8.1 - Review of Interlocutory Orders by the Chief Administrative Hearing Officer

(a) Authority

In cases arising under INA §§ 274A and 274C, the CAHO may review an interlocutory order issued by the ALJ if:

• the ALJ recommends in writing when issuing the interlocutory order that the CAHO should review the order;
• within 10 days of the date of entry of the interlocutory order, a party files a written request that the CAHO review the interlocutory order; or
• within 10 days of the date of entry of the interlocutory order, the CAHO issues a notification of review of the interlocutory order, stating the issues to be reviewed.

(b) Standards for Review

The CAHO may administratively review an interlocutory order only if:

• the order concerns an important question of law on which there is a substantial difference of opinion; and
• an immediate review will advance the ultimate termination of the proceeding, or subsequent review will be an inadequate remedy.

(c) Filing and Service of Requests for Interlocutory Review and Related Documents

A party seeking review by the CAHO of an interlocutory order must file a request for review within 10 days of the date of entry of the interlocutory order.

All requests for review, briefs, and other filings related to review by the CAHO must be filed and served by facsimile or same-day hand-delivery (or, if such filing and service cannot be made, by overnight delivery). If a party files a document related to review by the CAHO by facsimile, the party must concurrently forward the original signed document to OCAHO.

The request for review must contain a clear statement of why interlocutory review is appropriate under the standards for review set forth above.

(d)  Written and Oral Arguments

In any case in which review of an interlocutory order has been properly requested or ordered, the parties may file briefs or other written statements within 21 days of the date of entry of the interlocutory order.

At the request of a party, or on the CAHO’s own initiative, the CAHO may permit or require additional filings, or may conduct oral argument in person or telephonically.

(e) Stay of Proceedings

Review of an interlocutory order by the CAHO will not automatically stay the proceeding unless the ALJ or the CAHO determines that a stay is required.

(f) Decision and Order of the Chief Administrative Hearing Officer

Within 30 days of the date of entry of the interlocutory order by the ALJ, the CAHO may issue an order modifying, vacating, or remanding the interlocutory order. If the CAHO does not modify, vacate, or remand the interlocutory order within 30 days, the ALJ’s interlocutory order will be deemed adopted.

(g) Effect of Interlocutory Review

An order by the CAHO modifying or vacating an interlocutory order will also remand the case to the ALJ. Further proceedings in the case will be conducted consistent with the CAHO’s order.

Regardless of whether an interlocutory order is reviewed by the CAHO, all parties retain the right to request administrative review of the final order of the ALJ in the case.