(a) Authority. (1) In any removal proceeding pursuant to section 240 of the Act, the immigration judge shall have the authority to:
(i) Determine removability pursuant to section 240(a)(1) of the Act; to make decisions, including orders of removal as provided by section 240(c)(1)(A) of the Act;
(ii) To determine applications under sections 208, 212(a)(2)(F), 212(a)(6)(F)(ii), 212(a)(9)(B)(v), 212(d)(11), 212(d)(12), 212(g), 212(h), 212(i), 212(k), 237(a)(1)(E)(iii), 237(a)(1)(H), 237(a)(3)(C)(ii), 240A(a) and (b), 240B, 245, and 249 of the Act, section 202 of Pub. L. 105-100, section 902 of Pub. L. 105-277, and former section 212(c) of the Act (as it existed prior to April 1, 1997);
(iii) To order withholding of removal pursuant to section 241(b)(3) of the Act and pursuant to the Convention Against Torture; and
(iv) To take any other action consistent with applicable law and regulations as may be appropriate.
(2) An immigration judge may certify his or her decision in any case under section 240 of the Act to the Board of Immigration Appeals when it involves an unusually complex or novel question of law or fact. Nothing contained in this part shall be construed to diminish the authority conferred on immigration judges under sections 101(b)(4) and 103 of the Act.
(b) Withdrawal and substitution of immigration judges. The immigration judge assigned to conduct the hearing shall at any time withdraw if he or she deems himself or herself disqualified. If an immigration judge becomes unavailable to complete his or her duties, another immigration judge may be assigned to complete the case. The new immigration judge shall familiarize himself or herself with the record in the case and shall state for the record that he or she has done so.
(c) Conduct of hearing. The immigration judge shall receive and consider material and relevant evidence, rule upon objections, and otherwise regulate the course of the hearing.
(d) Withdrawal of application for admission. An immigration judge may allow only an arriving alien to withdraw an application for admission. Once the issue of inadmissibility has been resolved, permission to withdraw an application for admission should ordinarily be granted only with the concurrence of the Service. An immigration judge shall not allow an alien to withdraw an application for admission unless the alien, in addition to demonstrating that he or she possesses both the intent and the means to depart immediately from the United States, establishes that factors directly relating to the issue of inadmissibility indicate that the granting of the withdrawal would be in the interest of justice. During the pendency of an appeal from the order of removal, permission to withdraw an application for admission must be obtained from the immigration judge or the Board.
[62 FR 10367, Mar. 6, 1997; 62 FR 15363, Apr. 1, 1997, as amended at 63 FR 27829, May 21, 1998; 64 FR 8495, Feb. 19, 1999; 64 FR 25766, May 12, 1999; 69 FR 57835, Sept. 28, 2004; 72 FR 53678, Sept. 20, 2007]
Notes of Decisions
Cited in
169
cases (
41 in the last 5 years), 2004–2026 · leading case:
Patel v. Garland, 596 U.S. 328 (2022).
Patel v. Garland, 596 U.S. 328 (2022).
· cites it 3× “§1229a(a)(1); 8 CFR §§1240.1 (a)(1), 1245.2(a)(1)(i) (2021).”
Babacar Gaye v. Loretta E. Lynch, 788 F.3d 519 (6th Cir. 2015).
· cites it 8× “” Gaye now argues that since the original record had been found wanting by the BIA, the Due Process Clause required an in-person hearing before IJ Holt could rule he was not credible.”
Victor Jimenez-Rodriguez v. Merrick Garland, 996 F.3d 190 (4th Cir. 2021).
· cites it 6× “Using similar language, 8 C.F.R. § 1240.1 (a)(1)(iv) states that IJs have the authority “[t]o take any other action consistent with applicable law and regulations as may be appropriate.”
Kazemzadeh v. U.S. Attorney Gen., 577 F.3d 1341 (11th Cir. 2009).
· cites it 2× “2006) (internal quotation marks omitted); see 8 C.F.R. § 1240.1 (c) ("The immigration judge shall receive and consider material and relevant evidence .”
Mohamed Abdallahi v. Eric Holder, Jr., 690 F.3d 467 (6th Cir. 2012).
· cites it 5× “The BIA affirmed the IJ’s findings, reasoning that IJ O’Leary (1) reviewed the hearing record in accordance with 8 C.F.R. § 1240.1 (b), and his decision reflected his complete review of the record; (2) there were no erroneous findings of fact relating to the central holding of…”
Nken v. Holder, 556 U.S. 418 (2009).
“§ 1229a(a); 8 CFR §§1240.1 (a)(l)(i), (c) (2008). If the IJ enters an order of removal, that order becomes final when the alien’s appeal to the Board of Immigration Appeals (Board) is unsuccessful or the alien declines to appeal to the Board.”
Jesus Zuniga Romero v. William Barr, 937 F.3d 282 (4th Cir. 2019).
· cites it 2× “(emphases added); see also 8 C.F.R. § 1240.1 (a) (providing that IJs shall have the authority in any removal proceeding to “[d]etermine removability,” “make decisions, including orders of removal,” “determine applications,” “order withholding of removal,” and “take any other…”
Avetisyan, 25 I. & N. Dec. 688 (BIA 2012).
· cites it 2× “§§ 1229a(a)(3), (c)(1)(A) (2006); 8 C.F.R. §§ 1240.1 (a)(1)(i), 1240.11 (2011).”
Oleksandr Boyanivskyy v. Alberto R. Gonzales, 450 F.3d 286 (7th Cir. 2006).
· cites it 3× “§ 1229a(b)(4)(B), 4 and regulation, 8 C.F.R. § 1240.1 (c), 5 so we evaluate the immigration judge’s action for compliance with these statutory and regulatory provisions rather than constitutional due process.”
Juras v. Garland, 21 F.4th 53 (2d Cir. 2021).
· cites it 5× “§ 1225 (a)(4) and 8 C.F.R. § 1240.1 (d), an IJ may permit an arriving alien in removal proceedings to withdraw his application for admission if the IJ is satisfied that the alien has the intent and the means to immediately depart the United States, and if permitting withdrawal…”
Silais v. Sessions, 855 F.3d 736 (7th Cir. 2017).
· cites it 2× “to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government”); 8 C.F.R. § 1240.1 (c) (“The immigration judge shall receive and consider material and relevant evidence, rule upon objections, and otherwise regulate the course of the…”
— 8 C.F.R. § 1240.1(a) — 1 case
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