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Immigration Law

OIL PFR Remand Policy

OIL, May 2022

"...Remand decisions are made on a case-by-case basis, following a review of the individual facts, circumstances, and procedural posture of a particular case.  The decision to seek an order from a court to remand a case is within the discretion of the Director of the OIL Appellate Section and will rest on one or more of the reasons set forth on the list below.  This list does not create or confer any rights or benefits that may be invoked or relied upon by any individual or party in litigation with the United States or against any government agency or officer:

  1. The agency decision under review contains a material error of law.
  2. The agency decision contains a material factual error.
  3. The agency decision is contrary to circuit law.
  4. The administrative record demonstrates a material procedural error.
  5. There are material and unexplained discrepancies between the decisions of the immigration judge and the Board of Immigration Appeals.
  6. The agency decision lacks essential analysis (e.g., when the agency decision under review fails to make a determination required by law or fails to address a claim properly raised or preserved).
  7. The agency decision cannot be sustained without the reviewing court invading the discretion or adjudicatory authority of the agency (i.e., when the reviewing court cannot decide the matter without violating the principles set forth in SEC v. Chenery, 332 US 194 (1947), or INS v. Ventura, 537 U.S. 12 (2002)).
  8. Circumstances outside the administrative record indicate that the record has become stale (i.e., where circumstances of the case have changed in a substantial and material way, such as when a court vacates a conviction for legal error, and that conviction formed the basis for the removal order or denial of benefits under review). 
  9. Defense of the case would place significant agency policies or programs at substantial risk.
  10. There are circumstances indicating that the defense of the case would be patently inappropriate (e.g., cases in which an immigration judge arguably showed bias, hostility, or other inappropriate behavior that was not addressed and resolved by the Board, regardless of whether the claim was raised to the Board). 

In addition to the foregoing reasons, OIL will consider remanding cases in order to facilitate exercises of prosecutorial discretion by DHS, or in other circumstances in which DHS believes that reopening of the case before the Board of Immigration Appeals is appropriate (e.g., cases in which a petitioner may have recently become eligible for adjustment of status or presents other equities such that DHS Immigration and Customs Enforcement would not oppose reopening by the Board). ..."