U.S. Code » Title 28 » Part PART VI— PARTICULAR PROCEEDINGS › Chapter CHAPTER 158— ORDERS OF FEDERAL AGENCIES; REVIEW

28 U.S.C. § 2347

Petitions to review; proceedings

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(a) Unless determined on a motion to dismiss, petitions to review orders reviewable under this chapter are heard in the court of appeals on the record of the pleadings, evidence adduced, and proceedings before the agency, when the agency has held a hearing whether or not required to do so by law.(b) When the agency has not held a hearing before taking the action of which review is sought by the petition, the court of appeals shall determine whether a hearing is required by law. After that determination, the court shall—(1) remand the proceedings to the agency to hold a hearing, when a hearing is required by law;(2) pass on the issues presented, when a hearing is not required by law and it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented; or(3) transfer the proceedings to a district court for the district in which the petitioner resides or has its principal office for a hearing and determination as if the proceedings were originally initiated in the district court, when a hearing is not required by law and a genuine issue of material fact is presented. The procedure in these cases in the district court is governed by the Federal Rules of Civil Procedure.(c) If a party to a proceeding to review applies to the court of appeals in which the proceeding is pending for leave to adduce additional evidence and shows to the satisfaction of the court that—(1) the additional evidence is material; and(2) there were reasonable grounds for failure to adduce the evidence before the agency;the court may order the additional evidence and any counterevidence the opposite party desires to offer to be taken by the agency. The agency may modify its findings of fact, or make new findings, by reason of the additional evidence so taken, and may modify or set aside its order, and shall file in the court the additional evidence, the modified findings or new findings, and the modified order or the order setting aside the original order.(Added Pub. L. 89–554, § 4(e), Sept. 6, 1966, 80 Stat. 623.)

Historical and Revision Notes

Derivation

U.S. Code

Revised Statutes and

Statutes at Large

 

5 U.S.C. 1037.

Dec. 29, 1950, ch. 1189, § 7, 64 Stat. 1130.

 

 

Aug. 28, 1958, Pub. L. 85–791, § 31(b), 72 Stat. 951.

The headnotes of the subsections are omitted as unnecessary and to conform to the style of title 28.

In subsection (a), the words “the petition” following “on a motion to dismiss” are omitted as unnecessary. The word “are” is substituted for “shall be”. The words “in fact” following “when the agency has” are omitted as unnecessary.

In subsection (b)(3), the words “United States” preceding “district court” are omitted as unnecessary because the term “district court” as used in title 28 means a United States district court. See section 451 of title 28, United States Code. The words “or any petitioner” are omitted as unnecessary in view of the definition of “petitioner” in section 2341 of this title. In the last sentence, the word “is” is substituted for “shall be”.

In subsection (c), the words “applies” and “shows” are substituted for “shall apply” and “shall show”, respectively.

Editorial NotesReferences in Text

The Federal Rules of Civil Procedure, referred to in subsec. (b)(3), are set out in the Appendix to this title.

Notes of Decisions
Cited in 135 cases (7 in the last 5 years), 1968–2026 · leading case: Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).
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Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999). · cites it 7× “The Attorney General argued unsuccessfully below that the Hobbs Act permits a court of appeals to remand the case to the agency, see 28 U. S. C. § 2347 (c), or transfer it to a district court, see § 2347(b)(3), for further factfinding.”
Xiao Xing Ni v. Gonzales, 494 F.3d 260 (2d Cir. 2007). · cites it 4× “3009, we had the authority to remand to the BIA for the taking of additional evidence; that authority was found in 28 U.S.C. § 2347 (c), which *265 provides that we "may order .”
Elizabeth Makonnen v. Immigr. & Naturalization Serv., 44 F.3d 1378 (8th Cir. 1995). · cites it 7× “Petitioner timely filed a petition for review, and requested leave to adduce additional evidence under 28 U.S.C. § 2347 (c). In her petition, Makonnen argues that the Board erred (1) in applying a stricter standard to her political asylum claim than that mandated by law, (2) in…”
Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985). · cites it 2× “See 28 U. S. C. § 2347 (b) ("When the agency has not held a hearing .”
St. John's United Church of Christ v. City of Chicago, 502 F.3d 616 (7th Cir. 2007). · cites it 2× “2d 525 (1980), or in some circumstances refer the case to a special master, see 28 U.S.C. § 2347 (b)(3)."). In fact, Plaintiffs made these arguments before the Court of Appeals for the D.”
Morgan v. Gonzales, 495 F.3d 1084 (9th Cir. 2007). · cites it 3× “On occasion, we have resolved this problem by transferring the case to the district court for fact-finding under 28 U.S.C. § 2347 (b)(3), “which authorizes such a transfer when an agency has not held a hearing before taking the complained-of action, and ‘when a hearing is not…”
Wolde Amanuel Feleke v. Immigr. & Naturalization Serv., 118 F.3d 594 (8th Cir. 1997). · cites it 3× “Motion to Adduce Additional Evidence Feleke seeks to supplement the record with additional evidence that was not considered by the Board.”
Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995). · cites it 3× “See 28 U.S.C. § 2347 (c) (allowing remand to the agency for factual development); 28 U.”
Ramirez-Alejandre v. Ashcroft, 319 F.3d 365 (9th Cir. 2003). · cites it 2× “Indeed, not only did appellate courts require the BIA to consider new evidence, appellate courts at the time invoked their discretionary authority to admit new evidence into the record pursuant to 28 U.S.C. § 2347 (c) and 8 U.S.C. § 1105a(a)(4) (repealed 1996) and then remand…”
Ramon Becerra-Jimenez v. Immigr. & Naturalization Serv., 829 F.2d 996 (10th Cir. 1987). · cites it 3× “On May 11, 1987, Becerra filed a motion pursuant to 28 U.S.C. § 2347 (c) 4 *1001 requesting that we stay this appeal and remand to the BIA for consideration of his Motion to Reopen/Motion for Continuance.”
Tian Ming Lin v. United States Dep't of Just., Attorney Gen. Alberto R. Gonzales, 1, 473 F.3d 48 (2d Cir. 2007). · cites it 2× “3009 (“IIRI-RA”), we had the authority to remand cases to the BIA under 28 U.S.C. § 2347 (c). See Osaghae v. U.S.”
United States v. Frederick Springer, 715 F.3d 535 (4th Cir. 2013). · cites it 2× “, 28 U.S.C. § 2347 (c) (authorizing federal courts of appeal to remand an appeal of an agency decision for reconsideration in light of additional evidence at the request of a party to the appeal); 42 U.”
Show all 135 citing cases →
— 28 U.S.C. § 2347(b) — 1 case
Radio Relay Corp. v. Fed. Commc'ns Comm'n, 409 F.2d 322 (2d Cir. 1969).
— 28 U.S.C. § 2347(b)(3) — 1 case
Mahmoud Khalil v. President United States of Am. (3rd Cir. 2026).
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.