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Chapter 1 – Introduction to EOIR

1.4 - Jurisdiction, Authority, and Priorities

(a) The Office of the Chief Immigration Judge

     (1) Jurisdiction - Immigration judges generally have the jurisdiction, or authority, to determine removability, excludability, or deportability and to adjudicate certain applications for relief or protection from removal under the INA.

     (2) No jurisdiction - Although immigration judges exercise broad authority over matters brought before the immigration courts, immigration judges do not have authority over:

  • Visa petitions;
  • Employment authorization;
  • Certain waivers;
  • Naturalization applications;
  • Revocation of naturalization;
  • Parole into the United States under INA § 212(d)(5);
  • Applications for advance parole;
  • Employer sanctions;
  • Immigration-related employment discrimination and related document fraud;
  • Administrative fines and penalties under 8 CFR parts 280 and 1280; and
  • DHS determinations involving safe third country agreements.

     (3) Immigration judge decisions - Immigration judges render oral or written decisions at the end of immigration court proceedings.  See ICPM, Chapter 5.11 (Decisions).  An immigration judge’s decision is final unless a party timely appeals the decision to the BIA or an immigration judge certifies the case to the BIA.  Parties should note that the certification of a case is separate from any appeal in the case.  See BIA PM, Chapter 4 (Appeals of Immigration Judge Decisions).

(b) The Board of Immigration Appeals

     (1) Jurisdiction - The BIA generally has the authority to review appeals from the following:

  • Decisions of Immigration Judges in removal, deportation, and exclusion proceedings (with some limitations on decisions involving voluntary departure);
  • Decisions of Immigration Judges pertaining to asylum, withholding of deportation, withholding of removal, Temporary Protected Status, the Convention Against Torture, and other forms of relief;
  • Decisions of Immigration Judges on motions to reopen where the proceedings were conducted in absentia;
  • Decisions of Immigration Judges in rescission of adjustment of status cases;
  • Some decisions pertaining to bond, parole, or detention;
  • Decisions of DHS on family-based immigrant petitions, the revocation of family-based immigrant petitions, and the revalidation of family-based immigrant petitions (except orphan petitions);
  • Decisions of DHS regarding waivers of inadmissibility for nonimmigrants under INA § 212(d)(3)(A)(ii);
  • Some decisions of DHS involving administrative fines and penalties; and
  • Discipline imposed on attorneys, recognized organizations, and accredited representatives for professional misconduct, as discussed in Chapter 3 (Attorney Discipline); See, e.g., 8 C.F.R. § 1003.1(b).

     (2) No jurisdiction - Although the BIA exercises broad discretion over immigration matters brought before the immigration courts and DHS, the BIA does not have the authority to review:

  • The length of a grant of voluntary departure granted by an Immigration Judge under former § 244(e) of the Immigration and Nationality Act and current INA § 240B;
  • Direct appeals from persons removed or deported in absentia pursuant to former § 242B of the Immigration and Nationality Act and current INA § 240(b)
  • Credible fear determinations, whether made by an Asylum Officer or an Immigration Judge;
  • Reasonable fear determinations made by an Immigration Judge;
  • Applications for advance parole;
  • Applications for adjustment of status denied by DHS;
  • Orphan petitions;
  • Employment-based immigrant visa petitions;
  • Waivers of the two-year foreign residence requirement for J-1 exchange visitors;
  • H and L nonimmigrant visa petitions;
  • K-1 fiancé(e) petitions;
  • Employer sanctions; or
  • Immigration-related employment discrimination and related document fraud.

     (3) Standard of review - Whenever the BIA reviews a DHS or immigration judge decision, it applies a specified standard of review.  See 8 C.F.R. § 1003.1(d)(3).

          (A) Immigration judge decisions - Under 8 C.F.R. § 1003.1(d)(3), the BIA applies a clearly-erroneous standard to an immigration judge’s findings of fact, including credibility findings, and a de novo standard to questions of law, discretion, judgment, and other issues.

          (B) DHS decisions - The BIA applies a de novo standard to all appeals of DHS officer decisions.

          (C) BIA decisions - A single member, a panel of three members, or in rare instances, the entire BIA renders BIA decisions.  See 8 C.F.R §§ 1003.1(a)(5), (e)(3).  See BIA PM, Chapter 1.3 (Composition of the Board). Upon the entry of a decision, the BIA serves its decision upon the parties by regular mail.  For interim decisions, the BIA serves a copy of the decision on DHS and the respondent’s representative, if the respondent is represented, or on DHS and the respondent if the respondent is not represented.  For final decisions, the BIA serves a copy of the decision on DHS, the respondent, and the respondent’s representative, if any.  An order issued by the BIA is final, unless and until it is stayed, modified, rescinded, or overruled by the BIA, the Attorney General, or a federal court.  A BIA order is effective as of its issuance date, unless the order provides otherwise.

The BIA generally releases decisions in one of two forms: published or unpublished.  For the citation format for BIA cases, see Appendix I (Citations).

      (4) Published decisions - Published decisions are binding on the parties to the decision.  Published decisions also constitute precedent that binds the BIA, the immigration courts, and DHS.  The vast majority of the BIA’s decisions are unpublished, but the BIA periodically selects cases for publication.  EOIR may also publish certain DHS decisions.

          (A) Criteria - Decisions selected for publication meet one or more of several criteria, including but not limited to: the resolution of an issue of first impression; alteration, modification, or clarification of an existing rule of law; reaffirmation of an existing rule of law; resolution of a conflict of authority; and discussion of an issue of significant public interest.

          (B) Publication - EOIR’s website houses copies of precedent decisions, which are also published in volumes of Administrative Decisions under the Immigration and Nationality Laws of the United States (I&N Decisions).  Individuals should direct questions about how to obtain copies of published cases to the EOIR LLIRC.  See Appendix A (Directory) for contact information.

After determining that a decision should be published, the BIA prepares it for publication by adding headnotes and assigning an I&N decision citation.  Where appropriate, the BIA also abbreviates the parties’ names and redacts A-numbers.  The BIA then serves the decision on the parties in the same manner as an unpublished decision.

          (C) Interim decisions - In the past, the BIA issued precedent decisions as slip opinions, called Interim Decisions, before publication in a bound volume.  The BIA greatly disfavors the use of the Interim Decision citation.

     (5) Unpublished decisions - Unpublished decisions are binding on the parties to the decision but the BIA does not consider unpublished decisions as precedent for unrelated cases.  Should a party in an unrelated matter nonetheless wish to refer to an unpublished BIA decision, the party should attach a copy of that decision to the party’s brief, motion, or other submission.  If a copy is not available, the party should provide the relevant A-Number and decision date.  See Appendix I (Citations).

The BIA will entertain requests to publish an unpublished decision, but such requests are granted sparingly.

     (6) Advisory opinions - The BIA does not issue advisory opinions.

     (7) Attorney General - The Attorney General may review BIA decisions.  As a result, the Attorney General, or DHS, may request that the BIA refer a decision to the Attorney General, or the BIA may do so sua sponte.  The Attorney General may vacate decisions of the BIA and issue decisions.  Decisions of the Attorney General may be published as precedent decisions in Administrative Decisions under the Immigration and Nationality Laws of the United States (I&N Decisions).

(c) The Office of the Chief Administrative Hearing Officer

     (1) Jurisdiction - OCAHO generally has jurisdiction to hear and adjudicate cases involving allegations of:

          (A) INA § 274A - Knowingly hiring, recruiting, or referring for a fee, or continuing to employ, unauthorized noncitizens, or failing to comply with employment eligibility verification requirements in violation of INA § 274A (employer sanctions);

          (B) INA § 274B - Immigration-related unfair employment practices in violation of INA § 274B; and

          (C) INA § 274C - Immigration-related document fraud in violation of INA § 274C.

     (2) No jurisdiction - OCAHO does not have the authority to hear or review other matters, such as:

          (A) Removal, deportation, or exclusion proceedings;

          (B) Employment authorizations;

          (C) Labor certifications or Labor Condition Applications;

          (D) Employment-based visa petitions; or

          (E) Other types of employment discrimination not encompassed by INA § 274B.

     (3) OCAHO decisions - OCAHO ALJs issue written decisions and orders (both interlocutory and final) during OCAHO proceedings.  In every case, the ALJ will issue a final order.  A final order of the ALJ becomes final unless modified, vacated, or remanded by the CAHO, the Attorney General, or a federal circuit court of appeals.

          (A) Published decisions - OCAHO publishes select decisions and orders, whether interlocutory or final.  Most substantive decisions are published, and published decisions are posted on EOIR’s website.

          (B) Unpublished decisions - Citation to unpublished OCAHO decisions is discouraged.

          (C) Advisory opinions - OCAHO does not issue advisory opinions.