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Chapter 1 - The Immigration Court

1.4 - Jurisdiction and Authority

(a) Jurisdiction

Immigration judges generally have the authority to:

  • Make determinations of removability, deportability, and excludability
  • Adjudicate applications for relief from removal or deportation, including, but not limited to, asylum, withholding of removal (“restriction on removal”), protection under the Convention Against Torture, cancellation of removal, adjustment of status, registry, and certain waivers
  • Review credible fear and reasonable fear determinations made by the Department of Homeland Security (DHS)
  • Conduct claimed status review proceedings
  • Conduct custody hearings and bond redetermination proceedings 
  • Make determinations in rescission of adjustment of status and departure control cases
  • Take any other action consistent with applicable law and regulation as may be appropriate, including such actions as ruling on motions, issuing subpoenas, and ordering pre-hearing conferences and statements
  • Conduct disciplinary proceedings pertaining to practitioners, as discussed in Chapter 10 (Discipline of Practitioners)
  • Administer the oath of citizenship in administrative naturalization ceremonies conducted by DHS
  • Conduct removal proceedings initiated by the Office of Special Investigations

See 8 C.F.R. §§ 1240.1(a), 1240.31, 1240.41.

(b) No Jurisdiction

Although immigration judges exercise broad authority over matters brought before the immigration courts, there are certain immigration-related matters over which immigration judges do not have authority, such as:

  • 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
  • Administrative fines and penalties under 8 C.F.R. parts 280 and 1280
  • Determinations by the Department of Homeland Security involving safe third country agreements

See 8 C.F.R. §§ 103.2, 1003.42(h), 28 C.F.R. § 68.26.

(c) Immigration Judge Decisions

Immigration judges render oral and written decisions at the end of immigration court proceedings.  See Chapter 4.16(g) (Decision).  A decision of an immigration judge is final unless a party timely appeals the decision to the Board of Immigration Appeals or the case is certified to the Board.  Parties should note that the certification of a case is separate from any appeal in the case.  See Chapter 6 (Appeals of Immigration Judge Decisions) 

(d) Board of Immigration Appeals

The Board of Immigration Appeals has broad authority to review the decisions of immigration judges.  See 8 C.F.R. § 1003.1(b).  See also Chapter 6 (Appeals of Immigration Judge Decisions).   Although the immigration courts and the Board are both components of the Executive Office for Immigration Review, the two are separate and distinct entities.  Thus, administrative supervision of Board Members is vested in the Chairman of the Board, not the Office of the Chief Immigration Judge.  See Chapter 1.2(c) (Relationship to the Board of Immigration Appeals); see also Appendix B (Org Chart).

(e) Department of Homeland Security

The Department of Homeland Security (DHS) enforces the immigration and nationality laws and represents the United States government’s interests in immigration proceedings.  DHS also adjudicates visa petitions and applications for immigration benefits.  See, e.g., 8 C.F.R. § 1003.1(b)(4), (5).  DHS is entirely separate from the Department of Justice and the Executive Office for Immigration Review.  When appearing before an immigration court, DHS is deemed a party to the proceedings and is represented by its component, U.S. Immigration and Customs Enforcement (ICE).  See Chapter 1.2(d) (Relationship to the Department of Homeland Security)

(f) Attorney General

Decisions of immigration judges are reviewable by the Board of Immigration Appeals.  The Board’s decisions may be referred to the Attorney General for review.  Referral may occur at the Attorney General’s request, or at the request of the Department of Homeland Security or the Board.  The Attorney General may vacate any decision of the Board and issue their own decision in its place.  See 8 C.F.R. § 1003.1(d)(1)(i), (h).  Decisions of the Attorney General may be published as precedent decisions.  The Attorney General’s precedent decisions appear with the Board’s precedent decisions in Administrative Decisions Under Immigration and Nationality Law of the United States (“I&N Decisions”).

(g) Federal Courts

Decisions of immigration judges are reviewable by the Board of Immigration Appeals.  In turn, decisions of the Board are reviewable in certain federal courts, depending on the nature of the appeal.  When a decision of the Board is reviewed by a federal court, the Board provides that court with a certified copy of the record before the Board.  This record includes the Record of Proceedings before the immigration judge.