR 1240.8,
                and because the Board acts a neutral arbiter between the parties--
                rather than as an advocate for one party over the other--there is
                generally no reason for the Board to remand a case on its own for
                further factfinding unless a question of jurisdiction has arisen that
                requires such factfinding. To do otherwise, the Board would, in
                essence, be acting on behalf of a party in order to advance that
                party's arguments, which is inappropriate. 8 CFR 1003.1(d)(1) (``The
                Board shall resolve the questions before it in a manner that is timely,
                impartial, and consistent with the Act and regulations.'' (emphasis
                added)); 5 CFR 2635.101(b)(8) (``Employees [of the federal government]
                shall act impartially and not give preferential treatment to any
                private organization or individual.''); BIA Ethics and Professionalism
                Guide at sec. V (``A Board Member shall act impartially and shall not
                give preferential treatment to any organization or individual when
                adjudicating the merits of a particular case.''). In other words, it is
                not the Board's role to correct deficiencies in a party's case or to
                provide a second or additional opportunity for a party to do so. It is
                the Board's role to ``review . . . administrative adjudications under
                the Act . . . . [R]esolve the questions before it in a manner that is
                timely, impartial, and consistent with the Act and regulations . . . .
                [And] provide clear and uniform guidance to the [DHS], the immigration
                judges, and the general public on the proper interpretation and
                administration of the Act and its implementing regulations.'' 8 CFR
                1003.1(d)(1). The final rule recognizes the Board's appropriate role,
                and to the extent that commenters suggest the Board should employ
                procedures in resolving appeals that favor one party over the other,
                the Department declines to adopt such a suggestion to avoid
                compromising the Board's impartiality.
                 The rule reflects several well-established principles that
                commenters did not persuasively challenge or address. First, it
                requires that the party seeking remand for factfinding on an issue to
                have preserved that issue below. Issues not preserved in front of an
                immigration judge are generally waived. See Matter of Edwards, 20 I&N
                Dec. 191, 196 n.4 (BIA 1990) (noting that an issue not preserved in
                front of the immigration judge is waived). Thus, it is both inefficient
                and inconsistent with existing case law to remand a case for further
                factfinding on issue that has already been waived on appeal. Commenters
                did not explain why EOIR should allow the Board to remand cases for
                further factfinding on issues that have already been waived, and the
                Department is unaware of any logical or persuasive basis to do so.
                 Second, the rule requires the party seeking remand, if it bore the
                burden of proof below, to have attempted to adduce the additional facts
                before the immigration judge. There is no logical reason for a party to
                choose not to attempt to adduce facts sufficient to meet its burden of
                proof before an immigration judge, and this requirement merely
                recognizes both the inefficiency and the gamesmanship that would follow
                if parties were relieved of an obligation to attempt to bring out facts
                to meet a burden of proof before an immigration judge. Again,
                commenters did not explain why parties--including both aliens and DHS--
                should be relieved of that burden, particularly since they, presumably,
                should already have attempted to meet it. 8 CFR 1240.8.
                 Third, the rule requires that the additional factfinding alter the
                outcome or disposition of the case. To do otherwise would be to remand
                a case for no purpose since the remand would not affect the outcome or
                disposition of the case. In short, it would be a remand for no reason.
                The Department is unaware of any need to remand a case for no reason,
                and commenters did not provide one.
                 Fourth, and relatedly, the rule requires that the additional
                factfinding would not be cumulative of the evidence already presented
                or contained in the record. Again, to do otherwise would largely be
                purposeless. The Department is unaware of any reason to remand a case
                for factfinding that is cumulative or already present in the record,
                and commenters did not advance one.
                 Fifth, the rule requires, inter alia, that the immigration judge's
                factual findings were clearly erroneous. The Board already reviews
                immigration judge factual findings under a clearly erroneous standard,
                and the rule does not change that standard. Id. Sec. 1003.1(d)(3)(i).
                Rather, the rule recognizes that additional factfinding in cases in
                which an immigration judge's factual findings are not clearly erroneous
                could mean only one of two possibilities. It could mean that a party
                failed to meet its burden of proof but the Board believes--for some
                unknown or unstated reason--that the party warrants another chance to
                meet that burden to bring out additional facts. Such a decision would
                effectively convert the Board into an advocate for the party seeking a
                remand, and in that case, the Board would be abdicating its role as an
                impartial or neutral arbiter. See id. 1003.1(d)(1); 5 CFR
                2635.101(b)(8); BIA Ethics and Professionalism Guide at sec. V.
                Commenters did not offer persuasive reasons for the Board to abandon
                its need for impartiality, and to the extent that commenters alleged
                multiple reasons for not adopting the rule, the Department finds that
                the need for the Board to remain an impartial body is more compelling
                than those reasons.
                 Alternatively, additional factfinding in cases in which an
                immigration judge's factual findings are not clearly erroneous could
                mean that the immigration judge made an error of law which will
                necessitate additional factfinding on remand. For example, an
                immigration judge may err as a matter of law in failing to sufficiently
                develop the record for a pro se respondent, which would inherently
                require further factfinding. Although that interpretation would be
                based on a legal determination and the rule does not restrict the
                Board's ability to remand a case due to a legal error, the Department
                recognizes that some cases of legal error may require additional
                factfinding on remand. The Department did not intend the rule to
                prohibit factfinding on remand when the remand is based on a legal
                error--subject to other requirements--and the final rule clarifies that
                point to avoid confusion. 8 CFR 1003.1(d)(3)(iv)(D)(5).
                 Contrary to commenters' contentions, the rule did not
                ``categorically restrict'' the BIA from exercising discretion to
                determine whether additional facts may be adduced. For example, the BIA
                may exercise discretion to determine that additional facts not
                reasonably subject to dispute may be administratively noticed. The rule
                did, however, clarify the extent to which the BIA may engage in
                factfinding on appeal and the circumstances in which the BIA may remand
                for further factfinding, consistent with applicable law and
                regulations. 85 FR at 52500-01.
                 The rule cited various data, see id. at 52492, to demonstrate the
                significant increase in cases and related challenges, which the
                Department believes would be unsustainable under the BIA system pre-
                dating this rule and thus prompted the Department's decision to review
                the BIA's regulations in order to address and reduce unwarranted delays
                in the
                [[Page 81606]]
                appeals process and ensure efficient use of resources.\31\
                ---------------------------------------------------------------------------
                 \31\ To the extent that commenters asserted that the Department
                provided no data regarding the BIA's factfinding procedures, the
                Department notes that granular data on how many BIA remands for
                factfinding that do not affect the outcome of cases and that are for
                factfinding that is cumulative to facts already found in the record
                is not available and is likely untraceable due to the inherently
                fact-specific nature of each case and the somewhat counter-factual
                of such data. Moreover, commenters did not suggest that such data
                was available or could be obtained, nor did they even suggest how to
                calculate or measure the ``inappropriateness'' or ``incorrectness''
                of a remand that would be necessary to track such data. As
                discussed, the remaining parts of the rule follow from well-
                established legal principles (e.g., waiver, burden of proof, and
                standard of review for factfinding) and are not intended to turn on
                data. Overall, the Department reiterates that the rule explained how
                restricting the BIA's factfinding capabilities would increase
                efficiency and consistency.
                ---------------------------------------------------------------------------
                 Contrary to commenters' claims, the Department maintains that it
                explained in the NPRM how proposed changes to the BIA's factfinding
                abilities would increase efficiency and consistency. For example, in
                support of the administrative notice provisions, the Department
                explained that there was no operational or legal reason to remand a
                case for factfinding if the record already contained evidence of
                undisputed facts. Id. at 52501. Thus, the Department clarified that the
                BIA could rely on such facts without remanding the case, thereby
                reducing an unwarranted delay. Overall, the proposed changes were made
                ``to more clearly delineate the circumstances in which the BIA may
                engage in factfinding on appeal.'' Id. Clarifying such circumstances
                inherently facilitates a more efficient and consistent process because
                adjudicators need not spend time determining, for example, whether
                factfinding is appropriate or whether previous adjudicators otherwise
                engaged in factfinding in similar circumstances.
                 The Department promulgated this rule to reduce unwarranted delays
                and ensure efficient use of resources, given the significant increase
                in pending cases in the immigration courts that has led to an increase
                in appeals. See id. at 52492. In no way are these changes intended for
                the purpose of harming or quickly removing pro se individuals. To the
                contrary, EOIR's Office of Policy (OP) seeks to increase access to
                information and raise the level of representation for individuals in
                hearings before immigration courts and the BIA. In addition, EOIR has
                developed a thorough electronic resource for individuals in
                proceedings. EOIR, Immigration Court Online Resource, available at
                https://icor.eoir.justice.gov/en/ (last visited Nov. 27, 2020); see
                also EOIR Launches Resources to Increase Information and
                Representation, Oct. 1, 2020, https://www.justice.gov/eoir/pr/eoir-launches-resources-increase-information-and-representation. In short,
                EOIR's OP, the private bar, and other non-governmental organizations
                all may assist individuals with their immigration proceedings,\32\
                which include providing information which may assist individuals in
                preserving issues or attempting to adduce additional facts before the
                immigration judge.
                ---------------------------------------------------------------------------
                 \32\ The Department notes that individuals in removal
                proceedings before an immigration judge and the BIA have the
                ``privilege of being represented (at no expense to the Government)
                by such counsel, authorized to practice in such proceedings, as [the
                alien] shall choose.'' INA 292, 8 U.S.C. 1362; see also INA
                240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); 8 CFR 1240.10(a)(1).
                ---------------------------------------------------------------------------
                 Regarding the possible impact of the rule on pro se aliens, as
                noted previously, the Department first reiterates that most aliens--
                i.e., 86 percent, Representation Rates, supra--whose cases are
                considered by the Board have representation. For those who do not,
                there are multiple avenues they may pursue to obtain representation.
                For example, the Department maintains a BIA Pro Bono Project in which
                ``EOIR assists in identifying potentially meritorious cases based upon
                criteria determined by the partnering volunteer groups.'' BIA Pro Bono
                Project, supra. Further, immigration judges have a duty to develop the
                record in cases involving pro se aliens, which will ensure that such
                aliens attempt to adduce relevant facts to meet their burdens of proof
                and reduce the likelihood that aliens inadvertently waive an issue.\33\
                See Mendoza-Garcia, 918 F.3d at 504.
                ---------------------------------------------------------------------------
                 \33\ Whether a pro se alien knowingly waived an issue may also
                be a relevant consideration in appropriate cases. See Matter of
                Samai, 17 I&N Dec. 242 (BIA 1980) (objection to improper notice
                raised for the first time on appeal by a previously unrepresented
                respondent could still be considered by the Board).
                ---------------------------------------------------------------------------
                 To be sure, BIA procedures are not excused for pro se respondents,
                just as they are not excused generally for pro se civil litigants. See,
                e.g., McNeil, 508 U.S. at 113 (``[W]e have never suggested that
                procedural rules in ordinary civil litigation should be interpreted so
                as to excuse mistakes by those who proceed without counsel.'');
                Edwards, 59 F.3d at 8-9 (rejecting a pro se alien litigant's arguments
                for being excused from Federal court procedural requirements due to his
                pro se status). Moreover, issues not raised below may be deemed waived
                even for pro se individuals. See, e.g., Tannenbaum v. United States,
                148 F.3d 1262, 1263 (11th Cir. 1998) (``Pro se pleadings are held to a
                less stringent standard than pleadings drafted by attorneys and will,
                therefore, be liberally construed. But, issues not raised below are
                normally deemed waived.'' (internal citations omitted)). However, those
                standards have existed for years and exist independently of the rule,
                and nothing in the rule alters or affects their applicability.
                 The Department has fully considered the possible impacts of this
                rule on the relatively small pro se population of aliens with cases
                before the Board. However, the rule neither singles such aliens out for
                particular treatment under the Board's procedures, nor does it restrict
                or alter any of the avenues noted above that may assist pro se aliens.
                Further, commenters' concerns related to pro se aliens and these
                provisions are based almost entirely on a speculative, unfounded belief
                that immigration judges will disregard their duty to develop the record
                in pro se cases. The Department declines to accept such a view of
                immigration judges as either incompetent or unethical and declines to
                accept commenters' suggestions on that basis. Chem. Found., Inc., 272
                U.S. at 14-15 (``The presumption of regularity supports the official
                acts of public officers, and, in the absence of clear evidence to the
                contrary, courts presume that they have properly discharged their
                official duties.''). Finally, weighing the complete lack of necessity--
                and corresponding inefficiency--of factfinding remands where the facts
                are either irrelevant to the disposition of the case or cumulative to
                facts already in the record, the importance of maintaining the Board's
                impartiality, the duty of immigration judges to develop the record in
                cases of pro se aliens, the size of the pro se population with cases
                before the BIA, and the well-established avenues of assistance for pro
                se aliens, the Department finds, as a matter of policy, that the
                clarity and efficiency added by factfinding provisions in the rule far
                outweigh the speculative and unfounded concerns raised by commenters,
                particularly since many commenters misapprehended that the rule applies
                to both DHS and respondents.
                 Although commenters provided examples of challenges individuals
                would face in complying with the regulatory provisions at proposed 8
                CFR 1003.1(d)(3)(iv)(D)(1) and (2), the Department finds the examples
                unpersuasive or inapposite. The commenters' examples do not demonstrate
                a bar to preserving issues or adducing additional facts for use on
                appeal. Indeed, some commenters'
                [[Page 81607]]
                examples assume that issues can only be preserved or additional facts
                be adduced for use on appeal during an immigration judge's issuance of
                a decision, which is inaccurate. Throughout the course of proceedings,
                individuals may raise evidentiary or factfinding issues as the record
                is developed. See generally 8 CFR 1240.10 (explaining the course of the
                hearing, during which an alien may, for example, examine and make
                objections to evidence against him and present evidence on his behalf);
                see also 8 CFR 1240.9 (detailing the contents of the record, including
                ``testimony, exhibits, applications, proffers, and requests, the
                immigration judge's decision, and all written orders, motions, appeals,
                briefs, and other papers filed in the proceedings''). Moreover, if a
                party objects to an immigration judge's exclusion of evidence from the
                record, the regulations provide that an affected party may submit a
                brief. Id. 1240.9. Accordingly, numerous avenues exist through which
                individuals may comply with the proposed provisions at 8 CFR
                1003.1(d)(3)(iv)(D)(1) and (2).
                 The Department reiterates that immigration judges and the BIA will
                continue to exercise independent judgment and discretion to adjudicate
                cases before them in accordance with applicable law and regulations.
                See Id. Sec. 1003.1(d)(1)(ii), 1003.10(b), 1240.1(a). Circuit courts
                have held that under section 240(b)(1) of the Act, 8 U.S.C.
                1229a(b)(1), immigration judges have an obligation to develop the
                record. See, e.g., Yang v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002);
                Mekhoukh v. Ashcroft, 358 F.3d 118, 130 (1st Cir. 2004); Mendoza-
                Garcia, 918 F.3d at 504. The Department rejects any speculative
                contention--rooted in a tacit assertion that immigration judges are
                either unethical or incompetent--that immigration judges would simply
                shirk their obligation, including developing the record, in favor of
                completing more cases.
                 The Department disagrees that the BIA's determination in accordance
                with proposed 8 CFR 1003.1(d)(3)(iv)(D)(3), constitutes factfinding on
                the part of the BIA. Whether ``additional factfinding would alter the
                outcome or disposition of the case'' is well within the BIA's proper
                scope of review under 8 CFR 1003.1(d)(3) and inherent in the BIA's
                responsibility to decide appeals.
                 Because the BIA generally cannot consider new evidence on appeal or
                engage in further factfinding, 8 CFR 1003.1(d)(3)(iv), subject to some
                exceptions, the rule sought to clearly establish limitations on the
                BIA's ability to remand for further factfinding. As explained in the
                NPRM, the INA contains few details in regard to the appeals process;
                thus, EOIR's regulations govern specific procedural requirements for
                appeals. 85 FR at 52493. Consequently, in accordance with its statutory
                authority under section 103(g)(2) of the Act, 8 U.S.C. 1103(g)(2), to
                promulgate regulations, the Department determined that it would
                condition remand on a determination that either the immigration judge's
                factual findings were clearly erroneous or that remand is warranted
                following de novo review.
                 As the Department explained in the NPRM, the current system for
                adjudicating appeals does not always operate in an effective and
                efficient manner. As explained in the NPRM, the Department believed it
                was necessary to reevaluate its regulations governing the BIA, as it
                routinely does, see id. at 52494. As a result, the Department
                determined that the current system could be amended in various ways to
                reduce unwarranted delays and ensure efficient use of resources, given
                the significant increase in pending cases in the immigration courts
                that has led to an increase in appeals. See id. Moreover, changes made
                by this rulemaking will best position the Department to address the
                growing caseload and related challenges. Id. at 52492-93.
                 The Department strongly disagrees with commenters that the rule
                would force the BIA to issue ``poor decisions based on incomplete facts
                and conjecture.'' Again, this comment suggests that Board members are
                incompetent and cannot perform their functions fairly and efficiently,
                a suggestion the Department categorically rejects. The Department is
                confident that the BIA will continue to competently resolve issues in a
                manner that is timely, impartial, and consistent with applicable law
                and regulations. See 8 CFR 1003.1(d)(1). BIA members exercise
                independent judgment and discretion and ``may take any action
                consistent with their authorities under the Act and the regulations as
                is appropriate and necessary for the disposition of the case.'' Id.
                Sec. 1003.1(d)(1)(ii).
                d. BIA Affirmance on Any Basis Supported by the Record (8 CFR
                1003.1(d)(3)(v))
                 Comment: Commenters expressed concerns about new paragraph 8 CFR
                1003.1(d)(3)(v) that would enable the BIA to affirm the underlying
                decision of the immigration judge or DHS on ``any basis'' supported by
                the record, including a ``basis supported by facts that are not
                reasonably subject to dispute'' or ``undisputed facts.''
                 Commenters argued that this change creates inefficiencies instead
                of efficiencies for a variety of reasons. For example, commenters
                expressed a belief that this provision will inevitably require
                respondents before the BIA to litigate every possible issue that could
                be raised by the record in order to preserve their arguments for future
                appeals, regardless of the particular rulings by the IJ. Commenters
                noted that this in turn creates inefficiencies as opposed to
                efficiencies in BIA procedures. In addition, commenters stated that
                this provision will in effect lead to a full second adjudication of
                every case by the BIA instead of the BIA only analyzing the specific
                issues posed by the parties. Citing SEC v. Chenery Corp., 318 U.S. 80
                (1943), commenters argued that respondents should not have to guess at
                what bases the BIA might have for its decisions.
                 Commenters disputed the Department's citation to Helvering v.
                Gowran, 302 U.S. 238, 245 (1937) in support of the change, explaining
                that the Supreme Court in that case provided the parties with an
                opportunity to establish additional facts that would affect the result
                under the new theory first presented at the Court of Appeals.
                 Commenters expressed concern that this provision will inevitably
                lead to the BIA engaging in impermissible fact-finding and that the
                rule is insufficiently clear as to what is a ``disputed'' or undisputed
                fact.
                 Commenters stated that this change is internally inconsistent with
                other provisions of the rule because it allows the BIA to affirm a
                decision based on arguments not raised in the proceedings below but
                prohibits the BIA from similarly remanding based on arguments not
                raised below.
                 Response: As an initial point, few commenters acknowledged that
                this standard is analogous to the one employed by Federal appellate
                courts reviewing Federal trial court decisions and is, thus, a well-
                established principle of appellate review. See, e.g., Keyes v. School
                Dist. No. 1, 521 F.2d 465, 472-73 (10th Cir. 1975) (``An appellate
                court will affirm the rulings of the lower court on any ground that
                finds support in the record, even where the lower court reached its
                conclusions from a different or even erroneous course of reasoning.'').
                Relatedly, few, if any, commenters offered an explanation or rationale
                for why that appellate principle would be inappropriate to apply to
                Board review of immigration judge decisions, particularly since Federal
                appellate courts handle cases of
                [[Page 81608]]
                pro se litigants and complex records from trial courts below just as
                the Board does. Further, few, if any, commenters acknowledged that the
                Board already possesses the authority to base its decision on a review
                of the record as a whole even if a party has not raised an issue. See,
                e.g., Ghassan v. INS, 972 F.2d 631, 635 (5th Cir. 1992) (``First, he
                argues that the BIA should not have disregarded the IJ's finding,
                because the INS did not challenge that finding in its brief. We
                disagree. . . . In the instant case, the BIA based its decision upon
                the administrative record as a whole. There was no procedural
                impropriety.''). To the extent that commenters failed to engage with a
                principal foundation for this provision of the rule, the Department
                finds their comments unpersuasive. See Home Box Office, 567 F.2d at 35
                n.58 (``Moreover, comments which themselves are purely speculative and
                do not disclose the factual or policy basis on which they rest require
                no response. There must be some basis for thinking a position taken in
                opposition to the agency is true.'').
                 As the Department also explained in the proposed rule, 85 FR at
                52501 n.23, clarifying that the BIA may affirm the decision of the
                immigration judge or DHS on any basis supported by the record is
                consistent with long standing principles of judicial review. See, e.g.,
                Chenery Corp., 318 U.S. at 88 (describing the principle that a
                reviewing court must affirm the result of the lower court if the result
                is correct, even if the lower court relied upon a wrong ground or wrong
                reason as ``settled rule'') (citing Helvering, 302 U.S. at 245)).
                Indeed, as the Supreme Court explained, it would be wasteful for an
                appellate body to have to return a case to the lower court based on
                grounds already in the record and within the power of the BIA to
                formulate. Id.
                 The Department emphasizes, however, that the BIA may only affirm a
                decision on a basis that is supported by the record as developed by the
                immigration judge or any facts not reasonably subject to dispute and of
                which the BIA takes administrative notice. 8 CFR 1003.1(d)(3)(iv).
                Accordingly, despite commenters' unsupported predictions, the rule
                would not enable the BIA to engage in de novo factfinding as a way to
                affirm the underlying immigration judge or DHS decision. Cf. Chenery
                Corp., 318 U.S. at 88 (``[I]t is also familiar appellate procedure that
                where the correctness of the lower court's decision depends upon a
                determination of fact which only a jury could make but which has not
                been made, the appellate court cannot take the place of the jury.'').
                Because the BIA's review is limited to the record in this manner, the
                Department disagrees with the commenters' speculation that the BIA
                review will be less efficient because it would become an alleged second
                complete adjudication. Instead--just as in Federal appellate courts--
                this provision only creates efficiencies by making it clear that the
                BIA does not have to turn a blind eye to undisputed facts that are
                clear from the record that relate to the correctness of the underlying
                decision.
                 In addition, the Department finds unpersuasive commenters' concerns
                that aliens must address all possible issues in their briefing or other
                arguments or else risk ceding a future argument on appeal to Federal
                court due to failure to exhaust the issue. The Department already
                expects an appealing party to address all relevant issues on appeal;
                otherwise, the party risks summary dismissal of the appeal, 8 CFR
                1003.1(d)(2)(i)(A) (authorizing summary dismissal when a party does not
                specify the reasons for appeal on the Notice of Appeal), waiver of the
                issue before the Board, see Matter of Cervantes, 22 I&N Dec. 560, 561
                n.1 (BIA 1999) (expressly declining to address an issue not raised by
                party on appeal), and potentially dismissal of a petition for review
                due to a failure to exhaust an issue before the Board, see, e.g., Sola
                v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (``A petitioner's
                failure to raise an issue before the BIA generally constitutes a
                failure to exhaust, thus depriving this court of jurisdiction to
                consider the issue.''). The rule imposes no additional consequences for
                a party who fails to raise issues on appeal to the BIA beyond those
                that already exist, and a party choosing to address some issues but not
                others on appeal does so at its own risk. Consequently, the Department
                does not see why a party would choose not to raise an issue on appeal,
                even under the current regulations, and rejects the assertion that the
                rule imposes a new requirement in this regard.
                 As a practical matter, the Department is also unaware of how such a
                scenario posited by commenters would occur. For example, an alien
                appealing an adverse decision by an immigration judge regarding an
                application for relief or protection will have necessarily argued to
                the immigration judge all of the elements required to grant such an
                application; otherwise, the alien will have waived issues not argued
                anyway. Further, even if the immigration judge denied the application
                on one basis--and did not address others--and even if the Board
                affirmed the denial on another basis, the alien will not be deemed to
                have failed to exhaust the issue even if the alien did not include the
                issue in the Notice of Appeal. See, e.g., Abebe v. Gonzales, 432 F.3d
                1037, 1040-41 (9th Cir. 2005) (stating that when the BIA reviews the
                entire record, considers issues argued before an immigration judge but
                not raised by an alien in a Notice of Appeal, and issues its decision
                based on such issues after reviewing the entire record, alien is not
                barred from raising the issue in a petition for review due to
                exhaustion). In short, commenters' concerns are unfounded, and the
                Department declines to credit them accordingly.
                e. Changes to BIA Procedures for Identity, Law Enforcement, or Security
                Investigations or Examinations (8 CFR 1003.1(d)(6))
                 Comment: Commenters expressed concern regarding the rule's proposed
                changes to the BIA procedures for identity, law enforcement, or
                security investigations or examinations. See 8 CFR 1003.1(d)(6)(ii) and
                (iii); see also 82 FR at 52499.
                 At least one commenter stated that the changes conflict with the
                Department's reasoning for the rule's amendments regarding
                administrative closure.\34\ For example, the commenter stated that the
                BIA does not have the regulatory authority to place a case on hold
                indefinitely.
                ---------------------------------------------------------------------------
                 \34\ For further discussion of administrative closure, see
                section II.C.3.b above.
                ---------------------------------------------------------------------------
                 Other commenters expressed due-process related and other concerns
                about the rule's procedures for communications between the BIA and DHS
                and the alien regarding the status of background checks and to allow
                the BIA to deem an application abandoned if DHS alleges that an alien
                failed to comply with its biometrics instructions. See 8 CFR
                1003.1(d)(6)(ii) and (iii). Specifically, one commenter stated the
                procedures fail to protect respondents' due process rights because they
                require the BIA to deem an application abandoned and accordingly deny
                relief if DHS states that the respondent failed to comply with its
                instructions but do not provide adequate opportunity for the alien to
                contest that they did not receive notice from DHS about the
                requirements or to otherwise establish good cause for failing to
                comply. To illustrate this risk, the commenter cited a hypothetical
                that ``the BIA could deem an otherwise approvable application abandoned
                because DHS reports to the BIA that the applicant failed to timely
                comply with biometrics, but where DHS had inadvertently sent the
                biometrics
                [[Page 81609]]
                instructions to the wrong address.'' The commenter also noted that due
                to recent changes by DHS to the biometrics procedures,\35\ new
                individuals, including children under the age of 14, will be subject to
                biometrics requirements for the first time, increasing the likelihood
                of removal orders for respondents who otherwise would qualify for
                relief from removal. Another commenter expressed concern that although
                the alien's deadline to comply begins to run from the date the BIA
                sends out a notice to the alien that DHS will be providing further
                information, DHS in turn has no deadline to contact the alien.
                ---------------------------------------------------------------------------
                 \35\ Collection and Use of Biometrics by U.S. Citizenship and
                Immigration Services, 85 FR 56338 (Sept. 11, 2020).
                ---------------------------------------------------------------------------
                 Another commenter also raised issues of disparate treatment,
                stating that, while respondents would be barred from submitting new
                evidence on appeal that would likely change the result of the case, the
                Department would be expressly permitted to submit new evidence that is
                the result of ``identity, law enforcement, or security
                investigations.'' See 8 CFR 1003.1(d)(6)(ii).
                 Response: Neither the BIA nor an immigration judge may grant an
                alien most forms of relief or protection unless DHS has certified that
                the alien's identity, law enforcement, or security investigations have
                been completed and are current. See 8 CFR 1003.1(d)(6)(i), 1003.47(g);
                see also INA 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i). When the
                Department first implemented the background check procedures in
                2005,\36\ the Department provided the BIA with two options in cases
                where the identity, law enforcement, or security investigations or
                examinations have not been completed or are no longer current: remand
                to the immigration judge with instructions or place the case on hold
                until the investigations or examinations are completed or updated. 8
                CFR 1003.1(d)(6)(ii)(A) and (B).
                ---------------------------------------------------------------------------
                 \36\ Background and Security Investigations in Proceedings
                Before Immigration Judges and the Board of Immigration Appeals, 70
                FR 4743 (Jan. 31, 2005).
                ---------------------------------------------------------------------------
                 At the time, the Department explained that the expectation was that
                the BIA and DHS would be able to make greater use of the procedure for
                holding pending appeals without the need to resort to a remand. 70 FR
                at 4748. Contrary to this prediction, however, it has become common
                practice for the BIA to remand cases to the immigration judge rather
                than holding the case for the completion of or updates to the required
                investigations and examinations. See, e.g., Matter of S-A-K- and H-A-H-
                24 I&N Dec. 464, 466 (BIA 2008) (order sustaining appeal and remanding
                the case to the immigration judge for DHS to complete or update
                background checks). Because this practice creates unnecessary delays in
                the resolution of cases given the overburdened resources and size of
                the caseload at the immigration court level, the Department proposed to
                remove the option at 8 CFR 1003.1(d)(6)(ii)(A) for the BIA to remand
                cases for the completion or update of the checks and investigations and
                proposed procedural changes in those cases that remain subject to BIA
                holds under the amended 8 CFR 1003.1(d)(6)(ii).
                 This procedure, which has existed since 2005, does not conflict
                with the rule's changes regarding administrative closure. First, when
                the BIA places a case on hold for the completion of or updates to the
                required identity, law enforcement, or security investigations or
                examinations, the hold is not ``indefinite.'' Instead, the hold is at
                most 180 days. See 8 CFR 1003.1(d)(6)(iii) (instructing the BIA to
                remand the case to the immigration judge for further proceedings under
                8 CFR 1003.47(h) if DHS fails to report the result of the
                investigations or examinations within 180 days). Second, even to the
                extent that the BIA hold process may be erroneously compared to an
                administrative closure, such practice would be an example of an
                administrative closure that is authorized by a regulation promulgated
                by the Department of Justice. See 8 CFR 1003.1(d)(1)(ii); see also
                Matter of Castro-Tum, 27 I&N Dec. at 283 (holding that immigration
                judges only have the authority to grant administrative closure if a
                regulation or settlement agreement has expressly conferred such
                authority).
                 In addition, the Department disagrees that the instructions in the
                proposed rule for the BIA regarding when to deem an application
                abandoned for failure to comply with biometrics requirements violate
                due process. As the commenter noted, during the respondent's initial
                hearing, the immigration judge must ``specify for the record when the
                respondent receives the biometrics notice and instructions and the
                consequences for failing to comply with the requirements.'' 8 CFR
                1003.47(d). Accordingly, respondents before the BIA have already been
                generally informed about the biometrics process and have fulfilled the
                requirements at least once and understand how to comply with the
                requirements for any needed identity, law enforcement, or security
                investigations or examinations. Moreover, the Board's notice to the
                alien will also be part of the record so that it is clear when the
                alien was served with the notice.
                 Nevertheless, the Department has included two changes from the
                proposed rule in this section to account for the commenters' concerns.
                First, this rule contains an additional requirement that, if DHS is
                unable to independently update any required identity, law enforcement,
                or security investigations, DHS shall provide a notice to the alien
                with appropriate instructions, as DHS does before the immigration
                courts under 8 CFR 1003.47(d), and simultaneously serve a copy of the
                notice with the BIA. Second, while the NPRM would have begun the
                alien's 90-day timeline for compliance with the biometrics update
                procedures at the time the Board provided notice to the alien, the
                final rule aligns the 90-day time period to begin running at the time
                DHS submits the notice to the alien in situations in which DHS is
                unable to independently update any required checks. The Department
                agrees with the commenters' concerns that without these changes, the
                provisions of the proposed rule could have resulted in situations where
                the alien is unable to effectively comply with the biometrics
                requirements due to possible delays by DHS or lack of sufficient
                notice.
                 Finally, commenters' concerns about alleged disparate treatment
                between DHS and aliens are unpersuasive. The rule does not generally
                allow any party to file a motion to remand based on new evidence
                pertaining to an issue that was not raised below. Rather, DHS may
                submit limited evidence solely with respect to information yielded from
                completed identity, law enforcement, or security investigations or
                based on the alien's failure to comply with biometrics requirements, 8
                CFR 1003.1(d)(6)(iii), at which time the alien would also have the
                opportunity to file evidence in response. Accordingly, the alien would
                not be prejudiced by remands for such issues.
                 Further, such a requirement is fully consistent with existing law,
                e.g., 8 CFR 1003.47 and INA 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i).
                To the extent that commenters disagree with those longstanding and
                well-established provisions, those concerns are beyond the scope of
                this rule.
                f. BIA Authority To Issue Final Orders (8 CFR 1003.1(d)(7)(i))
                 Comment: One commenter stated that the rule's focus on the BIA's
                ability to issue orders of removal in the first instance without a
                similar focus on the BIA's ability to grant relief in the first
                instance would result in an unfair process that favors DHS over aliens
                in
                [[Page 81610]]
                proceedings. Another commenter speculated that allowing the BIA to
                issue orders of removal without a remand to the immigration judge would
                impede respondents' ability to ultimately seek a petition for review in
                Federal court.
                 Response: First, the commenter who stated that the rule is focused
                on enabling the BIA to issue a removal order misconstrues the
                Department's amendment regarding the BIA's authority to issue final
                orders. The rule amends 8 CFR 1003.1(d)(7)(i) to clarify that the BIA
                has the authority to issue, inter alia, both final orders of removal
                and orders granting relief from removal. Accordingly, the commenter is
                incorrect that these amendments favor either party to proceedings
                before the BIA.
                 Second, without further explanation, the Department is unable to
                further respond to the commenter's speculation that the BIA issuing a
                removal order would impede a respondent's ability to seek a petition
                for review in Federal court. An alien who receives an order of removal,
                whether from the BIA or the immigration judge, may file a petition for
                review subject to the requirements of section 242 of the Act, 8 U.S.C.
                1252, and nothing in this rule affects that statutory provision.
                g. BIA Remands Changes (1003.1(d)(7)(ii) and (iii))
                i. Issues With Respect to Limitations on BIA's Authority To Remand
                 Comment: Numerous commenters expressed concern about limiting the
                BIA's authority to remand cases. For example, commenters were concerned
                that the rule would shift more authority to the immigration judge,
                while tying the hands of BIA members who observed errors and that the
                rule would provide the BIA with no choice but to affirm an immigration
                judge's denial despite concerns that the record was not sufficiently
                developed. Another commenter stated that the BIA is the consummate
                authority on immigration law and that they have enough expertise and
                experience to make determinations on their own without being limited by
                the rule. Some commenters suggested that the BIA should be permitted to
                remand cases to the immigration court for any purpose.
                 Commenters stated that the proposed changes have no basis in the
                law, depart from agency practice, violate the right to present evidence
                on one's own behalf, and in many cases, would result in orders of
                removal that were issued notwithstanding meritorious defenses and
                dispositive collateral challenges in criminal matters. One commenter
                stated that prohibiting motions to remand would prejudice respondents
                with cases that were delayed through no fault of their own.
                 Commenters objected to the rule on the basis that it would not
                allow the BIA to remand cases where there has been a change in the law.
                At least one commenter specifically objected to the BIA's limited
                remand authority in asylum cases, where, the commenter stated,
                eligibility rules are in a constant state of flux, and individuals
                should be permitted to seek remand for cases that were denied based on
                rules that are under litigation. The commenter further specified that
                the UNHCR has recommended that appellate bodies look to both facts and
                law using updated information and take any such new and relevant
                information into consideration. The commenter listed, as an example,
                asylum seekers who were denied asylum under the third-country transit
                bar, which was later vacated by a Federal court, and alleged that such
                individuals may now be eligible for asylum. See CAIR Coal. et al. v.
                Trump, No. 19-2117, 2020 WL 3542481 (D.D.C. June 30, 2020). The
                commenter stated that, in this case, the immigration judge may not have
                fully developed the record below because the third-country bar analysis
                would not require evaluation of all bases for asylum. The commenter
                asserted that such records should be remanded to the immigration judge
                for further fact finding.
                 At least one commenter stated that the rule does not account for
                legal issues that arise during the hearing itself, such as the
                immigration judge conducting the hearing in an unfair manner, which the
                commenter states, would necessarily not be included in briefing that
                had been drafted before the hearing.
                 Commenters alleged that the rule would unfairly disadvantage
                individuals who are unrepresented, unfamiliar with the law, and non-
                English speaking.
                 One commenter objected to the NPRM's statement that a party seeking
                to introduce new evidence in proceedings should file a motion to
                reopen. 85 FR at 52500. The commenter stated that a motion to reopen
                while an appeal is pending at the BIA does not make sense because an
                order is not final until the BIA resolves the appeal under 8 CFR
                1241.1(a).
                 One commenter suggested that it would be unfair for EOIR to require
                that the respondent's counsel fully brief every issue before the
                hearing and not to require the same of DHS's counsel.
                 Response: As noted elsewhere, to the extent that commenters
                erroneously believe this rule applies only to respondents and not to
                DHS, they are mistaken. Further, to the extent that commenters assert
                the BIA should be allowed unfettered discretion to remand cases for any
                purpose, such a suggestion is inconsistent with the Board's limited,
                and regulatorily defined, authority. Additionally, as discussed, supra,
                the rule does not preclude the Board from remanding a case in which the
                immigration judge committed an error of law by insufficiently
                developing the record. To the extent that commenters misconstrue the
                rule or suggest changes to the rule that are inconsistent with the
                Board's authority, the Department declines to accept those suggestions.
                 Commenters are incorrect that this rule has no basis in the law,
                departs from agency practice, violates the right to present evidence on
                one's own behalf, and could result in orders of removal that were
                issued notwithstanding meritorious defenses and dispositive collateral
                challenges in criminal matters. As noted in the NPRM, the Supreme Court
                has recognized that ``the BIA is simply a regulatory creature of the
                Attorney General, to which he has delegated much of his authority under
                the applicable statutes.'' 85 FR at 52492 n.1 (quoting Doherty, 502
                U.S. at 327). Although there is a reference to the BIA in section
                101(a)(47)(B) of the Act, 8 U.S.C. 1101(a)(47)(B), that reference
                occurs only in the context of establishing the finality of an order of
                deportation or removal after the BIA has affirmed the order or the time
                allowed for appeal to the BIA has expired. It does not address the
                scope of the BIA's authority or its procedures. Accordingly, the
                Department is well within its authority to limit the scope of remands
                to the immigration courts, as it doing now in order to improve
                efficiency.
                 At the same time, the Department recognizes the BIA's expertise in
                appellate immigration adjudications. Indeed, one purpose for this
                rulemaking is to better empower the BIA to make final decisions where
                possible, as the Department recognizes it is capable of doing. To that
                end, the Department agrees with commenters who noted the Board's
                expertise and experience, and it notes that this provision fully
                effectuates that expertise and experience by allowing the Board to
                render final decisions in certain circumstances.
                 Further, nothing in the rule precludes a respondent from submitting
                evidence on his or her own behalf during the course of removal
                proceedings before the immigration judge, although the rule does,
                within its authority, limit the BIA's authority to remand a decision
                [[Page 81611]]
                back to the immigration judge on the basis of new evidence at the
                administrative-appeals stage. 8 CFR 1003.1(d)(3)(iv)(D), (d)(3)(7)(ii).
                The Department notes that motions to remand are an administrative,
                adjudicatorily-created concept, not rooted in statute, which was later
                codified by the regulations. Further, as the NPRM explained, the BIA
                has treated new evidence submitted on appeal inconsistently, despite
                both case law and regulations addressing such situations. 85 FR at
                52500-01. The concerns raised by commenters do not outweigh the need
                for uniform and consistent treatment to ensure that all aliens who
                obtain allegedly new evidence and wish to submit it after an
                immigration judge has rendered a decision are treated in a similar
                fashion.
                 Moreover, the INA explicitly provides a statutory avenue to address
                new evidence: A motion to reopen. See INA 240(c)(7), 8 U.S.C.
                1229a(c)(7).\37\ While the changes require that a party comply with the
                statutory requirements for a motion to reopen in order to submit such
                evidence, the rule does not impact motions to reopen. To the contrary,
                the rule recognizes that motions to remand are generally considered
                analogous to motions to reopen or reconsider and that due to the
                inconsistent treatment of allegedly new evidence on appeal through the
                lens of a motion to remand, it is both more efficient and more likely
                to promote uniformity and consistency--and also more likely to reduce
                gamesmanship on appeal--to simply rely on the established motion to
                reopen procedure. Thus, because the sole statutorily created process to
                consider new evidence is still available, the Department finds that
                aliens' rights regarding the submission of new evidence, including
                evidence of criminal-related issues, remain intact. Cf. Sankoh, 539
                F.3d at 466 (``As we have held many times, however, administrative
                notice does not violate the alien's due process rights because an alien
                can challenge any factual finding through a motion to reopen.'' (citing
                Kaczmarczyk v. INS, 933 F.2d 588, 594 (7th Cir. 1991))). Additionally,
                to the extent that the Board makes an error of law or fact in its
                decision, the rule does not affect the ability of a party to file a
                motion to reconsider. 8 CFR 1003.2(b). In short, the rule does not
                alter the availability of established mechanisms for addressing new
                evidence or new issues; instead, it simply eliminates an inconsistently
                applied and confusing procedural avenue that is redundant given those
                clearer, established mechanisms.
                ---------------------------------------------------------------------------
                 \37\ The Department notes that at least one commenter appears to
                have misunderstood the procedural posture at which a respondent
                would file a motion to reopen, expressing concern that it would not
                be sensible for the alien to file a motion to reopen while removal
                proceedings were still pending. The Department clarifies that, as
                contemplated by the statute, an alien would file a motion to reopen
                to submit new evidence after proceedings have concluded. Otherwise,
                there is no removal order or proceeding to, in fact, reopen.
                ---------------------------------------------------------------------------
                 For reasons stated, supra, the Department rejects the assertion
                that the rule would have a singular effect on aliens who are
                unrepresented, unfamiliar with the law, and non-English speaking. These
                concerns are speculative, unsupported by evidence, and contrary to
                decades of experience adjudicating appeals in immigration cases. Such
                aliens already participate in BIA procedures under existing
                regulations--and have done so for many years--including through the
                submission of motions to reopen, and nothing in the rule treats them in
                a categorically different manner. Further, commenters did not explain
                why such aliens would be able to file a motion to remand but not a
                motion to reopen nor how such aliens would be able to comprehend the
                BIA's confusing and inconsistent standards for new evidence, 85 FR at
                52500-01, if they were retained. To the extent that commenters'
                concerns are, thus, unfounded or internally inconsistent, the
                Department declines to incorporate them into this final rule.
                 With respect to commenter concerns that the BIA would be unable to
                remand a decision even where presented with superseding or intervening
                case law, including litigation surrounding regulations or precedential
                decisions that were the basis for denying relief, the Department
                rejects such comments because they are based on either a deliberately
                obtuse or wholly incorrect reading of the rule. Nothing in the rule
                prohibits the BIA from remanding a case when an immigration judge has
                made an error of law, a legal question of jurisdiction has arisen, or
                an alien is no longer removable, subject to other requirements. 8 CFR
                1003.1(d)(7)(ii). Thus, to the extent that superseding or intervening
                law caused the immigration judge to make an error of law, raised a
                question of jurisdiction, or caused an alien to no longer be removable,
                the Board can still remand on those bases under this final rule.
                 If the superseding or intervening legal development did not raise a
                question of jurisdiction, cause the immigration judge's decision to be
                an error of law, or affect an alien's removability, then the BIA may
                not remand the case on that basis; however, commenters did not
                persuasively argue why an irrelevant change in law should form the
                basis for a remand. To the extent that commenters focus solely on
                changes in law related to applications for relief or protection, the
                Department believes that the majority of superseding intervening law
                would be relevant to legal arguments that had already been presented
                below, thus mooting commenter concerns for the vast majority of
                cases.\38\ In the rare case in which intervening law categorically
                established an alien's eligibility for relief on a basis that the alien
                did not address below and the intervening law did not state how it
                should be applied to pending cases,\39\ an alien remains eligible to
                file a motion to reopen to have that claim considered. See INA
                240(c)(7), 8 U.S.C. 1229a(c)(7).
                ---------------------------------------------------------------------------
                 \38\ The Department also notes that in the asylum context, which
                appears to the principal area of concern for commenters, superseding
                or intervening law that indisputably affects an alien's claim will
                likely be rare because each asylum application is adjudicated based
                on its own facts and evidentiary support. In the asylum context,
                case law does not establish categorical bases for granting or
                denying asylum claims. See, e.g., SER.L. v. Att'y Gen., 894 F.3d
                535, 556 (3d Cir. 2018) (``Consequently, it does not follow that
                because the BIA has accepted that one society recognizes a
                particular group as distinct that all societies must be seen as
                recognizing such a group. . . . Thus, as a matter of logic, it is
                invalid to assert that proof in one context is proof in all
                contexts.''). Consequently, intervening case law that categorically
                renders an alien eligible for relief in the asylum context--but does
                not affect the alien's removability--will be rare.
                 \39\ The Department notes that statutory changes providing
                opportunities for relief typically include provisions regarding
                application of the changes to existing cases, and those changes
                would be applicable on their own terms. See, e.g., EOIR, Policy
                Memorandum 20-06: Section 7611 of the National Defense Authorization
                Act of 2020, Public Law 116-92 (Jan. 13, 2020), available at https://www.justice.gov/eoir/page/file/1234156/download (explaining the
                application of the availability of a new statutory form of relief
                for certain Liberian nationals to cases before EOIR, including cases
                at the BIA).
                ---------------------------------------------------------------------------
                 The Department disagrees that requiring the alien to utilize
                statutory-based methods for presenting new evidence after an
                immigration judge has rendered a decision, rather than motions to
                remand, would lead to delays or conflict with the purpose of the rule.
                As discussed in the NPRM, the BIA's treatment of new evidence on appeal
                is confusing and inconsistently applied. 85 FR at 52500-01. An
                additional principal concern of the rule is to reduce unnecessary
                remands and ensure the BIA is able to move forward independently with
                adjudicating as many appeals as possible. As noted in the NPRM, id. at
                52501, motions to remand created confusion, inconsistent results,
                gamesmanship, and an operational burden on the immigration judge, who
                has already used significant judicial resources during the underlying
                [[Page 81612]]
                proceeding. After reviewing commenters' concerns, weighing
                alternatives, including retaining the status quo, and assessing the
                significance of the operational burdens imposed by motions to remand,
                the availability of more uniform treatment of new evidence than
                currently exists, and the importance of encouraging the presentation of
                all available and probative evidence at the trial level, the Department
                has determined that the burden of potential motions to reopen based on
                new evidence--which are also already routinely filed independently of
                the rule and have generally increased in recent years, EOIR,
                Adjudication Statistics: Motions, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/1060896/download--is ultimately less
                than the burden of addressing motions to remand through unclear and
                inconsistent practices, including practices that create downstream
                burdens on immigration judges due to improper remands or gamesmanship
                by aliens who have received unfavorable decisions from immigration
                judges and merely seek a second bite at the apple with the concomitant
                delay in the resolution of proceedings that such a request entails.
                 Commenters are incorrect that BIA members would not have the
                authority to remand in instances where they observe unjust or incorrect
                immigration judge decisions. The rule generally authorizes the BIA to
                remand a case where, applying the appropriate standard of review, it
                has identified an error of law or fact. 8 CFR 1003.1(d)(7)(ii). The
                regulation specifies some limitations to this general authority in
                order to ensure that remands are only ordered where legally appropriate
                to ensure the fair disposition of the case, but none of these
                exceptions would prevent the BIA from ordering a remand, in an
                appropriate case, where the immigration judge has committed reversible
                error on a dispositive issue in the case.
                 The first limitation states that the BIA cannot remand a case where
                it has not first specified the standard of review that it applied and
                identified the specific error or errors made by the adjudicator below
                in order to ensure that the BIA's order to remand is based upon the
                correct legal standards and provides the immigration judge below and
                the parties with clarity over the basis for a finding of reversible
                error. See 8 CFR 1003.1(d)(7)(ii)(A). To the extent commenters objected
                to this provision, they did not persuasively explain why it is
                inappropriate to require an appellate body to specify the standard of
                review it employed when remanding a case, and the Department is unaware
                of any such reason. Such specification assists the parties, the
                immigration judge, and potentially a Federal court, and commenters did
                not persuasively explain why it should not be a part of a BIA remand
                decision.
                 The second limitation provides that the BIA cannot remand based
                upon a ``totality of the circumstances'' standard, which, as noted in
                the NPRM, is not a standard authorized by the governing law and
                regulations. See 8 CFR 1003.1(d)(7)(ii)(B). The Department discusses
                comments on this provision in more detail, infra.
                 Third, the BIA may not remand a decision based upon a legal
                argument that was not presented below, unless it pertains to
                jurisdiction or a material change in fact or law underlying a
                removability ground that arose after the date of the immigration
                judge's decision and where substantial evidence indicates that change
                vitiated all grounds of removability applicable to the alien. See 8 CFR
                1003.1(d)(7)(ii)(C). Such a limitation is consistent with long-standing
                requirements that appealing parties must have preserved the issue for
                appeal below. Matter of J-Y-C-, 24 I&N Dec. at 261 n.1 (``Because the
                respondent failed to raise this claim below, it is not appropriate for
                us to consider it for the first time on appeal.''); Matter of Edwards,
                20 I&N Dec. at 196 n.4 (``We note in passing, however, that because the
                respondent did not object to the entry of this document into evidence
                at the hearing below, it is not appropriate for him to object on
                appeal.''). This is also consistent with other appellate court
                standards, which are instructive. See Arsdi v. Holder, 659 F.3d 925,
                928 (9th Cir. 2011) (``As we have often reiterated, it is a well-known
                axiom of administrative law that if a petitioner wishes to preserve an
                issue for appeal, he must first raise it in the proper administrative
                forum.'') (internal quotations omitted). Again, commenters did not
                explain why the Department should abandoned these well-established
                principles, and the Department is unaware of any persuasive reason for
                doing so.
                 Fourth, the BIA may not remand a decision through an exercise of
                sua sponte authority, for reasons discussed below at Part II.C.3.k. See
                8 CFR 1003.1(d)(7)(ii)(D).
                 Fifth, the BIA may not remand a decision solely to consider a
                request for voluntary departure or failure to issue advisals following
                a grant of voluntary departure where other parts of this rulemaking
                authorize the BIA to issue final decisions in such matters. See 8 CFR
                1003.1(d)(7)(ii)(E), (d)(7)(iv). The Department further discusses this
                provision, infra.
                 Sixth, the BIA may generally not remand the case for further
                factfinding unless the following criteria are met: the party seeking
                remand preserved the issue below; the party seeking remand, if it bore
                the initial burden of proof, attempted to adduce the additional facts
                below, additional factfinding would alter the outcome or disposition of
                the case, the additional factfinding would not be cumulative of the
                evidence already presented or contained in the record; and either the
                immigration judge's factual findings were clearly erroneous or remand
                to DHS is warranted following de novo review. 8 CFR
                1003.1(d)(3)(iv)(D). The Department addresses commenters' concerns on
                this provision in more detail, supra.
                 The Department disagrees with commenters' concerns that limiting
                the BIA's authority to order remands to exclude issues that were not
                raised below, with specified exceptions, would not permit parties to
                request a remand based on legal issues that arose during a hearing,
                such as the immigration judge conducting the hearing in an unfair
                manner. Commenters did not explain why such an example would not be
                raised on appeal in the normal course, and existing waiver principles
                independent of this rule would currently preclude its consideration if
                it were not raised on appeal. In short, if a party believes that the
                immigration judge's decision should be vacated on the basis that the
                immigration judge conducted the hearing in an unfair manner, it is
                unclear why the party would not be able to raise that issue when filing
                his or her appeal, as the facts upon which the party based his or her
                decision would have clearly been available to the party at that time.
                See 8 CFR 1003.3(b) (``The party taking the appeal must identify the
                reasons for the appeal in the Notice of Appeal (Form EOIR-26 or Form
                EOIR-29) or in any attachments thereto, in order to avoid summary
                dismissal pursuant to Sec. 1003.1(d)(2)(i). The statement must
                specifically identify the findings of fact, the conclusions of law, or
                both, that are being challenged.'').
                 Comment: Commenters were opposed to the rule's prohibition on the
                BIA remanding cases based on the ``totality of the circumstances.'' 8
                CFR 1003.1(d)(7)(ii)(B).
                 One commenter noted that the ``totality of the circumstances''
                standard inherently includes clearly erroneous findings of fact or
                prejudicial errors of law. Specifically, the commenter stated,
                [[Page 81613]]
                that on a record where no findings of fact were clearly erroneous, and
                if no errors of law occurred, then a totality of the circumstances
                review would never permit remand.
                 Commenters asserted that the Department did not consider relevant
                precedential case law from the Supreme Court and Federal courts of
                appeals which, the commenter claims, impose a ``totality of the
                circumstances'' standard in a variety of circumstances, many of which
                are applicable to immigration removal proceedings. For example, one
                commenter cites Jobe v. INS, which stated that legislative history of
                that provision of the Act reflected Congress's concern with fairness
                and required the Attorney General to ``look at the totality of
                circumstances to determine whether the alien could not reasonably have
                expected to appear'' 212 F.3d 674 (1st Cir. 2000) (quoting H.R. Conf.
                Rep. 101-955 (1990)) (withdrawn at request of court). The commenter
                noted that the BIA has previously recognized that the statute's
                legislative history requires an adjudicator to evaluate the totality of
                the circumstances to resolve this issue, citing Matter of W-F-, 21 I&N
                Dec. 503, 509 (BIA 1996). The commenter also stated that the rule was
                contrary to decades of past precedent, citing, inter alia, Matter of
                Miranda-Cordiero, 27 I&N Dec. 551, 554 (BIA 2019); Matter of W-F-, 21
                I&N Dec. at 509; Jobe, 212 F.3d 674; and Alrefae v. Chertoff, 471 F.3d
                353, 360-61 (2d Cir. 2006) (Sotomayor, J.).
                 At least one commenter noted that the rule mentioned that there is
                no statutory or regulatory basis for the totality of the circumstances
                standard but failed to acknowledge that statutes and regulations are
                not the only types of law applicable in removal proceedings or other
                proceedings reviewed by the BIA. Accordingly, the commenter stated, the
                Department's failure to consider other sources of law, many of which
                utilize the ``totality of the circumstances'' standard of review,
                renders the rule's allegation--that remands justified by review of a
                totality of the circumstances are without merit--highly questionable.
                 Another commenter further stated that the totality of the
                circumstances standard was particularly important for the BIA's review
                of in absentia motions, in order to resolve whether exceptional
                circumstances exist pursuant to section 240(b)(5)(C)(i) of the Act, 8
                U.S.C. 1229a(b)(5)(C)(i). The commenter also disagreed with the
                Department's position that there was no statutory or regulatory basis
                for the ``totality of the circumstances'' standard.
                 One commenter criticized the Department for proposing such a rule
                change where it did not allege that the ``totality of the
                circumstances'' standard had resulted in incorrect or unfair case
                outcomes. Another commenter stated that the ``totality of the
                circumstances'' standard should be maintained because decisions should
                not be permitted on a single factor or on some factors, without taking
                into account the totality of the circumstances because it would allow
                adjudicators to pick the facts that they wish to use to make a decision
                that could be based upon pre-existing prejudices, which would violate
                fairness and justice. A commenter stated that, without the totality of
                the circumstances standard, parties could not provide details that were
                not apparent in the initial case, either through misinterpretation or
                misunderstanding, or through recently obtained documents.
                 Response: As an initial point, the Department notes that many, if
                not all, commenters confused an appellate standard of review with a
                trial-level determination of ``totality of the circumstances.'' Neither
                the INA nor applicable regulations has ever authorized a ``totality of
                the circumstances'' standard of review by the BIA. Prior to 2002, the
                BIA reviewed all aspects of immigration judge decisions de novo.
                Regulatory changes in 2002 authorized the Board to review immigration
                judge factual findings for clear error and all other aspects of such
                decisions de novo. 8 CFR 1003.1(d)(3); Matter of S-H-, 23 I&N Dec. 462
                (BIA 2002); See 67 FR at 54902. Accordingly, the BIA has never been
                authorized to review decisions based on the ``totality of the
                circumstances,'' and the rule merely codifies that principle.
                 Further, the Department is unaware of any appellate court--and
                commenters did not provide an example--employing a ``totality of the
                circumstances'' standard of review for questions of law, fact,
                discretion, judgment or other appellate issues similar to those
                considered by the BIA. 8 CFR 1003.1(d)(3). The Department agrees that
                ``totality of the circumstances'' may be a relevant trial-level
                consideration in various situations and that an appellate body may
                review an underlying determination by the trial entity of the
                ``totality of the circumstances''; however, that is not the same as
                using ``totality of the circumstances'' as a standard for appellate
                review. See, e.g., Cousin v. Sundquist, 145 F.3d 818, 832 (6th Cir.
                1998) (``We therefore undertake de novo review of the district court's
                analysis of the totality of the circumstances[.]'').
                 To the commenter's point about the BIA's review of in absentia
                motions and the totality of the circumstances standard, the Department
                notes again that the commenter misapprehends a distinction between the
                legal standard that an adjudicator should apply in making
                determinations about whether an individual has been properly ordered
                removed in absentia and the standard for review of an appeal. Although
                the question of whether ``exceptional circumstances'' have been
                established for purposes of considering a motion to reopen an in
                absentia removal order may involve a consideration of the totality of
                the circumstances, that question is distinct from the standard of
                review employed by the BIA in reviewing the immigration judge's
                resolution of such a question on appeal. In other words, the BIA should
                evaluate the immigration judge's decision under the appropriate
                standard of review, but that standard is not one of ``totality of the
                circumstances.'' More specifically, assuming arguendo that an
                individual seeking remand on the basis that the immigration judge
                wrongly applied a totality of the circumstances standard, the motion to
                remand would not be, itself, based on a totality of the circumstances
                standard, but rather based on the immigration judge's alleged error of
                law in applying that standard.\40\
                ---------------------------------------------------------------------------
                 \40\ This distinction is best illustrated by the Board's
                decision in Matter of Miranda-Cordiero, 27 I&N Dec. at 554 which was
                cited by at least one commenter. In that decision, the Board noted
                that ``[w]hether proceedings should be reopened sua sponte is a
                discretionary determination to be made based on the totality of
                circumstances presented in each case,'' but it did not apply or
                purport to apply such a standard on appellate review. Matter of
                Miranda-Cordiero, 27 I&N Dec. at 554-55. Rather, it appropriately
                applied a de novo standard of review to that question of discretion,
                consistent with 8 CFR 1003.1(d)(3)(ii). Id. at 555 (``Upon our de
                novo review, we find that the respondent's case does not present an
                exceptional situation that warrants the exercise of discretion to
                reopen sua sponte, regardless of the availability of a provisional
                waiver.'' (emphasis added)).
                ---------------------------------------------------------------------------
                 Although the Department recognizes that the BIA may have suggested
                or intimated that it was using such a standard of review in individual
                cases in the past, its lack of clarity clearly supports the change in
                this rule. Whether the Board previously failed to apply a correct or
                appropriate standard of review when remanding a case based on the
                totality of the circumstances or whether it merely was unclear about
                the standard it was actually applying, the rule ensures that all
                parties are now aware that there is no such standard of review and that
                the Board will be clearer in the future on this issue. Contrary to
                commenters' suggestions, neither the lack of clarity nor the potential
                to apply an incorrect standard
                [[Page 81614]]
                of review are persuasive reasons to continue the Board's occasional
                prior practice on this issue in perpetuity. Rather, the Department
                believes it is important to reiterate the BIA's commitment to adhering
                to regulatory standards in order to ensure consistent adjudication of
                similarly situated cases.
                 Commenters' suggestions that, without a ``totality of the
                circumstances'' standard of review, adjudicators would specifically
                select facts that would allow them to deny remands for otherwise
                meritorious cases is both contrary to the existing regulations--which
                do not permit such a standard--and unsupported by any evidence. Members
                of the BIA will consider whether remand for any of the permitted
                purposes would be appropriate after an impartial examination of the
                record and applying the correct standard of review, without reference
                to a regulatory atextual--and almost wholly subjective--totality of the
                circumstances standard of review. See 8 CFR 1003.1(d)(1) (``The Board
                shall resolve the questions before it in a manner that is timely,
                impartial, and consistent with the Act and regulations.''). Indeed, the
                Department believes that the nebulous and vague ``totality of the
                circumstances'' standard that the BIA may have previously applied is
                itself ripe for exactly the kind of unfair ``cherry picking'' that the
                commenter fears.
                 Regarding commenters' discussion of case law and the totality of
                the circumstances standard, the Department first notes that the BIA and
                Federal appellate courts do not necessarily employ parallel standards
                of review. Compare Sandoval-Loffredo v. Gonzales, 414 F.3d 892, 895
                (8th Cir. 2005) (applying ``deferential substantial evidence standard''
                to review agency findings of fact), with, e.g., 8 CFR 1003.1(d)(3)(i)
                (establishing a clear error standard for reviewing immigration judge
                findings of fact). Nevertheless, as discussed, supra, the Department is
                unaware of any Federal appellate court that uses a ``totality of the
                circumstances'' standard of review, and commenters did not provide any
                such examples.
                 The Department disagrees with commenter concerns regarding whether
                the ``totality of the circumstances'' standard has resulted in
                incorrect or unfair case outcomes. Regardless of whether this putative
                standard of review, which is not authorized by statute or regulation,
                results in ``incorrect'' or ``unfair'' case outcomes, which are
                subjective determinations made by commenters, the Department is issuing
                this rule to make clear that there is no existing statutory or
                regulatory basis for applying this standard of review even though the
                BIA, arguably, may have utilized it in the past without authority. 85
                FR at 52501. In short, the risk of continued confusion over whether the
                Board applied the correct standard of review--and whether there exists
                a standard of review outside of the regulatory text that is applied
                only as the BIA subjectively sees fit in individual cases--
                significantly outweighs commenters' concerns that it should remain as a
                nebulous quasi-equitable authority whose provenance is unknown and
                whose application approaches an ad hoc basis. Nonetheless, in light of
                the confusion evidenced by commenters, the Department in this final
                rule is making clear that the Board cannot remand a case following a
                totality of the circumstances standard of review, though an immigration
                judge's consideration of the totality of the circumstances may be a
                relevant subject for review under an appropriate standard.
                 Finally, to the extent that commenters objected to the specific
                prohibition on the Board's ability to remand cases in the ``totality of
                circumstances'' solely because they perceived such remands as being
                beneficial only to respondents, the Department finds that an
                unpersuasive basis for declining to issue this rule. Rather, those
                comments support the Department's concern about the inappropriate use
                of such a putative standard of review and its decision to codify the
                inapplicability of such a standard to the extent that it has been
                applied in a manner that benefits one party over the other and, thus,
                raises questions regarding the Board's impartiality. See 8 CFR
                1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA Ethics and Professionalism
                Guide at sec. V.
                i. Issues With Respect to Limiting Scope of Remand to Immigration Court
                 Comment: Commenters also raised concerns regarding the Department's
                proposed changes that would limit the scope of a remand to the
                immigration court. For example, commenters suggested, the rule would
                unfairly impact individuals who had been subject to ineffective
                assistance of counsel before the immigration court but whose cases had
                been wrongly decided for other reasons. Such individuals, the commenter
                suggested, should not be limited to their prior, poorly developed
                record on remand when they might be represented by new counsel. One
                commenter suggested that limiting the scope of a remand does not
                improve efficiency because once the case is back before the immigration
                judge, he or she may take new evidence and engage in fact finding to
                resolve issues that may later have to be addressed in a motion to
                reopen.
                 Commenters also suggested that an individual should not be bound to
                the record before the immigration judge where a new avenue of relief
                had become available in the intervening period of time when he or she
                was waiting for their new individual hearing. One commenter stated that
                they opposed what they characterized as the Department's attempt to
                force immigration judges to improperly issue removal orders for the
                purposes of eliminating confusion for immigration judges. The commenter
                suggested that this rule would harm both respondents and immigration
                judges.
                 Commenters stated that the rule change arbitrarily precluded the
                immigration judge from considering new facts or law and would not
                improve efficiency because it would force litigation of such issues to
                be contemplated upon a separate motion to reopen, after the conclusion
                of proceedings, when it could be more efficiently addressed on remand.
                The commenter also suggested that there would be increased litigation
                about the constitutionality of the rule which would also decrease
                efficiency and increase inconsistent outcomes. Another commenter stated
                that issues that could have previously been resolved with a ``simple
                remand'' and straightforward adjudication in immigration court would
                now require the BIA to produce a transcripts, order briefing, and
                review briefing by both sides before rendering a decision.
                 Response: The Department disagrees with commenter concerns
                regarding limiting the scope of remand to the immigration court. The
                rule is intended to alleviate confusion for immigration judges
                regarding the scope of a remand. ``[E]ven where the [BIA] clearly
                intends a remand to be for a limited purpose[,]'' an immigration judge
                interpreting the remand as a ``general remand'' would allow
                consideration, litigation, or relitigation, of the myriad of issues
                that had either already been addressed or were unrelated to the initial
                proceedings. See 85 FR at 52502.
                 Commenters did not explain why an immigration judge should not be
                bound by the intent of a Board remand nor why the Board should not
                adopt the same principle used by Federal appellate courts
                distinguishing between general and limited remands. See, e.g., United
                States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999) (``Remands,
                however, can be either general or limited in scope.
                [[Page 81615]]
                Limited remands explicitly outline the issues to be addressed by the
                district court and create a narrow framework within which the district
                court must operate. General remands, in contrast, give district courts
                authority to address all matters as long as remaining consistent with
                the remand.'' (internal citations omitted)). As the NPRM explained, all
                Board remands are currently de facto general remands, even when the
                intent of the remand is clearly limited. 85 FR at 52496; see Bermudez-
                Ariza v. Sessions, 893 F.3d 685, 688-89 (9th Cir. 2018) (``We think it
                likely that the BIA limited the scope of remand to a specific purpose
                in this case by stating that it was remanding `for further
                consideration of the respondent's claim under the Convention Against
                Torture.' That said, the BIA's remand order nowhere mentioned
                jurisdiction, much less expressly retained it. Thus, irrespective of
                whether the BIA qualified or limited the scope of remand, the IJ had
                jurisdiction to reconsider his earlier decisions under 8 CFR
                1003.23.''). However, the Department sees no basis to retain such an
                anomalous system or to continue to preclude the BIA from exercising its
                appellate authority to issue limited-scope remands.
                 Commenters did not explain why such an inefficient limitation--and
                one that encourages the re-litigation of issues already addressed by an
                immigration judge and the Board--should be retained. Requiring every
                remand to constitute a general remand both increases inefficiency--by
                requiring the parties to potentially re-argue issues previously
                addressed--and undermines finality by allowing a second chance to argue
                and appeal issues to the Board that the Board has already ruled upon
                once.
                 Additionally, it is not appropriate for the immigration court to,
                without explicit directive, expand the scope of its decision beyond
                that which is desired by its reviewing court. Cf. 8 CFR 1003.1(d)(1)
                (``The Board shall function as an appellate body charged with the
                review of those administrative adjudications under the Act that the
                Attorney General may by regulation assign to it.''). The Department
                notes that, should a respondent disagree with the immigration judge's
                determinations made on remand, he or she may appeal that determination
                to the BIA. Thus, the respondent would not be prejudiced by limiting
                the scope of the remand to issues as directed by the appellate body. To
                the extent that new relief becomes available in the intervening time
                while a case is being rescheduled before the immigration court on
                remand, the respondent may file a motion to reconsider the scope of the
                BIA's remand decision. Alternatively, the respondent may file a motion
                to reopen or reconsider with the immigration judge after the judge
                enters a new decision following the remand. The Department further
                notes that such issues may generally be appealed to the Federal circuit
                courts of appeals.
                 Commenters are correct that aliens would submit motions to reopen
                after the BIA's adjudications, but the Department disagrees that this
                procedure would lead to delays or conflict with the purpose of the
                rule. Instead, one of the main animating purposes of the rule is to
                reduce unnecessary and inefficient remands and to ensure the BIA is
                able to move forward independently with as many appeals as possible,
                and maintaining a general remand rule erodes both of those goals.
                 The Department disagrees with the commenter's concerns that
                limiting the scope of remand would unfairly impact individuals who have
                been subject to ineffective assistance of counsel. As an initial point,
                the commenter did not explain how such a claim would arise in either a
                general or limited remand situation, as claims of ineffective
                assistance of counsel on direct appeal are relatively rare;
                nevertheless, such claims could be considered by the Board as with any
                other appellate argument. Moreover, individuals who have been subjected
                to ineffective assistance of counsel may pursue reopening of their
                proceedings pursuant to Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).
                In short, nothing in this final rule affects an alien's ability to
                raise claims of ineffective assistance of counsel through established
                channels.
                 The Department agrees with commenters that administrative appellate
                review is an important part of removal proceedings; however, the
                Department believes that at least some commenters have mischaracterized
                the role of administrative appeals as maintaining ``court[] checks and
                balances and separation of powers.'' Rather, the BIA exists to review
                immigration court decisions for accuracy and adherence to the law, as
                well as providing guidance to adjudicators. See 8 CFR 1003.1(d)(1).
                This role is unrelated to the concepts of checks and balances and
                separation of powers as they exist between separate, coequal branches
                of government.
                 To the extent that commenters objected to the codification of the
                Board's authority to issue limited remands solely because they
                perceived such remands as being beneficial only to respondents, the
                Department finds that an unpersuasive basis for declining to issue this
                rule. First, to reiterate, the rule applies to both parties, and
                general remands may benefit or hinder either party. It is just as
                likely that DHS may acquire additional evidence or submit additional
                arguments following a general remand as the respondent would.
                Consequently, the Department focuses on the efficiency aspects of
                eliminating the current ``only general remands'' principle, rather than
                its use to obtain any specific results. Second, to the extent that
                there is a misperception that the general remand rule aids only aliens,
                those comments support the Department's decision to authorize the Board
                to issue both limited and general remands in order to ensure that the
                Board remains impartial in its treatment of both parties. See 8 CFR
                1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA Ethics and Professionalism
                Guide at sec. V.
                 Overall, after weighing the potential burdens and commenters'
                concerns, as well as the Board's position as an impartial appellate
                body, the Department has concluded that the benefits of expressly
                allowing the Board to issue limited remands, including increased
                efficiency and better alignment with the Board's status as an appellate
                authority, outweigh concerns raised by commenters that parties should
                continue to be able to raise all issues again on remand, even if they
                have previously been litigated.
                h. New Evidence on Appeal (8 CFR 1003.1(d)(7)(v))
                 Comment: Numerous commenters expressed general concerns about the
                amendments at 8 CFR 1003.1(d)(7)(v) regarding the BIA's consideration
                of new evidence on appeal. For example, at least one commenter
                characterized the change as ``banning the submission of new evidence.''
                Other commenters expressed that the changes were a ``blatant power
                grab'' and offensive to the constitution, principles of basic decency,
                and fundamental fairness. Commenters explained that motions to reopen
                are inadequate substitutes for motions to remand for consideration of
                new evidence due to the strict time and number limitations that apply.
                See INA 240(c)(7)(C)(i), 8 U.S.C. 1229a(c)(7)(C)(i).
                 Commenters stated that motions to remand on account of new evidence
                are critical to protecting aliens' due process rights in immigration
                proceedings and that, by banning motions to remand for new evidence,
                the rule would violate aliens' rights at section 240(b)(4)(B) of the
                Act, 8 U.S.C. 1229a(b)(4)(B), to present evidence on their behalf.
                Commenters explained that these
                [[Page 81616]]
                motions to remand allow aliens to account for situations when evidence
                that is material was formerly unavailable. Commenters noted that new
                evidence may be necessary for consideration due to intervening changes
                in the law.
                 Similarly, commenters disagreed with the Department's
                characterization of the basis for these changes as gamesmanship by the
                parties, noting that it frequently takes time for an alien to obtain
                evidence from other sources. Commenters also noted that the Department
                did not provide concrete evidence or citations in support of these
                characterizations. See 85 FR at 52501.
                 In general, commenters expressed concern that this provision would
                allow the BIA to remand a case when there is derogatory information
                about an alien as a result of the identity, law enforcement, or
                security investigations or examinations but prevent aliens from seeking
                a remand for new and favorable evidence. This difference, according to
                commenters, gives ``the appearance of impropriety and favoritism toward
                one party in the beginning.'' Another commenter alleged that such an
                appearance ``damages the public trust in the neutral adjudication
                process.'' Extending the allegations, a commenter claimed that these
                changes resulted in the decision makers no longer being neutral or
                unbiased, a constitutional requirement, according to the commenter,
                that was established in Mathews v. Eldridge, 424 U.S. 319 (1976).
                Commenters noted that allowing remands due to information uncovered in
                the investigations without restrictions conflicts with the Department's
                efficiency-based justification for the rule.
                 Commenters similarly stated that the rule favors DHS because all
                three exceptions to remands for consideration of new evidence at 8 CFR
                1003.1(d)(7)(v)(B) relate to types of evidence more likely to benefit
                DHS's case or arguments than the alien's.
                 Other commenters warned that this change would increase the backlog
                at the immigration courts, the BIA, and the circuit courts. For
                example, at least one commenter argued that the change would lead to
                unnecessary delays by requiring the BIA to affirm a removal order that
                would be subsequently reopened since the BIA could not grant a remand
                to account for new evidence while the case is still pending. Similarly,
                commenters stated that forcing cases to first have a removal order
                before evidence could be considered with a motion to reopen
                unnecessarily starts the removal process and creates complications.
                 Other commenters voiced concern that pro se aliens who improperly
                label their motion to the BIA as a motion to remand rather than a
                motion to reopen will have their motions dismissed and their new
                evidence would be ``foreclosed from consideration.'' Another commenter
                echoed this concern and noted that the government, which will always be
                represented by counsel, would not be required to meet the same motion
                formalities as aliens in order for the BIA to remand due to derogatory
                information.
                 Concerned about refoulement, a commenter stated that the Department
                should not make it more difficult for asylum seekers, who often have
                limited access to evidence due to harms from abusers or traffickers or
                post-traumatic stresses, to submit whatever evidence they are able to
                procure. Similarly, at least one commenter noted the difficulties faced
                by children in proceedings.
                 Commenters described a range of situations when they believe the
                rule would prevent aliens from submitting new evidence that is relevant
                or needed. Examples include when an alien has been approved for a U-
                visa but has not actually received it and when an immigration judge
                unreasonably limited the record and the alien needs to establish that
                the immigration judge abused her discretion in a prejudicial manner.
                 Response: The Department has addressed many of these comments
                regarding the submission of new evidence on appeal, supra, and
                incorporates and reiterates its previous response here. Further, the
                Department notes that the rule does not ban the submission or
                consideration of new evidence following the completion of immigration
                court proceedings. Instead, the changes require that a party comply
                with the statutory requirements for a motion to reopen to submit such
                evidence.\41\ A motion to remand, which is an administratively created
                concept \42\ that was later codified into the regulations, was never
                imagined as part of the statutory scheme. However, the statutory scheme
                of the INA included an avenue to address new evidence--a motion to
                reopen--and the NPRM does not impact motions to reopen. Because the
                sole statutorily created process to consider new evidence is still
                available, the Department finds that aliens' due process rights
                regarding the submission of new evidence remain intact.
                ---------------------------------------------------------------------------
                 \41\ The Department recognizes commenters' concerns that motions
                to reopen are limited by statute to certain time and number
                requirements. See INA 240(c)(7)(C)(i), 8 U.S.C. 1229a(c)(7)(C)(i).
                Such limitations are the product of congressional judgment and
                otherwise outside the Department's authority to set or amend.
                Nevertheless, the Department also recognizes that equitable tolling,
                which commenters generally did not acknowledge, may also be
                available in certain circumstances to ameliorate time limitations.
                 \42\ See Matter of Coelho, 20 I&N Dec. 464, 470-71 (BIA 1992).
                ---------------------------------------------------------------------------
                 Commenters mischaracterize the Department's basis for these
                changes. While the Department noted that the procedures and
                availability of motions to remand create opportunities for
                gamesmanship, such possible gamesmanship was not alone the reason for
                the changes. 85 FR at 52501. Instead, as the Department noted, such
                motions have resulted in inconsistent applications of the law,
                particularly given the general prohibition on the BIA's consideration
                of new evidence on appeal. 85 FR at 52500-01. Further, prohibiting the
                BIA from considering new evidence on appeal is in keeping with the
                immigration judge's authority to manage the filing of applications and
                collection of relevant documents. Under 8 CFR 1003.31(c), a party who
                fails to file an application or document within the time set by the
                immigration judge is deemed to have waived the opportunity to file that
                application or document.
                 Further, commenters are incorrect that the rule demonstrates bias
                or particular aid to DHS. The NPRM contains three exceptions: New
                evidence that (1) is the result of identity, law enforcement, or
                security investigations or examination; (2) pertains to an alien's
                removability under the provisions of 8 U.S.C. 1182 and 1227; or (3)
                calls into question an aspect of the jurisdiction of the immigration
                courts. These are the three situations in which the Department
                determined that the need for remand ``overrides any other consideration
                because the new evidence calls into question the availability or scope
                of proceedings in the first instance.'' 85 FR at 52501.
                 Only the first basis applies solely to DHS, and as the Department
                has discussed, supra, that basis is consistent with statutes and
                regulations that are beyond the scope of this rule. 8 CFR 1003.47; INA
                208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i). The second and third bases
                apply equally to both parties and allow, for example, a respondent to
                submit new evidence of United States citizenship (which would call into
                question the jurisdiction of the proceedings) or new evidence that
                suggests the respondent is no longer removable. Both parties have
                vested interests in ensuring that removal proceedings do not occur in
                circumstances when a respondent is not amenable to removal, and the
                Department accordingly disagrees with
                [[Page 81617]]
                commenters that these circumstances are in any way one-sided or
                beneficial solely or primarily to DHS.
                 Further, it is a mischaracterization to isolate the first
                exception, remands for evidence that is the result of the alien's
                identity, law enforcement, or security investigations or examinations,
                as particular evidence that the provision is biased in favor of the
                government. As discussed in the NPRM, by statute, no alien may be
                granted asylum ``until the identity of the applicant has been checked
                against all appropriate records or databases maintained by the Attorney
                General and by the Secretary of State, including the Automated Visa
                Lookout System, to determine any grounds on which the alien may be
                inadmissible to or deportable from the United States, or ineligible to
                apply for or be granted asylum.'' INA 208(d)(5)(A)(i), 8 U.S.C.
                1158(d)(5)(A)(i). As such, the BIA must be able to remand on account of
                unfavorable findings resulting from identity and security
                investigations or the BIA would not be complying with the statutory
                requirements, and aliens would not have an opportunity to present
                relevant evidence in response.
                 Commenters are correct that aliens may submit motions to reopen
                after the BIA's adjudication, but the Department disagrees that this
                procedure, compared with the submission of new evidence on appeal,
                would lead to delays or conflict with the purpose of the rule. As
                discussed in the NPRM, 85 FR at 52500-01, and reiterated, supra, the
                BIA's inconsistent treatment of new evidence submitted on appeal
                warrants a change in the regulations, and commenters suggestions to the
                contrary are unpersuasive. After weighing the relevant equities--
                including the need for clarity and consistency, the availability of
                alternatives such as motions to reopen, the burden of immigration
                judges caused by improper consideration of new evidence on appeal, and
                the importance of encouraging parties to submit all available and
                probative evidence at the trial level--the Department decided that the
                benefits of the rule outweigh the concerns raised by commenters,
                particularly due to the availability of motions to reopen.\43\
                ---------------------------------------------------------------------------
                 \43\ To the extent commenters are concerned about removal
                pending a motion to reopen given these changes, the Department notes
                that aliens may seek stays of removal from DHS or, as appropriate,
                the BIA. 8 CFR 241.6 and 1241.6.
                ---------------------------------------------------------------------------
                 As to the commenters' concerns regarding the risk of unrepresented
                aliens submitting improperly titled motions, the issue is not novel,
                and the BIA is familiar in handling such matters.\44\ The BIA reviews
                each submission for its substance. In addition, EOIR provides reference
                materials to the public regarding procedures before EOIR, which provide
                pro se aliens with assistance when engaging in self-representation. See
                generally BIA Practice Manual; see also EOIR, Immigration Court Online
                Resource, supra; EOIR, Self-Help Materials (Aug. 1, 2019), available at
                https://www.justice.gov/eoir/self-help-materials. Thus, the Department
                does not find that mistitled or mischaracterized motions will be an
                undue burden on the BIA or present a particular risk that aliens'
                opportunity to have new evidence considered will be denied due to
                formalities.
                ---------------------------------------------------------------------------
                 \44\ Nevertheless, the Department reiterates that approximately
                86 percent of aliens are represented upon appeal. EOIR Workload and
                Adjudication Statistics, Current Representation Rates, Oct. 13,
                2020, available at https://www.justice.gov/eoir/page/file/1062991/download.
                ---------------------------------------------------------------------------
                 The Department finds that the various scenarios when motions to
                remand for consideration of new evidence would be used do not compel
                reconsideration of the rule. The three exceptions provide safeguards
                that allow for the consideration of evidence when it calls into
                question the availability or scope of proceedings, and motions to
                reopen remain the appropriate recourse for aliens with newly discovered
                or previously unavailable evidence. Similarly, a motion to reopen
                provides the proper avenue for newly acquired evidence for asylum
                seekers or others concerned about refoulement; thus, aliens in that
                situation are not ``arbitrarily blocked'' from presenting such
                evidence.
                i. BIA Timelines (8 CFR 1003.1(e)(1), (8))
                i. Issues With Respect to Screening Panel Deadlines
                 Comment: Commenters expressed concern that the rule's 14-day
                timeframe for the BIA to conduct its initial screening for summary
                dismissal and 30-day timeframe for the BIA to issue a decision would
                lead to erroneous dismissals in light of the number of cases pending
                before the BIA. Specifically, the commenters stated that BIA staff
                conducting the initial screening would not know whether the case could
                be summarily dismissed until after they have screened the case, and
                that the ``mandatory adjudicatory timeframes'' would pressure screeners
                to review cases quickly rather than accurately. Another commenter
                stated that the ``screening panel'' consisted of only one BIA member,
                who would not have sufficient time to meaningfully review the appeal.
                Commenters similarly expressed concern that the rule's requirement that
                a single BIA member decide whether to issue a single-member decision or
                refer the case for three-member review will cause BIA members to
                emphasize speed over fairness in reviewing case records, which could
                result in erroneous denials. The commenters suggested that these
                timelines were arbitrary. One commenter stated that it supported
                extending the existing regulatory deadlines, rather than shortening
                them.
                 One commenter cited several Ninth Circuit cases that determined
                that the BIA had erred in its summary dismissal of an appeal. See,
                e.g., Vargas-Garcia v. INS, 287 F.3d 882, 885-86 (9th Cir. 2002)
                (holding that the BIA Notice of Appeal form was inadequate for an
                unrepresented respondent given the BIA's standards of specificity and
                lack of notice in summarily dismissing the appeal); Casas Chavez v.
                INS, 300 F.3d 1088, 1090 & n.2 (9th Cir. 2002) (holding that the notice
                of the reasons for appeal sought by the summary dismissal regulation
                can be met either in the Notice of Appeal or in the brief and ``there
                is an underlying assumption in the regulation that both requirements
                need not be satisfied as long as sufficient notice is conveyed to the
                BIA'' and reasoning that ``[i]f this were not true, the
                constitutionality of the regulation would be called into question on
                the basis of denial of due process. . . . In the context of deportation
                proceedings, due process requires that aliens who seek to appeal be
                given a fair opportunity to present their cases.'') (internal citations
                and quotations omitted);
                 Response: Most, if not all, of the commenters' concerns appear to
                be based on a tacit assertion that either Board members are incompetent
                and cannot screen an incoming case within two weeks or Board members
                are incompetent or unethical and will issue summary dismissal orders
                for reasons unrelated to the merits or the law. The Department
                categorically rejects those assertions and any comments based on such
                presumptions. Chem. Found., Inc., 272 U.S. at 14-15 (``The presumption
                of regularity supports the official acts of public officers, and, in
                the absence of clear evidence to the contrary, courts presume that they
                have properly discharged their official duties.'').
                 There is no evidence--and commenters did not provide any--that
                establishing a 14-day timeframe within which the BIA must conduct its
                initial screening for summary dismissal and 30-day timeframe for
                issuing a decision
                [[Page 81618]]
                will result in erroneous denials. The BIA has already established such
                internal requirements by policy, see PM 20-01 at 2 without any known
                degradation in the quality of its screening or issuance of summary
                dismissals.
                 Contrary to the suggestion of at least one commenter, the screening
                panel is comprised of multiple Board members, not just one, and the
                panel consists of a ``sufficient number of Board members'' to carry out
                screening functions. 8 CFR 1003.1(e). The rule does not alter the
                existence or composition of the screening panel. Further, commenters
                did not provide any evidence--and the Department is unaware of any--
                that the screening panel is insufficient to carry out its functions
                under the rule.
                 As noted in the NPRM, 85 FR at 52507, the regulations currently
                direct the BIA to screen and ``promptly'' identify cases subject to
                summary dismissal, 8 CFR 1003.1(d)(2)(ii), and few commenters
                acknowledged that promptness requirement nor explained why an undefined
                promptness requirement is preferable to a clear one set at 30 days.
                These regulatory timelines will both improve efficiency at the BIA, so
                that there is more time for BIA members and staff to devote to cases
                involving more substantive, dispositive issues. They will also benefit
                the parties by offering more expedient resolution of appeals amenable
                to summary dismissal allowing more time to be devoted to meritorious
                cases. The Department believes that 14 and 30 days are ample periods of
                time to both screen and issue decisions, respectively, on such limited
                matters, and these timelines will not negatively affect the quality or
                accuracy of such adjudications.
                 Finally, the Department notes the commenter's citation to cases
                regarding incorrect usage of the BIA's summary dismissal procedures.
                The BIA may dismiss an appeal summarily without reaching its merits in
                the following circumstances: Failure to adequately inform the BIA of
                the specific reasons for the appeal on either the Notice of Appeal
                (Form EOIR-26) or any brief or attachment; failure to file a brief if
                the appealing party has indicated that a brief or statement would be
                filed; the appeal is based on a finding of fact or conclusion of law
                that has already been conceded by the appealing party; the appeal is
                from an order granting the relief requested; the appeal is filed for an
                improper purpose; the appeal does not fall within the BIA's
                jurisdiction; the appeal is untimely; the appeal is barred by an
                affirmative waiver of the right of appeal; the appeal fails to meet
                essential statutory or regulatory requirements; or the appeal is
                expressly prohibited by statute or regulation. See 8 CFR
                1003.1(d)(2)(i). The cases identified by commenters, however, are
                inapposite to this rule, which does not amend the circumstances under 8
                CFR 1003.1(d)(2)(i) when the BIA may summarily dismiss a case.
                ii. Issues With Respect to Other Appeals
                 Comment: One commenter asserted that the changes to the BIA's
                timelines were designed to codify an October 2019 EOIR policy memo, but
                the commenter stated that the Department did not point to any increased
                efficiency or productivity since those new case-management procedures
                were implemented. Other commenters similarly criticized the Department
                for not adequately explaining how its objectives to achieve higher
                consistency, efficiency, and quality of decisions would be furthered by
                limiting BIA discretion to manage its own caseload. Commenters likened
                their concerns with the new timelines to concerns with the BIA's
                procedures for affirmances without opinion.
                 Commenters stated that the rule would lead the BIA to issue rushed,
                not quality, decisions. For example, commenters stated that BIA
                decisions would be inconsistent since achieving consistency requires
                reviewing previous decisions and understanding important distinctions
                between different cases. Commenters stated that decisions made without
                sufficient consideration of the facts and law would be more likely to
                be overturned for errors, which decreases efficiency.
                 The commenters also stated that this rule would incentivize BIA
                members to decide and deny cases themselves rather than determine that
                a case requires three-member review, which is required to reverse an
                immigration judge's decision, because it is faster for a single member
                to affirm an immigration judge's decision.
                 Commenters criticized that the Department did not explain why the
                BIA would benefit from such adjudication timelines when other courts
                can issue rulings only when they are prepared to do so.
                 One commenter stated that the time period proposed for EOIR
                adjudicators is much less than many other administrative tribunals. The
                commenter listed, as examples, the Board of Veterans Appeals, which the
                commenter alleged took an average of 247 days to decide an appeal in FY
                2017, and the Social Security Administration Appeals Council, which the
                commenter alleged had an average processing time for an appeal of 364
                days in FY 2016.
                 Response: Again, many, if not all, of the commenters' concerns
                appear to be based on a tacit underlying assertion that Board members
                are either incompetent or unethical and, thus, cannot or will not
                perform their duties properly in a timely manner, notwithstanding the
                longstanding regulatory directive for them to ``resolve the questions
                before [them] in a manner that is timely, impartial, and consistent
                with the Act and regulations.'' 8 CFR 1003.1(d)(1). The Department
                categorically rejects those assertions and any comments based on such
                presumptions. Chem. Found., Inc., 272 U.S. at 14-15 (``The presumption
                of regularity supports the official acts of public officers, and, in
                the absence of clear evidence to the contrary, courts presume that they
                have properly discharged their official duties.'').
                 Although aspects of PM 20-01 informed this rule, it was not the
                sole consideration nor the basis of authority for the rulemaking. The
                Attorney General is statutorily authorized to issue regulations to
                carry out his authority in the INA. INA 103(g)(2), 8 U.S.C. 1101(g)(2).
                Further, the Director exercises delegated authority from the Attorney
                General to ensure the ``efficient disposition of all pending cases,
                including the power, in his discretion, to set priorities or time
                frames for the resolution of cases.'' 8 CFR 1003.0(b)(1)(i).
                Additionally, the Director may ``[e]valuate the performance of the
                Board of Immigration Appeals . . . and take corrective action where
                needed[.]'' Id. Sec. 1003.0(a)(1)(iv).
                 The Department notes that this rulemaking, and other recent
                rulemakings, designed to improve efficiencies at the BIA, in addition
                to the measures outlined in the policy memorandum, to the extent that
                they are not included in the rulemaking will work in conjunction to
                improve efficiencies at the BIA. See, e.g., Organization of the
                Executive Office for Immigration Review, 84 FR 44537 (Aug. 26, 2019);
                85 FR 18105. The Department also notes that the Board has already
                demonstrated improved efficiency by completing over 40,000 cases in the
                first full fiscal year (FY) after PM 20-01 was issued, which was its
                highest completion total since FY 2008. EOIR, Adjudication Statistics:
                All Appeals Filed, Completed, and Pending, Oct. 13, 2020, available at
                https://www.justice.gov/eoir/page/file/1248506/download.
                 Contrary to commenters' assertions, this rule does not encourage
                any
                [[Page 81619]]
                particular result of an appellate adjudication; rather, the outcome of
                an appeal remains wholly dependent on the merits of the appeal and the
                applicable law. This rule does not encourage the denial of appeals or
                the issuance of legally deficient decisions, and the Department again
                rejects the insinuation that its adjudicators would abdicate their
                duties or are too incompetent to perform them correctly. Further, this
                provision regarding the BIA's timelines are intended to improve
                efficiency and encourage the timeliness of appeals, not to affect the
                disposition of appeals. The NPRM clearly states that ``this delegation
                of authority to the Director does not change the applicable law that
                the Board or the Director must apply in deciding each appeal[.]'' 85 FR
                at 52508. BIA members are directed by regulation to ``exercise
                independent judgment and discretion in considering and determining the
                cases coming before the [BIA.]'' 8 CFR 1003.1(d)(1)(ii). Such
                determinations must be made in accordance with applicable statutes,
                regulations, and binding case law. Additionally, BIA members receive
                ``comprehensive, continuing training,'' administered by the Director,
                in order to promote adjudicative quality. Id. Sec. 1003.0(b)(1)(vi),
                (vii). Furthermore, BIA members, who are adjudicators within EOIR, were
                hired to serve EOIR's mission to adjudicate cases in a fair,
                expeditious, and uniform manner. See EOIR, About the Office, Aug. 14,
                2018, available at https://www.justice.gov/eoir/about-office. The
                Department rejects commenters' insinuations that BIA members would act
                outside of that mission by affirming an immigration judge's decision
                solely to dispose of an appeal more expediently due to the
                timelines.\45\ The Department disagrees with commenters' concerns that,
                given the number of cases pending before the BIA, it would not be
                possible for BIA members to adjudicate appeals within the given
                timeframes or other allegations that the 335-day time period is
                insufficient. As noted in the NPRM, most appeals are already decided
                within the given parameters. 85 FR at 52508. Accordingly, commenters'
                comparisons to other courts or administrative bodies with different
                processing timelines and averages are inapposite, though the Department
                notes that the BIA's timeline falls between the two examples given,
                which actually supports the rule.
                ---------------------------------------------------------------------------
                 \45\ Because an alien may appeal a BIA decision to Federal
                court, this asserted behavior would not be efficient or rational--
                and, thus, would be unlikely to occur, contrary to commenters'
                allegations--because improper adjudications will simply lead to more
                cases being remanded from Federal court. Moreover, although
                commenters did not acknowledge it, the Department is cognizant that
                DHS cannot petition a Federal court for review of a BIA decision.
                Thus, if BIA adjudicators were to ignore their ethical obligations,
                disregard the law and evidence in each case, and adjudicate cases
                based solely on regulatory timelines in the manner alleged by
                commenters, they would actually have an incentive to rule in favor
                of aliens--contrary to the assertions of commenters--because there
                is little likelihood of a subsequent reversal. Thus, if commenters
                were correct about an asserted relationship between efficiency and
                outcomes, then that relationship would logically favor aliens, which
                is, paradoxically, a result favored by most commenters opposing the
                rule. Nevertheless, the Department reiterates that the improved
                efficiency created by the rule is outcome-neutral, and it expects
                that all Board members will carry out their duties in an impartial
                and professional manner consistent with the regulations. See 8 CFR
                1003.1(d)(1); 5 CFR 2635.101(b)(8); BIA Ethics and Professionalism
                Guide at sec. V.
                ---------------------------------------------------------------------------
                 For such cases that are atypical, and for which it would be
                appropriate for the BIA to devote additional time to completing
                adjudication, the regulations provide for an extension of the
                adjudication time period. 8 CFR 1003.1(e)(8)(ii) (``[I]n exigent
                circumstances . . . in those cases where the panel is unable to issue a
                decision within the established time limits, as extended, the Chairman
                shall either assign the case to himself or a Vice Chairman for final
                decision within 14 days or shall refer the case to the Director for
                decision.''); 1003.1(d)(6)(ii)(B) (allowing BIA to place a case on hold
                while it awaits the completion or updating of all identity, law
                enforcement, or security investigations or examinations);
                1003.1(e)(8)(iii) (permitting BIA Chief Appellate Immigration Judge to
                hold a case pending a decision by the U.S. Supreme Court or a U.S.
                Court of Appeals, in anticipation of a BIA en banc decision, or in
                anticipation of an amendment to the regulations). Therefore, as noted
                in the NPRM, the Department expects few, if any, appeals to not be
                resolved within the regulatory time frames. 85 FR at 52508. In short,
                commenters simply did not persuasively explain why it would be neither
                feasible nor desirable for the BIA to adjudicate cases within 11
                months, subject to certain exceptions contained in the rule.
                iii. Issues With Respect to Referral to the Director
                 Comment: Commenters also expressed a range of disagreements with
                the rule's procedures for the referral of appeals that have been
                pending for more than 335 days \46\ to the Director. The commenters
                asserted that this would promote the denial of appeals. The commenters
                also expressed concerns that this would consolidate final decision-
                making authority with one allegedly politically appointed person, the
                Director, whom, the commenters alleged, would not have the necessary
                information or knowledge of the case to issue a decision. Commenters
                alleged that the Director's decision in referred cases would be made
                based on the rules, without taking the appropriate time to evaluate the
                case.
                ---------------------------------------------------------------------------
                 \46\ Numerous comments refer to a 355 day deadline which appears
                to be a typographical error, as the time period set forth in the
                NPRM was 335 days, and there is no discussion of a 355 day time
                period in the NPRM. See 8 CFR 1003.1(e)(8)(v) (proposed). The
                Department has reviewed and addressed such comments for substance as
                if they had correctly stated that there was a 335 day deadline.
                ---------------------------------------------------------------------------
                 Further, commenters objected that the rule would undermine the
                perception of neutrality, politicize the appellate process and violate
                substantive Due Process by allowing the Director, a political
                appointee, rather than a career adjudicator to adjudicate hundreds or
                thousands of cases. One commenter asserted that it is not the role of
                the Director to adjudicate decisions, and that the position is a non-
                adjudicatory position that is meant to run EOIR operations and does not
                have expertise, training, or impartiality necessary to decide cases.
                The commenter stated that, as an executive position, the Director would
                make decisions based on the priorities of the executive branch rather
                than the requirements of the law.
                 Numerous commenters opposed the 335-day period before referrals
                because it is not much longer than the 323-day median case appeal time
                period.
                 One commenter criticized the rulemaking because the Department did
                not address how the Director would have time to personally write
                decisions or, alternatively, who would write them under the Director's
                name. The commenter further criticized that the NPRM did not discuss
                what kind of training and oversight such individuals would receive or
                what metrics they would use.
                 Some commenters offered anecdotal evidence about appeals that were
                pending for more than 335 days and noted that such delays have become
                even increasingly common in light of the COVID-19 epidemic. One
                commenter stated that every non-detained BIA appeal filed under the
                current administration had been pending for well over 335 days, and
                that, accordingly, the rule would result in the Director issuing
                decisions for every respondent.
                 One commenter asserted that referring decisions to the Director
                would undermine rule's efficiency purpose because it would introduce a
                third level
                [[Page 81620]]
                of administrative review. Instead, commenters asserted that it would be
                more efficient to allow the BIA member or BIA panel that has already
                reviewed the case and the record to make the ultimate disposition in
                the case.
                 At least one commenter alleged that the rule would result in
                increased appeals to the Federal courts.
                 Commenters asserted that it would not be possible for the BIA to
                adequately review the number of pending BIA cases in the given
                timeframe to avoid referrals to the EOIR Director. For example,
                commenters stated, based on DOJ statistics, that there were over 70,000
                cases pending before the BIA at the end of FY 2019, and that for a 23-
                member BIA, each BIA member would have to complete 3,043 cases per year
                to comply with the 335-day deadline.
                 Commenters also raised concerns with imposing quotas on judicial
                processes, and stated that the same concerns apply to both BIA
                adjudicators and immigration judges.
                 Response: As an initial point, the Director is not a political
                appointee. A political appointee is a full-time, non-career
                presidential or vice-presidential appointee, a non-career Senior
                Executive Service (``SES'') (or other similar system) appointee, or an
                appointee to a position that has been excepted from the competitive
                service by reason of being of a confidential or policy-making character
                (Schedule C and other positions excepted under comparable criteria) in
                an executive agency. See, e.g., E.O. 13770, sec. 2(b) (Jan. 28, 2017)
                (``Ethics Commitments by Executive Branch Appointees''); see also
                Edward `Ted' Kaufman and Michael Leavitt Presidential Transitions
                Improvements Act of 2015, Public Law 114-136, sec. 4(a)(4), (5), Mar.
                18, 2016, 130 Stat. 301. No employee currently at EOIR, including the
                Director, falls within these categories. See Organization of the
                Executive Office for Immigration Review, 85 FR 69465, 69467 (Nov. 3,
                2020) (``In short, all of EOIR's federal employees, including the
                Director and the Assistant Director for Policy, are career employees
                chosen through merit-based processes, and none of EOIR's employees are
                political appointees.'').
                 EOIR has no Schedule C positions or positions requiring appointment
                by the President or Vice President. The Director is a career appointee
                within the SES. SES positions are specifically designed to ``provide
                for an executive system which is guided by the public interest and free
                from improper political interference.'' 5 U.S.C. 3131(13). Although the
                Director and Deputy Director are general SES positions, they have
                traditionally been filled only by career appointees, and the incumbent
                Director serves through a career appointment. In short, all of EOIR's
                Federal employees, including the Director, are career employees chosen
                through merit-based processes, and contrary to commenters' assertions,
                none of EOIR's employees, including the Director, are political
                appointees.\47\
                ---------------------------------------------------------------------------
                 \47\ Most, if not all, of the comments opposing the NPRM because
                the Director is an alleged political appointee assume that any
                employee appointed to an agency position by an agency head, such as
                the Attorney General, is necessarily a political appointee. By
                statute, regulation, policy, or to comply with the Appointments
                Clause of the Constitution, approximately 545 positions at EOIR
                currently require appointment by the Attorney General, including
                Board members, immigration judges, and administrative law judges.
                The fact that the Attorney General, who is a political appointee,
                appoints an individual to a position does not convert that position
                to a political position. Moreover, even if the Director position
                were filled by a political appointment, that fact alone would not
                render the individual a biased adjudicator incapable of adjudicating
                cases under the regulations. Cf. Matter of L-E-A-, 27 I&N Dec. at
                585 (rejecting arguments that the Attorney General is a biased
                adjudicator of immigration cases in the absence of any personal
                interest in the case or public statements about the case). After
                all, the functions of EOIR are vested in the Attorney General, who
                is a political appointee, and the INA specifically provides that
                determinations in immigration proceedings are subject to the
                Attorney General's review. 28 U.S.C. 503, 509, 510; INA 103(g), 8
                U.S.C. 1103(g).
                ---------------------------------------------------------------------------
                 Similarly, some commenters objected to the NPRM by asserting that
                the Director is merely an administrator with no adjudicatory role and
                no subject matter expertise regarding immigration law. Longstanding
                regulations make clear, however, that the Director must have
                significant subject matter expertise in order to issue instructions and
                policy, including regarding the implementation of new legal
                authorities. See 8 CFR 1003.0(b)(1)(i). The position of Director
                requires a significant amount of subject-matter expertise regarding
                immigration laws. The Director is charged with, inter alia, directing
                and supervising each EOIR component in the execution of its duties
                under the Act, which include adjudicating cases; evaluating the
                performance of the adjudicatory components and taking corrective action
                as necessary; providing for performance appraisals for adjudicators,
                including a process for reporting adjudications that reflect poor
                decisional quality; ``[a]dminister[ing] an examination for newly
                appointed immigration judges and Board members with respect to their
                familiarity with key principles of immigration law before they begin to
                adjudicate matters, and evaluat[ing] the temperament and skills of each
                new immigration judge or Board member within 2 years of appointment'';
                and, ``[p]rovid[ing] for comprehensive, continuing training and support
                for Board members, immigration judges, and EOIR staff in order to
                promote the quality and consistency of adjudications.'' Id. Sec.
                1003.0(b)(1). Each of these responsibilities necessarily requires some
                manner of subject-matter expertise to carry out effectively.
                 Moreover, the Director was given explicit adjudicatory review
                authority involving recognition and accreditation (``R&A'') cases in
                January 2017, well before the NPRM was promulgated. See Recognition of
                Organizations and Accreditation of Non-Attorney Representatives, 81 FR
                92346, 92357 (Dec. 19, 2016) (``Additionally, the final rule provides
                that organizations whose requests for reconsideration are denied may
                seek administrative review by the Director of EOIR. See final rule at 8
                CFR 1292.18. This provision responds to concerns that [the Office of
                Legal Access Programs (``OLAP'')] would be the sole decision-maker
                regarding recognition and accreditation and that another entity should
                be able to review OLAP's decisions.''). In short, existing regulations
                already require some level of subject-matter knowledge by the Director
                and provide for the Director to have an adjudicatory role in addition
                to administrative duties. See, e.g., Matter of Bay Area Legal Services,
                27 I&N Dec. 837 (Dir. 2020) (decision by the Director in R&A
                proceedings). Accordingly, to the extent that commenters' objections to
                this provision are based on an inaccurate understanding of the Director
                position, the Department finds those objections unsupported and
                unpersuasive.
                 Further, the Director, like members of the BIA, exercises
                independent judgment and discretion in accordance with the statutes and
                regulations to decide any case before him for a final decision pursuant
                to 8 CFR 1003.1(e)(8)(v) due to the BIA's failure in that case to meet
                the established timelines. See 8 CFR 1003.0(c) (``When acting under
                authority [to adjudicate cases], the Director shall exercise
                independent judgment and discretion in considering and determining the
                cases and may take any action consistent with the Director's's
                authority as is appropriate and necessary for the disposition of the
                case.''); cf. 8 CFR 1003.1(d)(1)(ii) (``Board members shall exercise
                their independent judgment and discretion in considering and
                determining the cases coming before the Board[.]''). Further, the
                Director's decisions are subject to review by the Attorney General,
                either at the Director's or Attorney General's request. Id. Sec.
                1003.1(e)(8)(v). And as the final
                [[Page 81621]]
                agency decision, such decisions would be subject to further review in
                Federal court. INA 242, 8 U.S.C. 1252. Thus, the Director's authority
                on such cases would not necessarily be ``final'' to any extent greater
                than BIA's authority is ``final.''
                 Regarding the commenters' concerns about the lack of information in
                the rule regarding the particular support staff or other internal
                procedures that the EOIR Director would utilize for issuing decisions
                referred under the rule, the Department notes that such details
                regarding internal staffing models are not generally the topic of
                regulations. Nevertheless, the regulations do make clear that the
                Director may employ sufficient staff as needed to carry out EOIR's
                functions, 8 CFR 1003.0(a) (``EOIR shall include . . . such . . . staff
                as the Attorney General or the Director may provide.''); 28 CFR
                0.115(a) (same), just as they make clear that the Director is integral
                to ensuring the Board itself has sufficient staff, 8 CFR 1003.1(a)(6)
                (``There shall also be attached to the Board such number of attorneys
                and other employees as the Deputy Attorney General, upon recommendation
                of the Director, shall from time to time direct.'').
                 The Department further notes that it is not uncommon for someone
                other than the adjudicator to prepare a decision draft for the
                adjudicator's review and signature and that EOIR has, for many years,
                hired judicial law clerks to assist with drafting decisions. See Dept.
                of Justice, Honors Program Participating Components, Aug. 25, 2020,
                available at https://www.justice.gov/legal-careers/honors-program-participating-components (``EOIR Honors Program hires serve 2 year
                judicial clerkships . . . .''). It is a common practice for both BIA
                and immigration court adjudicators to have supporting staff prepare
                decision drafts. Such decisions are still ultimately issued by the
                adjudicator, which in the case of untimely adjudications that have been
                referred is the Director--not the staff who prepared the draft.
                Moreover, the Department notes that the Director has the power to
                ``[p]rovide for comprehensive, continuing training and support for
                Board members, immigration judges, and EOIR staff in order to promote
                the quality and consistency of adjudications[,]'' including
                adjudications that are referred to him. See 8 CFR 1003.0(b)(1)(vii).
                 Contrary to the commenters' concerns, the proposed changes would
                not undermine due process. The essence of due process in an immigration
                proceeding is notice and an opportunity to be heard. LaChance, 522 U.S.
                at 266 (``The core of due process is the right to notice and a
                meaningful opportunity to be heard.''). Nothing in the rule eliminates
                notice of charges of removability against an alien, INA 239(a)(1), 8
                U.S.C. 1229(a)(1), or the opportunity for the alien to make his or her
                case to an immigration judge, INA 240(a)(1), 8 U.S.C. 1229a(a)(1), or
                on appeal, 8 CFR 1003.38. Further, although due process requires a fair
                tribunal, In re Murchison, 349 U.S. 133, 136 (1955), generalized, ad
                hominem allegations of bias or impropriety are insufficient to
                ``overcome a presumption of honesty and integrity in those serving as
                adjudicators.'' Withrow v. Larkin, 421 U.S. 35, 47 (1975). Commenters
                identified no reason--other than ad hominem dislike, crude
                suppositions, and unfounded, tendentious accusations of bias--why it
                would be inappropriate for a career, non-political SES official with no
                pecuniary or personal interest in the outcome of immigration
                proceedings and with both subject-matter expertise and adjudicatory
                experience, such as the Director, to adjudicate appeals in limited,
                specific circumstances. Cf. Matter of L-E-A-, 27 I&N Dec. 581, 585
                (A.G. 2019) (rejecting arguments that the Attorney General is a biased
                adjudicator of immigration cases in the absence of any personal
                interest in the case or public statements about the case).
                 Additionally, the Department notes that the Attorney General
                oversees EOIR and has statutory authority to, among other
                responsibilities, review administrative determinations in immigration
                proceedings; delegate authority; and perform other actions necessary to
                carry out the Attorney General's authority over EOIR. INA 103(g), 8
                U.S.C. 1103(g). Over time, the Attorney General has promulgated
                regulations pursuant to this statutory authority that reflect the full
                range of his authority and oversight in section 103(g) of the Act, 8
                U.S.C. 1103(g). Among many examples, in 8 CFR 1003.1(h), the Attorney
                General codified the authority to review BIA decisions, and in 8 CFR
                1003.0(a), the Attorney General delegated authority to the Director to
                head EOIR. Despite this delegated authority, EOIR remains subject to
                the Attorney General's oversight, and it is reasonable and proper that
                the Attorney General continue to exercise that oversight by way of such
                delegations of administrative review.
                 In accordance with 8 CFR 1003.0(a), the Director, who is appointed
                by the Attorney General, exercises delegated authority from the
                Attorney General related to oversight and supervision of EOIR. See also
                INA 103(g)(1), 8 U.S.C. 1103(g)(1); 28 CFR 0.115(a). The Director may
                only act in accordance with the statutes and regulations and within the
                authority delegated to him by the Attorney General; put differently,
                the statute and regulations provide the Attorney General with the
                authority to act, and the Attorney General, in turn, determines the
                extent of the Director's authority. The Attorney General, by
                regulation, provides a list of the Director's authority and
                responsibilities at 8 CFR 1003.0(b), which includes the authority to
                ``[e]xercise such other authorities as the Attorney General may
                provide.'' 8 CFR 1003.0(b)(1)(ix). Such delegation supersedes the
                restrictions related to adjudication outlined in 8 CFR 1003.0(c) due to
                that paragraph's deference to 8 CFR 1003.0(b).
                 The Director's authority provided in the rule to adjudicate BIA
                cases that have otherwise not been timely adjudicated constitutes
                ``such other authorities'' provided to the Director by the Attorney
                General, based on the powers to delegate and conduct administrative
                review under section103(g) of the Act, 8 U.S.C. 1103(g). See 8 CFR
                1003.0(c), 1003.1(e)(8). To reiterate, the Attorney General's authority
                to review administrative determinations does not violate due process;
                thus, the proper delegation of that authority to the Director pursuant
                to statute and pre-existing regulations does not violate due process--
                specifically in light of the fact that those decisions ultimately
                remain subject to the Attorney General's review under 8 CFR
                1003.1(e)(8). To the extent that commenters are concerned about such an
                appearance, the Department emphasizes the clear, direct intent of
                Congress in statutorily authorizing such delegations, and the Attorney
                General is acting within the bounds of his statutory authority by
                issuing the rule. INA 103(g)(2), 8 U.S.C. 1103(g)(2); see also Chevron
                v. Nat. Res. Def. Council, 467 U.S. 837, 842 (1984). In issuing the
                rule, the Attorney General properly delegates adjudicatory authority to
                the Director to review certain administrative decisions that are
                otherwise untimely. 8 CFR 1003.1(e)(8). This delegation aligns with the
                Attorney General's longstanding authority to issue regulations and
                delegate that authority, in line with principles of due process.
                 The Department disagrees that these procedures would introduce
                inefficiency or a third level of review. Under this rulemaking, the
                Director would not review appeals that the BIA had adjudicated in a
                timely fashion. Rather, the Director will, acting with the same
                authority as a BIA adjudicator would have, issue decisions on appeals
                [[Page 81622]]
                that have been pending for longer than the prescribed regulatory
                period. Id. Sec. 1003.1(e).
                 Commenters are also incorrect that the referral of appeals that
                have not been timely decided could be characterized as an improper
                consolidation of power under one individual. Cases would be referred to
                the Director only where the BIA has taken more than 335 days to
                adjudicate an appeal, in order to ensure timely disposition of a case.
                As noted by the NPRM, ``absent a regulatory basis for delay, there is
                no reason for a typical appeal to take more than 335 days to
                adjudicate--including time for transcription, briefing, and adherence
                to the exiting 90- or 180- day time frames for decision.'' 85 FR at
                52508. Moreover, commenters did not explain why aliens with meritorious
                appeals should have to wait more than 335 days for a decision, and the
                Department is unaware of any reason for doing so. To the contrary,
                allowing the Director to adjudicate appeals which have languished for
                almost a year without adjudication will help ensure that aliens with
                meritorious claims receive the decision they warrant in a timely
                manner.
                 Additionally, for such cases that are atypical, and for which it
                would be appropriate for the BIA to devote additional time to
                completing adjudication, the regulations provide for an extension of
                the adjudication time period. 8 CFR 1003.1(e)(8)(ii) (``[I]n exigent
                circumstances . . . in those cases where the panel is unable to issue a
                decision within the established time limits, as extended, the Chairman
                shall either assign the case to himself or a Vice Chairman for final
                decision within 14 days or shall refer the case to the Director for
                decision.''); 1003.1(d)(6)(ii)(B) (allowing BIA to place a case on hold
                while it awaits the completion or updating of all identity, law
                enforcement, or security investigations or examinations);
                1003.1(e)(8)(iii) (permitting BIA Chairman to hold a case pending a
                decision by the U.S. Supreme Court or a U.S. Court of Appeals, in
                anticipation of a BIA en banc decision, or in anticipation of an
                amendment to the regulations). The Attorney General has delegated
                decision-making authority to the Director pursuant to 8 CFR
                1003.1(e)(8)(ii), subject to possible further review by the Attorney
                General. The Director may only adjudicate cases that have surpassed the
                articulated deadlines, and the rule is clear that the Director's scope
                of review is limited to only a narrow subset of EOIR cases.
                 Nevertheless, the Department recognizes commenters' concerns
                regarding the potential volume of cases that could conceivably be
                subject to referral, as well as the interaction between the referral
                procedures and other changes to the rule. To that end, the final rule
                adds four further exceptions to 8 CFR 1003.1(e)(8)(v) in which cases
                would not be referred. Cases on hold pursuant to 8 CFR 1003.1(d)(6)(ii)
                to await the results of identity, law enforcement, or security
                investigations or examinations will not be subject to referral if the
                hold causes the appeal to remain pending beyond 335 days. Cases whose
                adjudication has been deferred by the Director pursuant to 8 CFR
                1003.0(b)(1)(ii) will not be subject to referral if the deferral causes
                the appeal to remain pending beyond 335 days. Cases remanded by the
                Director under 8 CFR 1003.1(k) will not be subject to referral if the
                case remains pending beyond 335 days after the referral. Cases that
                have been administratively closed pursuant to a regulation promulgated
                by the Department of Justice or a previous judicially approved
                settlement that expressly authorizes such an action will not be subject
                to referral if the administrative closure occurred prior to the elapse
                of 335 days and causes the appeal to remain pending beyond 335 days.
                 These changes, which are incorporated through a stylistic
                restructuring of 8 CFR 1003.1(e)(8)(v) for clarity, recognize
                additional situations in which a case may appropriately remain pending
                beyond 335 days without adjudication or when referral back to the
                Director would be incongruent because the Director had remanded the
                case immediately prior to the referral. They also recognize, in
                response to commenters' concerns, that the Director may defer
                adjudication of BIA cases, consistent with authority under 8 CFR
                1003.0(b)(1)(ii), in order to avoid needing to have those cases
                referred to himself. In short, although most commenters' concerns are
                inaccurate, unfounded, or hyperbolic, the Department recognizes that
                the BIA should exercise default appellate adjudicatory authority in
                immigration cases and that referral of cases to the Director should be
                the exception, rather than the rule.
                 Finally, in response to comments about the clarity and scope of the
                NPRM's changes to the BIA's case management procedures, the final rule
                also makes edits to eliminate confusion over the scope of 8 CFR
                1003.1(e). As both the title of that paragraph (``Case management
                system'') and its general introductory language (``The Chairman shall
                establish a case management system to screen all cases and to manage
                the Board's caseload.'') make clear, the provisions of the paragraph
                apply to ``cases.'' 8 CFR 1003.1(e) (emphasis added). In turn, ``the
                term case means any proceeding arising under any immigration or
                naturalization law.'' 8 CFR 1001.1(g). At the Board, cases may be
                initiated in one of three ways: the filing of a Notice of Appeal, the
                filing of a motion directly with the Board (e.g., a motion to
                reconsider or a motion to reopen), or the receipt of a remand from a
                Federal court, the Attorney General, or--under this rule--the Director.
                In other words, the Board adjudicates multiple types of cases, not just
                appeals. Although the existing language of 8 CFR 1003.1(e) is clear
                that it applies to all types of cases at the Board, regardless of how
                they are initiated, the inconsistent, subsequent use of ``appeals''
                throughout that paragraph creates confusion as to its scope since
                appeals are not the only type of case the Board considers. See, e.g., 8
                CFR 1003.1(e)(3) (in describing the Board's merits review process,
                using ``case'' in the first sentence, ``case'' and ``appeal'' in the
                second sentence, and ``appeal'' in the third sentence, all is
                describing a unitary process). To avoid continued confusion and to
                ensure that the scope of the other changes in the final rule regarding
                the Board's case management process are clear, the final rule makes
                edits to 8 CFR 1003.1(e) to ensure that it is clearly applicable to all
                cases before the Board, not solely cases arising through appeals.\48\
                ---------------------------------------------------------------------------
                 \48\ For similar reasons, the final rule also makes changes to 8
                CFR 1003.1(d)(3)(iv) to clarify that 8 CFR 1003.1(d)(3)(iv)(A)
                applies to all cases at the Board, whereas 8 CFR 1003.1(d)(3)(iv)(D)
                applies only to direct appeals of immigration judge decisions. None
                of these changes effect any substantive alteration of the applicable
                regulations governing the BIA's functioning.
                ---------------------------------------------------------------------------
                iv. Other Issues
                 Comment: One commenter objected to the rule's limitation of the
                Board Chairman's authority to hold a decision in anticipation of a
                pending decision by a U.S. Court of Appeals or an amendment to the
                regulations. The commenter stated that such a change was not necessary
                and irrational because the Board Chairman's existing authority to place
                cases on hold is permissive. The commenter stated that the proposed
                change would eliminate the Board Chairman's discretion to hold cases
                when changes to the case law or regulations would benefit immigrants.
                The commenter stated that making the Board Chairman's determination to
                hold a case subject to the concurrence by the Director was intended to
                enhance the Director's influence over appellate
                [[Page 81623]]
                decision making and ensure that cases are held only when it would
                further the administration's political agenda, and not in the
                administration of justice.
                 Response: The Department disagrees with this comment and finds it
                unpersuasive for several reasons. First, the regulatory process is
                unpredictable, and both the timing and final substance of any given
                regulation cannot be predicted with sufficient accuracy to warrant
                holding adjudications for future regulations. Similarly, there is no
                reliable method of predicting how long an adjudication at a circuit
                court of appeals will take or when, precisely, a circuit court will
                render a decision.\49\ Moreover, the proliferation of immigration
                litigation in recent years has increased the likelihood both that a
                circuit court panel's decision may not be the last word on the issue--
                due to the possibility of rehearing en banc or a petition for
                certiorari filed with the Supreme Court--and that multiple circuits may
                reach different conclusions. Thus, there is little reason to place
                cases on hold to await an individual circuit court decision since the
                timing of that decision is unknown, it may not be the final decision,
                and it may conflict with other circuit courts causing the Board to
                pause some cases but not others even though the cases raise the same
                issues.
                ---------------------------------------------------------------------------
                 \49\ In contrast, the term of the Supreme Court is well-
                established, and decisions for a particular term are ordinarily
                expected by the end of June.
                ---------------------------------------------------------------------------
                 Additionally, requiring the Director to concur with the BIA
                Chairman about whether to hold cases is not irregular, and the
                Department rejects the insinuation that the concurrence process would
                be used for nefarious, political, or otherwise inappropriate ends. The
                Chairman is, by regulation, generally subject to the supervision of the
                Director. 8 CFR 1003.1(a)(2); 28 CFR 0.115(a). As explained above, the
                Director is not a political appointee, and the Director's decisions
                regarding EOIR procedures, including whether an appeal is of such a
                nature so as to warrant further delay in adjudication, will be made in
                accordance with his general supervisory authority. Moreover, both the
                Director and the Board Chairman already possess longstanding authority
                to defer adjudication of Board cases, 8 CFR 1003.0(b)(1)(ii) and
                1003.1(a)(2)(i)(C), and there is no evidence either has used that
                authority inappropriately. Accordingly, there is no basis to expect
                that they would apply the hold authority in 8 CFR 1003.1(e)(8)(iii)
                inappropriately.
                 Comment: One commenter asserted that the NPRM improperly
                characterized the BIA's decreased efficiency as paradoxical. Rather,
                the commenter asserted, this resulted from ``massive changes that the
                current administration has wrought in immigration proceedings.'' The
                commenter stated that there have been constant and repeated changes to
                the law, as well as national, regional, and local injunctions of such
                changes, making it difficult to keep track of the current law and
                causing appeals adjudications to take longer as adjudicators research
                the current state of the law. Another commenter offered as a specific
                example, the Attorney General's decision in Matter of Castro-Tum, 27
                I&N Dec. 271, which, the commenter alleged, added 330,211 previously
                completed cases back on to the pending caseload.
                 One commenter asserted, without providing further detail, that the
                Department's claim about the length of time that it takes to adjudicate
                most appeals is ``patently false'' and a factual misrepresentation.
                 Commenters also raised concerns with imposing quotas on judicial
                processes, and stated that the same concerns apply to both BIA
                adjudicators and immigration judges.
                 At least one commenter asserted that the Department had failed to
                consider other alternatives to improving efficiencies and offered
                alternative suggestions to the timeline-related changes. For example,
                at least one commenter suggested the preparation of reports concerning
                longstanding cases, akin to the reports submitted to Congress
                concerning district court motions and cases that have been pending
                adjudication for a long time. This alternative, the commenter
                suggested, would explain why specific cases required longer-than-usual
                adjudication times. The commenter also proposed, as another
                alternative, recommended timelines that required brief explanations
                when such timelines were exceeded. The commenter proposed a third
                alternative where, as part of the initial screening, the BIA could
                subcategorize cases assigned to single BIA members or three-member
                panels based upon their apparent complexity, with different timelines
                assigned to each subcategory.
                 At least one commenter expressed support for the 30-day
                interlocutory appeal timeline but asserted that the rule would be
                meaningless without an enforcement method. The commenter suggested that
                the Department consider adding a privately enforceable cause of action
                against the BIA if it failed to adjudicate appeals in the timespan
                proposed in the rule. The commenter stated that, if expediency of
                adjudications was the administration's priority, subjecting
                adjudicators to such lawsuits would give adjudicators the extra
                incentive to meet applicable deadlines.
                 Commenters suggested that survivors of gender-based violence,
                children, and detained individuals without representation might be
                particularly negatively impacted by the rule's timelines.
                 One commenter compared criticism from the BIA's practice of issuing
                affirmances without opinion (``AWOs'') to the NPRM because
                ``[e]ncouraging even quicker and more opaque decision-making from an
                overworked, under-resourced, and now highly politicized appellate
                body'' was both arbitrary and capricious and result in legally
                erroneous, and possibly biased, decision making.
                 Response: With respect to criticism of the rule pertaining to the
                Department setting new regulatory case-management procedures, the
                Department maintains that it has acted with the appropriate authority
                do so. Case management procedures have been in place regarding Board
                adjudications for many years, including 90-day and 180-day timelines
                for the adjudication of appeals, and the Department's authority to
                maintain such procedures is not seriously subject to question. As
                discussed in the NPRM, 85 FR at 52493, the case-management procedures
                also respond to concerns raised by the Department's Office of the
                Inspector General (``OIG'') regarding how EOIR manages the timely
                adjudication of cases at the BIA.
                 Nor were the Department's decisions about the timelines arbitrary.
                Rather, they were based on experience and consideration of the average
                amount of time that it has taken the BIA to adjudicate appeals. See 85
                FR at 52508 n.38. Moreover, as noted supra, commenters have not
                seriously questioned why it is impossible or improper to expect the BIA
                to be able to complete a case within 11 months. To the contrary, the
                cases of delayed adjudication cited by commenters provide support for
                the rule's timeline, and the Department agrees that the provisions of
                this final rule will respond to commenters' concerns about any
                excessive delays in case adjudications.
                 The Department shares a commenter's concern regarding the Board's
                decreased efficiency. To the extent that the Board's efficiency
                decreased even as its number of adjudicators increased or held steady
                prior to FY 2020, the Department does find that paradoxical.
                Nevertheless,
                [[Page 81624]]
                regardless of the precise basis for the Board's decreased efficiency,
                the Department believes it must be addressed and that the NPRM sets
                forth well-supported ways of doing so.
                 Regarding the commenter who asserted that the decision in Matter of
                Castro-Tum added 330,211 previously completed cases back to the pending
                caseload, the Department notes first that an administratively closed
                cases is not a completed case. Thus, the assertion that the cases
                mentioned were ``completed'' is erroneous. See Matter of Lopez-Barrios,
                20 I&N Dec. 203, 204 (BIA 1990) (``[A]dministrative closing is merely
                an administrative convenience. . . . However, it does not result in a
                final order.''); Hernandez-Serrano, 2020 WL 6883420 at *3
                (``Administrative closure typically is not an action taken `[i]n
                deciding' a case before an IJ; instead, as shown above, it is typically
                a decision not to decide the case. Nor is administrative closure
                typically an action `necessary for the disposition' of an immigration
                case. Administrative closure is not itself a `disposition' of a case,
                as Hernandez-Serrano concedes in this appeal.''). Second, the
                Department notes that cases that have been administratively closed
                remain pending even while they are closed; thus, those cases never went
                away and, accordingly, were not added by Matter of Castro-Tum.
                 The Department is unable to respond to the commenter who alleged
                that the median time to complete an appeal represented by the
                Department was false without providing further detail. The Department
                maintains that its calculation was accurate. Further, most commenters,
                who have experience practicing before the Board and are familiar with
                its timelines, did not dispute the idea that, on average, the Board
                takes, roughly, just over 10 months to adjudicate cases.
                 The rule does not impose any ``quotas'' on Board members, nor does
                it establish any type of case completion goal for BIA members. To the
                extent that commenters believe that the 90-day and 180-day timelines
                establish a quota, those timeframes have existed for many years, and
                the rule does not alter them, though it harmonizes when they begin in
                response to criticism and confusion over the years, including by the
                Department's OIG, 85 FR at 52493.
                 Regarding proposed alternatives, the Department finds that
                preparing a report would not address issues with the Board's
                efficiency. To the contrary the regulations already require the Board
                Chairman to prepare a report ``assessing the timeliness of the
                disposition of cases by each Board member on an annual basis,'' 8 CFR
                1003.1(e)(8)(v), and that existing requirement, which does not appear
                to have been followed with any diligence prior to 2019, has not aided
                the Board's efficiency. Similarly, explanations for why timelines have
                been exceeded are useful for understanding why cases may move at
                different speeds, and the regulations already contemplate situations in
                which case processing may be delayed due to specific explanations. See
                id. Sec. 1003.1(e)(8)(i)-(iii). Explanations themselves, however, do
                not ensure that cases are processed in a timely and fair manner, which
                is the Board's goal. Finally, the commenter's suggestion of
                subcategorization is already built into the screening process and the
                differential timelines for single-member versus panel decisions.
                Although the Department appreciates the commenter's suggestions and has
                fully considered them, it believes they are either already contemplated
                by the regulations or would not otherwise improve the efficiency of the
                Board's adjudications.
                 The Department appreciates one commenter's support for a 30-day
                interlocutory appeal timeline but notes that it does not possess the
                legal authority to establish a cause of action in Federal court to
                ensure that timeline is met.
                 Although commenters suggested that survivors of gender-based
                violence, children, and detained individuals without representation
                might be particularly negatively impacted by the rule's timelines, they
                did not explain how or why that would be the case. The timelines are
                not case-specific and do not depend on the facts of any particular
                case. The Department has explained, supra, that the rule would not have
                a deleterious impact on individuals without representation, and there
                is no basis to believe that the rule will apply differently to children
                or survivors of violence. To the extent that commenters are concerned
                about cases of detained aliens, existing regulations already prioritize
                such cases, 8 CFR 1003.1(e) (prioritizing ``cases or custody appeals
                involving detained aliens''), and the Department maintains a
                longstanding goal developed pursuant to the Government Performance and
                Results Act, Public Law 103-62, Aug. 3, 1993, 107 Stat. 285, of
                completing 90 percent of detained appeals within 150 days of filing. PM
                20-01 at 6. In short, the rule has no impact on the efficiency of
                adjudicating appeals of detained aliens, as such cases are already
                adjudicated expeditiously in the normal course under existing
                principles.
                 Commenter criticisms of AWOs, comparison with other agency
                adjudication timelines, which involve completely different factors for
                consideration, and concerns over ``flooding'' the circuit courts of
                appeals, are outside of the scope of this rulemaking, although the
                Department reiterates that it does not believe that this rulemaking
                would encourage speed over quality of decisions, but rather believes
                that it strikes an appropriate balance. The Department acknowledges
                commenter anecdotes about appeals that have been pending for longer
                than the 335-day regulatory period for various stated reasons and notes
                that stating a median, by definition, will include cases that have been
                pending for longer. Nevertheless, the Department acknowledges that
                these anecdotes further support the Department's efforts to resolve
                cases more expeditiously through this rule.
                j. Immigration Judge Quality Assurance Certification (8 CFR 1003.1(k))
                 Comment: Some commenters expressed concern regarding the
                establishment of new quality assurance procedures that allow
                immigration judges to certify cases, in certain limited circumstances,
                to the Director. 8 CFR 1003.1(k).
                 Commenters opined the quality assurance procedures would undermine
                the BIA in a variety of manners. For example, at least one commenter
                stated that quality assurance certifications undermine the BIA's
                integrity by dispossessing it of its full appellate authority. Other
                commenters stated that the procedures will erode a fundamental purpose
                of the BIA: National consistency. Commenters further opined that the
                NPRM would undermine the adversarial nature of BIA proceedings. Others
                claimed that the procedures would remove discretion from the BIA, which
                the commenter likened to other changes by the Department that the
                commenter felt have removed discretion from immigration judges.
                Commenters further alleged that the rule would have a chilling effect
                on the BIA as it would heighten their concerns about job security over
                fairness and impartiality.
                 At least one commenter expressed a belief that quality assurance
                certifications are not needed because every opinion the commenter
                received from the BIA was ``highly professional [and] based on the
                Board members' evaluation of the law and the facts of the particular
                case.'' Another commenter opined that there were easier ways to change
                a typographical error.
                 According to commenters, the bases for the quality assurance
                certifications
                [[Page 81625]]
                are so broad that an immigration judge who simply disagrees with the
                BIA's decision--or the decision's impact on the immigration judge's
                performance metrics--can certify the case to the Director. See id.
                Sec. 1003.1(k)(1)(i)-(iv).
                 Commenters expressed concerns regarding the appropriateness of the
                Director receiving such quality assurance certifications and the
                Director's ability to appropriately respond to and manage the
                certifications he would receive. For example, commenters predicted that
                the Director could receive thousands of cases from the BIA due to other
                changes in the rule as well as the cases certified from immigration
                judges. Due to the caseload, a commenter claimed that the Director
                would simply ``rubber stamp denials.'' Commenters described the
                position of the Director as managerial and non-adjudicatory and
                accordingly opined that the individual appointed to it does not
                necessarily possess the ``expertise, training, or impartiality
                necessary to decide cases.'' Others expressed concern about the
                Director's role reviewing and responding to quality assurance
                certifications due to the commenters' perception that the Director is a
                political appointee or otherwise is politically motivated. Some
                commenters alleged that the Director is not subject to the same the
                ethics and professionalism guidelines applicable to BIA members and the
                decisions of the Director cannot be remedied through EOIR's procedure
                for addressing complaints against EOIR adjudicators.
                 Other commenters requested that the neutral arbiter be other
                experts in immigration law or another body.
                 Other commenters worried that regardless of the Director's
                decision, it would be unreviewable by any adjudicator, while another
                commenter claimed that appeals would flood the circuit courts.
                 Commenters claimed that the Department mischaracterized HALLEX I-3-
                6-10. For example, one commenter stated that the cited section allows
                for clarity but not for Administrative Law Judges to ``protest'' or
                question decisions on their cases in the same manner immigration judges
                would be allowed to do for BIA decisions.
                 Other commenters were concerned with procedural issues. Some
                commenters claimed that the parties and the BIA should receive notice
                that the immigration judge certified a case. Commenters requested that
                parties be allowed to object to certification and file briefs
                accordingly and noted that the non-moving party has a chance to respond
                in the current scheme to address BIA errors. At least one commenter
                expressed concern about the implications on the immigration judge's
                posture in the proceedings and claimed that immigration judges who
                issue certifications would have to recuse themselves in case of remand
                because the certification is in effect an appeal by the judge that
                equates the judges to an advocate in the proceedings.
                 Other commenters expressed concern that the certification
                procedures curtail aliens' due process rights.
                 Commenters opined that the quality assurance certifications, when
                combined with the restriction on the BIA considering new evidence, will
                result in numerous certifications because the BIA will fail to consider
                a material factor pertinent to the issue(s) before the immigration
                judge.
                 Some commenters claimed that the rule would increase inefficiency
                because, in order for the case to be resolved, the Director must refer
                the case to a different adjudicator.
                 Response: As an initial point, the Department notes that many of
                the same commenters who criticized other parts of this final rule
                because it would allegedly allow the BIA to deny meritorious appeals
                for inappropriate reasons also criticized this provision by claiming it
                would undermine the professionalism and expertise of the BIA in
                deciding cases. To the extent that commenters inconsistently asserted
                that the BIA is both unprofessional and professional--depending solely
                on which view allowed the commenter to oppose a particular provision of
                this final rule--the Department finds such tendentious criticism
                insufficient to warrant changes to the final rule.
                 Further, any implication that these quality assurance
                certifications divests the BIA of its appellate jurisdiction and role
                in the immigration system is incorrect. The new procedures at 8 CFR
                1003.1(k) do not create a higher secondary appellate review body.
                Rather, they provide a quality control measure to ensure that the BIA's
                decisions consistently provide appropriate and sufficient direction to
                immigration judges. The distinction is evident in the certification
                process and the actions available to the Director. Cases may only be
                certified to the Director if they fall within limited, and specifically
                delineated, circumstances: (1) The BIA decision contains a
                typographical or clerical error affecting the outcome of the case; (2)
                the BIA decision is clearly contrary to a provision of the INA, any
                other immigration law or statute, any applicable regulation, or a
                published, binding decision; (3) the BIA decision is vague, ambiguous,
                internally inconsistent, or otherwise did not resolve the basis for the
                appeal; or (4) a material factor pertinent to the issue(s) before the
                immigration judge was clearly not considered in the BIA decision. 8 CFR
                1003.1(k)(1)(i)-(iv). These narrow situations are all tailored to
                quality control--not to express disagreement with the BIA's well-
                founded legal analysis, which is how another layer of appellate review
                would function.
                 Further, the Director only has a limited number of options
                available upon certification. The Director may: (1) Dismiss the
                certification and return the case to the immigration judge; (2) remand
                the case back to the BIA for further proceedings; (3) refer the case to
                the Attorney General; (4) or issue a precedent decision that does not
                include an order of removal, a request for voluntary departure, or the
                grant or denial of an application for relief or protection from
                removal. Id. Sec. 1003.1(k)(3). Thus, the quality assurance procedures
                do not vest the Director with any final adjudicatory power of cases
                that have been certified, and the Director must return the case to
                either the BIA or the immigration judge in order for the case to be
                resolved. Accordingly, commenters are incorrect that the rule creates
                an additional level of appellate review.
                 The Department appreciates the commenter's compliments that the
                decisions that they have received from the BIA have been faithful to
                the law and highly professional, though it notes that other commenters
                insinuated that the BIA's decisions are not always faithful to the law.
                Regardless, the Department cannot rely on anecdotal evidence to
                maintain quality control in all cases in the context of the ever-
                growing BIA with a mounting caseload, see 85 FR at 52492; EOIR,
                Adjudication Statistics: Case Appeals Filed, Completed, and Pending,
                Oct. 23, 2019, available at https://www.justice.gov/eoir/page/file/1198906/download, and the Department is aware of examples from
                immigration judges raising questions about the quality or accuracy of
                BIA decisions. The Department believes that the rule creates a clear
                and efficient mechanism to ensure that the commenter's remarks that the
                BIA's decisions are accurate and dispositive are, and remain, true. The
                Department does not believe that a quality control process that is
                aimed toward full and accurate decisions would have any other
                substantial impact that to cause increased attention to the accuracy
                and completeness of decisions. Overall, the Department finds that the
                certification process as laid out in the rule will, in
                [[Page 81626]]
                a timely manner, ensure that BIA decisions are accurate and
                dispositive, which is the purpose of the changes.
                 In regards to commenters' allegations that immigration judges could
                simply certify cases with which they disagree, particularly for
                political or other personal reasons, the Department specifically
                reiterates that merely disagreeing with decisions or objecting to
                specific legal interpretations is not a basis for certification. 85 FR
                at 52503. Some commenters worried that the bases for certification are
                so broad that an immigration judge could solely object to a particular
                legal interpretation and still certify the case by sweeping it into one
                of the four criteria, specifically that the decision is ``vague.'' To
                this, the Department notes that vagueness is included in the criteria
                in order to address a specific problem: Immigration judges receiving
                orders that are confusing and need additional clarification or
                explanation. See 85 FR at 52496. ``Vagueness'' is not so broad as to
                contain within it a myriad of legal objections to specific legal
                interpretations; certainly, it cannot be stretched to contain personal
                or political objections to such legal interpretations.
                 Moreover, although few commenters acknowledged it, immigration
                judges already possess the authority to certify a case to the BIA
                following a remand and the issuance of another decision, 8 CFR 1003.7,
                and some immigration judges have used that procedure in order to seek
                clarification of the BIA's decision. That indirect process, however, is
                both burdensome to the parties, who must wait until the immigration
                judge issues another decision (even if the immigration judge considers
                the Board's decision unclear or vague), and inefficient in that it
                results in a case being sent back to the same body which remanded it in
                the first instance without further clarification. The Department's
                quality assurance process will ensure clearer and more timely
                resolution of disagreements, within four narrow categories, between
                immigration judges and the BIA by a neutral third-party who supervises
                each.
                 As far as the authority of the Director, the Attorney General is
                authorized to decide the Director's authority. INA 103(g)(1), 8 U.S.C.
                1103(g)(1); 28 CFR 0.115(a). Reviewing certified cases falls within the
                ``such other authorities'' provided to the Director by the Attorney
                General, based on the powers to delegate and conduct administrative
                review under INA 103(g) (8 U.S.C. 1103(g)). See 8 CFR 1003.0(b)(1)(ix)
                and (c), 1003.1(e)(8)(ii). This delegation supersedes the restrictions
                related to adjudication outlined in 8 CFR 1003.0(c) due to that
                paragraph's deference to 8 CFR 1003.0(b).
                 Moreover, the Director is responsible for the supervision of the
                immigration judges and the BIA members and already possesses the
                authority to ensure that adjudications are conducted in a timely
                manner. See id. Sec. 1003.0(b)(1)(ii). Accordingly, the Director is in
                a well-positioned to address errors made by the BIA and to remedy them
                in a timely manner. The Director is also in a direct position to
                implement changes to address repeat errors. Because the delegation of
                authority is proper, the process requires notice, and the process
                involves a neutral decisionmaker who lacks authority to issue a final
                order, it does not violate due process.
                 In response to commenters concerns that the delegation of
                authority, even if proper, will appear improper, the Department
                responds that Congress' intent is clear and explicit in statutorily
                authorizing such delegations, and the Attorney General is acting within
                the bounds of his statutory authority when by issuing the rule. INA
                103(g)(2), 8 U.S.C. 1103(g)(2); see also Chevron, 467 U.S. at 842. In
                issuing the rule, the Attorney General properly delegates the Director
                the authority to review certified cases from the immigration judges.
                This delegation aligns with the Attorney General's longstanding
                authority to issue regulations and delegate that authority, in line
                with principles of due process.
                 Regarding commenters concerns about perceived political influence
                or politicization of the Director position, the Department reiterates
                its response to similar concerns raised and discussed, supra. The
                Department again notes that the Director is a career appointee, who is
                selected based on merit, independent of any political influence, and a
                member of the SES. The position requires a significant amount of
                subject-matter expertise regarding immigration laws as demonstrated by
                various duties of the Director: ``[a]dminister an examination for
                newly-appointed immigration judges and Board members with respect to
                their familiarity with key principles of immigration law before they
                begin to adjudicate matters, . . . [p]rovide for comprehensive,
                continuing training and support for Board members, immigration judges,
                and EOIR staff[, and] [i]mplement a process for receiving, evaluating,
                and responding to complaints of inappropriate conduct by EOIR
                adjudicators.'' 8 CFR 1003.0(b)(1)(vi)-(viii). Additionally, reviewing
                certified cases would require no more expertise than administratively
                reviewing certain types of decisions in recognition and accreditation
                cases, which the Director has been tasked with the authority to do
                since 2017 with no noted objection at that time. See id. Sec.
                1292.18(a). Further, the Director is held to the same professionalism
                and ethical standards as all Department employees. In short,
                commenters' concerns appear to be rooted in either a personal dislike
                for the incumbent Director or disagreement with the overall policies of
                the Department, rather than any specific or genuine concern about the
                Director position itself.
                 In response to commenters' concerns over the workload for the
                Director that quality assurance certifications may cause, the Director
                may utilize all appropriate support staff to assist with his
                responsibility. Nevertheless, because of the narrow scope of issues
                subject to certification and the procedural requirements which will
                dissuade filing frivolous or meritless certifications--particularly
                because immigration judges already have generally full dockets of cases
                to adjudicate--the Department expects that these procedures will be
                employed infrequently. Accordingly, although the Department appreciates
                commenters' concerns about the Director's workload, the rule already
                anticipates and limits the number of cases expected to be subject to
                this process.
                 In regards to the reviewability of the Director's decision, the
                Department notes first that the Director's decision is not final and
                that, regardless of what action the Director does take, the ultimate,
                underlying final EOIR administrative decision may be appealed to the
                circuit court. See INA 242, 8 U.S.C. 1252.
                 Regarding commenters' accusations of the mischaracterization of
                HALLEX I-3-6-10, the Department notes that it referenced Social
                Security's protest criteria for decisions by administrative law judges
                or its administrative appeals body, the Appeals Council, in the context
                of explaining the narrow set of criteria for certification set out in
                the rule. 85 FR at 52502 (``These criteria are used in similar
                circumstances at other adjudicatory agencies.'') The Department was not
                attempting to claim that the two processes exactly mirror one another,
                nor was it attempting to claim that it structured the certification
                procedure to directly mimic the Social Security Administration. The
                Department believes although the two procedures are not identical, the
                degree of similarity--as well as the underlying purpose, i.e., to
                ensure correct, quality
                [[Page 81627]]
                decisions by adjudicators--is enough to warrant analogy.
                 Regarding commenters' requests that the various parties should
                receive notice at the time of certification, the Department notes that
                the rule, in fact, requires the immigration judge to provide notice of
                certification to both parties. 8 CFR 1003.1(k)(2)(iii). However, the
                Department disagrees with commenters' argument that the parties should
                have opportunities for objections and additional briefing at the time
                of certification, particularly because the case was likely already
                briefed to the Board prior to the certification to the Director. The
                certification procedures allow immigration judges to quickly determine
                a potential error by the BIA and to timely seek a remedy to that error,
                all without placing an additional burden on the parties. The Department
                determined that the current incomplete and piecemeal system of various
                parties filing various motions or appeals was cumbersome, time
                consuming, and may not fully address the error. 85 FR at 52502. Adding
                time for objections and briefs, as suggested by some commenters, would
                morph the process in the rule into a portion of what it was created to
                avoid: A cumbersome and time consuming process. Moreover, regardless of
                whether the Director returns the case to the immigration judge or to
                the Board, the parties will have an opportunity to raise appropriate
                arguments or issues before a final decision is rendered. Nevertheless,
                the Department recognizes that in discrete cases, additional briefing
                or filings may be helpful to the Director in reviewing a certified
                case. Accordingly, the final rule provides that the Director, in his or
                her discretion, may request additional briefs or filings from the
                parties when reviewing a certified case through the quality-control
                process.
                 Additionally, the Department rejects any claim that the immigration
                judges are acting as advocates and would thus have to recuse
                themselves. Again, this assertion suggests that immigration judges will
                behave unethically or partially in violation of regulations and their
                code of conduct. 8 CFR 1003.10 (``In all cases, immigration judges
                shall seek to resolve the questions before them in a timely and
                impartial manner consistent with the Act and regulations.'') (emphasis
                added)); 5 CFR 2635.101(b)(8) (``Employees [of the federal government]
                shall act impartially and not give preferential treatment to any
                private organization or individual.''); IJ Ethics and Professionalism
                Guide at sec. V (``An Immigration Judge shall act impartially and shall
                not give preferential treatment to any organization or individual when
                adjudicating the merits of a particular case.''); see also Chem.
                Found., Inc., 272 U.S. at 14-15 (``The presumption of regularity
                supports the official acts of public officers, and, in the absence of
                clear evidence to the contrary, courts presume that they have properly
                discharged their official duties.''). The Department categorically
                rejects this suggestion.
                 In the context of the quality assurance process, the immigration
                judge is flagging an issue and relaying it to the Director for
                examination. While the immigration judge is required to ``specify the
                regulatory basis for the certification and summarize the underlying
                procedural, factual, or legal basis,'' this is necessary to relay the
                immigration judge's determination of error by the BIA to the Director
                in order to both qualify for certification and to expedite the process.
                Moreover, this process is substantively similar to the existing
                certification process utilized by immigration judges for many years, 8
                CFR 1003.7. Commenters did not provide any evidence that this existing
                process has raised questions about immigration judges becoming
                advocates, and the Department is unaware of any.
                 Regarding commenters' concerns about the Department not supporting
                the rule with data, the Department notes that such quality assurance
                issues are not subject to tracking or amenable to particular data
                points. For instance, commenters did not indicate how the Department
                would measure the ``correctness'' of Board remand decisions in order to
                calculate the data they sought, and the Department is unaware of any
                metric for measuring the ``correctness'' or ``appropriateness'' of
                remand decisions by an appellate court.\50\ Further, since no quality
                assurance system is currently in place, there is no baseline for data
                to provide. Moreover, even without specific further data, the
                Department is still well within its authority to create a certification
                process that ensures the quality of BIA decisions. 8 CFR
                1003.0(b)(1)(ii).
                ---------------------------------------------------------------------------
                 \50\ Whether the result of a case is ``correct''--e.g., whether
                an application or appeal should have been granted or denied--is
                often solely based on the narrative seeking to be advanced by the
                evaluator, and there is no accepted way of determining whether an
                adjudicator's decision is normatively ``correct.'' See Barry C.
                Edwards, Why Appeals Courts Rarely Reverse Lower Courts: An
                Experimental Study to Explore Affirmation Bias, 68 Emory L.J. On.
                1035, 1046 (2019) (``Given a sample of . . . court cases, no
                researcher could practically determine what the courts got `right'
                and what they got `wrong.' There is no reliable method of coding how
                cases ``should'' have been decided and, thus, no reliable way of
                assessing whether the [decision] rate is `too high' using
                observational data.'').
                ---------------------------------------------------------------------------
                 Commenters are incorrect that the quality assurance certification
                procedures are incompatible with the restriction on the BIA's
                consideration of new evidence. In order for a case to be certified, the
                BIA decision must have clearly not considered ``a material factor
                pertinent to the issue(s) before the immigration judge.'' Id. Sec.
                1003.1(k)(1)(iv). The only such material factors would be those that
                were already before the judge and, accordingly, not new evidence before
                the BIA only at the appeal. Thus, no new evidence that the BIA was
                barred from considering based on the regulations would amount to a
                ``material factor'' before an immigration judge.
                 As to a commenter's assertion that there must be an easier way to
                correct typographical errors, the Department notes that the
                certification process involves more than just typographical errors. The
                quality assurance provisions are designed to address wider examples of
                quality concerns at the BIA level, of which typographical errors are
                just one kind.\51\
                ---------------------------------------------------------------------------
                 \51\ Further to the commenter's point, the Department notes that
                because the BIA retains sua sponte authority to reconsider a
                decision to correct a typographical error under this rule, 8 CFR
                1003.2, situations in which an immigration judge may use this
                quality assurance process on that basis alone should be extremely
                rare.
                ---------------------------------------------------------------------------
                 Further, while the Department appreciates commenters suggestions
                for other methods to meet the Department's quality assurance goals,
                such as suggestions that the Department make BIA decisions public,\52\
                increase three-member panel decisions, or increase the number of
                detailed and reasoned precedential decisions, the Department finds that
                they would not provide an efficient and accurate process to ensure that
                BIA decisions are dispositive and accurate. Instead, such suggestions
                represent a continuation of the status quo rather than the real
                introduction of new procedures for immigration judges to bring issues
                to the forefront for consideration. Moreover, commenters did not
                explain how increased three-member panel decisions or an increased
                number of precedential decisions, both actions by the BIA, would
                improve quality in each individual BIA adjudication or how such actions
                [[Page 81628]]
                address immigration judge concerns about the quality of BIA decisions.
                ---------------------------------------------------------------------------
                 \52\ The Department notes that this suggestion suffers from an
                additional infirmity. Due to privacy restrictions and
                confidentiality regulations, e.g., 8 CFR 1208.6, the Department
                cannot simply make all BIA decisions public without redactions, and
                the requirement for redactions would necessarily inhibit the ability
                to determine whether those decisions were of appropriate quality.
                Further, the Department notes that many BIA decisions are already
                available through commercial databases, but that availability has
                not ensured that the Board issues a quality or correct decision in
                every case.
                ---------------------------------------------------------------------------
                 Finally, to the extent that most, if not all, commenters focused on
                how this process would affect cases of aliens, the Department
                reiterates that it would affect both parties equally. Moreover, many
                commenters appear to not have recognized that the process is primarily
                designed for EOIR's adjudicators and to improve quality decisionmaking
                at both the trial and appellate levels, rather than being a process
                designed to favor one party over another.
                k. Removal of Sua Sponte Motion To Reopen Authority (8 CFR 1003.2(a),
                1003.23(b)(1))
                i. Due Process Concerns
                 Comment: Commenters opposed the rule's removal of the BIA and
                immigration judge's authority to sua sponte reopen proceedings.
                Commenters alleged that the Department failed to consider due process
                and explained that sua sponte authority was a ``vital tool'' for
                ``curing errors and injustices'' that may have occurred during removal
                proceedings. Further, commenters explained that even if a BIA member
                saw good reason to reopen a case, such as in the case of an untimely or
                number-barred motion to reopen, the member would be unable to do so
                without the sua sponte authority.
                 Response: As an initial point, the Department notes that several
                courts have acknowledged that sua sponte reopening (or the lack
                thereof) cannot implicate due process rights because it is entirely
                discretionary, so there is no liberty interest in it that would
                implicate any of an alien's rights in proceedings. See, e.g., Mejia v.
                Whitaker, 913 F.3d 482, 490 (5th Cir. 2019); Gyamfi v. Whitaker, 913
                F.3d 168 (1st Cir. 2019); Salgado-Toribio v. Holder, 713 F.3d 1267,
                1271 (10th Cir. 2013); see also Matter of G-D-, 22 I&N Dec. 1132, 1137
                (BIA 1999) (``We see no procedural due process concerns arising from
                our discretionary decision declining to exercise our independent
                reopening powers on behalf of the respondent. The respondent's right to
                a full and fair hearing on his asylum claim has not been
                compromised.'').
                 As explained in the NPRM, sua sponte authority is entirely a
                creature of regulation based on a delegation of authority from the
                Attorney General. 8 CFR 1003.2(a), 1003.23(b)(1); see also 85 FR at
                52504. It is also not the only tool available to address possible
                errors in immigration proceedings; thus, removal of sua sponte
                authority, in and of itself, does not constitute a violation of due
                process.
                 In addition, commenters confuse sua sponte authority with motions
                to reopen. Filing a motion to reopen, regardless of whether it is time
                or number-barred as commenters describe, does not invite the BIA to
                exercise sua sponte authority; it requests the BIA to reopen a
                proceeding in response to the motion. See Malukas v. Barr, 940 F.3d
                968, 969 (7th Cir. 2019) (``Reopening in response to a motion is not
                sua sponte; it is a response to the motion and thus subject to the
                time-and-number limits.''). Thus the rule's removal of sua sponte
                authority does not itself preclude the BIA from reopening a case in
                accordance with applicable law. See, e.g., 8 CFR 1003.2(c)(3)(iii),
                1003.23(b)(4)(iv). Rather, it ensures that reopening occurs in
                meritorious situations authorized by statute or regulation, rather than
                through the BIA's subjective and largely unchecked view of what
                constitutes an exceptional circumstance. Accordingly, contrary to
                commenters' assertions, the rule promotes fairness due to ``the lack of
                a meaningful standard to guide a decision whether to order reopening or
                reconsideration of cases through the use of sua sponte authority, the
                lack of a definition of `exceptional situations' for purposes of
                exercising sua sponte authority, the resulting potential for
                inconsistent application or even abuse of this authority, the inherent
                problems in exercising sua sponte authority based on a procedurally
                improper motion or request, and the strong interest in finality'' by
                withdrawing an authority subject to inconsistent and potentially
                abusive usage. 85 FR at 52505.
                 Further, as discussed in the NPRM, the Department recognizes that
                the BIA has, in the past, exercised what it termed ``sua sponte
                authority'' in response to a motion and, arguably, contrary to law. 85
                FR at 52504 n.31 (``Despite this case law to the contrary, the Board
                has sometimes granted motions using what it erroneously labels as `sua
                sponte' authority.''). To the extent that the commenters oppose the
                change in this practice--particularly based on the perception that it
                favors aliens--the Department has acknowledged that the rule would no
                longer provide an avenue for the Board to use its sua sponte authority
                to grant a motion to use such authority. Indeed, one of the reasons
                stated for the rule was ``the inherent problems in exercising sua
                sponte authority based on a procedurally improper motion or request.''
                Id. at 52505. The rule seeks to end the practice of the Board taking
                allegedly sua sponte action in response to a motion and to thereby
                reduce the incentive for filing such procedurally improper motions. Id.
                 In short, the rule returns the focus on motions to reopen to the
                merits of the motions themselves and the applicable law, rather than
                the BIA's subjective and inconsistent invocation of its sua sponte
                authority. Finally, as discussed, supra, and noted in the NPRM, the
                Supreme Court has recognized that ``the BIA is simply a regulatory
                creature of the Attorney General, to which he has delegated much of his
                authority under the applicable statutes.'' Id. at 52492 n.1 (quoting
                Doherty, 502 U.S. at 327 (1992)). Accordingly, to the extent that the
                Attorney General can delegate authority to the BIA, he can also
                unquestionably remove that delegation. The removal of such authority,
                which is solely the Attorney General's to delegate, does not violate
                due process.
                 Comment: Similarly, commenters were concerned that the rule would
                foreclose reopening the cases of respondents who later became eligible
                for relief, providing some of the following examples: An approved
                immediate immigrant relative petition, an approved application for SIJ
                status, an approved application for U visa status, or derivative asylum
                status through a spouse or parent. Commenters noted that these
                applications typically take years to adjudicate. Commenters were also
                concerned that the rule would deny protection to the most vulnerable
                populations in immigration proceedings, such as by foreclosing
                reopening the cases of respondents who were victims of fraud or
                ineffective assistance of counsel, non-English speakers or others with
                language barriers, and children who failed to appear for their hearings
                by no fault of their own. One commenter further described the effects
                on unaccompanied alien children (``UAC'') generally, explaining that
                sua sponte authority was an important safeguard to protect children
                because critical details and information in children's cases typically
                emerge over time.
                 At least one commenter alleged that the Department purposefully
                promulgated these provisions as an ``attack'' on asylum seekers and
                migrants.
                 As with other provisions of the rule, commenters explained that the
                Department should not remove the sua sponte authority because
                ``fairness is more important than finality'' or quick removals.
                 Response: As an initial point, the Department notes that many of
                its responses to comments regarding the withdrawal of the BIA's
                certification authority discussed, supra, are equally
                [[Page 81629]]
                applicable to comments regarding the withdrawal of sua sponte reopening
                authority. On balance, the inconsistent application of such authority,
                even with a well-established standard, and the existence of equally
                functional alternatives, particularly as equitable tolling has advanced
                as a doctrine to extend filing deadlines for motions to reopen,
                militate in favor of removing the Attorney General's delegation of such
                authority.
                 The Department did not promulgate this rule as an attack on anyone.
                As discussed herein, the rule applies equally to DHS and respondents,
                it applies to all types of cases (not just asylum cases), and it
                addresses significant issues of inconsistent adjudications and
                efficiency, among others. Commenters generalized policy disagreements
                with the rule do not effectively engage with its provisions and, thus,
                do not provide a useful basis for the Department to respond.
                 In general, commenters' concerns that respondents will be unable to
                reopen their cases without the BIA's sua sponte authority are based on
                an erroneous understanding or assumption that respondents are entitled
                to such a reopening. The Department emphasizes that the vehicle by
                which such respondents should seek reopening is a motion to reopen. See
                Malukas, 940 F.3d at 969 (``Reopening in response to a motion is not
                sua sponte; it is a response to the motion and thus subject to the
                time-and-number limits.''). The Attorney General has already determined
                that sua sponte authority may not be used to circumvent timing and
                numerical limits, see Doherty, 502 U.S. at 323; INS v. Abudu, 485 U.S.
                94, 107 (1988). Further, Congress included such limitations to promote
                finality in proceedings. Matter of Monges-Garcia, 25 I&N Dec. 246, 250
                (BIA 2010) (explaining that, by requiring the Department to promulgate
                motion time and number limits by regulation as part of the Immigration
                Act of 1990, ``Congress clearly intended that the time and number
                limitations on motions would further the statute's purpose of bringing
                finality to immigration proceedings'').
                 Nevertheless, aliens who reach agreement with DHS regarding the
                validity of their changed claim may jointly file a motion to reopen
                with DHS regardless of the amount of time that has passed since the
                underlying final order. 8 CFR 1003.2(c)(3)(iii), 1003.23(b)(4)(iv). The
                rule does not affect that pre-existing exception to the time and number
                limitations on motions to reopen. In addition, the deadline for filing
                a motion to reopen by aliens who have been the victim of fraud,
                ineffective assistance of counsel, and other harms may be subject to
                equitable tolling. Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th
                Cir. 2015) (stating that the deadline for filing a motion to reopen is
                subject to equitable tolling).
                 Regarding commenters' concerns for UAC, the Department has
                considered whether there would be any specific impacts of the rule on
                UAC in particular--as distinguished from other categories of aliens--
                but has identified none. As discussed, supra, there is no right to a
                motion to reopen sua sponte for any classification of aliens, many
                aliens (not just UAC) are subject to remote visa priority dates, and
                many aliens (not just UAC) may become putatively eligible for relief
                well after their immigration proceedings have concluded. Commenters
                also did not identify any specific impacts on UAC that would not also
                fall on the general population of aliens in immigration proceedings.
                Moreover, even if the rule did have particular impacts on UAC, the
                Department finds that those impacts are far outweighed by the benefits
                provided the rule, namely more consistent application of the law, more
                efficient adjudication of cases, and a more appropriate emphasis on the
                importance of finality in immigration proceedings.
                 The Department further emphasizes that safeguards for UAC seeking
                asylum remain in place under provisions on motions to reopen that are
                premised on changed country conditions, see INA 240(c)(7)(C)(ii), 8
                U.S.C. 1229a(c)(7)(C)(ii); 8 CFR 1003.2(c)(3)(ii), 1003.23(b)(4)(i).
                Further, nothing in the rule singles out UAC for adverse treatment, and
                available avenues for untimely motions to reopen--e.g., joint motions
                and motions based on equitable tolling--continue to exist independent
                of the rule. The law does not guarantee UAC a right to sua sponte
                reopening, just as it does not guarantee any particular alien such a
                right for the reasons stated in this rule, and commenters did not point
                to any provision claiming such a right. For similar reasons,
                commenters' allegation that the generally applicable provision is
                specifically targeted at asylum-seekers, is without merit. The
                withdrawal of sua sponte authority applies to all cases and all
                parties, and it is well within the Attorney General's authority to
                withdraw a delegation of authority that he alone has provided.
                 Underlying many of the comments on this provision is a tacit claim
                that an alien who establishes eligibility for relief long after
                immigration proceedings have concluded--e.g., aliens whose visa numbers
                become current or who obtain the potential for derivative status--
                should be granted reopening sua sponte as a matter of right and that,
                accordingly, the rule will deprive such aliens of a ``right'' to reopen
                their cases and obtain relief from removal. This view, however, is
                unsupported by law in multiple ways and, thus, unpersuasive.
                 First, as discussed, supra, there is no right to reopening of a
                removal proceeding, and the Board may even deny a motion to reopen when
                the alien establishes a prima facie claim for relief. 8 CFR 1003.2(a)
                (``The Board has discretion to deny a motion to reopen even if the
                party moving has made out a prima facie case for relief.''). Second, as
                also discussed, supra, a motion to reopen sua sponte is an ``oxymoron''
                and represents an improper filing that should ordinarily be rejected.
                Third, Board case law makes clear that untimely motions to reopen to
                pursue adjustment of status should ordinarily be denied, indicating
                that it ordinarily would not exercise sua sponte reopening authority in
                such situations either. See Matter of Yauri, 25 I&N Dec. 103, 105 (BIA
                2009) (``We emphasize that untimely motions to reopen to pursue an
                application for adjustment of status, even for cases that do not
                involve an `arriving alien,' do not fall within any of the statutory or
                regulatory exceptions to the time limits for motions to reopen before
                the Board and will ordinarily be denied.'' (emphasis added)); cf.
                Vithlani v. Att'y Gen., 823 F. App'x 104, 105-06 (11th Cir. Aug. 10,
                2020) (``The BIA denied the motion [to reopen based on asserted
                eligibility for adjustment of status], finding that it was untimely and
                number-barred, and that it did not demonstrate an exceptional situation
                warranting sua sponte reopening. The BIA later also denied her motion
                to reconsider, stating that becoming eligible for adjustment of status
                was not an exceptional situation warranting the grant of an untimely
                motion to reopen. In 2019, Vithlani . . . . sought sua sponte
                reopening, again seeking to apply for adjustment of status. . . . The
                IJ denied Vithlani's motion to reopen . . . . stat[ing] that becoming
                eligible to adjust status was not uncommon. . . . [and finding] that
                the motion did not demonstrate an exceptional situation to warrant sua
                sponte reopening.'').
                 The Department emphasizes that, as stated throughout this final
                rule, the changes to Board procedures are intended to promote
                consistency and efficiency in proceedings. To the extent that
                commenters assert as a policy matter that the Board should retain sua
                sponte authority solely as a vehicle for aliens to file motions seeking
                to evade
                [[Page 81630]]
                the usual time and number limitations and possibly delay removal, cf.
                Doherty, 502 U.S. at 323 (``[A]s a general matter, every delay works to
                the advantage of the deportable alien who wishes merely to remain in
                the United States.''), or that the Department should not seek to
                correct the inconsistent and potentially inappropriate usage of that
                authority, the Department finds such policy arguments unpersuasive for
                the reasons given in the NPRM and this final rule.
                 Further, commenters are incorrect that the respondents whom they
                alleged would be unable to reopen their cases if the BIA can no longer
                exercise sua sponte authority. As discussed in the NPRM, 85 FR at
                52504-05 and supra, those respondents are not truly requesting that the
                BIA exercise sua sponte authority; in actuality, they seek a response
                to their filed motion. See Salazar-Marroquin v. Barr, 969 F.3d 814, 816
                n.1 (7th Cir. 2020) (``Describing the motion as seeking a `sua sponte'
                reopening is a common but unfortunate misnomer and even an oxymoron.
                Board action on a motion would not be sua sponte.''). Nothing in the
                rule prohibits the BIA from adjudicating motions to reopen filed by
                aliens in accordance with well-established principles of law.
                 Further, the Attorney General has already determined that sua
                sponte authority may not be used to circumvent timing and numerical
                limits. Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997). Thus, to the
                extent that commenters assert sua sponte authority has been used to
                circumvent those limits previously, the BIA's prior failure to follow
                the law in individual cases is not a compelling or persuasive reason to
                retain such authority. To the contrary, it would further reinforce the
                Department's decision to remove the delegation of such authority.
                Additionally, contrary to commenters' concerns, regulations at 8 CFR
                1003.2(c)(3), 1003.23(b)(4)(iv), 214.11(d)(9)(ii), and
                214.14(c)(5)(i)--in addition to the ability to file a joint motion to
                reopen, 8 CFR 1003.2(c)(3)(iii)--would continue to provide exceptions
                to the time and numerical limits in appropriate cases, and none of
                those are affected by this rulemaking. Similarly, the availability of
                equitable tolling in particular cases, which many commenters did not
                acknowledge, would also allow aliens the ability to evade strict
                adherence to statutory time limitations.
                 Other than highlighting its incorrect usage to evade time and
                number limitations contrary to Matter of J-J-, commenters did not
                explain how the withdrawal of sua sponte authority would affect any
                discrete populations, particularly when those populations could not
                file a putative motion to reopen sua sponte in the first instance. As a
                delegation of procedural authority, sua sponte reopening authority does
                not apply differently to different types of cases; accordingly, its
                withdrawal will not affect any specific populations.
                 Finally, to the extent commenters alleged that the withdrawal of
                sua sponte authority would impact aliens with in absentia removal
                orders, the Department notes there is already no time limit on such
                motions if they are based on a lack of notice. INA 240(b)(5)(C)(ii), 8
                U.S.C. 1229a(b)(5)(C)(ii). Thus, the withdrawal of sua sponte authority
                would not affect the ability of an alien to file a motion to reopen an
                in absentia removal order based on a lack of notice. Similarly, an
                alien who fails to appear due to exceptional circumstances may file a
                motion to reopen any resulting in absentia removal order within 180
                days. INA 240(b)(5)(C)(i), 8 U.S.C. 1229a(b)(5)(C)(i). Commenters did
                not explain why an alien who failed to appear due to exceptional
                circumstances would wait longer than 180 days to file such a motion,
                and the Department declines to speculate as to such reasons.
                Nevertheless, the Department notes that even in that unlikely
                situation, an alien may seek to have the 180-day deadline equitably
                tolled. In short, the withdrawal of sua sponte reopening authority has
                no impact on existing and well-established avenues for aliens to reopen
                in absentia removal orders.
                ii. Limited Current Use and Abuse of Authority
                 Comment: Commenters generally opposed the Department's removal of
                sua sponte authority, stating that the Department did not provide any
                specific examples of abuse in the rule and that immigration judges or
                BIA members do not need much time to consider requests to reopen.
                 Commenters explained that immigration judges and BIA members
                currently use sua sponte authority sparingly and only for the most
                compelling cases. Accordingly, the commenter believes that the
                authority is neither abused by adjudicators nor evidence of finality
                issues as the rule suggested.
                 Commenters stated further that there was no reason to believe that
                adjudicators could not properly apply the appropriate standards for sua
                sponte reopening.
                 Response: As the Departments explained in the NPRM, use of sua
                sponte authority facilitates inconsistent application and possible
                abuse, due to the lack of a meaningful standard to evaluate the use of
                sua sponte authority, see 85 FR at 52505 (collecting cases); the lack
                of a definition for ``exceptional circumstances'' required to exercise
                such authority; and, the problems resulting from a procedurally
                improper motion or request. Contrary to commenters' assertions, the
                Department did provide examples of cases in which sua sponte authority
                appears to have been improperly used. Id. Considering all of those
                reasons together, the Department determined that use of sua sponte
                authority severely undermines finality in immigration proceedings, see
                85 FR at 52493, in which there lies a strong public interest in
                bringing litigation to a close, consistent with providing a fair
                opportunity to the parties to develop and present their cases. See
                Abudu, 485 U.S. at 107.
                 Comment: Commenters alleged that immigration judges and the BIA
                ``frequently have unfettered discretion in deciding when to order
                removal proceedings.'' Accordingly, the commenters explained that
                removing sua sponte authority due to concerns of abuse of such
                authority was ``laughable.''
                 The commenters further explained that removing such authority would
                exacerbate the backlog because BIA members would be unable to remand a
                case to further develop the facts, which another commenter asserted
                would conflict with Congress and the Attorney General's trust in the
                BIA and immigration judges ``to intervene in cases where fundamental
                fairness and the interests of justice so warrant.'' Similarly,
                commenters alleged that the Department failed to explain in the rule
                why speed in this context was not favored, given that sua sponte action
                would be faster than waiting for a motion to reopen. Commenters
                explained that removing such authority would increase the number of
                appeals and the BIA's workload.
                 Response: The Department does not have ``unfettered discretion'' in
                regard to removal proceedings. As an initial matter, EOIR's
                jurisdiction in proceedings is bound by the INA and the regulations.
                See, e.g., INA 240, 8 U.S.C. 1229a. Second, immigration judges exercise
                independent judgement and discretion in applying applicable law and
                regulations. See 8 CFR 1003.10(b), 1240.1(a). Likewise, BIA members
                resolve issues before them in a manner that is timely, impartial, and
                consistent with applicable law and regulations, in an exercise of their
                independent judgment and discretion. See 8 CFR 1003.1(d)(1)
                introductory
                [[Page 81631]]
                text, (d)(1)(ii). Nevertheless, the authority of immigration judges and
                Board members to reopen cases is circumscribed by law, and neither
                class of adjudicator possesses free-floating authority to reopen cases
                in contravention of established law or in the absence of clear legal
                authority.
                 The Department's decision to withdraw sua sponte authority would
                not exacerbate the backlog, and the Department finds this particular
                comment somewhat illogical. By definition, sua sponte authority to
                reopen a case would apply only to cases that are already
                administratively final and, thus, not part of the pending caseload. In
                fact, also by definition, the continued use of sua sponte authority
                would necessarily increase the pending caseload because it would allow
                the Board to reopen proceedings even in cases in which there was
                otherwise no legal basis to do so. Similarly, there is no basis to
                believe that withdrawing sua sponte reopening authority would increase
                the number of appeals to the Board because, again, that authority would
                only be used for a case that is already final and, thus, not subject to
                further appeal.
                 The commenter's concern about speed is also misplaced. The
                Department's withdrawal of sua sponte authority does not indicate that
                the Department favored speed in this context. Rather, the Department
                explained the multitude of reasons, considered together, that prompted
                its decision. See generally 85 FR at 52505-06. These reasons invoke
                concerns over finality and consistency, which are distinct from speed.
                Further, regardless of whether sua sponte reopening or a motion to
                reopen is ``faster'' to adjudicate in the abstract--a question for
                which the Department does not believe an appropriate metric exists--the
                need to manage the inappropriate and inconsistent use of sua sponte
                reopening authority would outweigh whatever marginal ``speed'' benefits
                may be obtained from its usage. In other words, the expediency of the
                usage of sua sponte authority does not outweigh the need to ensure its
                correct and consistent application.
                iii. Standard of Review
                 Comment: Commenters disagreed with the rule's assertion that
                Federal circuit courts had no meaningful standard of review with which
                to review an exercise of sua sponte authority. Rather, the commenters,
                citing Lenis v. United States, 525 F.3d 1291, 1292 (11th Cir. 2008),
                explained that the Federal circuit courts declined to review because
                they lacked jurisdiction.
                 Commenters nevertheless disagreed that the Department was unable to
                check inconsistencies or abuses that may result from the exercise of
                sua sponte because they asserted that the Attorney General could review
                BIA decisions regarding whether to exercise sua sponte authority
                instead.
                 Response: The Department agrees with the commenters that the court
                in Lenis declined to review for lack of jurisdiction; however, that
                court explained that it lacked such jurisdiction under 5 U.S.C.
                701(a)(2), which prohibits judicial review of decisions ``committed to
                agency discretion.'' Lenis, 525 F.3d at 1293. The court explained this
                exception was extremely narrow, applicable only where ``statutes are
                drawn in such broad terms that in a given case there is no law to
                apply.'' Id. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe,
                401 U.S. 402, 410 (1971)). The court explained that:
                [n]either the statute nor the regulation at issue today provides any
                ``meaningful standard against which to judge the agency's exercise
                of discretion.'' Indeed, no statute expressly authorizes the BIA to
                reopen cases sua sponte; rather, the regulation at issue derives
                from a statute that grants general authority over immigration and
                nationalization matters to the Attorney General, and sets no
                standard for the Attorney General's decision-making in this context.
                Id. Accordingly, that case supports the Department's position that no
                meaningful standard exists, which prompted, in part, the Department's
                decision to withdraw this authority.
                 Further, as discussed, supra, regarding the Board's certification
                authority, precedential decisions, including by the Attorney General,
                e.g., Matter of J-J-, 21 I&N Dec. at 984, have been ineffective at
                checking inconsistent or abusive usages of sua sponte authority. Thus,
                the Department finds that further Attorney General review of such
                authority would not necessarily address the concerns regarding its use.
                Moreover, the current--and comparatively inefficient--case-by-case
                nature of determining ``exceptional circumstances,'' the inconsistent
                application of that standard and its consideration through an open-
                ended and largely subjective lens by Board members and immigration
                judges, and the lack of an effective and efficient corrective measure
                for addressing improper reopenings under that authority (e.g., in
                response to a motion or to cure filing defects or circumvent
                regulations), all make the subject of sua sponte reopening authority
                both ripe for rulemaking and, ultimately, withdrawal of such authority.
                See Lopez v. Davis, 531 U.S. 230, 244 (2001) (observing that ``a single
                rulemaking proceeding'' may allow an agency to more ``fairly and
                efficiently'' address an issue than would ``case-by-case
                decisionmaking''); Marin-Rodriguez v. Holder, 612 F.3d 591, 593 (7th
                Cir. 2010) (``An agency may exercise discretion categorically, by
                regulation, and is not limited to making discretionary decisions one
                case at a time under open-ended standards.'').
                 Comment: Commenters explained that, under Ekimian v. INS, 303 F.3d
                1153, 1158 (9th Cir. 2002), sua sponte decisions are not reviewable
                simply as a result of their discretionary nature, which the commenter
                alleged was not a reasonable or sufficient justification to retract the
                authority since other discretionary matters were not so scrutinized.
                 Response: Sua sponte authority is distinct from other discretionary
                forms of relief. As aptly explained in Lenis, sua sponte authority is
                subject to an exception prohibiting judicial review, 5 U.S.C.
                701(a)(2), because the statute from which it derives is ``drawn in such
                broad terms that in a given case there is no law to apply.'' 525 F.3d
                at 1293 (quoting Citizens to Preserve Overton Park, Inc., 401 U.S. at
                410). Other forms of discretionary relief, such as asylum, do not meet
                this exception. Accordingly, the commenters' comparison of sua sponte
                authority to any other discretionary form of relief is incorrect;
                moreover, the Department did not justify withdrawing sua sponte
                authority based solely on its discretionary nature, though that nature
                has contributed to inconsistent application.
                 Comment: Commenters explained that the Department's citations to
                circuit court decisions upholding the denial of a request for sua
                sponte reopening does not support the Department's concern that the sua
                sponte authority is being abused; instead, the commenters contend that
                those cases demonstrate that immigration judges and the BIA are
                applying the BIA's precedents limiting the use of that authority to
                truly exceptional situations. Commenters further explained that courts
                have only limited jurisdiction to review the BIA's decision not to use
                its sua sponte authority to reopen a case based on legal or
                constitutional errors. Accordingly, the commenters asserted that the
                BIA's decision on sua sponte authority is generally final and thus does
                not contribute to inefficiencies in the immigration courts or the BIA.
                 Response: The Department's reference to circuit court decisions in
                the NPRM, 85 FR at 52505, was not meant to
                [[Page 81632]]
                demonstrate abuse of the authority. Instead, the Department collected
                cases to underscore the fact that, generally, ``no meaningful standards
                exist to evaluate the BIA's decision not to reopen or reconsider a case
                based on sua sponte authority.'' Id. Moreover, commenters did not
                acknowledge that DHS lacks authority to appeal BIA decisions to Federal
                court; accordingly, there necessarily will be few circuit court
                decisions holding that the BIA abused its sua sponte authority in
                reopening a case in which reopening inured to the benefit of the
                alien.\53\
                ---------------------------------------------------------------------------
                 \53\ Consistent with the general tenor of comments focusing only
                on the rule's alleged impact on aliens, commenters also failed to
                acknowledge that the Board has exercised sua sponte authority in
                response to motions filed by DHS. See, e.g., Chehazeh v. Att'y Gen.,
                666 F.3d 118, 124 (3d Cir. 2012). In such circumstances at least one
                circuit court has questioned whether the Board's decision to
                exercise sua sponte authority was an abuse of that authority. Id. at
                140 (``The BIA has plainly stated that its sua sponte authority is
                not designed to `circumvent the regulations.' Matter of J-J-, 21 I&N
                Dec. at 984. That authority may, of course, have the effect of
                circumventing the regulations when an exceptional situation calls
                for it, but wherever the line between an unexceptional situation and
                an exceptional situation lies, we wonder whether--on this record--
                this case is near it.'').
                ---------------------------------------------------------------------------
                 Commenters are correct that some courts have held that there is
                jurisdiction to review the BIA's denial of a motion to reopen sua
                sponte for constitutional or legal error. However, the Department's
                finality and consistency concerns still stand--absent the rule, sua
                sponte authority may still be exercised by either immigration judges or
                the BIA in an inconsistent or inappropriate manner, which undermines
                the importance of decisional finality. Moreover, the acknowledged lack
                of meaningful standards invites inconsistent application which is at
                odds with both decisional finality and principle of treating similar
                cases in a similar manner. Given all of these issues and understanding
                commenters' concerns, the Department maintains that withdrawing sua
                sponte authority, on balance, represents an appropriate course of
                action.
                iv. Obligations Under International and Domestic Law and Treaties
                 Comment: Various commenters stated that removing sua sponte
                authority violated the United States' obligations under international
                law, specifically the American Declaration, to ``protect and preserve
                the rights of individuals (both U.S. citizens and noncitizens) to
                establish a family.'' Commenters explained that ``refugee law''
                provides for a `` `refugee sur place,' meaning that something has
                changed to create a fear of return to the country of origin.''
                Commenters stated that sua sponte authority allowed for reopening such
                cases and other related circumstances. Commenters explained that sua
                sponte authority facilitates compliance with the UN Protocol and
                Convention Relating to the Status of Refugees, the UN Convention
                Against Torture (CAT), and the TVPRA because adjudicators may reopen
                cases in which newly discovered or previously unavailable material
                evidence relevant to a persecution claim is discovered more than 90
                days after a decision becomes administratively final. Accordingly, the
                commenters alleged that refoulement would increasingly occur.
                Commenters also explained that removing sua sponte authority conflicted
                with UNHCR guidelines that provide that an applicant should ``not be
                prohibited from presented new evidence at the appeals stage.''
                Commenters reasoned that sua sponte authority may be an alien's only
                way to present new evidence on appeal, thus, removal of such authority
                would conflict with the UNHCR guidelines.
                 Response: As an initial point, as discussed, supra, an alien has no
                right to file a ``motion to reopen sua sponte,'' and such a motion is
                an ``oxymoron.'' See Malukas, 940 F.3d at 970. To the extent that
                commenters assert that the withdrawal of sua sponte authority infringes
                upon such a right, they are simply mistaken as a matter of law.
                Further, no domestic law or international convention enshrines a right
                to sua sponte reopening, and the withdrawal of such authority, which
                exists solely through a delegation from the Attorney General, does not
                contravene any binding body of law.
                 Further, because the rule does not foreclose other mechanisms that
                may be used as exceptions to time and number limits, as discussed,
                supra, withdrawal of sua sponte authority does not constitute denial of
                protection for particular populations, nor does it contradict the
                United States' obligations under international and domestic law and
                various treaties. The United States continues to fulfill its
                obligations under international and domestic law, including the 1967
                Protocol, the CAT, the TVPRA, and any other applicable treaties. This
                rulemaking does not violate those obligations. Moreover, this rule does
                not affect the ability of aliens to file a motion to reopen to apply
                for asylum or statutory withholding of removal based on changed country
                conditions and supported with new, material evidence. INA
                240(c)(7)(C)(ii), 8 U.S.C. 1229a(c)(7)(C)(ii). Further, the Department
                continues to provide all aliens, including refugees and children, a
                meaningful opportunity to resolve their claims, in accordance with
                applicable law, regulations, and obligations under international law.
                In short, this rule does nothing to restrict an alien's ability to seek
                asylum, statutory withholding of removal, or other protections as
                permitted by statute and regulation.
                v. Alternatives to Sua Sponte Authority
                 Comment: Commenters disagreed with the rule's assertion that a
                joint motion to reopen was a viable alternative to sua sponte authority
                because, as commenters explained, DHS and immigrants are ``rarely in
                agreement'' in regard to motions to reopen. The commenters explained
                that the joint motion process places ultimate authority to reopen or
                reconsider a case on DHS, which is not the case with sua sponte
                requests; thus, the joint motion was not an equitable alternative.
                 Commenters explained that removing sua sponte reopening while at
                the same time removing the BIA's ability to remand a case for
                consideration of new evidence presented by the respondent, instead
                instructing the respondent to file a motion to reopen, was particularly
                ``harsh.'' Further, commenters averred that the Department could not
                claim there were ``sufficient avenues available'' to present claims for
                relief when the Department had both restricted the BIA's ability to
                remand a case and had eliminated sua sponte reopening.
                 Commenters explained that although the rule mentions the ability to
                toll the time and number limitations on motions to reopen, equitable
                tolling and the Department's procedures for motions to reopen are
                difficult for lawyers, much less pro se parties, to understand.
                Accordingly, commenters claimed that equitable tolling and motions to
                reopen were not viable avenues for relief.
                 Commenters suggested that instead of removing sua sponte authority,
                the Department should define ``exceptional circumstances.'' The
                commenters explained that this would preserve the flexibility
                associated with sua sponte action while also providing the circuit
                courts with a meaningful standard of review to review sua sponte
                reopening or reconsideration. Commenters explained that although
                exercising sua sponte authority should be rare, it was ``worthy of
                consideration,'' especially in cases where DHS does not oppose the
                motion to reopen. Commenters suggested that the BIA and the immigration
                judges could reject ``improper invitations'' to invoke sua sponte
                authority, rather than remove the authority altogether. One commenter
                [[Page 81633]]
                explained that the rule's failure to consider these alternatives
                renders the rule arbitrary and capricious in violation of the APA.
                 Response: The Department maintains that the rule does not disturb
                various viable alternatives to sua sponte authority. Indeed, the
                Department reiterates that respondents have no right to an
                adjudicator's sua sponte exercise of authority and that a motion to
                reopen sua sponte is an ``oxymoron.'' See Malukas, 940 F.3d at 970.
                Although the contours of such alternatives may differ to some extent
                from sua sponte authority, the alternatives noted remain viable
                alternatives for aliens, both with and without representation. 85 FR at
                52505-06. Aliens may seek a motion to reopen under well-established
                statutory and regulatory procedures, including to submit a new
                application for relief or protection. They may seek a joint motion with
                DHS. They may seek equitable tolling of time limitations, as
                appropriate, based on case law. The rule itself codifies new exceptions
                to time and number limitations for motions to reopen. 8 CFR
                1003.1(c)(3)(v). Thus, there remain multiple, significant avenues for
                an alien to have his or her case reopened as appropriate.
                 Regarding commenters' assertion that removing sua sponte reopening
                while at the same time removing the BIA's ability to remand a case for
                consideration of new evidence presented by the respondent, instead
                instructing the respondent to file a motion to reopen, was particularly
                ``harsh,'' the Department again reiterates both that an alien has no
                right to sua sponte reopening and that the concept of a motion to
                reopen sua sponte is an oxymoron. Thus, the withdrawal of the
                delegation of the BIA's sua sponte reopening authority is not
                ``harsh''--regardless of any other changes--because there is no right
                to the exercise of such authority in the first instance. Moreover, as
                discussed, supra, multiple avenues remain for an alien to have his or
                her case reopened as appropriate. Further, an alien who wished to
                submit additional evidence during the pendency of an appeal would
                presumably be able to submit that evidence with a motion to reopen
                within the applicable time period for such a motion and, thus, would
                have no need to avail himself of the BIA's sua sponte authority. In
                short, the Department disagrees with commenters that it changes are
                ``harsh'' and further notes that any alleged ``harshness'' is
                outweighed by the benefits provided by the rule discussed herein.
                 The rule does not affect the alien's ability to argue for equitable
                tolling of a time limit or to seek a joint motion with DHS. The alleged
                difficulty of arguments for equitable tolling is belied by the
                frequency with which it has been argued before the BIA and Federal
                courts, and every Federal court to have considered the issue has found
                it to be applicable to deadlines for motions to reopen. See, e.g.,
                Avila-Santoyo v. U.S. Att'y Gen., 713 F.3d 1357, 1364 (11th Cir. 2013)
                (per curiam) (collecting cases). Furthermore, one commenter's
                suggestion that sua sponte authority should be used when DHS does not
                oppose a motion to reopen--though, as noted, supra, sua sponte
                authority is not exercised in response to a motion--actually suggests
                that a joint motion with DHS would be a viable alternative, at least in
                the case identified by the commenter.
                 The Department also considered the alternatives advanced by
                commenters. As discussed elsewhere, a standard for ``exceptional
                circumstances'' has existed since 1997, Matter of J-J-, 21 I&N Dec. at
                984, but that standard has not prevented inconsistent or improper usage
                of sua sponte authority. Thus, the Department does not believe that
                further elaboration of that standard would address the concern. Because
                sua sponte authority is not properly exercised in response to a motion
                or ``invitation,'' 85 FR at 52504-05, the Department does not see how
                limiting the use of such authority to only ``proper'' invitations would
                be appropriate, even if it could devise a workable and consistently
                applied distinction between ``proper'' and ``improper'' invitations.
                Similarly, situations in which DHS does not oppose a motion to reopen
                are not appropriate for the exercise of sua sponte authority because
                such authority is not exercised in response to a motion. Id. Rather,
                such situations appear amenable to a joint motion which the rule does
                not alter. 8 CFR 1003.2(c)(3)(iii). In short, the Department has
                considered commenters' concerns about the available alternatives to the
                exercise of sua sponte authority, but finds them unpersuasive or
                legally inapposite for the reasons given.
                 Finally, to the extent that commenters' concerns are based on a
                belief that sua sponte authority should be retained because it allows
                aliens to file motions to reopen sua sponte in order to circumvent time
                and number bars to motions to reopen, the Department reiterates that
                the exercise of sua sponte authority is not proper in response to a
                motion and that its use to circumvent regulatory or statutory deadlines
                contravenes established case law and, accordingly, supports the
                Department's decision to withdraw that authority.
                vi. Other Concerns
                 Comment: Commenters alleged that although the Department addressed
                the use of sua sponte authority in precedential decisions, the
                Department failed to address whether the BIA's use of sua sponte
                authority in non-precedential decisions forms the vast majority of its
                docket. The commenters claimed that EOIR was in the ``better position''
                to address this issue but that it failed to analyze the issue.
                 Response: The extent to which sua sponte authority is used in non-
                precedential decisions did not and would not affect the Department's
                conclusion that such authority is no longer appropriate. As described
                in the NPRM, the Department withdrew sua sponte authority for several
                reasons: ``the exceptional nature of a situation required to invoke sua
                sponte authority in the first instance, the general lack of use of
                genuine sua sponte authority since 2002, and the availability of
                multiple other avenues to reopen or reconsider cases and to alleviate
                the hardships imposed by time and number deadlines.'' 85 FR at 52506.
                Although the Department noted the extremely limited use of sua sponte
                authority in precedential decisions, the Department did not withdraw
                sua sponte authority based on that consideration alone. The
                Department's conclusion, was multi-faceted, and regardless of the
                nature of cases in which sua sponte authority is exercised, the
                Department has determined that it is appropriate to withdraw sua sponte
                authority because, inter alia, there are multiple viable alternatives
                for both parties, its use undermines efficiency by encouraging improper
                motions, and its potentially inconsistent and borderline ad hoc usage
                is both inappropriate and inefficient to the extent that it is used to
                reopen cases contrary to law.
                 Comment: Without further explanation, one commenter alleged that
                removing sua sponte authority would violate principles of ``equal
                protection under the law for all.'' Also without further explanation, a
                commenter stated that limiting sua sponte motions to reopen would
                continue the family separation policy. One commenter disagreed with the
                rule, stating that its fixation on the phrase sua sponte ``converts an
                important issue of fairness and justice into a debate over semantics.''
                Commenters explained that removing sua sponte authority violated the
                APA because Congress did not enact limits on such authority, thereby
                [[Page 81634]]
                infringing on congressional authority to create laws.
                 Response: The Department disagrees with commenters that these
                provisions generally violate equal protection. The Department continues
                to equally apply applicable law and regulations to all aliens in
                proceedings before the agency. In addition, the Department rejects
                allegations, which contained no further explanation, that the rule
                furthers any family separation ``policy.'' To the extent the commenter
                was referring to the prosecution of criminal aliens along the southwest
                border in late spring 2018 which involved the separation of alien
                criminal defendants from their families while those defendants were
                being prosecuted--consistent with the treatment of most criminal
                defendants subject to arrest in the United States-- there is no
                identifiable linkage between this rule and that situation.
                 As previously explained, sua sponte authority is a product of
                regulation; Congress has not statutorily established this authority.
                Accordingly, withdrawing this authority does not violate the APA or
                infringe on congressional authority. To the contrary, preventing the
                Attorney General from withdrawing authority that is his alone to
                delegate in the first instance would infringe upon his statutory
                authority. INA 103(g), 8 U.S.C. 1103(g). Further, courts afford broad
                deference to an agency's policy changes. ``Agencies are free to change
                their existing policies as long as they provide a reasoned explanation
                for the change.'' Encino Motor Cars v. Navarro, 136 S. Ct. 2117, 2125
                (2016) (citing Nat'l Cable & Telecomm. Assn. v. Brand X internet
                Services, 545 U.S. 967, 981-982 (2005)). The Department provided an
                extensive discussion in the NPRM, supplemented by this final rule, to
                explain its reasoning for withdrawing sua sponte authority. 85 FR at
                52504-06. This discussion did not ``fixate'' on semantics or any one
                reason to justify withdrawing sua sponte authority. Rather, the
                Department provided a fulsome discussion, supplemented by this final
                rule, of the many reasons that, considered together, prompted
                withdrawal of sua sponte authority.\54\
                ---------------------------------------------------------------------------
                 \54\ The text of 8 CFR 1003.2(a) in the NPRM inadvertently
                removed the phrase ``or reconsider'' from the first sentence of that
                paragraph. This final rule reinserts that phrase to ensure that
                parties and the BIA are clear that the Board can reconsider a
                decision sua sponte in order to correct a typographical error or
                defect in service.
                ---------------------------------------------------------------------------
                l. DHS Motions To Reopen Time and Number Limitations (8 CFR
                1003.2(c)(3)(vii))
                 Comment: Commenters expressed concern that the NPRM's proposed
                changes regarding the time and number limitation for DHS motions to
                reopen before the BIA are unfair and would create different rules for
                the government and for aliens in proceedings, noting that both aliens
                and the government at times have good cause to file motions to reopen
                that exceed the normal time and number limitations. Commenters were
                concerned that the change would give DHS favorable or preferential
                treatment. Commenters noted that allowing DHS to file motions to reopen
                without regard to any time or number limitations would prevent aliens
                who have been in proceedings from ever feeling confident that the
                decision in their case is final. At least one commenter stated the
                Department should restrict DHS's ability to file motions to reopen
                before the BIA and create parity between the parties rather than have
                the same unequal procedures before both the immigration courts and the
                BIA.
                 Response: In 1996, Congress amended the INA and provided specific
                restrictions regarding motions to reopen filed by aliens in
                proceedings. See INA 240(c)(7), 8 U.S.C. 1229a(c)(7). The INA restricts
                aliens to file one motion to reopen proceedings within 90 days of the
                date of the entry of a final order of removal, subject to time and
                number exceptions based on lack of notice and when the motion to reopen
                is premised on changed country conditions in support of an application
                for asylum. Id. Notably, however, Congress did not provide any similar
                restriction on motions to reopen filed by the government. Accordingly,
                the Department previously removed the time and number limitation on
                motions to reopen filed by the government as part of the regulatory
                changes implemented following the enactment of the Illegal Immigration
                Reform and Immigrant Responsibility Act of 1996 (``IIRIRA''), Public
                Law 104-208, Sept. 30, 1996, 108 Stat. 1796. See Inspection and
                Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct
                of Removal Proceedings; Asylum Procedures, 62 FR 10312, 10321 (Mar. 6,
                1997) (explaining, in response to public comments that the same
                limitations on motions to reopen should apply to all parties, that
                ``IIRIRA specifically mandates that `[a]n alien may only file one
                motion to reopen' in removal proceedings. Congress has imposed limits
                on motions to reopen, where none existed by statute before, and
                specifically imposed those limits on the alien only.'').\55\
                ---------------------------------------------------------------------------
                 \55\ Notably, although the regulatory changes in 1997 only
                explicitly codified the exception to the time and number limitations
                filed by the government in removal proceedings before the
                immigration court, commenters at the time understood the changes to
                apply to motions to reopen filed by the government before the BIA
                and the immigration courts. See 62 FR at 10321 (``A number of
                commenters pointed out that Sec. Sec. 3.2(d) and 3.23(b) subject
                all parties to time and numerical limits for motions to reopen in
                deportation and exclusion proceedings, but apply those limits only
                to aliens in removal proceedings.'').
                ---------------------------------------------------------------------------
                 Here, the rule's amendment to 8 CFR 1003.2(c)(3)(vii) regarding
                motions to reopen filed by DHS similarly aligns the BIA's regulations
                with the INA's limitation only on alien-filed motions to reopen. By
                ensuring that EOIR's regulations provide clarity for the public
                regarding the requirements and restrictions set out by Congress in the
                INA, commenters are incorrect that the Department is providing DHS with
                any favorable or preferential treatment.
                 To the extent that commenters are concerned that aliens will be
                unable to have confidence that their cases will be subject to an
                infinite number of motions to reopen for an indefinite amount of time,
                the Department first emphasizes that any motion to reopen filed by DHS
                is not automatically granted by the BIA. Instead, like all motions to
                reopen, DHS must ``state the new facts that will be proven at a hearing
                to be held if the motion is granted,'' support the motion with
                ``affidavits or other evidentiary material,'' and demonstrate that the
                ``evidence sought to be offered is material and was not available and
                could not have been discovered or presented at the former hearing.'' 8
                CFR 1003.2(c)(1). As with all motions and appeals, the BIA considers
                the merits of each motion to reopen individually. Moreover, DHS has
                possessed the authority to file motions to reopen at the immigration
                court level without being subject to the general time and number bars
                since 1997, and there is no evidence that it has engaged in a practice
                of filing infinite motions over an indefinite period. Accordingly, the
                Department finds that commenters' concerns are overstated, if not
                wholly unfounded, in light of the applicable regulatory requirements
                and DHS's practice before the immigration courts.
                 Finally, apart from being statutorily atextual and ahistorical
                regarding DHS practice, commenters' suggestion that the rule provides
                DHS with preferable treatment fails to acknowledge the various
                exceptions to time and number limitations afforded motions to reopen
                filed by aliens. First, there is not a limitation when the motion to
                reopen is
                [[Page 81635]]
                for the purpose of applying or reapplying for asylum or withholding of
                removal based on changed country conditions ``if such evidence is
                material and was not available and could not have been discovered or
                presented at the previous hearing.'' 8 CFR 1003.2(c)(3)(ii). Second, as
                discussed, supra, aliens may rely on equitable tolling in certain
                circumstances to avoid a strict application of the time deadlines for
                motions to reopen. Third, the rule itself provides a new avenue for
                aliens to file a motion to reopen when a ``material change in fact or
                law . . . vitiates all grounds of removability applicable to the
                alien.'' 8 CFR 1003.2(c)(3)(v). In short, the rule retains significant
                options for aliens to file motions to reopen which offset the
                unsupported allegations of allegedly favorable treatment, even if such
                treatment were not rooted in statutory text.
                m. Briefing Schedule Changes (8 CFR 1003.3(c))
                i. General Concerns
                 Comment: Commenters raised concerns with the rule's changes to the
                briefing schedule process, claiming that the changes favor speed over
                fairness and that the limited time savings does not sufficiently
                outweigh the disadvantages to the parties.
                 Response: The Department expects the Board to adjudicate cases
                fairly and efficiently, 8 CFR 1003.1(d)(1) (noting that Board members
                will resolve cases in both a ``timely'' and ``impartial'' manner
                (emphasis added)), and does not view ``speed'' and ``fairness'' as
                mutually exclusive objectives. Consequently, the rule not favor one
                goal over the other, and commenters' suggestion amounts to a false
                dichotomy that cases cannot be handled both fairly and efficiently.
                 As explained in the NPRM, due to the growing BIA caseload, the
                Department finds it necessary to implement these briefing schedule
                reforms to ensure that appeals are adjudicated in a timely manner. 85
                FR at 52492-93. In doing so, the Department disagrees with commenters'
                unsubstantiated alleged potential difficulties caused by the briefing
                schedule changes outweigh the benefits of more prompt adjudication.
                Further discussion of commenters concerns with specific briefing-
                related changes follows below.
                ii. Simultaneous Briefing
                 Comment: Regarding the rule's change to require simultaneous
                briefing in all cases, commenters noted that almost every appellate
                adjudication system in the United States uses sequential briefing in
                order to allow the parties to respond to each other's arguments. By
                contrast, commenters claimed that under this rule, the non-appealing
                party will not receive sufficient notice of which arguments to focus on
                in their brief, as the appealing party may include multiple issues in
                the Notice of Appeal but only brief a few of those issues. Commenters
                allege that this will result in briefs with cursory coverage of every
                topic rather than focused arguments on the few key issues raised in the
                appellant's brief. Commenters stated this would be particularly
                problematic in cases with difficult legal issues, such as unaccompanied
                children or gender-based asylum claims. Commenters also claimed that
                simultaneous briefing would require the BIA to expend additional effort
                in reviewing the appeal record, as the parties would no longer be
                vetting each other's arguments through sequential briefing and instead
                may focus on different issues. Commenters further argued that non-
                detained cases have larger administrative records due to non-detained
                persons generally having greater relief eligibility and do not invoke
                the same liberty interests as detained cases, which makes simultaneous
                briefings less appropriate. Commenters also noted that briefing every
                potential issue would also inevitably conflict with the BIA's page
                limit requirements.\56\ As a result, one commenter recommended changing
                all briefing, including detained cases, to non-simultaneous sequential
                briefing.
                ---------------------------------------------------------------------------
                 \56\ See BIA Practice Manual at Ch. 3.3(c)(iii) (limiting briefs
                to 25 pages absent a motion to increase the page limit).
                ---------------------------------------------------------------------------
                 Response: Commenters generally failed to engage the specific
                reasons put forth by the Department--both in the NPRM and previously
                when it proposed simultaneous briefing in 2002, 85 FR at 52498-99--for
                adopting simultaneous briefing in all cases or to acknowledge that a
                change to simultaneous briefing falls principally on DHS because the
                vast majority of Board appeals are filed by respondents whose initial
                brief timing as an appellant is unchanged by this rule.\57\ To the
                extent that commenters simply disagree as a policy matter that Board
                cases should be completed in a timely manner, see 8 CFR 1003.1(d); cf.
                Doherty, 502 U.S. at 323 (``as a general matter, every delay works to
                the advantage of the deportable alien who wishes merely to remain in
                the United States''), or that the Department should take measures,
                consistent with due process, to ensure the timely completion of such
                cases, the Department finds such policy disagreements unpersuasive for
                the reasons given in the NPRM and this final rule.
                ---------------------------------------------------------------------------
                 \57\ In FY 2019, respondents filed 50,129 appeals from
                immigration judge decisions, compared to 5,636 appeals filed by DHS
                and 116 cases in which both parties filed an appeal. Preliminary
                data from FY 2020 paints a similar picture: Respondents filed 45,117
                appeals from immigration judge decisions, compared to 5,965 appeals
                filed by DHS and 117 cases in which both parties filed an appeal.
                Because the appellant filed the initial brief under the prior
                regulation, in approximately 90 percent of appeals in FY 2019 and
                approximately 88 percent of appeals in FY 2020, the change to
                simultaneous briefing would have had no impact on the timing of the
                brief filed by a respondent.
                ---------------------------------------------------------------------------
                 The BIA has used simultaneous briefing for detained appeals for
                nearly 20 years,\58\ with no apparent issues for the parties or the
                BIA.\59\ Conforming non-detained appeals to the same simultaneous
                briefing schedules will provide consistency across all appeals while
                helping to more efficiently process the growing appeals caseload. As
                such, the Department disagrees with commenters requesting that all
                appeal move to non-simultaneous briefing.
                ---------------------------------------------------------------------------
                 \58\ 67 FR 54878.
                 \59\ In an analogous situation, EOIR's Office of the Chief
                Administrative Hearing Officer (OCAHO) also utilizes a simultaneous
                21-day briefing schedule for cases reviewed by the CAHO following
                the decision of an administrative law judge. 28 CFR 68.54(b)(1)
                (``In any case in which administrative review has been requested or
                ordered pursuant to paragraph (a) of this section, the parties may
                file briefs or other written statements within twenty-one (21) days
                of the date of entry of the Administrative Law Judge's order.'').
                OCAHO cases under the provisions of INA 274A and 274C, 8 U.S.C.
                1324a and 1324c, involve violations of worksite enforcement laws,
                including violations related to completion of Form I-9, and document
                fraud, and they are just as complex or involved as cases in
                immigration court, if not more so. Yet, the Department is unaware of
                any challenge to OCAHO's simultaneous 21-day briefing schedule for
                administrative reviews or any reason why it is not an appropriate
                model or analogy for such a schedule before the BIA.
                ---------------------------------------------------------------------------
                 Commenters' suggestion that the non-appealing party will not
                receive sufficient notice of which arguments to focus on in their brief
                because the appealing party may include multiple issues in the Notice
                of Appeal but only brief a few of those issues is both conjectural and
                illogical, as party who fails to raise an issue in a brief risks having
                that issue deemed waived. Thus, the Department would expect that all
                issues raised in the Notice of Appeal will be briefed.
                 The Department also disagrees with commenters that the non-
                appealing party will have difficulty drafting a simultaneous brief
                without first having the appealing party's brief to review. To
                reiterate, this system already occurs in the context of appeals of
                detained cases, and commenters did not explain why that system has not
                experienced the problems alleged to necessarily result
                [[Page 81636]]
                from utilizing the same system for non-detained cases on appeal.
                Further, as explained in the NPRM, the appealing party must identify
                the reasons for the appeal in the Notice of Appeal (Form EOIR-26 or
                Form EOIR-29) or in any accompanying attachments. 8 CFR 1003.3(b). In
                doing so, the appealing party must already comply with the following
                well-established requirements which are unaltered by the final rule:
                 The party taking the appeal must identify the reasons
                for the appeal in the Notice of Appeal (Form EOIR-26 or Form EOIR-
                29) or in any attachments thereto, in order to avoid summary
                dismissal pursuant to Sec. 1003.1(d)(2)(i).
                 The statement must specifically identify the findings
                of fact, the conclusions of law, or both, that are being challenged.
                 If a question of law is presented, supporting authority
                must be cited.
                 If the dispute is over the findings of fact, the
                specific facts contested must be identified.
                 Where the appeal concerns discretionary relief, the
                appellant must state whether the alleged error relates to statutory
                grounds of eligibility or to the exercise of discretion and must
                identify the specific factual and legal finding or findings that are
                being challenged.
                Id.
                 Commenters did not generally address why this information, which
                should already be contained in the Notice of Appeal, is insufficient to
                apprise the opposing party of the issues on appeal.\60\ See also BIA
                Practice Manual at Ch. 4.4(b)(iv)(D) (``The statement of appeal is not
                limited to the space on the form but may be continued on additional
                sheets of paper . . . Parties are advised that vague generalities,
                generic recitations of the law, and general assertions of Immigration
                Judge error are unlikely to apprise the Board of the reasons for
                appeal.''). As a result, the Department believes these statements
                provide the non-appealing party with ample information to draft a
                simultaneous brief in non-detained cases, just as it has in detained
                cases for many years.
                ---------------------------------------------------------------------------
                 \60\ Commenters did not challenge 8 CFR 1003.3(b), which has
                been in effect for many years, or suggest that its requirements were
                inappropriate. To the extent that commenters assert that parties do
                not comply with this regulatory requirement, such regulatory
                noncompliance is not a persuasive basis to adopt commenters'
                objections. The Department expects both parties to comply with all
                regulatory requirements regarding appeals adjudicated at the Board.
                ---------------------------------------------------------------------------
                 Finally, the Department also has no concerns that appellees will be
                unable to follow the page limit requirements for briefs, and such
                concerns are unsupported by any evidence and wholly speculative.
                Moreover, increases are available by motion at the BIA's discretion.
                See BIA Practice Manual at Ch. 3.3(c)(iii).
                iii. Briefing Extensions
                 Comment: Commenters were also concerned about the shortened
                timeframe for briefing extensions, explaining that by the time a filer
                receives a response as to whether or not the extension is granted, the
                14 days would be nearly expired. Moreover, commenters were concerned
                with limiting the briefing extension to a single 14-day period, noting
                that there may be issues that prevent filing within the 14-day
                extension period, including serious medical issues or a death in the
                family.
                 Commenters were also concerned that the shortened briefing
                extension timeframe would lead to less legal representation before the
                BIA. Commenters stated that if newly retained counsel, including pro
                bono counsel, cannot receive a reasonable extension to review the
                record and prepare a brief, it is unlikely the counsel would accept
                representation in order prevent the possibility of providing
                ineffective representation. As a result, commenters were concerned that
                this rule would make pursuing appeals even more difficult for pro se
                respondents.
                 One commenter stated that requiring the BIA to make individualized
                good cause determinations for briefing extensions would create a
                significant burden for the BIA.
                 Commenters also raised issues with the NPRM's reference to
                preventing ``gamesmanship'' as a reason to shorten the briefing
                extension time period, stating that the Department did not provide
                support for this claim.
                 Commenters claimed that the shortened briefing schedule changes
                would also create institutional bias against women, such as due to
                timing issues surrounding child birth and child care responsibilities.
                 Another commenter stated that shortening the briefing extension
                period during the COVID-19 pandemic was improper.
                 Response: As an initial matter, the Department notes that
                underlying most commenter objections was a tacit suggestion that there
                is an entitlement to briefing extensions and that they should be
                granted by the Board as a matter of right. That view is incorrect.
                Briefing extensions are generally disfavored, as parties, including
                newly retained counsel, should be completing their briefs in the
                original allotted time, particularly in cases where the briefing period
                only begins once transcripts are complete. See BIA Practice Manual at
                Ch. 4.7(c)(i), (``In the interest of fairness and the efficient use of
                administrative resources, extension requests are not favored.'').
                Further, there is no entitlement to a briefing extension, and to the
                extent that commenters opposed the NPRM because they believe parties
                have a right to an extension--e.g., for newly retained counsel--they
                are mistaken. Id. at ch. 4.7(c) (``The Board has the authority to set
                briefing deadlines and to extend them. The filing of an extension
                request does not automatically extend the filing deadline, nor can the
                filing party assume that a request will be granted. Until such time as
                the Board affirmatively grants an extension request, the existing
                deadline stands.'').
                 Additionally, few commenters acknowledged that notwithstanding the
                existing language of 8 CFR 1003.3(c)(1), the Board's longstanding
                policy has been to limit briefing extensions to 21 days. BIA Practice
                Manual at Ch. 4.7(c)(i). Nor did commenters generally acknowledge that
                the Board already possesses the authority to shorten the overall
                briefing period to less than 21 days. 8 CFR 1003.3(c)(1). Consequently,
                the final rule merely codifies timelines that the Board itself could
                choose to adopt, and commenters did not persuasively explain why it
                would preferable for the Board to adopt those changes through policy or
                case-by-case adjudication rather than through rulemaking. See Lopez,
                531 U.S. at 244 (observing that ``a single rulemaking proceeding'' may
                allow an agency to more ``fairly and efficiently'' address an issue
                than would ``case-by-case decisionmaking''); Marin-Rodriguez, 612 F.3d
                at 593 (``An agency may exercise discretion categorically, by
                regulation, and is not limited to making discretionary decisions one
                case at a time under open-ended standards.'').
                 To the extent that commenters assert as a policy matter that the
                Board should always grant a briefing extension for a maximum amount of
                time because such extensions inherently delay adjudication in the case
                to the benefit of aliens, cf. Doherty, 502 U.S. at 323 (``as a general
                matter, every delay works to the advantage of the deportable alien who
                wishes merely to remain in the United States''), or that the Department
                should not take measures, consistent with due process, to ensure the
                timely completion of cases, the Department finds such policy
                disagreements unpersuasive for the reasons given in the NPRM and this
                final rule. Moreover, few, if any, commenters acknowledged that this
                rule applies equally to DHS, which will also have to comply with the
                timelines, or that this rule will benefit aliens with meritorious
                claims for relief
                [[Page 81637]]
                or protection by allowing them to receive a decision sooner. To the
                extent that commenters did not fully assess the implication of the
                rule--and, thus, provided comments without a complete foundation--the
                Department finds those comments unpersuasive.
                 The briefing extension time period in this rule is sufficient for
                parties to file their briefs, and commenters have not persuasively
                explained why a total of up to 35 days is an insufficient amount of
                time to file a brief. Moreover, few commenters acknowledged that the
                BIA can ask for supplemental briefing if it finds that the briefs
                submitted are inadequate, which allows an additional opportunity for
                parties to submit arguments if the BIA believes such additional
                argument is necessary. The Board, rather than the parties, is
                ultimately in the best position to determine whether briefing is
                sufficient in a particular case, and this rule does not restrict the
                Board's ability to request supplemental briefing if it believes such
                briefing is helpful. 8 CFR 1003.3(c)(1). In short, the procedures and
                time provided by this rule are sufficient to ensure that the Board
                receives appropriate information through briefing in order to aid its
                adjudication. Further, as noted in the NPRM, 85 FR at 52498-99, the
                parties need not wait until a briefing schedule is actually issued to
                begin drafting the brief, and they can use any extension to complete
                the brief, as appropriate.
                 The Departments disagree with commenters' supposition that
                shortened briefing extension time periods will lead to less
                representation at the BIA. As an initial point, commenters did not
                explain why a respondent would wait until a briefing schedule has been
                issued or a brief is due before retaining representation. The
                Department expects that most aliens whose cases are on appeal will
                obtain representation as quickly as possible, especially in the cases
                in which the respondent files the Notice of Appeal. Commenters did not
                explain what incentive an alien would have to wait until an appeal has
                been pending for a notable length of time before engaging
                representation, and the Department is aware of none. Moreover, in any
                litigation, newly retained counsel takes a client as he or she finds
                him, and as discussed above, there is no entitlement to a briefing
                extension in any circumstance, even for newly retained counsel.
                Consequently, the same concerns advanced by commenters already exist
                under the present system--i.e., a new representative may be
                unsuccessful at obtaining an extension of the briefing schedule--and
                are unaltered by the rule.\61\
                ---------------------------------------------------------------------------
                 \61\ The Department reiterates that approximately 86 percent of
                aliens are represented upon appeal under the existing system which
                is largely condified in this rule. EOIR, Adjudication Statistics:
                Current Representation Rates, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/1062991/download. Thus, there is even
                less basis to assert that this rule will increase the number of pro
                se cases before the Board.
                ---------------------------------------------------------------------------
                 Further, the Department's BIA Pro Bono Project is not tied to the
                issuance of a briefing schedule. The Department reviews cases for
                referral through that Project upon the filing of a Notice of Appeal,
                not upon the issuance of a briefing schedule. Moreover, under current
                practice, pro bono volunteers who accept a case typically receive a
                copy of the alien's file before a briefing schedule is issued and, like
                all representatives, may request an extension if appropriate.
                Consequently, there is no evidence that shortening the length of a
                briefing extension, which is already a disfavored practice and not
                guaranteed to any representative, will have any negative impact on
                representation before the BIA, particularly pro bono representation.
                 Regarding commenters' concerns with requiring the BIA to make
                individualized good cause determinations for briefing extensions,
                commenters are incorrect that this requirement will significantly
                burden the BIA. Indeed, such good cause determinations are already
                incorporated into the regulations, 8 CFR 1003.3(c)(1), and, thus, also
                into the current BIA practice. Accordingly, the final rule does alter
                the need for the Board to find good cause in order to grant a briefing
                extension.
                 With regards to ``gamesmanship,'' the Department notes that the
                shortened briefing extension period may help to reduce any possible
                future gamesmanship attributable to last-minute extension requests in
                two respects. First, in the Board's experience, it is not uncommon to
                receive a briefing extension request filed just before or on the date a
                brief is due, suggesting that many extension requests are merely last-
                minute delay tactics rather than genuine representations of unforeseen
                circumstances preventing adherence to the original schedule. Second,
                such last-minute requests often occur after the opposing party has
                already served its brief, as a party submitting a brief by mail will
                often do so several days in advance of the deadline to ensure that it
                is timely received. In such situations, if the extension request is
                granted, the party who sought the extension would then have at least a
                full 21 days to review the opposing party's brief and tailor its
                arguments accordingly in filing an initial brief.
                 The Department acknowledges that eliminating briefing extensions
                altogether would also eliminate these risks of dilatory tactics and
                gamesmanship. However, after considering that alternative, the
                Department does not believe it is necessary at the present time.
                Although the final rule will not end either dilatory tactics or
                gamesmanship, shortening the period for a briefing extension will
                reduce both the incentive to engage in such tactics and the impact on
                both the BIA's efficiency and the opposing party when such tactics are
                employed.\62\
                ---------------------------------------------------------------------------
                 \62\ Although the Department is aware of anecdotal examples of
                gamesmanship and dilatory tactics occurring, it did not state that
                such activity occurs in every case. Rather, one of the principles
                animating this provision of the rule, as well as the provision
                related to simultaneous briefing, is to ensure that the risk of such
                activity occurring is reduced and, concomitantly, ensuring that the
                BIA's regulations provide for as efficient and orderly an appeals
                system as possible. 85 FR at 52498.
                ---------------------------------------------------------------------------
                 In response to comments about COVID-19, the Department recognizes
                the challenges caused by the pandemic. However, those challenges are
                largely inapplicable to the BIA which has maintained generally regular
                operations during the COVID-19 outbreak because it typically receives
                briefs by mail or expedited courier service, and it began accepting
                briefs by email during the pandemic until after it was cleared to enter
                Phase Two of the Department's plan for returning to normal
                operations.\63\ Moreover, the BIA is scheduled to adopt ECAS in early
                2021. Consequently, these challenges do not warrant maintaining the
                regulatory maximum length for a briefing extension, particularly since
                the BIA has shortened that length already by policy--which has remained
                in effect during the COVID-19 outbreak--with no noted adverse effects
                or challenges.
                ---------------------------------------------------------------------------
                 \63\ The BIA holds oral argument infrequently and has not held
                any oral argument sessions since before March 2020.
                ---------------------------------------------------------------------------
                 Lastly, in response to one commenter, the briefing extension
                changes do not and are not intended to reflect any bias or adverse
                treatment toward women. To the extent that the commenter suggests that
                women are incapable of addressing both childbirth or childcare \64\
                concerns and professional obligations as a representative, the
                Department categorically rejects such a suggestion.
                [[Page 81638]]
                Female attorneys routinely practice before the Board without any
                particular difficulties--as they do before all types of courts and
                administrative agencies. Nothing in the rule singles out any particular
                gender nor suggests that certain genders are inherently incapable of
                compliance with generally applicable and established procedural rules
                for representation before a tribunal.
                ---------------------------------------------------------------------------
                 \64\ The Department notes, contrary to the commenter's
                suggestion, that men may also have childcare responsibilities.
                Nevertheless, the rule imposes no burden on any caregiver any
                greater than that which already exists for any representative caring
                for another individual.
                ---------------------------------------------------------------------------
                 Finally, the Department notes that as the Board received briefs
                from both parties in fewer than half of the cases in which it issued
                briefing schedules in FY 2019--and received no brief from either party
                in approximately 18 percent of such cases--the impact of changes to
                briefing procedures, including a change to simultaneous briefing and
                the reduction in the maximum time allowable for a briefing extension,
                is far less than what many commenters speculated based on supposition
                and unsubstantiated anecdotes.\65\ 85 FR at 52498. The Department has
                considered the issues and concerns raised by commenters but finds them
                ultimately unpersuasive for the reasons noted. In short, weighing the
                need for additional operational efficiency, the ability of the Board to
                request additional briefing in any case if it believes such briefing is
                necessary, the importance of reducing opportunities for gamesmanship,
                the actual number of briefs filed and the party identity of most
                appeals, and the largely speculative or anecdotal issues raised by
                commenters, the Department finds that, on balance, the benefits of the
                changes in the final rule significantly outweigh the purported
                drawbacks.
                ---------------------------------------------------------------------------
                 \65\ Preliminary data from FY 2020 indicates that the Board set
                a briefing schedule in approximately 30,000 cases; the respondent
                filed a brief in roughly 21,000 cases (69 percent), and DHS filed a
                brief in roughly 11,500 cases (38 percent). In approximately 5200
                cases (17 percent), neither party filed a brief. As noted in the
                NPRM, 85 FR at 52498, n.15, these numbers treat the filing of a
                motion to summarily affirm the decision below as the filing of a
                brief and do not exclude cases in which a party indicated on the
                Notice of Appeal that it did not intend to file a separate brief.
                ---------------------------------------------------------------------------
                iv. Reply Briefs
                 Comment: Commenters raised concerns that the rule would, in
                practice, prohibit the filing of reply briefs. Commenters stated that
                the parties would have much less than 14 days to file a reply brief
                because the time period would be shortened by the length of time
                required to request and have the BIA grant leave to file the reply
                brief and by the amount of time it takes the opposing parties' brief to
                be served by mail, which commenters stated routinely takes
                approximately five days to receive. Commenters also noted that the
                Department should take into account the fact that the BIA does not have
                electronic filing, which would allow the parties to immediately receive
                opposing briefs and grants of leave to file reply briefs.
                 Response: The Departments first note that reply briefs are
                generally disfavored. See BIA Practice Manual at Ch. 4.6(h) (explaining
                that the BIA ``does not normally accept briefs outside the time set in
                the briefing schedule'' such as reply briefs, but that the BIA may
                accept reply briefs in limited circumstances). Further, there is no
                right to file a reply brief, and the Board must accept it through the
                granting of a motion. Id. Most significantly, ``[t]he Board will not
                suspend or delay adjudication of the appeal in anticipation of, or in
                response to, the filing of a reply brief.'' Id. Commenters did not
                persuasively explain why shortening the time to file a brief that is
                already disfavored, not guaranteed to be accepted, and does not suspend
                the adjudication of an appeal would have any additional impact on such
                briefs beyond those already established. Moreover, parties that are
                allowed to file reply briefs should not require significant time to
                file such briefs as all issues should have already been covered in the
                Notice of Appeal and the initial simultaneous briefs; thus, any reply
                briefs should only be clarifications on existing issues. In short, the
                rule does not prohibit the submission of reply briefs, but its
                shortened submission timeline recognizes both their already-disfavored
                status and the reality of the likelihood that they will have a
                substantive impact on the adjudication of the case.
                 The Department again notes that EOIR is currently in the process of
                a staggered nationwide deployment of the EOIR Court & Appeals System
                (``ECAS''), which will allow registered attorneys and accredited
                representatives to view electronic records of proceeding and
                electronically file against them. See EOIR Electronic Filing Pilot
                Program, 83 FR 29575 (June 25, 2018); EOIR, EOIR Launches Electronic
                Filing Pilot Program (July 19, 2018), available at https://www.justice.gov/eoir/pr/eoir-launches-electronic-filing-pilot-program.
                Once ECAS is deployed at the BIA, which is expected in early 2021,
                registered attorneys and accredited representatives will be able to
                immediately view and download documents for cases with electronic
                records of proceeding, which will mitigate commenters' concerns about
                mail service and its potential effect on briefing schedule timing.
                n. Changes to Immigration Judge Transcript Review Process and
                Forwarding of Record (8 CFR 1003.5)
                 Comment: At least one commenter opposed the rule's transcript
                review provisions, stating that immigration judges are best positioned
                to determine the accuracy of a transcript of a decision. Technology and
                human error, the commenter alleged, result in routine transcription
                errors, which the commenter asserted required correction by the
                immigration judge.
                 Moreover commenters pointed to the following common transcription
                errors: Punctuation errors, which can drastically change the meaning of
                a sentence; mis-transcribed legal language, which can also change the
                meaning of a sentence; and, errors in names, locations, and other
                issues. Commenters disagreed with the BIA's need to ``guess'' what the
                immigration judge said or listen to the audio decision to determine
                what the transcriber incorrectly typed, and the commenter alleged that
                without the immigration judge's approval of the ultimate decision and
                transcript, the BIA would have ``no idea if what was transcribed is
                what was actually ultimately decided by the immigration judge.''
                Commenters explained that the rule lacked any mechanism for the BIA to
                return the case to the immigration judge to clarify confusion resulting
                from a hastily made decision. Further, commenters alleged that sending
                a case back to the immigration judge after a briefing schedule has been
                issued would result in adjudication delays. The commenter predicted
                that a significant increase in remands from the Federal courts would
                result.
                 Commenters alleged that the current 14-day time period in which an
                immigration judge must review the transcript and make corrections is
                too short, given that, as the commenter alleged, it takes more than a
                year to get a copy of the transcript. The commenter suggested that
                hiring more transcribers with appropriate training to produce
                transcriptions in a timely manner or procuring new technology to
                produce transcriptions with fewer errors would increase efficiency more
                so than the provisions of the rule.
                 Other commenters opposed elimination of the 14-day review process
                because they stated that it sacrificed quality in favor of speed,
                risking the possibility that errors that could have been corrected at
                an early stage in the appeal process absent the rule would now require
                a remand and further delay. The commenters alleged
                [[Page 81639]]
                that subsequent efficiencies to be gained were minimal.
                 Response: The Department appreciates a commenter's supportive
                suggestion--and tacit support for additional resources--to hire more
                transcribers and obtain new technology to improve the quality and
                timeliness of transcript production. Transcription at the Board may
                occasionally become an issue, e.g., PM 20-01 at 3 & n.6, and the
                Department is always looking for additional ways in which to make the
                process more efficient and accurate. To that end, the Department,
                through this rulemaking, adopts the NPRM's provisions on this issue
                without change because it believes such provisions properly balance
                efficiency in the transcription review process while facilitating the
                development and distribution of accurate transcripts. Nevertheless,
                further changes to internal transcription technologies or contracts are
                outside the scope of this rule.
                 Regarding other commenters' statements, in general, they did not
                explain precisely which errors immigration judge review would be able
                to correct. Immigration judges should not make substantive corrections
                to a transcript, 85 FR at 52508-09, and there is no operational or
                legal need for an immigration judge to correct minor typographical
                errors.\66\ To the extent that commenters identified examples of
                substantive errors, those are generally not the type immigration judges
                should correct, particularly since the parties are not able to argue
                whether they are genuinely errors before the immigration judge makes an
                edit. Id.; see also Mamedov v. Ashcroft, 387 F.3d 918, 920 (7th Cir.
                2004) (``[I]n general it is a bad practice for a judge to continue
                working on his opinion after the case has entered the appellate process
                . . . .'').
                ---------------------------------------------------------------------------
                 \66\ Since 1993, immigration judges have been prohibited from
                correcting any part of a transcript other than minor typographical
                errors. EOIR, Operating Policies and Procedures Memorandum 93-1:
                Immigration Judge Decisions and Immigration Judge Orders at 2 (May
                6, 1993), available at https://www.justice.gov/sites/default/files/eoir/legacy/2002/07/31/93-1.pdf (``The `clean-up' of an oral
                decision must be limited to the review of the transcript for
                corrections in punctuation, grammar and syntax.''). There is no
                need, however, for an immigration judge to correct such minor
                errors, and commenters did not identify one. Moreover, there is also
                no consistent practice among immigration judges in reviewing
                transcripts of decisions. Some review for style and substance,
                whereas others review only for substance; some review with the
                record of proceedings at hand, whereas others do not. Inconsistent
                practices breed inefficiency and risk inadvertent errors. Thus,
                ``there is simply no reason to retain the requirement that
                immigration judges continue to review transcripts, and removing this
                requirement will also eliminate the possibility of the transcript
                being amended incorrectly, even inadvertently, after a decision has
                been rendered.'' 85 FR at 52508-09.
                ---------------------------------------------------------------------------
                 Many commenters also did not appear to appreciate the distinction
                in the existing regulation that immigration judges review only the
                transcript of their decision, not the entire transcript of proceedings.
                8 CFR 1003.5(a) (2019). Thus, many potential issues identified by
                commenters regarding errors in the full transcript of proceedings are
                inapposite to the change made by this rule.
                 Additionally, an immigration judge's primary role is to adjudicate
                cases expeditiously and impartially, not to review transcripts for
                errors. As explained in the NPRM, the Department uses ``reliable
                digital audio recording technology,'' 85 FR at 52508, and maintains a
                procedure through which parties may address defective or inaccurate
                transcripts, including the errors cited by commenters. See BIA Practice
                Manual at Ch. 4.2(f)(iii) (instructing parties that believe a
                transcript contains an error that is significant to their argument or
                the appeal to identify such defect in briefing). Moreover, pursuant to
                8 CFR 1003.1(e)(2), the BIA may also remedy defective transcripts
                through a remand for clarification or correction. Accordingly, the BIA
                need not ``guess,'' as commenters alleged, at what the transcript said
                or what the decision held.
                 Further, the NPRM did not neglect to provide or overlook the need
                for a mechanism through which defective or inaccurate transcripts could
                be addressed. The BIA Practice Manual already provides such process;
                thus, concerns that litigation would proliferate based on the absence
                of such processes are purely speculative and unfounded. Despite this
                speculation, the Department reiterates the importance of accurate
                transcripts and will continue to have procedures, as described in the
                BIA Practice Manual and 8 CFR 1003.1(e)(2), available to ensure that
                end.
                 Circuit courts have affirmed EOIR's current procedures through
                which parties may address defective or inaccurate transcripts in
                accordance with the BIA Practice Manual and regulations, and courts
                have criticized the practice of immigration judge-review of a
                transcript following the filing of an appeal. See Witjaksono v. Holder,
                573 F.3d 968, 976 (10th Cir. 2009); Mamedov, 387 F.3d at 920.
                Practically, removing the immigration judge-review period will
                eliminate the possibility that a transcript is incorrectly or
                inadvertently amended after the decision has been issued. See 85 FR at
                52508. Given these safeguards and circuit court considerations, the
                Department disagrees with commenters that immigration judges should
                continue to use scarce judicial resources to review transcripts of
                their decisions.
                 The Department disagrees that the rule sacrifices quality for
                speed. As noted, supra, immigration judges should not make substantive
                corrections, and there is no operational need for them to make minor
                typographical corrections. Consequently, the current regulation serves
                little, if any, purpose and certainly not one that promotes either
                quality or speed. Moreover, given the quality of EOIR's audio recording
                technology systems and the protections to ensure accuracy set out in
                the BIA Practice Manual and available remands to address defective
                transcripts, the Department finds removing the inefficiencies resulting
                from the immigration judge-review period will not affect the quality of
                transcriptions.
                 Comment: At least one commenter stated that the Department should
                not end the practice of forwarding physical records to the BIA until
                ECAS is fully implemented nationwide.
                 Response: The rule amends 8 CFR 1003.5(a) in relevant part to
                provide that the immigration court shall promptly forward the record of
                proceeding to the BIA, ``unless the Board already has access to the
                record of proceeding in electronic format.'' Accordingly, this change
                does not end the practice of immigration courts forwarding the record
                of proceeding, but instead provides the immigration courts and the BIA
                with flexibilities as ECAS is implemented. It is illogical to require
                the immigration court to create a physical record of an otherwise
                electronic record simply for the purposes of sending it to the BIA in
                case of an appeal if the BIA has the capability of accessing the record
                electronically.
                o. BIA Authority To Grant Voluntary Departure in the First Instance (8
                CFR 1003.1(d)(7)(iv), 1240.26(k))
                 Comment: Commenters raised concerns about the rule's changes
                requiring the BIA to adjudicate voluntary departure requests rather
                than remand them back to the immigration courts, explaining that the
                changes raised significant due process and fairness concerns.
                 Commenters were concerned about allowing the BIA to adjudicate
                voluntary departure requests without allowing aliens to submit evidence
                to the BIA supporting their request. For example, commenters stated
                that required travel documents filed with the
                [[Page 81640]]
                immigration court may have expired by the time the case reaches the
                BIA. Similarly, commenters stated that the alien may not have submitted
                all necessary evidence before the immigration court, particularly in
                cases where the immigration judge grants relief and does not reach the
                merits of an alternative voluntary departure request. Commenters also
                raised concerns that the BIA would not have a sufficient record on
                which to determine which conditions would be necessary to ensure the
                alien's timely departure from the United States. In addition,
                commenters were concerned that the BIA will not have the immigration
                judge's ability to view the alien's credibility, which may go towards
                the voluntary departure determination.
                 Separately, commenters claimed the rule did not provide an ability
                to challenge any BIA denial of voluntary departure under the rule.
                Commenters also stated that there was no mechanism to remedy an
                improperly served voluntary departure grant from the BIA, which would
                prevent the alien from being able to comply with the voluntary
                departure requirements and conditions and, in turn, result in an
                alternate order of removal.
                 Commenters were concerned about the requirement that the voluntary
                departure bond must be posted within five business days, which
                commenters argued was too short due to the mail delivery time.
                 Commenters were concerned that the rule only requires the
                conditions and consequences to be provided in writing to the alien,
                rather than in person like the voluntary departure regulations for the
                immigration courts. Commenters explained that many aliens would have
                difficulty understanding an English-language voluntary departure order,
                which could result in significant adverse consequences if they were
                unable to comply with the order's requirements or conditions.
                 Commenters noted that, in cases where an immigration judge grants
                another form of relief or protection, and DHS appeals the decision to
                the BIA, the rule would prevent the BIA from alternatively considering
                the alien's voluntary departure request because, as written, the rule
                requires the immigration judge to have denied the voluntary departure
                request and the alien to have appealed that denial. However, in
                granting another form of relief or protection, the immigration judge
                would not have reached voluntary departure.
                 One commenter requested clarification on the rule's change allowing
                the BIA to grant voluntary departure. First, the commenter asked if
                noncitizens can apply for voluntary departure in the first instance
                with the BIA. Second, the commenter questioned whether the rule
                conflicts with existing regulations prohibiting the BIA from making
                findings of fact. Similarly, another commenter raised concerns about
                cases where DHS opposes a voluntary departure grant and whether such
                cases require a merits hearing and fact-finding before an immigration
                judge.
                 Lastly, a commenter raised concerns that this authority would shift
                the workload of adjudicating voluntary departure requests from
                immigration courts to the BIA.
                 Response: In general, most commenters' concerns on this issue
                reflected a misunderstanding of immigration court procedures and
                relevant law. An alien who seeks voluntary departure as a form of
                relief from removal must apply for it in the first instance before the
                immigration judge; otherwise, the alien's opportunity to seek such
                relief will be deemed waived, both by the immigration judge and by the
                Board on appeal. 8 CFR 1003.31(c); Matter of J-Y-C-, 24 I&N Dec. at 261
                n.1 (``Because the respondent failed to raise this claim below, it is
                not appropriate for us to consider it for the first time on appeal'');
                Matter of Edwards, 20 I&N Dec. at 196 n.4 (``We note in passing,
                however, that because the respondent did not object to the entry of
                this document into evidence at the hearing below, it is not appropriate
                for him to object on appeal.''). Thus, the alien will have necessarily
                already raised the issue to the immigration judge and, particularly for
                requests for voluntary departure under section 240B(b) of the Act,\67\
                introduced evidence or a proffer of evidence regarding the alien's
                eligibility for voluntary departure.
                ---------------------------------------------------------------------------
                 \67\ Because voluntary departure pursuant to INA 240B(a), 8
                U.S.C. 1229c(a), requires that the alien waives appeal of all
                issues, 8 CFR 1240.26(b)(1)(i)(D), the Board is unlikely to see many
                appeals related to that provision. Nevertheless, an alien who
                appeals the denial of a request for voluntary departure under INA
                240B(a), 8 U.S.C. 1229c(a), will have necessarily raised that issue
                to the immigration judge. Similarly, by definition, in cases in
                which DHS appeals a grant of voluntary departure under INA 240B(a),
                8 U.S.C. 1229c(a), the alien will have raised the issue and offered
                evidence of eligibility before the immigration judge.
                ---------------------------------------------------------------------------
                 Similarly, if the alien appeals the immigration judge's decision,
                the alien must raise the issue of voluntary departure eligibility on
                appeal; otherwise, it would be waived. See Matter of Cervantes, 22 I&N
                Dec. at 561 n.1 (expressly declining to address an issue not raised by
                party on appeal). Thus, for the Board to even consider an alien's
                eligibility for voluntary departure, the alien must have already raised
                the issue with the immigration judge--and with the Board if appealing
                the immigration judge's adverse decision--and the record must already
                contain evidence--or at least a proffer of evidence--of the alien's
                eligibility.
                 Assuming that an alien did not waive the issue by failing to raise
                it with the immigration judge, there are no operational impediments to
                the Board making its own voluntary departure determination. The
                requirements for such relief under either 8 CFR 1240.26(b) or (c) are
                straightforward and involve determinations that the Board routinely
                already makes, e.g., whether an alien has been convicted of an
                aggravated felony, has good moral character, and is not deportable on
                national security grounds. Further, the Board routinely reviews
                credibility determinations made by immigration judges and is well-
                prepared in assessing the credibility of an alien's assertion or
                proffer on appeal that he or she possesses ``the means to depart the
                United States and . . . the intention do so.'' 8 CFR
                1240.26(c)(1)(iv).\68\
                ---------------------------------------------------------------------------
                 \68\ In a case in which DHS appeals an immigration judge's
                decision granting another form of relief, that the alien applied for
                and the immigration judge adjudicated such relief necessarily means
                that the alien was seeking voluntary departure under INA 240B(b) at
                the conclusion of proceedings. Therefore, the record below will
                contain evidence regarding the alien's eligibility for voluntary
                departure--or else the alien would have waived the issue before the
                immigration judge--allowing the Board to make a determination on
                that application on appeal.
                ---------------------------------------------------------------------------
                 Most significantly, the Board already routinely reviews immigration
                judge decisions about voluntary departure on appeal and possesses the
                authority to reinstate an immigration judge's grant of such relief. 8
                CFR 1240.26(c)(3)(ii). It further already provides advisals, which are
                required to be in writing, related to voluntary departure if it does
                reinstate that relief. E.g., 8 CFR 1240.26(i) (``The Board shall advise
                the alien of the condition provided in this paragraph in writing if it
                reinstates the immigration judge's grant of voluntary departure.''). In
                short, the Board already serves as a de facto adjudicator of requests
                for voluntary departure, and commenters did not identify a particular,
                realistic scenario in which the Board would be unable to discern from
                the record whether an alien was eligible for voluntary departure and
                warranted a grant of such relief as a matter of discretion, especially
                in cases in which an alien maintains on appeal--and, thus, necessarily
                asserts eligibility
                [[Page 81641]]
                through reference to evidence already in the record--that he or she
                warrants voluntary departure.
                 The purpose of the changes to allow the Board to grant voluntary
                departure are to increase operational efficiency by allowing the BIA to
                grant voluntary departure rather than first requiring remand to the
                immigration court. With regard to the ability of aliens to submit
                evidence in support of their voluntary departure requests, the
                Department notes that the alien must submit all relevant voluntary
                departure evidence to the immigration court. The BIA will then
                adjudicate the voluntary departure request like any other appeal by
                reviewing the record developed at the immigration court. See 8 CFR
                1003.1(d)(7)(iv) (requiring the BIA to adjudicate voluntary departure
                requests ``based on the record''). Likewise, the BIA will only impose
                necessary conditions to ensure the alien's timely departure based on
                the record on appeal. See 8 CFR 1240.26(k)(4).
                 Responding to a commenter's concerns about the inability to
                challenge a BIA denial of voluntary departure, the Department first
                notes that existing statutory provisions already preclude appeals of
                voluntary departure decisions to Federal court, and this rule does
                not--and could not--change those provisions. INA 242(a)(2)(B)(i), 8
                U.S.C. 1252(a)(2)(B)(i) (stripping jurisdiction to review most
                discretionary determinations in immigration proceedings, including
                voluntary departure under INA 240B, 8 U.S.C. 1229c); see also INA
                240B(f), 8 U.S.C. 1229c(f) (precluding judicial review of denials of
                voluntary departure under INA 240B(b), 8 U.S.C. 1229c(b)). Moreover,
                cases in which aliens seek only voluntary departure before an
                immigration judge--and not another form of relief such as asylum, which
                is commonly appealed to Federal court--require the waiver of appeal and
                are, thus, unlikely to be appealed to the Board in the first instance.
                8 CFR 1240.26(b)(1)(i)(D). Further, where the Board has denied
                voluntary departure aliens are not prevented from filing motions to
                reopen or reconsider if applicable. See generally 8 CFR 1003.2; cf. 8
                CFR 1240.26(e)(1) (providing that such a motion prior to the expiration
                of the voluntary departure period terminates a ``grant of voluntary
                departure''). In short, the rule has no impact on an alien's existing
                ability to challenge the denial of a request for voluntary departure
                through an appeal to Federal court or a motion to reopen, and
                commenters' concerns on those points are, accordingly, unpersuasive.
                 With regards to commenter's concerns about being able to post a
                voluntary departure bond within five days of the BIA's decision, the
                Department notes that the five-day requirement remains unchanged from
                the existing regulations regarding the immigration courts. See 8 CFR
                1240.26(c)(3)(i). It further notes that immigration judges may issue
                voluntary departure orders in written decisions that are mailed to
                aliens, and it is unaware of any noted problems with that process.
                Moreover, once ECAS is deployed to the BIA, registered attorneys and
                accredited representatives will be able to immediately view and
                download documents for cases with electronic records of proceeding,
                which will mitigate commenters' concerns about mail service and its
                potential effect on complying with voluntary departure requirements.
                See generally EOIR, EOIR Courts & Appeals System (ECAS)--Online Filing
                (Oct. 5, 2020), available at https://www.justice.gov/eoir/ECAS.
                 Nevertheless, in recognition of the fact that Board orders are
                generally served by mail--unlike orders of immigration judges which are
                more often served in person--the final rule states that aliens will
                have ten business days, rather than five, to post a voluntary departure
                bond if the Board's order of voluntary departure was served by mail.
                Further, as the Board is currently transitioning to an electronic
                filing system and expects to fully deploy that system within the next
                year, the final rule retains a period of five business days to post a
                voluntary departure bond if the Board's order was served
                electronically.
                 In response to commenters' concerns about aliens being unable to
                understand English-language voluntary departure orders, the Department
                first notes that all orders, decisions, and notices issued by EOIR--
                including written decisions issued by an immigration judge granting
                voluntary departure--are in English and, likewise, all documents filed
                with EOIR must be in English or accompanied by an English-language
                translation. See, e.g., 8 CFR 1003.3(a)(3), 1003.33. Moreover, the
                Department does not believe that an English-language voluntary
                departure order, which is already used in thousands of cases every year
                with no noted concerns, raises any due process issues, as a reasonable
                recipient would be on notice that further inquiry is required. See
                Ojeda-Calderon v. Holder, 726 F.3d 669, 675 (5th Cir. 2013) (citing
                Nazarova v. INS, 171 F.3d 478, 483 (7th Cir. 1999) (explaining that due
                process does not require notices to be in a language the alien can
                understand)). Additionally, the Department notes that under
                longstanding practice, a BIA order reinstating voluntary departure--
                which is, in all material parts, an order granting voluntary
                departure--is already issued in English with appropriate warnings.
                Commenters raised no particular issues with this existing process, and
                the Department is unaware of any.
                 In response to commenters' concerns about cases in which DHS
                appeals a separate grant of relief or protection, the Department is
                making edits from the NPRM to clarify the Board's procedure in that
                situation. Although cases in which an alien made multiple applications
                for relief or protection (including voluntary departure), an
                immigration judge granted at least one application but did not address
                the request for voluntary departure, DHS appealed the immigration
                judge's decision, the BIA determined that the immigration judge's
                decision was in error and that the alien's application(s) should be
                denied, and the BIA found a basis to deny all other applications
                submitted by the respondent without needing to remand the case, leaving
                only the request for voluntary departure unadjudicated, should be
                uncommon, the Department nevertheless makes clarifying edits to 8 CFR
                1240.26(k)(2) and (3) \69\ to indicate that the BIA may grant voluntary
                departure in cases in which DHS appeals provided that the alien
                requested voluntary departure from the immigration judge and is
                otherwise eligible.
                ---------------------------------------------------------------------------
                 \69\ The Department also notes that 8 CFR 1240.26(k)(2) and (3)
                were duplicative in the NPRM and has further edited the provisions
                to remove the duplication since they apply to both types of
                voluntary departure under INA 240B, 8 U.S.C. 1229c.
                ---------------------------------------------------------------------------
                 In response to at least one commenter's concern regarding the
                expiration of an alien's travel documents, the Department notes that
                current regulations do not require the presentation of an unexpired
                travel document in every case. See, e.g., 8 CFR 1240.26(b)(3)(i)
                (presentation of a travel document for voluntary departure is not
                required when ``[a] travel document is not necessary to return to [the
                alien's] native country or to which country the alien is departing . .
                . [or] [t]he document is already in the possession of the [DHS].'')
                Moreover, ``[i]f such documentation is not immediately available to the
                alien, but the immigration judge is satisfied that the alien is making
                diligent efforts to secure it, voluntary departure may be granted for a
                period not to exceed 120 days, subject to the condition that the alien
                within 60 days must secure such
                [[Page 81642]]
                documentation and present it to [DHS].'' 8 CFR 1240.26(b)(3)(ii). The
                rule adopts those provisions by reference and, thus, already addresses
                this concern to some extent. Nevertheless, the Department is making
                changes to the final rule to make clear that if the record does not
                contain evidence of travel documentation sufficient to assure lawful
                entry into the country to which the alien is departing--and the alien
                otherwise has both asserted a request for voluntary departure and
                established eligibility under the other requirements--the Board may
                nevertheless grant voluntary for a period not to exceed 120 days,
                subject to the condition that the alien within 60 days must secure such
                documentation.
                 In response to one commenter's question, the Department notes that
                respondents cannot apply for voluntary departure in the first instance
                with the BIA because they would have waived that opportunity on appeal
                by not raising it before the immigration judge below. 8 CFR 1003.31(c);
                Matter of J-Y-C-, 24 I&N Dec. at 261 n.1 (``Because the respondent
                failed to raise this claim below, it is not appropriate for us to
                consider it for the first time on appeal''); Matter of Edwards, 20 I&N
                Dec. at 196 n.4 (``We note in passing, however, that because the
                respondent did not object to the entry of this document into evidence
                at the hearing below, it is not appropriate for him to object on
                appeal.'').
                 In addition, the rule does not conflict with 8 CFR
                1003.1(d)(3)(iv), which generally prohibits the BIA from engaging in
                fact finding. As explained in the NPRM, the rule does not allow the BIA
                to engage in additional fact finding if granting voluntary departure,
                but rather the grant ``would continue to be a legal determination based
                upon the facts as found by the immigration judge during the course of
                the underlying proceedings . . . .'' See 85 FR at 52500. Similarly, in
                cases where DHS opposed voluntary departure at the immigration court,
                the record will contain evidence of all necessary facts, or else the
                application would have been deemed waived or abandoned.
                 In response to concerns about BIA workload, the Department notes
                that immigration judges will continue to adjudicate voluntary departure
                requests in the first instance. This rule merely gives the BIA the
                authority to grant voluntary departure if certain requirements are met,
                rather than inefficiently remanding the case back to the immigration
                judge solely to grant voluntary departure. Moreover, as noted, supra,
                as the BIA already reviews appeals related to voluntary departure
                requests and possesses the authority to reinstate voluntary departure,
                which is the functional equivalent of granting it, simply authorizing
                the BIA to grant voluntary departure rather than remanding a case back
                to an immigration judge to take the same action imposes minimal
                operational burden on the Board but reduces operational inefficiency
                for EOIR as a whole.
                4. Administrative Procedure Act: Sufficiency of 30-Day Comment Period
                 Comment: Many commenters objected to the Department's allowance of
                a 30-day comment period instead of a 60-day or longer period.
                Commenters cited Executive Order 12866 and stated that a 60-day comment
                period is the standard period of time that should be provided for a
                complex rule like the NPRM. Commenters also stated that the 30-day
                comment period is insufficient in the context of the COVID-19 pandemic,
                which, commenters explained, has strained commenters' ability to
                prepare comments due to unique childcare, work-life, and academic
                difficulties. In addition, commenters stated that there was
                insufficient time to prepare responses to this rule due to other items
                that were published or released during the comment period, such as the
                Department's NPRM related to asylum procedures that the Department
                published in the final days of the comment period \70\ and the Attorney
                General's decision in Matter of A-C-A-A-, 28 I&N Dec. 84 (A.G. 2020).
                Similarly, commenters cited an NPRM that the Department jointly
                published with DHS in June \71\ as an example of the complexity of
                recent rulemaking for which commenters need adequate time to prepare
                responses. Some commenters stated that there is no need for urgency and
                a short comment period given recent drops in asylum seekers at the
                border. Commenters argued that the Department should withdraw the rule
                and republish it with a longer period for public comment.
                ---------------------------------------------------------------------------
                 \70\ Procedures for Asylum and Withholding of Removal, 85 FR
                59692 (Sept. 23, 2020).
                 \71\ Procedures for Asylum and Withholding of Removal; Credible
                Fear and Reasonable Fear Review, 85 FR 36264 (June 15, 2020).
                ---------------------------------------------------------------------------
                 Response: As an initial point, the Department notes that a far more
                sweeping regulatory change to the BIA's procedures also had only a 30-
                day comment period, 67 FR at 54879, but that there is no evidence that
                period was insufficient. Further, commenters did not suggest or
                indicate what additional issues the comment period precluded them from
                addressing; to the contrary, the comments received reflect both a
                breadth and a level of detail which suggests that the period was more
                than sufficient. Cf. City of Waukesha v. EPA, 320 F.3d 228, 246 (D.C.
                Cir. 2003) (``In [showing prejudice] in the context of a violation of
                notice-and-comment requirements, petitioners may be required to
                demonstrate that, had proper notice been provided, they would have
                submitted additional, different comments that could have invalidated
                the rationale for the revised rule.''). Additionally, to the extent
                that commenters referred to other proposed rulemakings as a basis for
                asserting the comment period should have been longer, their comparisons
                are inapposite. No other proposed rulemaking cited by commenters
                addressed a small, discrete set of procedures which are already well-
                established and with which aliens and practitioners have been quite
                familiar with for decades. In short, the Department acknowledges and
                has reviewed commenters' concerns about the 30-day comment period, but
                those comments are unavailing for all of the reasons given herein.
                 The Department believes the 30-day comment period was sufficient to
                allow for meaningful public input, as evidenced by the 1,284 public
                comments received, including numerous detailed comments from interested
                organizations.\72\ The APA does not require a specific comment period
                length, see generally 5 U.S.C. 553(b)-(c), and although Executive Order
                12866 recommends a comment period of at least 60 days, a 60-day period
                is not required. Instead, Federal courts have presumed 30 days to be a
                reasonable comment period length. For example, the D.C. Circuit has
                stated that ``[w]hen substantial rule changes are proposed, a 30-day
                comment period is generally the shortest time period sufficient for
                interested persons to meaningfully review a proposed rule and provide
                informed comment.'' Nat'l Lifeline Ass'n v. Fed. Commc'ns Comm'n, 921
                F.3d 1102, 1117 (D.C. Cir. 2019) (citing Petry v. Block, 737 F.2d 1193,
                1201 (D.C. Cir. 1984)).
                ---------------------------------------------------------------------------
                 \72\ The Department notes for comparison that the most
                significant regulatory change to the BIA's case management process
                had a 30-day comment period, and the Department received comments
                from 68 commenters. 67 FR at 54879. Although commenters objected to
                the 30-day period then as they do now, there is no evidence either
                then or now that such a window is insufficient. To the contrary, the
                significant increase in comments regarding a less comprehensive
                change to the BIA's case management process during a comment period
                of identical length strongly suggests that the 30-day period was
                appropriate.
                ---------------------------------------------------------------------------
                 Further, litigation has mainly focused on the reasonableness of
                comment
                [[Page 81643]]
                periods shorter than 30 days, often in the face of exigent
                circumstances. See, e.g., N. Carolina Growers' Ass'n, Inc. v. United
                Farm Workers, 702 F.3d 755, 770 (4th Cir. 2012) (analyzing the
                sufficiency of a 10-day comment period); Florida Power & Light Co. v.
                United States, 846 F.2d 765, 772 (D.C. Cir. 1988) (15-day comment
                period); Northwest Airlines, Inc. v. Goldschmidt, 645 F.2d 1309, 1321
                (8th Cir. 1981) (7-day comment period). Here, the significant number of
                detailed public comments is evidence that the 30-day period was
                sufficient for the public to meaningfully review and provide informed
                comment. See, e.g., Little Sisters of the Poor Saints Peter and Paul
                Home, 140 S. Ct. at 2385 (``The object [of notice and comment], in
                short, is one of fair notice.'' (citation omitted)).
                 The Department also believes that the COVID-19 pandemic has no
                effect on the sufficiency of the 30-day comment period. Employers
                around the country have adopted telework flexibilities to the greatest
                extent possible, and the Department believes that interested parties
                can use the available technological tools to prepare their comments and
                submit them electronically. Indeed, nearly every comment was received
                in this manner. Further, some of the issues identified by commenters--
                e.g., childcare--would apply regardless of the length of the comment
                period and would effectively preclude rulemaking by the Department for
                the duration of the COVID-19 outbreak. The Department finds no basis to
                suspend all rulemaking while the COVID-19 outbreak is ongoing.
                 The Department acknowledges that particular commenters may have
                faced individual personal circumstances which created challenges to
                commenting, but that assertion is true of every rulemaking. Further,
                there is no evidence of a systemic inability of commenters to provide
                comments based on personal circumstances, and commenters' assertions
                appear to reflect a desire to slow the rulemaking due to policy
                disagreements rather than an actual inability to comment on the
                rule.\73\
                ---------------------------------------------------------------------------
                 \73\ The Department also notes that several portions of the
                rule, e.g., the changes to 8 CFR 1003.1(e)(8) and (k), reflect
                either internal delegations of authority and assignment of
                responsibility or matters of agency management, personnel,
                organization, procedure, or practice, making those portions a rule
                exempt from any period of notice and comment under the APA. 5 U.S.C.
                553(a)(2), (b)(A). An internal delegation of administrative
                authority does not adversely affect members of the public and
                involves an agency management decision that is exempt from the
                notice-and-comment rulemaking procedures of the APA. See United
                States v. Saunders, 951 F.2d 1065, 1068 (9th Cir. 1991) (delegations
                of authority have ``no legal impact on, or significance for, the
                general public,'' and ``simply effect[] a shifting of
                responsibilities wholly internal to the Treasury Department'');
                Lonsdale v. United States, 919 F.2d 1440, 1446 (10th Cir. 1990)
                (``APA does not require publication of [rules] which internally
                delegate authority to enforce the Internal Revenue laws''); United
                States v. Goodman, 605 F.2d 870, 887-88 (5th Cir. 1979) (unpublished
                delegation of authority from Attorney General to Acting
                Administrator of the Drug Enforcement Agency did not violate APA);
                Hogg v. United States, 428 F.2d 274, 280 (6th Cir. 1970) (where
                taxpayer would not be adversely affected by the internal delegations
                of authority from the Attorney General, APA does not require
                publication). Thus, to the extent that commenters complained about
                the sufficiency of the comment period regarding those provisions not
                subject to the APA's notice-and-comment requirements, such
                complaints are also unavailing because commenters were not entitled
                to a comment period in the first instance.
                ---------------------------------------------------------------------------
                 Overall, based on the breadth and detail of the comments received,
                the Department's prior experience with a 30-day comment period for a
                much more sweeping change to BIA procedures, the rule's codification of
                established law with which practitioners and aliens are already
                familiar, the discrete and clear nature of the issues presented in the
                NPRM, the electronic receipt of most comments, and the essential nature
                of legal services even during the outbreak of COVID-19, the Department
                maintains that a 30-day comment period was ample for the public to
                comment on this rule. In short, none of the circumstances alleged by
                commenters appears to have actually limited the public's ability to
                meaningfully engage in the notice and comment period, and all available
                evidence provided by commenters indicates that the comment period was
                sufficient.
                5. Concerns With Regulatory Requirements
                 Comment: Commenters generally expressed concern that the Department
                did not comply with Executive Orders 12866 and 13563 because the
                Departments did not adequately consider the costs and possible
                alternatives to the provisions in the rule due to the significance of
                many of the rule's provisions.
                 For example, one commenter asserted that removing the ability to
                reopen or reconsider cases via sua sponte authority constitutes
                ``significant regulatory action'' that would trigger a cost and
                benefits analysis, as required by Executive Order 13563. The commenter
                stated that the Department should have conducted a cost and benefits
                analysis for alternatives to the rule, including preserving the current
                system and defining ``exceptional circumstances.'' The commenter
                predicted that the costs would be lower and the benefits higher if the
                Departments simply defined ``exceptional circumstances'' rather than
                entirely remove sua sponte authority.''
                 Similarly, commenters claimed that the rule does not comply with
                Executive Orders 12866 and 13563 because EOIR did not assess the costs
                and benefits of available alternatives to prohibiting the general use
                of administrative closure, including better tracking of
                administratively closed cases or regulatory changes requiring the
                parties to notify the court when ancillary relief is adjudicated.
                Commenters also noted that EOIR did not weigh the costs of unnecessary
                removal orders that the administrative closure prohibition will cause
                and the effect on applicants and their families or the costs from the
                rule's effects on eligibility for unlawful presence waivers before DHS.
                Similarly, commenters stated that EOIR should consider the reliance
                interests of adjustment of status applicants who were relying on a
                grant of administrative closure in order to apply for a provisional
                unlawful presence waiver. Likewise, a commenter stated that EOIR should
                consider the effect on legal representation agreements since the rule
                would render agreements to pursue administrative closure in order to
                apply for provisional unlawful presence waivers moot. The commenter
                also claimed that the rule violates Executive Order 13563's requirement
                to harmonize rules because it contravenes 8 CFR 212.7(e)(4)(iii).
                 Response: As an initial point, the Department has addressed many of
                these comments, supra, particularly regarding proposed alternatives,
                and it reiterates and incorporates those discussions by reference here.
                Additionally, commenters assume or conjecture, without evidence, that
                cases which are administratively closed would otherwise necessarily
                result in removal orders. As each case is adjudicated on its own merits
                in accordance with the evidence and applicable law, the Department
                declines to accept such a sweeping unsubstantiated generalization and
                finds comments based on such a generalization unpersuasive accordingly.
                 The Department agrees with the commenter that the NPRM constitutes
                a ``significant regulatory action.'' 85 FR at 52509. The Department
                drafted the rule consistent with the principles of Executive Orders
                12866 and 13563 and submitted the rule to the Office of Management and
                Budget. Id. Nevertheless, because the Department believes associated
                costs will be
                [[Page 81644]]
                negligible, if any, the Department determined that no numeric cost
                benefit analysis was necessary. As most of the rule is directed at
                internal case processing, it would substantially improve the quality
                and efficiency of the BIA appellate procedure while not imposing new
                costs on the public.\74\
                ---------------------------------------------------------------------------
                 \74\ The Department notes that a prior, more comprehensive
                revision of the BIA's case management process did not contain a
                numeric cost-benefit analysis of the type suggested by commenters.
                67 FR at 54900. Moreover, commenters did not identify what metrics
                would be appropriate to use to measure, for example, whether the BIA
                granted a motion to reopen sua sponte in contravention of Matter of
                J-J- or the predictive outcome of a case that has been
                administratively closed. The Department is unaware of any
                established measures of adherence to the law by adjudicators or for
                case processing questions that turn on the specific facts of each
                case. In the absence of such measures--and granular data which could
                be utilized to fulfill them--the Department asserts that its
                qualitative assessment of the costs and benefits of the rule in the
                NPRM and in the final rule, in concert with the rule's review by
                OMB, satisfies the requirements of the relevant Executive Orders.
                ---------------------------------------------------------------------------
                 In response to administrative closure-related concerns regarding
                compliance with Executive Orders 12866 and 13563, the Departments have
                weighed the relevant costs and benefits of the rule's administrative
                closure change in accordance with Executive Orders 12866 and 13563. The
                Department does not believe that the administrative closure changes
                will have a significant impact on the public, as most immigration
                courts--all but those in Arlington, Baltimore, Charlotte, and Chicago
                \75\--currently follow either Matter of Castro-Tum itself or an
                applicable Federal court decisioning affirming it, e.g., Hernandez-
                Serrano, 2020 WL 6883420 at *5 (``In summary, therefore, we agree with
                the Attorney General that Sec. Sec. 1003.10 and 1003.1(d) do not
                delegate to IJs or the Board `the general authority to suspend
                indefinitely immigration proceedings by administrative closure.' ''
                (quoting Matter of Castro-Tum, 27 I&N Dec. at 272)). Therefore, the
                effect of this rule would simply codify the existing limitations on
                immigration judges' general authority to grant administrative closure.
                For those courts that are not bound by Matter of Castro-Tum, the
                Department disagrees that the change will result in unnecessary removal
                orders, as immigration judges are tasked with resolving the proceedings
                before them, including determining removability and issuing removal
                orders if required. See, e.g., 8 CFR 1003.10(b) (``In all cases,
                immigration judges shall seek to resolve the questions before them in a
                timely and impartial manner consistent with the Act and
                regulations.''). The Department cannot credit commenters' counter-
                factual speculation as to the likely outcomes of cases that have been
                administratively closed, for as the Department discussed, supra, aliens
                have opposed administrative closure in individual cases because it
                interfered with their ability to obtain relief.
                ---------------------------------------------------------------------------
                 \75\ The Department notes that Matter of Castro-Tum did not
                incorporate all of the legal arguments presented in the NPRM
                regarding whether immigration judges and Board members have free-
                floating authority to defer adjudication of cases. E.g., 85 FR at
                52503 (discussing tension created by interpreting 8 CFR
                1003.1(d)(1)(ii) and 1003.10(b) to allow free-floating authority to
                administratively close cases with references in those provisions to
                the ``disposition'' of cases and with the provisions of 8 CFR
                1003.1(a)(2)(i)(C) and 1003.9(b)(3) which assign authority to defer
                case adjudications to the Board Chairman and the Chief Immigration
                Judge rather than to all Board members and all immigration judges).
                Thus, circuit court decisions abrogating Matter of Castro-Tum did
                not necessarily address those arguments. Accordingly, independent of
                Matter of Castro-Tum, immigration judges and Board members may still
                come to the conclusion that they generally lack free-floating
                authority to administratively close cases.
                ---------------------------------------------------------------------------
                 As the Department asserted, free-floating authority to unilaterally
                administratively close cases is in significant tension with existing
                law, including regulations and longstanding Board case law. 85 FR at
                52503-05. To the extent that commenters suggested the Department should
                consider alternatives to the rule that retain that tension with
                existing law, the Department finds those suggestions unpersuasive. See
                Hernandez-Serrano, 2020 WL 6883420 at *1, *4 (``A regulation delegating
                to immigration judges authority to take certain actions `[i]n deciding
                the individual cases before them' does not delegate to them general
                authority not to decide those cases at all. Yet in more than 400,000
                cases in which an alien was charged with being subject to deportation
                or (after April 1, 1997) removal, immigration judges or the Board of
                Immigration Appeals have invoked such a regulation to close cases
                administratively--meaning the case was removed from the IJ's docket
                without further proceedings absent some persuasive reason to reopen it.
                As of October 2018, more than 350,000 of those cases had not been
                reopened. An adjudicatory default on that scale strikes directly at the
                rule of law. . . . [N]o one--neither Hernandez-Serrano, nor the two
                circuit courts that have rejected the Attorney General's decision in
                Castro-Tum--has explained how a general authority to close cases
                administratively can itself be lawful while leading to such facially
                unlawful results.'').
                 Further, in addition to not resolving the legal issues raised by
                the view that immigration judges and Board members possess some
                intrinsic, freestanding authority to administratively close cases,
                commenters' proposed alternatives suffer from other infirmities or do
                not otherwise address the problem identified. For example, commenters
                did not explain why additional tracking of administratively closed
                cases and a requirement that parties notify the court of a situational
                change would effectively resolve the legal or policy issues presented.
                In fact, the Department already tracks administratively closed cases,
                EOIR, Adjudication Statistics: Administratively Closed Cases
                [hereinafter Administratively Closed Cases], Oct. 13, 2020, available
                at https://www.justice.gov/eoir/page/file/1061521/download, and the
                parties should already be notifying an immigration court or the Board
                if the basis for an order of administrative closure changes; \76\ yet,
                those items have not resolved the problems with administrative closure
                identified in the NPRM.
                ---------------------------------------------------------------------------
                 \76\ As representatives are officers of an immigration court and
                have professional responsibility obligations of candor toward the
                immigration court, parties with representation should already be
                notifying an immigration court of a relevant change that would
                affect the grant of administrative closure.
                ---------------------------------------------------------------------------
                 The question of unlawful presence waivers was already addressed by
                Matter of Castro-Tum, 27 I&N Dec. at 278 n.3, 287 n.9, and this final
                rule does not impact such waivers accordingly. Moreover, the regulation
                identified by commenters, 8 CFR 212.7(e)(4)(iii), has no analogue in
                chapter V of title 8, and that regulation is not binding on the
                Department. Further, such a waiver is both ``provisional'' and
                ``discretionary,'' 8 CFR 212.7(e)(2)(i), and like administrative
                closure itself, an alien has no right to such a waiver. Further,
                although aliens in removal proceedings (unless administratively closed)
                and aliens with administratively final orders of removal are barred
                from obtaining the waiver, 8 CFR 212.7(e)(4)(iii) and (iv), an alien
                with an administratively final order of voluntary departure is not, and
                by definition, aliens must voluntarily depart the United States in
                order to receive the benefit of such a waiver. Although the Department
                has considered the link between such waivers and administrative
                closure--just as the Attorney General did in Matter of Castro-Tum--that
                link is too attenuated to outweigh the significant legal and policy
                concerns raised by the Department regarding administrative closure.\77\
                ---------------------------------------------------------------------------
                 \77\ For similar reasons, the Department finds that this rule
                does not violate Executive Order 13563 regarding harmonization. To
                the contrary, the final rule promotes regulatory harmonization
                because it establishes consistency--and eliminates superfluousness--
                with the authority of the Board Chairman and the Chief Immigration
                Judge to defer case adjudications as established in 8 CFR
                1003.1(a)(2)(i)(C) and 8 CFR 1003.9(b)(3). As discussed, supra, it
                also harmonizes briefing schedules between detained and non-detained
                appeals and harmonizes the starting point for the adjudicatory
                deadlines for appeals heard by single BIA members and by three-
                member panels. In short, the rule promotes harmonization of
                regulatory requirements in multiple ways.
                ---------------------------------------------------------------------------
                [[Page 81645]]
                 Similarly, concerns about putative reliance interests are
                misplaced. First, as discussed, infra, the rule applies, in general,
                only prospectively, so it does not disturb cases that have already been
                administratively closed. Second, and relatedly, all changes in the law
                may impact matters of attorney strategy in interactions with clients,
                but that is an insufficient basis to decline to change the law.\78\ To
                find otherwise would effectively preclude any law from ever being
                changed. Third, nothing in the rule prohibits a practitioner from
                seeking administrative closure; rather, it more clearly delineates the
                situations in which administrative closure is legally authorized.
                Fourth, a representative may not ethically guarantee any result in a
                particular case; thus, to the extent commenters suggest that the final
                rule restricts or interferes with an attorney's ability to guarantee an
                alien both a grant of administrative closure and the approval of a
                provisional waiver, the Department finds such a suggestion unavailing.
                See Model Rules Prof'l Conduct R. 7.1 cmt. 3 (2020) (``A communication
                that truthfully reports a lawyer's achievements on behalf of clients or
                former clients may be misleading if presented so as to lead a
                reasonable person to form an unjustified expectation that the same
                results could be obtained for other clients in similar matters without
                reference to the specific factual and legal circumstances of each
                client's case.''), cmt. 4 (``It is professional misconduct for a lawyer
                to engage in conduct involving dishonesty, fraud, deceit or
                misrepresentation.'') (quoting r. 8.4(c)), and r.8.4(e) (``It is
                professional misconduct for a lawyer to . . . state or imply an ability
                to influence improperly a government agency or official or to achieve
                results by means that violate the Rules of Professional Conduct or
                other law'').
                ---------------------------------------------------------------------------
                 \78\ Furthermore, as Matter of Castro-Tum was issued in 2018,
                aliens and their representatives in jurisdictions following Castro-
                Tum should not be currently relying on the expectation of
                administrative closure to pursue provisional unlawful presence
                waivers.
                ---------------------------------------------------------------------------
                 In short, the Department appropriately considered potential
                alternatives as well as the relevant interests and alleged costs in
                issuing the final rule regarding administrative closure. On balance,
                however, the alternatives are either unavailing or would not resolve
                the issues identified by the Department, and the concerns raised by
                commenters are far outweighed by both the significant legal and policy
                issues raised by the Department in the NPRM regarding administrative
                closure and the increased efficiency and consistency that a formal
                clarification of its use will provide.
                 With regards to the costs to persons in removal proceedings who may
                no longer be eligible to obtain a provisional unlawful presence waiver
                without administrative closure, the Department believes that the strong
                interest in the efficient adjudication of cases and the legal and
                policy issues identified in the NPRM outweigh the potential inability
                of these persons to obtain provisional unlawful presence waivers,
                something to which they are not entitled to in the first instance. The
                Department notes that these persons may still apply for an unlawful
                presence waiver from outside the United States, and that DHS may
                choose, as a matter of policy, to amend their regulations to remove the
                administrative closure requirement for persons in removal proceedings
                applying for a provisional waiver. Moreover, as Matter of Castro-Tum
                was issued in 2018, aliens and their representatives in jurisdictions
                following Castro-Tum should not be currently relying on the expectation
                of administrative closure to pursue provisional unlawful presence
                waivers.
                 The Department also disagrees that the general prohibition on
                administrative closure does not harmonize with DHS regulations
                regarding provisional unlawful presence waivers. The Department
                considered the interplay of EOIR and DHS's regulations and, due to the
                strong equities in favor of limiting administrative closure, decided to
                continue with a general prohibition on administrative closure in
                immigration proceedings before EOIR. DHS chose to limit the eligibility
                for provisional unlawful presence waivers as a matter of policy, and
                DHS may choose to update their more specific regulations accordingly as
                a result of this rule.
                 In sum, the Department's analysis fully complied with all relevant
                Executive Orders, and OMB has appropriately reviewed the rule.\79\
                ---------------------------------------------------------------------------
                 \79\ The Department notes that in formulating the NPRM, it also
                considered other alternatives as well to promote more efficient BIA
                processing of appeals. For example, the BIA reviewed prior
                suggestions to charge respondents filing and transcript fees more
                commensurate with the actual costs of the proceedings or to make all
                appeals to the BIA discretionary. 67 FR at 54900. Although the
                Department may revisit those proposals in the future, they were not
                incorporated into the NPRM and are not being included in the final
                rule accordingly.
                ---------------------------------------------------------------------------
                 Comment: At least one commenter stated that the Department failed
                to adequately consider the costs of the rule on small entities,
                particularly immigration practitioners, under the Regulatory
                Flexibility Act (RFA). The commenter predicted that the rule would have
                a variety of effects of the finances of these practitioners, such as
                the need for additional appeals in Federal courts or limits on the
                number of cases a practitioner can ethically accept due to shortened
                filing deadlines.
                 Response: As the Department stated in the proposed rule, this rule
                ``does not limit the fees [practitioners] may charge, or the number of
                cases a representative may ethically accept under the rules of
                professional responsibility.'' 85 FR at 52509. Moreover, the comments
                assume, without evidence, that the rule will lead only to adverse
                outcomes for aliens and, thus, more appeals to Federal court. As noted,
                supra, that unsubstantiated generalization presumes that cases will be
                adjudicated either unethically or incompetently, and the Department
                declines to engage in such unfounded conjecture. As also noted, supra,
                the change in filing deadlines falls principally on DHS, and commenters
                neither acknowledged that point nor explained why a change in filing
                deadlines that affects few non-government practitioners would have a
                widespread effect of limiting many practitioners' caseloads.
                Additionally, although the shortened filing deadlines may change when a
                particular brief is due to the BIA, the Department disagrees with the
                commenter's speculation that it would change the overall amount of time
                required to prepare that brief or related filings, which is determined
                by the relative complexity of the case.
                 The rule sets no limits on how many cases an ethical and competent
                attorney may accept, all courts set filing deadlines, and all ethical
                and competent attorneys will adjust their practices as needed
                accordingly. Contrary to an implicit assertion by commenters, the
                intent of the Board's current practices is not to provide or ensure a
                minimum level of employment for practitioners; rather, the intent is to
                provide a fair and efficient system for adjudicating appeals.
                Consequently, any effects on employment of practitioners due to changes
                in those procedures are both minimal and incidental or ancillary at
                most; moreover, to the extent that an ancillary effect would be the
                provision
                [[Page 81646]]
                of representation by a larger cohort of practitioners, as logically
                intimated by commenters who claim that the rule will limit cases
                handled by individual practitioners, commenters did not explain why
                such an effect is necessarily unwelcome. In short, despite commenters'
                unfounded speculation, the Department finds that further analysis under
                the RFA is not warranted.
                 The Department has reviewed this rule in accordance with the RFA, 5
                U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement
                Fairness Act of 1996, Public Law 104-121, tit. II, Mar. 29, 1996, 110
                Stat. 847, and has determined that this rule would not have a
                significant economic impact on a substantial number of small entities.
                The rule will not economically impact representatives of aliens in
                immigration proceedings. It does not limit the fees they may charge or
                the number of cases a representative may ethically accept under the
                rules of professional responsibility.
                 Moreover, this determination is consistent with the Department's
                prior determination regarding much more sweeping changes to procedures
                before the Board. See 67 FR at 54900 (``The Attorney General, in
                accordance with 5 U.S.C. 605(b), has reviewed this rule and, by
                approving it, certifies that it affects only Departmental employees,
                aliens, or their representatives who appear in proceedings before the
                Board of Immigration Appeals, and carriers who appeal decisions of
                [DHS] officers. Therefore, this rule does not have a significant
                economic impact on a substantial number of small entities.''). The
                Department is unaware of any challenge to that determination regarding
                its 2002 rulemaking which significantly streamlined Board operations
                and made greater changes to Board procedures, including altering the
                Board's standard of review for credibility determinations, than this
                final rule. The Department thus believes that the experience of
                implementing that prior, broader rule also supports its conclusion that
                there is no evidence that this final will have a significant impact on
                small entities as contemplated by the RFA.
                 Additionally, the portions of the rule related to administrative
                closure would not regulate ``small entities'' as that term is defined
                in 5 U.S.C. 601(6). That portion of the rule applies to aliens in
                immigration proceedings, who are individuals, not entities. See 5
                U.S.C. 601(6). Nothing in that portion of the rule in any fashion
                regulates the legal representatives of such individuals or the
                organizations by which those representatives are employed, and the
                Departments are unaware of cases in which the RFA's requirements have
                been applied to legal representatives of entities subject to its
                provisions, in addition to or in lieu of the entities themselves. See 5
                U.S.C. 603(b)(3) (requiring that an RFA analysis include a description
                of and, if feasible, an estimate of the number of ``small entities'' to
                which the rule ``will apply''). To the contrary, case law indicates
                that indirect effects on entities not regulated by a proposed rule are
                not subject to an RFA analysis. See, e.g., Mid-Tex Elec. Co-op, Inc. v.
                FERC, 773 F.2d 327, 342-43 (D.C. Cir. 1985) (``[W]e conclude that an
                agency may properly certify that no regulatory flexibility analysis is
                necessary when it determines that the rule will not have a significant
                economic impact on a substantial number of small entities that are
                subject to the requirements of the rule . . . . Congress did not intend
                to require that every agency consider every indirect effect that any
                regulation might have on small businesses in any stratum of the
                national economy. That is a very broad and ambitious agenda, and we
                think that Congress is unlikely to have embarked on such a course
                without airing the matter.''); Cement Kiln Recycling Coalition v. EPA,
                255 F.3d 855, 869 (D.C. Cir. 2001) (``Contrary to what [petitioner]
                supposes, application of the RFA does turn on whether particular
                entities are the `targets' of a given rule. The statute requires that
                the agency conduct the relevant analysis or certify `no impact' for
                those small businesses that are `subject to' the regulation, that is,
                those to which the regulation `will apply.'. . . The rule will
                doubtless have economic impacts in many sectors of the economy. But to
                require an agency to assess the impact on all of the nation's small
                businesses possibly affected by a rule would be to convert every
                rulemaking process into a massive exercise in economic modeling, an
                approach we have already rejected.'' (citing Mid-Tex, 773 F.2d 327 at
                343)); see also White Eagle Co-op Ass'n v. Conner, 553 F.3d 467, 480
                (7th Cir. 2009) (``The rule that emerges from this line of cases is
                that small entities directly regulated by the proposed [rulemaking]--
                whose conduct is circumscribed or mandated--may bring a challenge to
                the RFA analysis or certification of an agency . . . . However, when
                the regulation reaches small entities only indirectly, they do not have
                standing to bring an RFA challenge.'').
                 Further, the Department has consistently maintained this position
                regarding immigration regulations aimed at aliens, rather than
                practitioners who represent aliens, including much broader and more
                sweeping rulemakings. See, e.g., Inspection and Expedited Removal of
                Aliens; Detention and Removal of Aliens; Conduct of Removal
                Proceedings; Asylum Procedures, 62 FR 444, 453 (Jan. 3, 1997)
                (certifying that the rule would not have a significant impact on a
                substantial number of small entities because it ``affects only Federal
                government operations'' by revising the procedures for the
                ``examination, detention, and removal of aliens''). That conclusion was
                reiterated in the interim rule, 62 FR at 10328, which was adopted with
                no noted challenge or dispute. The parts of this final rule related to
                administrative closure are similar, in that they, too, affect only the
                operations of the Federal government. In short, the Department
                reiterates its determination that there is no evidence that this final
                will have a significant impact on small entities as contemplated by the
                RFA.
                6. Miscellaneous
                a. Retroactivity Concerns
                 Comment: Some commenters expressed concerns that the rule will have
                an impermissible retroactive effect. First, at least one commenter
                argued that making the provisions regarding changes to administrative
                closure and sua sponte reopening authority effective on the date of
                publication to pending cases would have impermissible retroactive
                effect because doing so would impair the rights that asylum applicants
                have under current law. Second, at least one other commenter noted that
                even making changes applicable only to new appellate filings fails to
                account for downstream effects of the rule that could influence a
                respondent's filings or other decisions before the immigration judge.
                Finally, at least one commenter stated that the Department has not
                sufficiently considered the costs to respondents of the retroactive
                elements of the rule.
                 Response: As noted, supra, the Department is clarifying the
                generally prospective temporal application of the rule. The provisions
                of the rule applicable to appellate procedures and internal case
                processing at the BIA apply only to appeals filed, motions to reopen or
                reconsider filed, or cases remanded to the Board by a Federal court on
                or after the effective date of the final rule. As the withdrawal of a
                delegation of authority by the Attorney General, the provisions of the
                rule related to the restrictions on sua sponte
                [[Page 81647]]
                reopening authority are effective for all cases, regardless of posture,
                on the effective date.\80\ The provisions of the rule related to
                restrictions on the BIA's certification authority are effective for all
                cases in which an immigration judge issues a decision on or after the
                effective date. The provisions of the rule regarding administrative
                closure are applicable to all cases initiated by a charging document
                filed by DHS, reopened, or recalendared on or after the effective
                date.\81\
                ---------------------------------------------------------------------------
                 \80\ As discussed, supra, neither party possesses a right to
                file a ``motion to reopen sua sponte,'' and such a motion is, in
                fact, an ``oxymoron.'' Thus, the restrictions on the use of that
                authority have no impact on the parties' ability to seek use of that
                authority, regardless of the current status of a case.
                 \81\ To the extent that the rule merely codifies existing law or
                authority, however, nothing in the rule precludes adjudicators from
                applying that existing authority to pending cases independently of
                the generally prospective application of the rule. For example, the
                Department notes that independent of the final rule, the Attorney
                General's decision in Matter of Castro-Tum, 27 I&N Dec. 271, remains
                binding and applicable to all pending cases, except in the Fourth
                and Seventh Circuits. See INA 103(a)(1), 8 U.S.C. 1103(a)(1)
                (``[D]etermination and ruling by the Attorney General with respect
                to all questions of law [as to the INA and other laws relating to
                the immigration and naturalization of aliens] shall be
                controlling''); INA 103(g)(2), 8 U.S.C. 1103(g)(2) (``The Attorney
                General shall . . . review such administrative determinations in
                immigration proceedings . . . as the Attorney General determines to
                be necessary for carrying out [his authorities].''); 8 CFR
                1003.1(g)(1) (``[D]ecisions of the Attorney General are binding on
                all officers and employees of DHS or immigration judges in the
                administration of the immigration laws of the United States.'').
                ---------------------------------------------------------------------------
                 Commenters are incorrect that the rule's amendments regarding
                authority over administrative closure and sua sponte reopening
                authority would have impermissible retroactive effect. First, as noted
                supra, the change regarding administrative closure generally applies
                prospectively and merely codifies the status quo for all but four
                immigration courts nationwide. Second, there is no right to sua sponte
                reopening or even to file such a cognizable motion. There is similarly
                no right to administrative closure. Thus, these changes do not remove
                any ``vested rights'' from aliens. In addition, in the context of the
                changes regarding administrative closure, the Department emphasizes
                that the alien may continue to proceed with their relief applications
                before USCIS and seek continuances before EOIR, see Matter of L-A-B-R-,
                27 I&N Dec. 405. Similarly, aliens may continue to utilize motions to
                reopen, including those filed as joint motions or those based on
                equitable tolling, in lieu of filing improper motions to reopen sua
                sponte.
                 Commenters broad and generalized concerns about alleged downstream
                effects are wholly speculative and do not account for either the case-
                by-case nature of adjudication or the fact-intensive nature of many
                cases. Hypothetical effects on procedural choices and tactical
                decisions related to an alien's claims in future cases, including those
                that have not even been filed or reopened, are not impositions on an
                alien's legal rights in a manner that has retroactivity concerns.
                Finally, as commenters' concerns about retroactivity of the rule are
                unfounded for the reasons given, their concerns about alleged costs
                imposed by such ``retroactivity'' are similarly unfounded.\82\
                ---------------------------------------------------------------------------
                 \82\ In addition, the Department notes that the commenter cited
                INS v. St. Cyr, 533 U.S. 289, 316 (2001) in support of the argument
                that the Department failed to consider costs, but the relevant
                discussion by the Supreme Court in that case is dicta surrounding
                the reasons that courts must first consider if Congress intended for
                legislative to have retroactive effect.
                ---------------------------------------------------------------------------
                b. Creation of Independent Immigration Courts
                 Comment: Multiple commenters stated that the rule highlighted the
                need for the immigration courts and immigration judges to be
                ``independent'' and outside the Executive branch and political
                influence.
                 Response: These commenters' recommendations are both beyond the
                scope of this rulemaking and the Department's authority. Congress has
                provided for a system of administrative hearings for immigration cases,
                which the Departments believe should be maintained. See generally INA
                240, 8 U.S.C. 1229a (laying out administrative procedures for removal
                proceedings); cf. Strengthening and Reforming America's Immigration
                Court System: Hearing before the Subcomm. On Border Sec. & Immigration
                of the S. Comm. on the Judiciary, 115th Cong. (2018) (written response
                to Questions for the Record of James McHenry, Director, Executive
                Office for Immigration Review) (``The financial costs and logistical
                hurdles to implementing an Article I immigration court system would be
                monumental and would likely delay pending cases even further.''). Only
                Congress has the authority to create a new Article I court or other
                changed framework for the adjudication of immigration cases. Finally,
                the Department reiterates that immigration judges and Board members
                already exercise ``independent judgment and discretion'' in deciding
                cases, 8 CFR 1003.1(d)(1)(ii) and 1003.10(b), and are prohibited from
                considering political influences in their decision-making, BIA Ethics
                and Professionalism Guide at sec. VIII (``A Board Member should not be
                swayed by partisan interests or public clamor.''), IJ Ethics and
                Professionalism Guide at sec. VIII (``An Immigration Judge should not
                be swayed by partisan interests or public clamor.''). Thus, contrary to
                commenters' assertions, immigration judges and Board members are
                already independent adjudicators who do not render decisions based on
                political influence or political interests. As commenters' claims are
                unfounded in law or practice--and beyond the scope of this rulemaking--
                the Department declines to address them further.
                c. Transactional Records Access Clearinghouse (TRAC) Report
                 Comment: Several commenters objecting to the NPRM's provisions
                regarding administrative closure pointed to a press announcement and
                web page by TRAC, issued on September 10, 2020, during the comment
                period.\83\ See TRAC, What's New: The Life and Death of Administrative
                Closure, Sept. 10, 2020, available at https://trac.syr.edu/whatsnew/email.200910.html (last visited Nov. 25, 2020), and TRAC, The Life and
                Death of Administrative Closure, Sept. 10, 2020, available at https://trac.syr.edu/immigration/reports/623/ (last visited Nov. 25, 2020)
                (``TRAC Report''). Commenters asserted that TRAC's analysis undermined
                the Department's bases for the rule related to administrative closure.
                ---------------------------------------------------------------------------
                 \83\ Although several commenters cited the TRAC report, TRAC
                itself did not submit a comment on the NPRM and appears not to have
                taken a position on it.
                ---------------------------------------------------------------------------
                 Response: The Department has reviewed the TRAC Report referenced by
                commenters but finds it both unpersuasive as a basis for commenters'
                suggestions to revise the final rule and largely inapposite to the
                issue overall. As an initial point, the TRAC Report does not address
                any of the legal issues surrounding administrative closure raised by
                the NPRM. 85 FR at 52503-05. Thus, for example, it does not address the
                existing regulations' references to the ``disposition'' of a case, the
                superfluousness issue raised by existing regulations for the Board
                Chairman and the Chief Immigration Judge allowing them to defer
                adjudication of cases, or the propriety of authorizing an immigration
                judge or Board Member to infringe upon the prosecutorial discretion of
                DHS. Without engaging the Department's legal concerns, the utility and
                persuasiveness of the TRAC Report are inherently limited.
                 TRAC's broader claims regarding administrative closure, framed by
                commenters as a policy challenge to the
                [[Page 81648]]
                Department's position, also provide little support for revising the
                rule. TRAC listed four conclusions it derived from data analysis on
                EOIR data \84\ regarding administratively closed cases. Those
                conclusions, however, are of limited probative value and do not
                undermine the Department's foundations for the rule.
                ---------------------------------------------------------------------------
                 \84\ The Department does not know what analytics TRAC performed
                or the precise methods and definitions it employed. Accordingly, the
                Department cannot speak to the accuracy of TRAC's results. Even
                assuming the results are accurate, however, TRAC's assertions--and
                commenters' reliance on them--are unpersuasive for the reasons
                given.
                ---------------------------------------------------------------------------
                 TRAC's first conclusion is that ``administrative closure has been
                routinely used by Immigration Judges to manage their growing caseloads
                as well as manage the unresolved overlapping of jurisdictions between
                the EOIR and other immigration agencies.'' TRAC Report, supra. No one,
                including the Department, has disputed that immigration judges
                previously used administrative closure. See, e.g., Administratively
                Closed Cases. There is no evidence, however, that it was used
                effectively to manage caseloads--in the sense of resolving cases more
                efficiently--or used to resolve issues of overlapping jurisdiction,\85\
                and TRAC does not provide evidence to the contrary. TRAC merely states
                the historical frequency of the usage of administrative closure, which
                is a statement not in dispute or of particular relevance to the rule.
                ---------------------------------------------------------------------------
                 \85\ TRAC does not explain what it means by ``overlapping
                jurisdiction'' and does not elaborate further on the point in its
                Report.
                ---------------------------------------------------------------------------
                 Moreover, TRAC's conclusory observation that ``[a]dministrative
                closures have allowed judges to temporarily close cases and take them
                off their active docket either because judges wish to focus limited
                resources on higher priority removal cases or because jurisdictional
                issues were prolonging the case'' is doubtful for several reasons. See
                Hernandez-Serrano, 2020 WL 6883420 at *4 (``To the contrary, the
                regulations expressly limit their delegation to actions `necessary for
                the disposition' of the case. And that more restricted delegation
                cannot support a decision not to decide the case for reasons of
                administrative `convenience' or the `efficient management of the
                resources of the immigration courts and the BIA.' '' (cleaned up,
                emphasis in original)). As both TRAC and the Department have noted,
                administratively closed cases are not ``temporarily'' closed in any
                realistic sense of the word; rather, they are taken off the docket for
                either at least three years (according to TRAC) or at least 10 years
                (Administratively Closed Cases). See id. at *1, *4 (``A regulation
                delegating to immigration judges authority to take certain actions
                `[i]n deciding the individual cases before them' does not delegate to
                them general authority not to decide those cases at all. Yet in more
                than 400,000 cases in which an alien was charged with being subject to
                deportation or (after April 1, 1997) removal, immigration judges or the
                Board of Immigration Appeals have invoked such a regulation to close
                cases administratively--meaning the case was removed from the IJ's
                docket without further proceedings absent some persuasive reason to
                reopen it. As of October 2018, more than 350,000 of those cases had not
                been reopened. An adjudicatory default on that scale strikes directly
                at the rule of law. . . [N]o one. . . has explained how a general
                authority to close cases administratively can itself be lawful while
                leading to such facially unlawful results.'').
                 Further, administrative closure does not resolve legal questions of
                jurisdiction, and even if it did, TRAC does not explain why prolonging
                a case through administrative closure would address the issue of cases
                already prolonged due to jurisdictional questions. Further, TRAC does
                not explain why it is appropriate for an immigration judge to choose
                which cases are a ``priority'' rather than DHS, who--unlike EOIR and
                immigration judges--is statutorily tasked by Congress with
                ``[e]stablishing national immigration enforcement policies and
                priorities.'' Homeland Security Act of 2002, Public Law 107-296, sec.
                402(5), Nov. 25, 2002, 116 Stat. 2135, 2178 (codified at 6 U.S.C.
                202(5)). For all of these reasons, TRAC's first conclusion, to the
                extent it is relied on by commenters, does not provide a persuasive
                basis for altering the rule.
                 TRAC's second conclusion, ``administrative closure has helped
                reduce the backlog,'' is patently incorrect, as both the Department and
                TRAC's own data establishes. TRAC Report, supra. As TRAC acknowledges,
                ``[a]dministrative closure does not terminate a case, it does not
                provide permanent relief from deportation, and it does not confer
                lawful status of any kind.'' TRAC Report, supra; see also Matter of
                Amico, 19 I&N Dec. 652, 654 n.1 (BIA 1988) (``The administrative
                closing of a case does not result in a final order.''); Matter of
                Lopez-Barrios, 20 I&N Dec. at 204 (``However, [administrative closure]
                does not result in a final order.''). Consequently, because
                administrative closure is not a disposition of a case and does not
                result in a final order, the case remains pending, albeit inactive. In
                other words, the removal of the case from an active docket does not
                make the case disappear; thus, administratively closed cases contribute
                to the overall tally of pending cases--colloquially called a
                ``backlog''--just as much as active cases do. Both TRAC's data and the
                Department's data, EOIR, Adjudication Statistics: Active and Inactive
                Pending Cases, Oct. 13, 2020, available at https://www.justice.gov/eoir/page/file/1139516/download, show that the pending caseload,
                including both active and inactive cases, has grown considerably in
                recent years.\86\ This growth has occurred for reasons other than
                administrative closure, particularly since 2017. Nevertheless, the
                increase in the use of administrative closure beginning in FY 2012 did
                not reduce the overall pending caseload, contrary to the assertions of
                TRAC and commenters.
                ---------------------------------------------------------------------------
                 \86\ TRAC itself has issued reports since at least 2009 noting
                the annual growth in the pending caseload which it terms a backlog.
                TRAC Immigration Reports, Immigration Courts, available at https://trac.syr.edu/phptools/reports/reports.php?layer=immigration&report_type=report (last visited Nov.
                24, 2020). TRAC also noted this increase in the pending caseload
                even at the height of the use of administrative closure between 2012
                and 2018. Compare TRAC Immigration Reports, Once Intended to Reduce
                Immigration Court Backlog, Prosecutorial Discretion Closures
                Continue Unabated (Jan. 15, 2014), available at https://trac.syr.edu/immigration/reports/339/ (last visited Nov. 25, 2020)
                (use of administrative closure was intended ``as a program to clear
                cases from the accumulated court backlog'') with TRAC Immigration
                Reports, Immigration Court Backlog Keeps Rising (May 15, 2015),
                available at https://trac.syr.edu/immigration/reports/385/ (last
                visited Nov. 25, 2020) (caseload still increasing in 2015) and TRAC
                Immigration Reports, Immigration Backlog Still Rising Despite New
                Judge Investitures (July 19, 2016), available at https://trac.syr.edu/immigration/reports/429/ (last visited Nov. 25, 2020)
                (caseload still increasing in 2016).
                ---------------------------------------------------------------------------
                 TRAC's third conclusion, ``data from the Immigration Courts show
                that immigrants who obtain administrative closure are likely to have
                followed legal requirements and obtain lawful status,'' is both
                arguable as an assertion of fact and, ultimately of little relevance to
                the rule. TRAC Report, supra. According to TRAC's data, only 16 percent
                of aliens were awarded relief after their cases were administratively
                closed, whereas 40 percent were ordered removed or received an order of
                voluntary departure.\87\ Id. Those numbers belie the
                [[Page 81649]]
                assertion that aliens whose cases have been administratively closed are
                likely to obtain lawful status.\88\ Moreover, whatever outcomes may or
                may not result following the administrative closure of a case, those
                outcomes, which are based on specific evidence in each case and
                applicable law and may cut both for and against the parties, do not
                effectively outweigh the concerns noted by the Department in issuing
                the rule.
                ---------------------------------------------------------------------------
                 \87\ TRAC reports that 44 percent of cases resulted in the
                termination of proceedings after being administratively closed,
                which TRAC intuits to mean there was no longer a valid ground to
                remove the alien. As terminations may result from different bases,
                however, it is not clear that every termination resulted from the
                vitiation of grounds of removal against an alien. Moreover, TRAC's
                analysis does not consider whether the terminations were proper
                under the law, which was recently clarified by the Attorney General.
                See Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 468 (A.G. 2018)
                (``As discussed above, however, immigration judges have no inherent
                authority to terminate removal proceedings even though a particular
                case may pose sympathetic circumstances.''). Accordingly, it is not
                clear that the data, even if it is accurate, supports the assertion
                that aliens whose cases have been terminated ``followed legal
                requirements and obtain[ed] lawful status.'' TRAC Immigration
                Reports, The Life and Death of Administrative Closure (Sept. 10,
                2020) available at https://trac.syr.edu/immigration/reports/623/
                (last visited 11/25/2020).
                 \88\ TRAC did not distinguish cases that would remain eligible
                for administrative closure under the final rule. Nevertheless, the
                Department notes that because an appropriate exercise of
                administrative closure under the rule includes regulations and
                settlement agreements that allow aliens to seek different types of
                relief from removal, Matter of Castro-Tum, 27 I&N Dec. at 276-78,
                the fact that only 16 percent of aliens overall obtain relief after
                their cases are administratively closed is further evidence that the
                impact of the rule is much less than commenters assert.
                ---------------------------------------------------------------------------
                 TRAC's fourth conclusion, ``the EOIR significantly misrepresented
                the data it used to justify this rule,'' is simply wrong. TRAC Report,
                supra. TRAC bases its claim primarily on the fact that EOIR does not
                include administrative closure decisions as completed cases; however,
                TRAC itself acknowledges that administratively closed cases are not
                final and, thus, not complete. Id. (``Administrative closure does not
                terminate a case, it does not provide permanent relief from
                deportation, and it does not confer lawful status of any kind.''); cf.
                Hernandez-Serrano, 2020 WL 6883420 at *3 (``Administrative closure
                typically is not an action taken `[i]n deciding' a case before an IJ;
                instead, as shown above, it is typically a decision not to decide the
                case. Nor is administrative closure typically an action `necessary for
                the disposition' of an immigration case. Administrative closure is not
                itself a `disposition' of a case, as Hernandez-Serrano concedes in this
                appeal.''). Moreover, TRAC does not explain why an administratively
                closed case should be considered completed in light of longstanding BIA
                case law that such cases are not, in fact, completed. See Matter of
                Amico, 19 I&N Dec. at 654 n.1 (``The administrative closing of a case
                does not result in a final order.''); Matter of Lopez-Barrios, 20 I&N
                Dec. at 204 (``However, [administrative closure] does not result in a
                final order.'').
                 Similarly, TRAC asserts that EOIR that did not consider the average
                number of completed cases by immigration judges over time which TRAC
                asserts has declined in recent years. As an initial point, the
                Department notes that TRAC includes decisions of administrative closure
                as ``completions'' in its analysis which is contrary to both TRAC's own
                view and the relevant case law, as discussed above. Nevertheless, even
                if administratively closed cases were included as completed cases,
                TRAC's analysis presents an additional flaw.
                 The Department does not generally provide average, per-immigration
                judge completion numbers and did not rely on any such statistics in the
                rule. Further, TRAC's reliance on the raw number of immigration judges
                to calculate its own average--suggesting that per-immigration judge
                completions have declined from 737 to 657--illustrates the problem with
                calculating such an average. Immigration judges are hired throughout
                the year, they may be promoted at different times in the year, and they
                may retire, separate, or die during the year. Further, new immigration
                judges do not begin hearing full dockets of cases immediately upon
                hire, and immigration judges may also be off the bench for extended
                periods due to leave, military obligations, or disciplinary action.
                Thus, the number of immigration judges frequently fluctuates throughout
                the year and is not static. Consequently, using the snapshot number of
                immigration judges at the beginning or end of the fiscal year--as TRAC
                does--does not account for those changes, particularly for newly hired
                or supervisory immigration judges who are not hearing full or regular
                dockets. In other words, due to retirements, promotions, and new hires,
                the actual number of immigration judges who adjudicated cases during a
                fiscal year--and whose cases are included in the end-of-the-year
                completion totals--is necessarily different than the end-of-the-year
                total. TRAC's data does not appear to have controlled for immigration
                judges who were not or no longer hearing full dockets, including those
                not hearing full dockets but counted in EOIR's overall total and, thus,
                the Department finds its assertions unsupported.\89\
                ---------------------------------------------------------------------------
                 \89\ In contrast, when the Department does calculate a per-
                immigration judge completion average, it controls for judges who did
                not hear regular dockets of cases throughout the fiscal year. See,
                e.g., EOIR, Executive Office for Immigration Review Announces Case
                Completion Numbers for Fiscal Year 2019, Oct. 10, 2019, available at
                https://www.justice.gov/opa/pr/executive-office-immigration-review-announces-case-completion-numbers-fiscal-year-2019 (``On average,
                immigration judges who performed over the whole year completed 708
                cases each in FY19.'') (emphasis added)).
                ---------------------------------------------------------------------------
                 Additionally, even if TRAC's analysis were accurate, the
                implications of it for the rule are not apparent.\90\ To the extent
                that TRAC asserts that immigration judge productivity has declined over
                time--at least until FY 2019--the Department generally agrees with that
                assertion, but its relevance to the rule is unclear. Although the
                Department acknowledges TRAC's tacit suggestion that the limitation of
                administrative closure by Matter of Castro-Tum in FY 2018 contributed
                to an increase in immigration judge productivity in FY 2019, the
                Department has not investigated that link explicitly. Moreover, the
                rule was proposed to address multiple legal and policy concerns with
                the use of administrative closure, to provide clearer delineation
                regarding the appropriateness of its usage, and to address inefficiency
                issues that it has wrought, particularly to the extent that it has
                contributed to docket churning and unnecessary delays in adjudicating
                cases. 85 FR at 52503-04. Thus, although decreased immigration judge
                productivity, which may result from multiple causes including the
                inappropriate use of administrative closure, may undermine the
                Department's ability to efficiently adjudicate cases, the rule was not
                promulgated solely to increase productivity.
                ---------------------------------------------------------------------------
                 \90\ The Department notes in passing two additional concerns
                about TRAC's analysis on this point. First, TRAC divides its
                analysis by Presidential administration even though the ability of
                an immigration judge to administratively close a case continued for
                over a year into the current administration. Second, TRAC does not
                acknowledge that even under its methodology, per-immigration judge
                case completions increased in FY 2019. Thus, it is not clear that
                its overall assertion--a clear decline in per-immigration judge
                productivity under the current administration--is even factually
                accurate.
                ---------------------------------------------------------------------------
                 In short, to the extent that commenters relied on the TRAC Report
                as a basis for opposing the rule, the Department finds that Report
                unpersuasive for the many reasons noted. Consequently, the Department
                also declines to accept the comments based on it.
                III. Regulatory Requirements
                A. Administrative Procedure Act
                 Portions of this final rule state a rule of agency organization,
                procedure, or practice and reflect matters of agency management or
                personnel, e.g., the provisions of 8 CFR 1003.1(e)(8) and (k), because
                they reflect internal
                [[Page 81650]]
                management directives or delegations of authority by the Attorney
                General. Thus, those portions of the rule are exempt from the
                requirements for notice-and-comment rulemaking and a 30-day delay in
                effective date. 5 U.S.C. 553(a)(2), (b)(A). Nevertheless, rather than
                attempting to parse out different sections of the rule with different
                effective dates, the Department has elected to publish the entire final
                rule with a 30-day effective date under the APA. 5 U.S.C. 553(d).
                B. Regulatory Flexibility Act
                 The Department has reviewed this rule in accordance with the RFA (5
                U.S.C. 605(b)) and has determined that this rule will not have a
                significant economic impact on a substantial number of small entities.
                The Department's discussion of the RFA in section II.C.5, supra, in
                response to RFA-related comments received on the rule is incorporated
                in full herein by reference.
                C. Unfunded Mandates Reform Act of 1995
                 This rule will not result in the expenditure by State, local, and
                tribal governments, in the aggregate, or by the private sector, of $100
                million or more in any one year (adjusted annually for inflation), and
                it will not significantly or uniquely affect small governments.
                Therefore, no actions were deemed necessary under the provisions of the
                Unfunded Mandates Reform Act of 1995.
                D. Executive Orders 12866, 13563, and 13771
                 Portions of this rule involve agency organization, management, or
                personnel matters and would, therefore, not be subject to review by the
                Office of Management and Budget (OMB) pursuant to section 3(d)(3) of
                Executive Order 12866. For similar reasons, those portions would not be
                subject to the requirements of Executive Orders 13563 or 13771.
                Nevertheless, rather than parse out individual provisions to determine
                whether OMB review is warranted for discrete provisions of the rule,
                the Department has determined that this rule, as a whole, is a
                ``significant regulatory action'' under section 3(f) of Executive Order
                12866, Regulatory Planning and Review. Accordingly, this rule has been
                submitted to OMB for review.
                 The Department certifies that this regulation has been drafted in
                accordance with the principles of Executive Orders 12866, 13563, and
                13771. Executive Orders 12866 and 13563 direct agencies to assess the
                costs and benefits of available regulatory alternatives and, if
                regulation is necessary, to select regulatory approaches that maximize
                net benefits (including potential economic, environmental, public
                health, and safety effects, distributive impacts, and equity).
                Executive Order 13563 emphasizes the importance of quantifying both
                costs and benefits, reducing costs, harmonizing rules, and promoting
                flexibility.
                 As noted in the NPRM, 85 FR at 52509, the Department believes that
                the rule will help more efficiently adjudicate cases before the BIA
                allowing for a reduction in the number of cases pending before EOIR
                overall and an increase in the BIA adjudicating more appeals annually.
                The Department believes the costs to the public will be negligible, if
                any, because the basic briefing procedures will remain the same (and
                any notable changes fall principally on DHS rather than the public),
                because current BIA policy already disfavors multiple or lengthy
                briefing extension requests, because the use of administrative closure
                has already been restricted subsequent to the decision in Matter of
                Castro-Tum, 27 I&N Dec. 271, because no party has a right to sua sponte
                reopening authority and a motion to exercise such authority is already
                not cognizable under existing law, and because the BIA is generally
                already prohibited from considering new evidence on appeal. Further,
                the Department notes that the most significant regulatory change to the
                BIA's case management process--and a more comprehensive one than the
                one in the final rule--was promulgated without the type of numeric
                analysis commenters suggested is warranted with no noted concerns or
                challenges on that basis. 67 FR at 54900.
                 In short, the rule does not impose any new costs, and most, if not
                all, of the proposed rule is directed at internal case processing. Any
                changes contemplated by the rule would have little, if any, apparent
                impact on the public but would substantially improve both the quality
                and efficiency of BIA appellate adjudications. The Department has
                complied with the relevant Executive Orders.
                 The Department did find the rule to be a significant regulatory
                action and, as such, performed an analysis under Executive Order 13771.
                In applying Executive Order 13771, the Department determined that this
                final rule will substantially improve BIA appellate procedure with the
                result of negligible new costs to the public. As such, no budget
                implications will result from this final rule, and no balance is needed
                from the repeal of other regulations.
                E. Executive Order 13132--Federalism
                 This rule will not have substantial direct effects on the states,
                on the relationship between the Federal government and the states, or
                on the distribution of power and responsibilities among the various
                levels of government. Therefore, in accordance with section six of
                Executive Order 13132, it is determined that this rule would not have
                sufficient federalism implications to warrant the preparation of a
                federalism summary impact statement.
                F. Executive Order 12988--Civil Justice Reform
                 This rule meets the applicable standards set forth in sections 3(a)
                and 3(b)(2) of Executive Order 12988.
                G. Paperwork Reduction Act
                 This rule does not propose new ``collection[s] of information'' as
                that term is defined under the Paperwork Reduction Act of 1995, Public
                Law 104-13, 109 Stat. 163 (codified at 44 U.S.C. 3501-3521) (``PRA''),
                and its implementing regulations, 5 CFR part 1320.
                H. Congressional Review Act
                 This proposed rule is not a major rule as defined by section 804 of
                the Congressional Review Act. 5 U.S.C. 804. This rule will not result
                in an annual effect on the economy of $100 million or more; a major
                increase in costs or prices; or significant adverse effects on
                competition, employment, investment, productivity, innovation, or on
                the ability of United States-based enterprises to compete with foreign-
                based enterprises in domestic and export markets.
                List of Subjects
                8 CFR Part 1003
                 Administrative practice and procedure, Aliens, Immigration, Legal
                services, Organization and functions (Government agencies).
                8 CFR Part 1240
                 Administrative practice and procedure, Aliens.
                 Accordingly, for the reasons set forth in the preamble, and by the
                authority vested in the Director, Executive Office for Immigration
                Review, by the Attorney General Order Number 4910-2020, the Department
                amends 8 CFR parts 1003 and 1240 as follows:
                [[Page 81651]]
                PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
                0
                1. The authority citation for part 1003 continues to read as follows:
                 Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
                1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
                1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
                2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
                section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
                and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
                1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
                0
                2. Amend Sec. 1003.1 by:
                0
                a. Revising paragraph (c), (d)(1)(ii), and (d)(3)(iv);
                0
                b. Adding paragraph (d)(3)(v);
                0
                c. Revising paragraph (d)(6)(ii), (iii), and (iv) and (d)(7);
                0
                d. In pargraph (e) introductory text:
                0
                i. Removing ``this paragraph'' and adding ``this paragraph (e)'' in its
                place; and
                0
                ii. Adding a sentence at the end of the paragraph;
                0
                e. Revising paragraphs (e)(1), (e)(8) introductory text, and (e)(8)(i)
                and (iii);
                0
                f. Removing and reserving paragraph (e)(8)(iv);
                0
                g. Adding five sentences at the end of paragraph (e)(8)(v) and adding
                paragraphs (e)(8)(v)(A) through (F); and
                0
                h. Adding paragraph (k).
                 The additions and revisions read as follows:
                Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
                Immigration Appeals.
                * * * * *
                 (c) Jurisdiction by certification. The Secretary, or any other duly
                authorized officer of DHS, or an immigration judge may in any case
                arising under paragraph (b) of this section certify such case to the
                Board for adjudication.
                 (d) * * *
                 (1) * * *
                 (ii) Subject to the governing standards set forth in paragraph
                (d)(1)(i) of this section, Board members shall exercise their
                independent judgment and discretion in considering and determining the
                cases coming before the Board, and a panel or Board member to whom a
                case is assigned may take any action consistent with their authorities
                under the Act and the regulations as is appropriate and necessary for
                the disposition of the case. Nothing in this paragraph (d)(1)(ii) shall
                be construed as authorizing the Board to administratively close or
                otherwise defer adjudication of a case unless a regulation promulgated
                by the Department of Justice or a previous judicially approved
                settlement expressly authorizes such an action. Only the Director or
                Chief Appellate Immigration Judge may direct the deferral of
                adjudication of any case or cases by the Board.
                * * * * *
                 (3) * * *
                 (iv)(A) The Board will not engage in factfinding in the course of
                deciding cases, except that the Board may take administrative notice of
                facts that are not reasonably subject to dispute, such as:
                 (1) Current events;
                 (2) The contents of official documents outside the record;
                 (3) Facts that can be accurately and readily determined from
                official government sources and whose accuracy is not disputed; or
                 (4) Undisputed facts contained in the record.
                 (B) If the Board intends to rely on an administratively noticed
                fact outside of the record, such as those indicated in paragraphs
                (d)(3)(iv)(A)(1) through (3) of this section, as the basis for
                reversing an immigration judge's grant of relief or protection from
                removal, it must provide notice to the parties of its intent and afford
                them an opportunity of not less than 14 days to respond to the notice.
                 (C) The Board shall not sua sponte remand a case for further
                factfinding unless the factfinding is necessary to determine whether
                the immigration judge had jurisdiction over the case.
                 (D) Except as provided in paragraph (d)(6)(iii) or (d)(7)(v)(B) of
                this section, the Board shall not remand a direct appeal from an
                immigration judge's decision for additional factfinding unless:
                 (1) The party seeking remand preserved the issue by presenting it
                before the immigration judge;
                 (2) The party seeking remand, if it bore the burden of proof before
                the immigration judge, attempted to adduce the additional facts before
                the immigration judge;
                 (3) The additional factfinding would alter the outcome or
                disposition of the case;
                 (4) The additional factfinding would not be cumulative of the
                evidence already presented or contained in the record; and
                 (5) One of the following circumstances is present in the case:
                 (i) The immigration judge's factual findings were clearly
                erroneous;
                 (ii) The immigration judge's factual findings were not clearly
                erroneous, but the immigration judge committed an error of law that
                requires additional factfinding on remand; or
                 (iii) Remand to DHS is warranted following de novo review.
                 (v) The Board may affirm the decision of the immigration judge or
                the Department of Homeland Security on any basis supported by the
                record, including a basis supported by facts that are not reasonably
                subject to dispute, such as undisputed facts in the record.
                * * * * *
                 (6) * * *
                 (ii) Except as provided in paragraph (d)(6)(iv) of this section, if
                identity, law enforcement, or security investigations or examinations
                have not been completed or DHS reports that the results of prior
                investigations or examinations are no longer current under the
                standards established by DHS, and the completion of the investigations
                or examinations is necessary for the Board to complete its adjudication
                of the appeal, the Board will provide notice to both parties that, in
                order to complete adjudication of the appeal, the case is being placed
                on hold until such time as all identity, law enforcement, or security
                investigations or examinations are completed or updated and the results
                have been reported to the Board. Unless DHS advises the Board that such
                information is no longer necessary in the particular case, the Board's
                notice will notify the alien that DHS will contact the alien to take
                additional steps to complete or update the identity, law enforcement,
                or security investigations or examinations only if DHS is unable to
                independently update the necessary investigations or examinations. If
                DHS is unable to independently update the necessary investigations or
                examinations, DHS shall send the alien instructions that comply with
                the requirements of Sec. 1003.47(d) regarding the necessary procedures
                and contemporaneously serve a copy of the instructions with the Board.
                The Board's notice will also advise the alien of the consequences for
                failing to comply with the requirements of this section. DHS is
                responsible for obtaining biometrics and other biographical information
                to complete or update the identity, law enforcement, or security
                investigations or examinations with respect to any alien in detention.
                 (iii) In any case placed on hold under paragraph (d)(6)(ii) of this
                section, DHS shall report to the Board promptly when the identity, law
                enforcement, or security investigations or examinations have been
                completed or updated. If a non-detained alien fails to comply with
                necessary procedures for collecting biometrics or other biographical
                information within 90 days of the DHS's instruction notice under
                paragraph
                [[Page 81652]]
                (d)(6)(ii) of this section, if applicable, the Board shall deem the
                application abandoned unless the alien shows good cause before the 90-
                day period has elapsed, in which case the alien should be given no more
                than an additional 30 days to comply with the procedures. If the Board
                deems an application abandoned under this section, it shall adjudicate
                the remainder of the appeal within 30 days and shall enter an order of
                removal or a grant of voluntary departure, as appropriate. If DHS
                obtains relevant information as a result of the identity, law
                enforcement, or security investigations or examinations, including
                civil or criminal investigations of immigration fraud, DHS may move the
                Board to remand the record to the immigration judge for consideration
                of whether, in view of the new information, any pending applications
                for immigration relief or protection should be denied, either on
                grounds of eligibility or, where applicable, as a matter of discretion.
                If DHS fails to report the results of timely completed or updated
                identity, law enforcement, or security investigations or examinations
                within 180 days of the Board's notice under paragraph (d)(6)(ii) of
                this section, the Board shall remand the case to the immigration judge
                for further proceedings under Sec. 1003.47(h).
                 (iv) The Board is not required to hold a case pursuant to paragraph
                (d)(6)(ii) of this section if the Board decides to dismiss the
                respondent's appeal or deny the relief or protection sought.
                * * * * *
                 (7) Finality of decision--(i) In general. The decision of the Board
                shall be final except in those cases reviewed by the Attorney General
                in accordance with paragraph (h) of this section. In adjudicating an
                appeal, the Board possesses authority to issue an order of removal, an
                order granting relief from removal, an order granting protection from
                removal combined with an order of removal as appropriate, an order
                granting voluntary departure with an alternate order of removal, and an
                order terminating or dismissing proceedings, provided that the issuance
                of any order is consistent with applicable law. The Board may affirm
                the decision of the immigration judge or DHS on any basis supported by
                the record. In no case shall the Board order a remand for an
                immigration judge to issue an order that the Board itself could issue.
                 (ii) Remands. In addition to the possibility of remands regarding
                information obtained as a result of the identity, law enforcement, or
                security investigations or examinations under paragraph (d)(6)(iii) of
                this section, after applying the appropriate standard of review on
                appeal, the Board may issue an order remanding a case to an immigration
                judge or DHS for further consideration based on an error of law or
                fact, subject to any applicable statutory or regulatory limitations,
                including paragraph (d)(3)(iv)(D) of this section and the following:
                 (A) The Board shall not remand a case for further action without
                identifying the standard of review it applied and the specific error or
                errors made by the adjudicator in paragraphs (d)(7)(ii)(B) through (E)
                of this section.
                 (B) The Board shall not remand a case based on the application of a
                ``totality of the circumstances'' standard of review.
                 (C) The Board shall not remand a case based on a legal argument not
                presented in paragraphs (d)(7)(ii)(D) through (E) of this section
                unless that argument pertains to an issue of jurisdiction over an
                application or the proceedings, or to a material change in fact or law
                underlying a removability ground or grounds specified in section 212 or
                237 of the Act that occurred after the date of the immigration judge's
                decision, and substantial evidence indicates that change has vitiated
                all grounds of removability applicable to the alien.
                 (D) The Board shall not sua sponte remand a case unless the basis
                for such a remand is solely a question of jurisdiction over an
                application or the proceedings.
                 (E) The Board shall not remand a case to an immigration judge
                solely to consider or reconsider a request for voluntary departure nor
                solely due to the failure of the immigration judge to provide advisals
                following a grant of voluntary departure. In such situations, the Board
                shall follow the procedures in Sec. 1240.26(k) of this chapter.
                 (iii) Scope of the remand. Where the Board remands a case to an
                immigration judge, it divests itself of jurisdiction of that case,
                unless the Board remands a case due to the court's failure to forward
                the administrative record in response to the Board's request. The Board
                may qualify or limit the scope or purpose of a remand order without
                retaining jurisdiction over the case following the remand. In any case
                in which the Board has qualified or limited the scope or purpose of the
                remand, the immigration judge shall not consider any issues outside the
                scope or purpose of that order, unless such an issue calls into
                question the immigration judge's continuing jurisdiction over the case.
                 (iv) Voluntary departure. The Board may issue an order of voluntary
                departure under section 240B of the Act, with an alternate order of
                removal, if the alien requested voluntary departure before an
                immigration judge, the alien's notice of appeal specified that the
                alien is appealing the immigration judge's denial of voluntary
                departure and identified the specific factual and legal findings that
                the alien is challenging, and the Board finds that the alien is
                otherwise eligible for voluntary departure, as provided in Sec.
                1240.26(k) of this chapter. In order to grant voluntary departure, the
                Board must find that all applicable statutory and regulatory criteria
                have been met, based on the record and within the scope of its review
                authority on appeal, and that the alien merits voluntary departure as a
                matter of discretion. If the Board does not grant the request for
                voluntary departure, it must deny the request.
                 (v) New evidence on appeal. (A) Subject to paragraph (d)(7)(v)(B),
                the Board shall not receive or review new evidence submitted on appeal,
                shall not remand a case for consideration of new evidence received on
                appeal, and shall not consider a motion to remand based on new
                evidence. A party seeking to submit new evidence shall file a motion to
                reopen in accordance with applicable law.
                 (B) Nothing in paragraph (d)(7)(v)(A) of this section shall
                preclude the Board from remanding a case based on new evidence or
                information obtained after the date of the immigration judge's decision
                as a result of identity, law enforcement, or security investigations or
                examinations, including civil or criminal investigations of immigration
                fraud, regardless of whether the investigations or examinations were
                conducted pursuant to Sec. 1003.47(h) or paragraph (d)(6) of this
                section, nor from remanding a case to address a question of
                jurisdiction over an application or the proceedings or a question
                regarding a ground or grounds of removability specified in section 212
                or 237 of the Act.
                * * * * *
                 (e) * * * The provisions of this paragraph (e) shall apply to all
                cases before the Board, regardless of whether they were initiated by
                filing a Notice of Appeal, filing a motion, or receipt of a remand from
                Federal court, the Attorney General, or the Director.
                 (1) Initial screening. All cases shall be referred to the screening
                panel for review upon the filing of a Notice of Appeal or a motion or
                upon receipt of a remand from a Federal court, the Attorney General, or
                the Director. Screening panel review shall be completed within 14 days
                of the filing or receipt. Appeals subject to summary dismissal as
                provided in paragraph (d)(2) of this section, except for those
                [[Page 81653]]
                subject to summary dismissal as provided in paragraph (d)(2)(i)(E) of
                this section, shall be promptly dismissed no later than 30 days after
                the Notice of Appeal was filed. Unless referred for a three-member
                panel decision pursuant to paragraph (e)(6) of this section, an
                interlocutory appeal shall be adjudicated within 30 days of the filing
                of the appeal.
                * * * * *
                 (8) Timeliness. The Board shall promptly enter orders of summary
                dismissal, or other miscellaneous dispositions, in appropriate cases
                consistent with paragraph (e)(1) of this section. In all other cases,
                the Board shall promptly order a transcript, if appropriate, within
                seven days after the screening panel completes its review and shall
                issue a briefing schedule within seven days after the transcript is
                provided. If no transcript may be ordered due to a lack of available
                funding or a lack of vendor capacity, the Chairman shall so certify
                that fact in writing to the Director. The Chairman shall also maintain
                a record of all such cases in which transcription cannot be ordered and
                provide that record to the Director. If no transcript is required, the
                Board shall issue a briefing schedule within seven days after the
                screening panel completes its review. The case shall be assigned to a
                single Board member for merits review under paragraph (e)(3) of this
                section within seven days of the completion of the record on appeal,
                including any briefs or motions. The single Board member shall then
                determine whether to adjudicate the appeal or to designate the case for
                decision by a three-member panel under paragraphs (e)(5) and (6) of
                this section within 14 days of being assigned the case. The single
                Board member or three-member panel to which the case is assigned shall
                issue a decision on the merits consistent with this section and with a
                priority for cases or custody appeals involving detained aliens.
                 (i) Except in exigent circumstances as determined by the Chairman,
                subject to concurrence by the Director, or as provided in paragraph
                (d)(6) of this section or as provided in Sec. Sec. 1003.6(c) and
                1003.19(i), the Board shall dispose of all cases assigned to a single
                Board member within 90 days of completion of the record, or within 180
                days of completion of the record for all cases assigned to a three-
                member panel (including any additional opinion by a member of the
                panel).
                * * * * *
                 (iii) In rare circumstances, when an impending decision by the
                United States Supreme Court or an impending en banc Board decision may
                substantially determine the outcome of a group of cases pending before
                the Board, the Chairman, subject to concurrence by the Director, may
                hold the cases until such decision is rendered, temporarily suspending
                the time limits described in this paragraph (e)(8). The length of such
                a hold shall not exceed 120 days.
                * * * * *
                 (v) * * * The Chairman shall notify the Director of all cases in
                which an extension under paragraph (e)(8)(ii) of this section, a hold
                under paragraph (e)(8)(iii) of this section, or any other delay in
                meeting the requirements of paragraph (e)(8) of this section occurs.
                For any case still pending adjudication by the Board more than 335 days
                after the appeal was filed, the motion was filed, or the remand was
                received and not described in paragraphs (e)(8)(v)(A) through (E) of
                this section, the Chairman shall refer that case to the Director for
                decision. For a case referred to the Director under this paragraph
                (e)(8)(v), the Director shall exercise delegated authority from the
                Attorney General identical to that of the Board as described in this
                section, including the authority to issue a precedential decision and
                the authority to refer the case to the Attorney General for review,
                either on his own or at the direction of the Attorney General. The
                Director may not further delegate this authority. For purposes of this
                paragraph (e)(8)(v), the following categories of cases pending
                adjudication by the Board more than 335 days after the appeal was
                filed, the motion was filed, or the remand was received will not be
                referred by the Chairman to the Director:
                 (A) Cases subject to a hold under paragraph (d)(6)(ii) of this
                section;
                 (B) Cases subject to an extension under paragraph (e)(8)(ii) of
                this section;
                 (C) Cases subject to a hold under paragraph (e)(8)(iii) of this
                section;
                 (D) Cases whose adjudication has been deferred by the Director
                pursuant to Sec. 1003.0(b)(1)(ii);
                 (E) Cases remanded by the Director under paragraph (k) of this
                section in which 335 days have elapsed following the remand; and,
                 (F) Cases that have been administratively closed prior to the
                elapse of 335 days after the appeal was filed pursuant to a regulation
                promulgated by the Department of Justice or a previous judicially
                approved settlement that expressly authorizes such an action and the
                administrative closure causes the pendency of the appeal to exceed 335
                days.
                * * * * *
                 (k) Quality assurance certification. (1) In any case in which the
                Board remands a case to an immigration judge or reopens and remands a
                case to an immigration judge, the immigration judge may forward that
                case by certification to the Director for further review only in the
                following circumstances:
                 (i) The Board decision contains a typographical or clerical error
                affecting the outcome of the case;
                 (ii) The Board decision is clearly contrary to a provision of the
                Act, any other immigration law or statute, any applicable regulation,
                or a published, binding precedent;
                 (iii) The Board decision is vague, ambiguous, internally
                inconsistent, or otherwise did not resolve the basis for the appeal; or
                 (iv) A material factor pertinent to the issue(s) before the
                immigration judge was clearly not considered in the decision.
                 (2) In order to certify a decision under paragraph (k)(1) of this
                section, an immigration judge must:
                 (i) Issue an order of certification within 30 days of the Board
                decision if the alien is not detained and within 15 days of the Board
                decision if the alien is detained;
                 (ii) In the order of certification, specify the regulatory basis
                for the certification and summarize the underlying procedural, factual,
                or legal basis; and
                 (iii) Provide notice of the certification to both parties.
                 (3) For a case certified to the Director under this paragraph (k),
                the Director shall exercise delegated authority from the Attorney
                General identical to that of the Board as described in this section,
                except as otherwise provided in this paragraph (k), including the
                authority to request briefing or additional filings from the parties at
                the sole discretion of the Director, the authority to issue a precedent
                decision, and the authority to refer the case to the Attorney General
                for review, either on the Director's own or at the direction of the
                Attorney General. For a case certified to the Director under this
                paragraph (k), the Director may dismiss the certification and return
                the case to the immigration judge or the Director may remand the case
                back to the Board for further proceedings. In a case certified to the
                Director under this paragraph (k), the Director may not issue an order
                of removal, grant a request for voluntary departure, or grant or deny
                an application for relief or protection from removal.
                [[Page 81654]]
                 (4) The quality assurance certification process shall not be used
                as a basis solely to express disapproval of or disagreement with the
                outcome of a Board decision unless that decision is alleged to reflect
                an error described in paragraph (k)(1) of this section.
                0
                3. Amend Sec. 1003.2 by:
                0
                a. In paragraph (a), revising the first sentence and adding a sentence
                following the first sentence;
                0
                b. Revising paragraph (b)(1);
                0
                c. Removing the word ``or'' in paragraph (c)(3)(iii);
                0
                d. Removing the period at the end of paragraph (c)(3)(iv) and adding a
                semicolon in its place;
                0
                e. Adding paragraph (c)(3)(v), (vi), and (vii); and
                0
                f. Removing paragraph (c)(4).
                 The revision and additions read as follows:
                Sec. 1003.2 Reopening or reconsideration before the Board of
                Immigration Appeals.
                 (a) General. The Board may at any time reopen or reconsider a case
                in which it has rendered a decision on its own motion solely in order
                to correct a ministerial mistake or typographical error in that
                decision or to reissue the decision to correct a defect in service. In
                all other cases, the Board may only reopen or reconsider any case in
                which it has rendered a decision solely pursuant to a motion filed by
                one or both parties. * * *
                 (b) * * *
                 (1) A motion to reconsider shall state the reasons for the motion
                by specifying the errors of fact or law in the prior Board decision and
                shall be supported by pertinent authority.
                * * * * *
                 (c) * * *
                 (3) * * *
                 (v) For which a three-member panel of the Board agrees that
                reopening is warranted when the following circumstances are present,
                provided that a respondent may file only one motion to reopen pursuant
                to this paragraph (c)(3):
                 (A) A material change in fact or law underlying a removability
                ground or grounds specified in section 212 or 237 of the Act that
                occurred after the entry of an administratively final order that
                vitiates all grounds of removability applicable to the alien; and
                 (B) The movant exercised diligence in pursuing the motion to
                reopen;
                 (vi) Filed based on specific allegations, supported by evidence,
                that the respondent is a United States citizen or national; or
                 (vii) Filed by DHS in removal proceedings pursuant to section 240
                of the Act or in proceedings initiated pursuant to Sec. 1208.2(c) of
                this chapter.
                * * * * *
                0
                4. Amend Sec. 1003.3 by revising paragraphs (a)(2) and (c)(1) and (2)
                to read as follows:
                Sec. 1003.3 Notice of appeal.
                 (a) * * *
                 (2) Appeal from decision of a DHS officer. A party affected by a
                decision of a DHS officer that may be appealed to the Board under this
                chapter shall be given notice of the opportunity to file an appeal. An
                appeal from a decision of a DHS officer shall be taken by filing a
                Notice of Appeal to the Board of Immigration Appeals from a Decision of
                a DHS Officer (Form EOIR-29) directly with DHS in accordance with the
                instructions in the decision of the DHS officer within 30 days of the
                service of the decision being appealed. An appeal is not properly filed
                until it is received at the appropriate DHS office, together with all
                required documents, and the fee provisions of Sec. 1003.8 are
                satisfied.
                * * * * *
                 (c) * * *
                 (1) Appeal from decision of an immigration judge. Briefs in support
                of or in opposition to an appeal from a decision of an immigration
                judge shall be filed directly with the Board. In those cases that are
                transcribed, the briefing schedule shall be set by the Board after the
                transcript is available. In all cases, the parties shall be provided 21
                days in which to file simultaneous briefs unless a shorter period is
                specified by the Board. Reply briefs shall be permitted only by leave
                of the Board and only if filed within 14 days of the deadline for the
                initial briefs. The Board, upon written motion and a maximum of one
                time per case, may extend the period for filing a brief or, if
                permitted, a reply brief for up to 14 days for good cause shown. If an
                extension is granted, it is granted to both parties, and neither party
                may request a further extension. Nothing in this paragraph (c)(1) shall
                be construed as creating a right to a briefing extension for any party
                in any case, and the Board shall not adopt a policy of granting all
                extension requests without individualized consideration of good cause.
                In its discretion, the Board may consider a brief that has been filed
                out of time. In its discretion, the Board may request supplemental
                briefing from the parties after the expiration of the briefing
                deadline. All briefs, filings, and motions filed in conjunction with an
                appeal shall include proof of service on the opposing party.
                 (2) Appeal from decision of a DHS officer. Briefs in support of or
                in opposition to an appeal from a decision of a DHS officer shall be
                filed directly with DHS in accordance with the instructions in the
                decision of the DHS officer. The applicant or petitioner and DHS shall
                be provided 21 days in which to file a brief, unless a shorter period
                is specified by the DHS officer from whose decision the appeal is
                taken, and reply briefs shall be permitted only by leave of the Board
                and only if filed within 14 days of the deadline for the initial
                briefs. Upon written request of the alien and a maximum of one time per
                case, the DHS officer from whose decision the appeal is taken or the
                Board may extend the period for filing a brief for up to 14 days for
                good cause shown. After the forwarding of the record on appeal by the
                DHS officer the Board may, solely in its discretion, authorize the
                filing of supplemental briefs directly with the Board and may provide
                the parties up to a maximum of 14 days to simultaneously file such
                briefs. In its discretion, the Board may consider a brief that has been
                filed out of time. All briefs and other documents filed in conjunction
                with an appeal, unless filed by an alien directly with a DHS office,
                shall include proof of service on the opposing party.
                * * * * *
                0
                5. Revise Sec. 1003.5 to read as follows:
                Sec. 1003.5 Forwarding of record on appeal.
                 (a) Appeal from decision of an immigration judge. If an appeal is
                taken from a decision of an immigration judge, the record of proceeding
                shall be promptly forwarded to the Board upon the request or the order
                of the Board, unless the Board already has access to the record of
                proceeding in electronic format. The Director, in consultation with the
                Chairman and the Chief Immigration Judge, shall determine the most
                effective and expeditious way to transcribe proceedings before the
                immigration judges. The Chairman and the Chief Immigration Judge shall
                take such steps as necessary to reduce the time required to produce
                transcripts of those proceedings and to ensure their quality.
                 (b) Appeal from decision of a DHS officer. If an appeal is taken
                from a decision of a DHS officer, the record of proceeding shall be
                forwarded to the Board by the DHS officer promptly upon receipt of the
                briefs of the parties, or upon expiration of the time allowed for the
                submission of such briefs, unless the DHS officer reopens and approves
                the petition.
                [[Page 81655]]
                Sec. 1003.7 [Amended]
                0
                6. Amend Sec. 1003.7 by removing ``Service'' and ``the Service'' each
                place they appear and adding in their place the acronym ``DHS''.
                0
                7. Amend Sec. 1003.10(b) by:
                0
                a. Removing ``governing standards'' and adding ``governing standards
                set forth in paragraph (d) of this section'' in its place; and
                0
                b. Adding two sentences at the end of the paragraph.
                 The additions reads as follows:
                Sec. 1003.10 Immigration judges.
                * * * * *
                 (b) * * * Nothing in this paragraph (b) nor in any regulation
                contained in part 1240 of this chapter shall be construed as
                authorizing an immigration judge to administratively close or otherwise
                defer adjudication of a case unless a regulation promulgated by the
                Department of Justice or a previous judicially approved settlement
                expressly authorizes such an action. Only the Director or Chief
                Immigration Judge may direct the deferral of adjudication of any case
                or cases by an immigration judge.
                * * * * *
                0
                8. Amend Sec. 1003.23 by:
                0
                a. In paragraph (b)(1) introductory text:
                0
                i. Revising the first sentence and adding a sentence following the
                first sentence; and
                0
                ii. Removing ``this paragraph'' and adding ``this paragraph (b)(1)'' in
                its place;
                0
                b. Adding paragraphs (b)(4)(v) and (vi).
                 The revision and additions read as follows:
                Sec. 1003.23 Reopening or reconsideration before the Immigration
                Court.
                * * * * *
                 (b) * * *
                 (1) In general. Unless jurisdiction is vested with the Board of
                Immigration Appeals, an immigration judge may at any time reopen a case
                in which he or she has rendered a decision on his or her own motion
                solely in order to correct a ministerial mistake or typographical error
                in that decision or to reissue the decision to correct a defect in
                service. Unless jurisdiction is vested with the Board of Immigration
                Appeals, in all other cases, an immigration judge may only reopen or
                reconsider any case in which he or she has rendered a decision solely
                pursuant to a motion filed by one or both parties. * * *
                * * * * *
                 (4) * * *
                 (v) Exceptions to time and numerical limitations. The time and
                numerical limitations set forth in paragraph (b)(1) of this section
                shall not apply to a motion to reopen proceedings filed when each of
                the following circumstances is present, provided that a respondent may
                file only one motion to reopen pursuant to this paragraph (b)(4):
                 (A) A material change in fact or law underlying a removability
                ground or grounds specified in section 212 or 237 of the Act occurred
                after the entry of an administratively final order that vitiates all
                grounds of removability applicable to the alien; and
                 (B) The movant exercised diligence in pursuing the motion to
                reopen.
                 (vi) Asserted United States citizenship or nationality. The time
                limitations set forth in paragraph (b)(1) of this section shall not
                apply to a motion to reopen proceedings filed based on specific
                allegations, supported by evidence, that the respondent is a United
                States citizen or national.
                PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
                UNITED STATES
                0
                9. The authority citation for part 1240 continues to read as follows:
                 Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226,
                1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202
                and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L.
                105-277 (112 Stat. 2681).
                0
                10. Amend Sec. 1240.26 by:
                0
                a. Redesignating paragraph (j) as paragraph (l);
                0
                b. Adding a new reserved paragraph (j); and
                0
                c. Adding paragraph (k).
                 The addition reads as follows:
                Sec. 1240.26 Voluntary departure--authority of the Executive Office
                for Immigration Review.
                * * * * *
                 (k) Authority of the Board to grant voluntary departure in the
                first instance. The following procedures apply to any request for
                voluntary departure reviewed by the Board:
                 (1) The Board shall not remand a case to an immigration judge to
                reconsider a request for voluntary departure. If the Board first finds
                that an immigration judge incorrectly denied an alien's request for
                voluntary departure or failed to provide appropriate advisals, the
                Board shall consider the alien's request for voluntary departure de
                novo and, if warranted, may enter its own order of voluntary departure
                with an alternate order of removal.
                 (2) In cases which an alien has appealed an immigration judge's
                decision or in which DHS and the alien have both appealed an
                immigration judge's decision, the Board shall not grant voluntary
                departure under section 240B of the Act unless:
                 (i) The alien requested voluntary departure under that section
                before the immigration judge, the immigration judge denied the request,
                and the alien timely appealed;
                 (ii) The alien's notice of appeal specified that the alien is
                appealing the immigration judge's denial of voluntary departure and
                identified the specific factual and legal findings that the alien is
                challenging;
                 (iii) The Board finds that the immigration judge's decision was in
                error; and
                 (iv) The Board finds that the alien meets all applicable statutory
                and regulatory criteria for voluntary departure under that section.
                 (3) In cases in which DHS has appealed an immigration judge's
                decision, the Board shall not grant voluntary departure under section
                240B of the Act unless:
                 (i) The alien requested voluntary departure under that section
                before the immigration judge and provided evidence or a proffer of
                evidence in support of the alien's request;
                 (ii) The immigration judge either granted the request or did not
                rule on it; and,
                 (iii) The Board finds that the alien meets all applicable statutory
                and regulatory criteria for voluntary departure under that section.
                 (4) The Board may impose such conditions as it deems necessary to
                ensure the alien's timely departure from the United States, if
                supported by the record on appeal and within the scope of the Board's
                authority on appeal. Unless otherwise indicated in this section, the
                Board shall advise the alien in writing of the conditions set by the
                Board, consistent with the conditions set forth in paragraphs (b), (c),
                (d), (e), (h), and (i) of this section (other than paragraph (c)(3)(ii)
                of this section), except that the Board shall advise the alien of the
                duty to post the bond with the ICE Field Office Director within 10
                business days of the Board's order granting voluntary departure if that
                order was served by mail and shall advise the alien of the duty to post
                the bond with the ICE Field Office Director within five business days
                of the Board's order granting voluntary departure if that order was
                served electronically. If documentation sufficient to assure lawful
                entry into the country to which the alien is departing is not contained
                in the record, but the alien continues to assert a request for
                voluntary departure
                [[Page 81656]]
                under section 240B of the Act and the Board finds that the alien is
                otherwise eligible for voluntary departure under the Act, the Board may
                grant voluntary departure for a period not to exceed 120 days, subject
                to the condition that the alien within 60 days must secure such
                documentation and present it to DHS and the Board. If the Board imposes
                conditions beyond those specifically enumerated, the Board shall advise
                the alien in writing of such conditions. The alien may accept or
                decline the grant of voluntary departure and may manifest his or her
                declination either by written notice to the Board within five days of
                receipt of its decision, by failing to timely post any required bond,
                or by otherwise failing to comply with the Board's order. The grant of
                voluntary departure shall automatically terminate upon a filing by the
                alien of a motion to reopen or reconsider the Board's decision, or by
                filing a timely petition for review of the Board's decision. The alien
                may decline voluntary departure if he or she is unwilling to accept the
                amount of the bond or other conditions.
                * * * * *
                James R. McHenry III,
                Director, Executive Office for Immigration Review, Department of
                Justice.
                [FR Doc. 2020-27008 Filed 12-11-20; 8:45 am]
                BILLING CODE 4410-30-P
                

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