Matter of Roussis, 18 I&N Dec. 256 (BIA 1982): IJ Cannot Cede Exclusive Jurisdiction Over AOS Application in Proceedings


Introduction: Matter of Roussis, 18 I&N Dec. 256 (BIA 1982)

On June 30, 1982, the Board of Immigration Appeals (BIA) issued a published decision in Matter of Roussis, 18 I&N Dec. 256 (BIA 1982) [PDF version]. In Matter of Roussis, the Board vacated the decision of an immigration judge which had granted a respondent's motion to remand for further consideration of his adjustment of status application. The Board reasoned that this decision contravened the applicable regulations relating to adjustment of status relief and encroached on the District Director's prosecutorial discretion.

For most of the now-36 years since its issuance, Matter of Roussis was not heavily relied on or cited to by either courts or the BIA. However, the decision returned to the forefront in in three precedential decisions in 2017 and 2018, being cited to once by the Board and twice by the Attorney General. The Board cited to it favorably in Matter of J-A-B- & I-J-V-A-, 27 I&N Dec. 168 (BIA 2017), in support of its holding that an immigration judge may not terminate removal proceedings in order to give an alien the opportunity to apply for asylum in the first instance. Attorney General Jeff Sessions referenced the decisions in both Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), and Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018), in support of his holding that immigration judges and the BIA lack general administrative closure authority.

In this article, we will begin by examining the Matter of Roussis decision and precedent in detail. Then, we will examine its continuing relevance in a brief discussion of its appearances in recent BIA and Attorney General precedent decisions. We include links to our full articles on these decisions.

To learn more about these issues, please see our full article index on Matter of Castro-Tum and related decisions and issues [see index].

Factual and Procedural History in Matter of Roussis: 18 I&N Dec. at 256-57

The respondent in Roussis was a 30-year old native and citizen of Greece. He was admitted to the United States on October 27, 1972, as a nonimmigrant student. Although the respondent was authorized to remain in the United States until October 26, 1976, he remained longer. He was subsequently placed in deportation proceedings for overstaying (note: under the laws at the time, aliens were placed in deportation proceedings).

On July 6, 1977, the immigration judge presiding over the case found the respondent deportable under former section 241(a)(2) of the Immigration and Nationality Act (INA) for being a visa overstay (note: the most analogous provision in the current INA is section 237(a)(1)(B) [see section]. The immigration judge granted the respondent voluntary departure.

On August 27, 1977, the respondent filed a motion to reopen proceedings because of a pending adjustment of status application based on an employment-based sixth preference petition (note: the sixth preference category no longer exists and pending sixth preference petitions at the time of its abolition were converted into employment-based third preference petitions under the current laws in 1991 (see 69 No. 42 Interpreter Releases 1408)). While the motion to reopen was pending, the respondent became the beneficiary of an immediate relative petition filed by his U.S. citizen spouse. The respondent substituted the immediate relative petition for the employment-based petition in his motion to reopen.

On February 1, 1982, the immigration judge reopened proceedings on the basis of the immediate relative petition that had been filed on the respondent's behalf by his spouse. The immigration judge then remanded the case to the District Director, who was responsible for adjudicating adjustment of status applications, for adjudication of the respondent's adjustment of status application based on his immigrant visa petition. The then-Immigration and Naturalization Service (INS) objected to the remand order (note: these functions of the INS have since been taken over by the Department of Homeland Security (DHS)). The immigration judge certified her decision to the BIA for review.

Issues Before the Board in Matter of Roussis: 18 I&N Dec. at 257

The Board described the issue before it as follow: “whether an immigration judge is authorized to remand a case involving a section 245 [adjustment of status] application to the District Director for adjudication notwithstanding the fact that an Order to Show Cause has been issued, deportation proceedings have begun, and the District Director objects to the remand order.” Note here that the “Order to Show Cause” was used to commence deportation proceedings. Under current law, the “Notice to Appear” is used to commence removal proceedings. The underlying principle is the same.

The immigration judge reasoned that remanding the case for consideration of the respondent's adjustment of status application was “a permissible exercise of her authority.” She provided the following reasons in support of her conclusion:

It promoted efficiency and conserved the Immigration Court's resources; and
It was in accordance with applicable regulations.

The INS argued that the immigration judge both violated the regulations and “impinge[d] upon the District Director's prosecutorial discretion.” The second point refers to the fact that the INS was responsible for initiating removal proceedings through the issuance of the Order to Show Cause.

Board's Analysis and Conclusions in Matter of Roussis: 18 I&N Dec. at 257-58

The Board began by citing to the applicable regulations. Under former 8 C.F.R. 245.2(a)(1), “after an alien has been served with an Order to Show Cause or warrant of arrest, his application for adjustment of status under section 245 of the Act shall be made and considered only in [deportation] proceedings…” Under current 8 C.F.R. 245.2(a)(1), 1245.2(a)(1), the nearly identical provision exists for removal proceedings as well as deportation proceedings: “In the case of any alien who has been placed in deportation proceedings or in removal proceedings (other than as an arriving alien), the immigration judge hearing the proceeding has exclusive jurisdiction to adjudicate any application for adjustment of status the alien may file.” Note, as would later be found in the decisions discussed below, while Matter of Roussis applied former 8 C.F.R. 245.2(a)(1), it is nevertheless relevant to interpreting its slightly modified successors — 8 C.F.R. 245.2(a)(1) and 1245.2(a)(1) — that are in effect today.

The Board in Matter of Roussis explained that, in light of 8 C.F.R. 245.2(a)(1), “the immigration judge is charged by regulation, which has the force of law, with the responsibility of accepting and adjudicating an application for section 245 relief if that application is submitted by an alien in deportation proceedings.” The immigration judge in Matter of Roussis “acknowledge[d] that 8 C.F.R. 245.2(a)(1) vests the immigration judge with exclusive jurisdiction to entertain adjustment applications, once an Order to Show Cause has been issued.” However, she took the position that “nothing prevents the immigration judge from 'ceding' that jurisdiction when practical and equitable considerations dictate.” In short, the immigration judge took the position that she had the discretion to yield her sole jurisdiction over adjustment applications on a case-by-case basis.

The Board, however, was not convinced by the immigration judge's rationale. Its stated: “We do not believe that an issue as fundamental as jurisdiction is subject to ad hoc resolution, especially given the explicit mandate of the regulation in question.” Here, the Board noted two factors. First, the regulatory language explicitly granted (as it still grants) immigration judges sole jurisdiction over adjustment applications filed in removal proceedings. Second, the Board described the immigration judge's procedure as “ad hoc,” that is, without any consideration of its broader effect outside of any particular case.

The Board also sided with the INS in its argument that the immigration judge had impinged on its “exclusive authority to control the prosecution of deportable aliens.” The Board stated that “[i]t has long been held that when enforcement officials of the [INS] choose to initiate proceedings against an alien and to prosecute those proceedings to a conclusion, the immigration judge is obliged to order deportation if the evidence supports a finding of deportability on the ground charge.” The Board added that the question of whether an alien who is found to be deportable is eligible for relief from deportation is “[i]ntegral to the determination of whether an alien … is to be deported.”

The Board explained that, save for one regulatory provision (former 8 C.F.R. 242.7), there was “no provision in the regulation which authorize[d] the termination, whether conditional or final, of deportation proceedings.” Instead, the Board explained, the regulations required immigration judges to promptly bring deportation proceedings to their conclusion “if no action to terminate or remand is taken by the District Director.” We discuss the current rules on the issue in the following sections of this article discussing more recent decisions.

For these reasons, the Board reversed the decision of the immigration judge to remand the case to the District Director. It recognized the immigration judge's “commendable interest in improving the efficiency of existing adjudicatory procedures”; however, it held that “in the absence of regulatory amendment, we cannot sanction the procedures followed…”

Appearances in Recent BIA Decisions

As we noted in the introduction, the holding of Matter of Roussis was relied upon in three recent and highly significant immigration precedent decisions. We will examine each citation with links to the decisions in question and our articles on those decisions.

Matter of J-A-B & I-J-V-A-, 27 I&N Dec. 168, 170-71 (BIA 2017)

See decision [PDF version] and relevant portion of our article [see section].

In Matter of J-A-B- & I-J-V-A-, the Board held that an immigration judge lacks authority to terminate removal proceedings in order to give an alien the opportunity to apply for asylum with the DHS in the first instance. In support of that conclusion, it cited to the passage from Matter of Roussis, 18 I&N Dec. at 258 where the Board stated that this sort of action “impinges upon the [DHS's] exclusive authority to control the prosecution of [removable aliens].” (Modifications added by Board to account for current removal procedures.)

Matter of Castro-Tum, 27 I&N Dec. 271, 289 (A.G. 2018)

See decision [PDF version] and the relevant portion of our article [see section].

Matter of Castro-Tum was a significant decision by Attorney General Jeff Sessions holding that immigration judges do not have general administrative closure authority. He referenced Matter of Roussis in explaining his conclusion that interpreting the regulations as giving immigration judges general administrative closure authority “would conflict with the policies underlying the INA and its implementing regulations.” To support his conclusion, he quoted from the following passage of Matter of Roussis, 18 I&N Dec. at 258: “It has long been held that when enforcement officials of the [INS] [now DHS] choose to initiate proceedings against an alien and to prosecute those proceedings to a conclusion, the immigration judge is obligated to order deportation if the evidence supports and finding of deportability on the ground charged.”

Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 465, 468 (A.G. 2018)

See decision [PDF version] and see the relevant portion of our article [see section].

Attorney General Sessions issued Matter of S-O-G- & F-D-B- in a follow-up decision to Matter of Castro-Tum, reiterating its key points and providing guidance on its implementation by immigration judges. Matter of Roussis appeared twice in the decision. At Matter of S-O-G- & F-D-B-, 27 I&N Dec. at 468, the Attorney General referenced the same passage from Matter of Roussis that he cited to in Matter of Castro-Tum. At 27 I&N Dec. at 465, the Attorney General cited to Matter of Roussis, 18 I&N Dec. at 257-58, in “explaining that immigration judges may not simply cede their jurisdiction 'when practical and equitable considerations arise.'” In short, an immigration judge may only dismiss or terminate proceedings in accordance with specific regulatory grants of authority. Immigration judges do not have the jurisdiction or discretion to do so even in light of other case-specific “practical and equitable considerations” because that authority is not addressed in the regulations.

Additional Federal Court Citation

Matter of Roussis was also cited to in one published Federal court decision since its issuance. The United States Court of Appeals for the Second Circuit cited to the decision in a footnote in Rotimi v. Holder, 577 F.3d 133, 135 & n.2 [PDF version]. The Court noted that once an Order to Show Cause had been issued, “the [immigration judge] acquired exclusive jurisdiction to adjudicate [the petitioner's] application for adjustment of status in deportation proceedings.” 18 I&N Dec. at 257. The Court added that the only way the immigration judge could terminate proceedings once they commenced was upon the request of the applicable INS District Director.


Matter of Roussis has gained a sudden surge in citations in a series of cases limiting the authority of immigration judges and the BIA to administratively close immigration proceedings. Although many statutes and regulations have changed since 1982, the recent cases discussed in this article show that the principles underlying the Board's decision in Matter of Roussis are alive and well. Specifically, the decision makes clear that only an immigration judge may consider an alien's adjustment of status application if that alien is in removal proceedings unless there exists some separate authorized ground to close the removal proceedings.

In general, an alien placed in removal proceedings should consult with an experienced immigration attorney immediately. An experienced immigration attorney will be able to assess the case and advise the alien on whether he or she may be eligible for relief from removal.

We would again like to remind you to see our full index of articles on Matter of Castro-Tum and related issues and decisions, such as Matter of Roussis [see index].