1.4 - Jurisdiction and Authority

(c) Scope of Review — 

          (1) Immigration judge decisions — 

(A) Questions of fact — By regulation, the Board applies a clearly erroneous standard to an immigration judge’s findings of fact, including credibility findings.  See 8 C.F.R. § 1003.1(d)(3)(i).

(B) Questions of law — The Board applies a de novo standard of review to questions of law, discretion, judgment, and other issues.  See 8 C.F.R. § 1003.1(d)(3)(ii).

          (2) DHS officer decisions — The Board applies a de novo standard to all appeals of DHS officer decisions.  8 C.F.R. § 1003.1(d)(3)(iii).

(d) Board Decisions — Board decisions are rendered either by a single Board Member, by a panel of three, or in rare instances, the entire Board.  See Chapter 1.3(a) (General).  Upon the entry of a decision, the Board serves its decision upon the parties by regular mail, or through the EOIR Courts & Appeals System (ECAS) in eligible cases.  An order issued by the Board is final, unless and until it is stayed, modified, rescinded, or overruled by the Board, the Attorney General, or a federal court.  See generally 8 C.F.R. § 1003.1(d)(7), (g).  An order is deemed effective as of its issuance date unless the order provides otherwise.  Board decisions are generally released in one of two forms: published or unpublished.  For the citation format for Board cases, see Chapter 4.6(d) (Citation).

          (1) Published decisions — Published decisions are binding on the parties to the decision. Published decisions also constitute precedent that binds the Board, the immigration courts, and DHS.  The vast majority of the Board’s decisions are unpublished, but the Board periodically selects cases to be published.  See 8 C.F.R. § 1003.1(g). DHS decisions may also be published.  See 8 C.F.R. §§ 103.3(c); 1103.3(c).

(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 — When a decision is selected for publication, it is prepared for release to the public. Headnotes are added, and an I&N Decision citation is assigned. Where appropriate, the parties’ names are abbreviated, and registration numbers (A-Numbers) are redacted.  The decision is then served on the parties in the same manner as an unpublished decision.

Precedent decisions are collected and published in bound volumes of Administrative Decisions Under Immigration and Nationality Laws of the United States  (“I&N Decisions”).  Copies of individual decisions may be obtained from the Board’s Internet site.  See Chapter 1.6(e) (Electronic Communications).  Questions about how to obtain copies of published cases may be directed to the EOIR’s library.  See Chapter 1.5(b) (Library).

(C) Interim Decisions — In the past, the Board issued precedent decisions as slip opinions, called “Interim Decisions,” before publication in a bound volume.  See subsection (B), above.  While precedent decisions are still assigned an “Interim Decision” number for administrative reasons, the proper citation is always to the volume and page number of the bound volume.  See subsection (B), above.  The use of the Interim Decision citation is greatly disfavored by the Board.

          (2) Unpublished decisions — Unpublished decisions are binding on the parties to the decision but are not considered precedent for unrelated cases.  Should a party in an unrelated matter nonetheless wish to refer to an unpublished Board decision, a copy of that decision should be attached to the party’s brief, motion, or other submission.  If a copy is not available, the last three digits of the registration number (A-Number) and full date of the Board’s decision should be provided.  The Board will entertain requests to publish an unpublished decision, but such requests are granted sparingly.

          (3) Advisory opinion — The Board does not issue advisory opinions.

(e) Immigration Judges — As a general matter, immigration judges decide issues of removability, deportability, and admissibility, and adjudicate applications for relief.  The Board has broad authority to review the decisions of immigration judges.  See 8 C.F.R. § 1003.1(b).  While the immigration courts and the Board are both components of EOIR, the two are separate and distinct entities.  Thus, administrative supervision of immigration judges is vested in the Office of the Chief Immigration Judge, not the Board.  See Chapter 1.2(c) (Relationship to the Immigration Court).

(f) Department of Homeland Security — The Department of Homeland Security (DHS) enforces the immigration and nationality laws and represents the U.S. government’s interests in removal, deportation, and exclusion 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.  When appearing before the Board, DHS is deemed a party to the proceedings.  See Chapter 1.2(d) (Relationship to the Department of Homeland Security (DHS)), Appendix B (Org Chart).  The decisions of the Board are binding on DHS, unless modified or overruled by the Attorney General or a federal court.  See Chapters 1.4(a) (Jurisdiction), 1.4(d) (Board Decisions).

(g) Attorney General — Decisions of the Board are reviewable by the Attorney General and may be referred to the Attorney General, at the request of the Attorney General, DHS, or the Board.  The Attorney General may vacate decisions of the Board and issue their own decisions.  8 C.F.R. § 1003.1(d)(1)(i), 1003.1(h).  Decisions of the Attorney General may be published as precedent decisions in Administrative Decisions Under Immigration and Nationality Laws of the United States (“I&N Decisions”).

(h) Federal Courts — The decisions of the Board are reviewable in 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.  The Board cannot advise parties regarding the propriety of or means for seeking judicial review.  The Board is not a party before the federal courts.  When Board decisions are litigated before the federal courts, the United States government is represented by the Office of Immigration Litigation (OIL) or the United States Attorney’s Office.  See Chapter 1.2(h) (Relationship to the Office of Immigration Litigation (OIL)).  When a federal court remands a case back to the Board for further action, the Board is usually notified by the office representing the government in the proceedings before the federal court.