BIA: Immigration Judge Improperly Terminated Pending Immigration Case

On October 23, the Board of Immigration Appeals (BIA) — the administrative tribunal in DOJ’s Executive Office for Immigration Review (EOIR) that considers appeals of immigration judge (IJ) decisions — issued an opinion in Matter of J-A-N-M-. It found that an IJ improperly terminated a “withholding only” case involving a Honduran national who reentered illegally after removal. The bigger questions are why Biden-era regulations even allow such terminations, and whether Trump II plans on scrapping those regulations.

“Limited Proceedings”

Aliens who are inadmissible under section 212(a) of the Immigration and Nationality Act (INA) or deportable under section 237(a) of the INA usually have their removability determined and eligibility for “relief” from removal (like asylum) adjudicated in removal proceedings under section 240 of the INA.

But section 240 removal proceedings are just one way in which questions involving alien removals are considered.

Pursuant to regulation, certain aliens seeking asylum, “statutory withholding” under section 241(b)(3) of the INA, and protection under Article III of the Convention Against Torture (CAT) — collectively “humanitarian protection” — are not entitled to the protections accorded in section 240 removal proceedings, but may only have their claims heard in “asylum-only” proceedings.

Such proceedings are the only forum for consideration of humanitarian protection claims by certain alien crewmembers, stowaways, applicants for admission under the Visa Waiver Program (VWP), VWP overstays, and a handful of other aliens with limited due process rights in this country.

Then, there are aliens who reenter illegally after deportation pursuant to removal orders.

Section 241(a)(5) of the INA permits DHS to reinstate such orders without placing those aliens into removal proceedings again, but that doesn’t mean they will be immediately removed.

That’s because if such alien “reentrants” claim a fear of persecution or torture, they must, by regulation, be referred to a USCIS asylum officer to determine whether they have a “reasonable fear” of return.

Illegal reentrants aren’t eligible for asylum, but if an asylum officer concludes that they have a reasonable fear of persecution or torture, DHS must place them into “withholding-only” proceedings before IJs to seek statutory withholding or CAT protection.

Asylum-only and withholding-only proceedings are both “limited proceedings”: the only issue before the immigration court is whether the alien is eligible for the available humanitarian relief. Other forms of relief (like adjustment of status) are off the table, and aliens in limited proceedings are barred from claiming they aren’t removable.

J-A-N-M-

The respondent in the BIA case, J-A-N-M-, is a Honduran national who was initially removed from the United States in August 2006. He thereafter reentered illegally at an unspecified time and place, and after DHS found him, the department reinstated his prior removal order in July 2024.

J-A-N-M- claimed he’d be harmed if returned to Honduras, an asylum officer found he had a reasonable fear, and in October 2024, DHS placed him into withholding-only proceedings.

In those proceedings, the IJ — having concluded J-A-N-M- was not credible — denied his applications for statutory withholding and CAT.

Issues arose in the case, however, because J-A-N-M- apparently also claims to have been a victim of criminal activity, as the record shows he has an application for a nonimmigrant “U visa” pending.

J-A-N-M- asked the IJ to administratively close — that is, shelve his withholding-only case indefinitely — while USCIS considers that U visa application, but because he was detained, the IJ denied that request.

For reasons that are unexplained in the BIA’s opinion, however, even though the IJ denied J-A-N-M-‘s request for administrative closure, he granted the alien’s request for “discretionary termination” of his withholding-only case.

“Discretionary Termination”

IJs have only had regulatory authority to terminate cases involving facially removable aliens like J-A-N-M- since May 2024, when the Biden administration published a final rule titled “Efficient Case and Docket Management in Immigration Proceedings”.

Among other things, that rule amended a prior regulation first implemented in 1997 (later recodified at 8 C.F.R. § 1003.18), which prior to amendment solely governed the scheduling of cases — not their closure or termination.

The Biden-era rule rebranded the regulation “Docket Management” and (among other things) amended it to expand the authority of IJs to administratively close or alternatively terminate immigration cases filed by DHS.

As currently written, 8 C.F.R. § 1003.18(d)(2)(ii), “Other Proceedings … Discretionary Termination”, states, in pertinent part:

In proceedings other than removal, deportation, or exclusion proceedings, immigration judges may, in the exercise of discretion, terminate the case upon the motion of a party where terminating the case is necessary or appropriate for the disposition or alternative resolution of the case. However, immigration judges may not terminate a case for purely humanitarian reasons, unless DHS expressly consents to such termination, joins in a motion to terminate, or affirmatively indicates its non-opposition to a noncitizen’s motion.

That was the authority the IJ relied on in terminating J-A-N-M-‘s withholding-only proceeding, and notably, the IJ terminated that case over DHS’s objection.

Matter of J-A-N-M-

DHS appealed that termination order, teeing the matter up for the BIA’s precedent opinion in Matter of J-A-N-M-.

Briefly, the Board held the IJ erred by not reading the next subparagraph in that Biden-era regulation, § 1003.18(d)(2)(iii), which specifically bars terminations of, inter alia, withholding-only proceedings “where prohibited by another regulatory provision”.

The other provision in question here is 8 C.F.R. § 1208.2(c)(3)(i), under which “all parties are prohibited from raising or considering any other issues” in withholding-only proceedings aside from whether the alien is eligible for statutory withholding and CAT, “including but not limited to issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief”.

Thus, the regulation barred the IJ from considering whether J-A-N-M- may also be eligible for other forms of relief (like a U visa) that could be adjudicated by a third agency (like USCIS) after termination.

On that basis, the BIA reversed the IJ.

The Bigger Issues

Note that the Biden administration only expanded 8 C.F.R. § 1003.18 to allow IJs to close and terminate pending cases after it had issued guidance to DHS attorneys encouraging them to administratively close, terminate, and dismiss then-pending cases that didn’t fit within its anti-enforcement “priorities”.

That guidance took a major toll on our immigration system. As the House Judiciary Committee explained in October 2024: “Under the Biden-Harris Administration, more than 700,000 illegal aliens … had their cases dismissed, terminated, or administratively closed, allowing those aliens to stay in the country indefinitely without facing immigration consequences.”

In any event, by granting IJs termination and closure authority, the regulation ignores 42 years of case law, beginning with the BIA’s 1982 opinion in Matter of Quintero, where the Board held IJs:

may neither terminate nor indefinitely adjourn the proceedings in order to delay an alien’s deportation. … Once deportation proceedings have been initiated by [now DHS], the immigration judge may not review the wisdom of the [now-DHS’s] action, but must execute his duty to determine whether the deportation charge is sustained by the requisite evidence in an expeditious manner.

Despite that fact, the authors of the rule contended it “neither alters, impacts, nor diminishes DHS’s prosecutorial authority or discretion” — a questionable contention, at best.

Even if you accept the argument that Biden’s DHS had “prosecutorial discretion” to ignore Congress’s detention and removal mandates in the INA, no judge in our system of justice — immigration or otherwise — can also be a “prosecutor”, or be given discretion to terminate a validly filed immigration case for any reason aside from the government’s inability to sustain its removal charges.

But by allowing IJs to terminate and close pending cases involving facially removable aliens over the government’s objections, that’s exactly what this regulation does. True, the rule prevents IJ’s from terminating cases “for purely humanitarian reasons” (whatever that means) over the government’s objection, but all other cases are fair game.

Moreover, the drafters of the rule argued that it doesn’t “authorize immigration judges … to unilaterally decline to adjudicate cases, as administratively closed cases still remain pending on EOIR’s docket”.

That ignores the fact that, as of the end of June, more than 9.5 percent of the nearly 3.8 million cases pending before IJs were administratively closed (almost 362,000 in total), and that the “average length of time a case has been administratively closed” before an IJ at that point was just about “16 years”.

To be fair, the median length of time cases before IJs were administratively closed in June was a more modest 11-plus years, but still, that’s a long time for any case to “remain pending on EOIR’s docket”.

In its efforts to restore credibility to our immigration system, the Trump administration might want to look at the expansive regulatory authority its predecessor gave IJs to terminate and close immigration cases. The Board of Immigration Appeals’ latest decision offers a good vantage point from which to begin.