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Cite as 29 I&N Dec. 287 (BIA 2025) 	Interim Decision #4136
Matter of J-A-N-M-, Applicant
Decided October 23, 2025
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Discretionary termination of an applicant’s withholding-only proceedings is prohibited
by 8 C.F.R. § 1208.2(c)(3)(i) (2025).
FOR THE APPLICANT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Anastasia S. Norcross,
Assistant Chief Counsel
BEFORE: 	Board Panel: 	MULLANE, HUNSUCKER, and GOODWIN, Appellate
Immigration Judges.
MULLANE, Appellate Immigration Judge:
In a decision issued on December 26, 2024, the Immigration Judge denied
the 	applicant’s 	applications 	for 	withholding 	of 	removal 	under 	section
241(b)(3)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1231(b)(3)(A) (2018), and protection under the regulations implementing
the Convention Against Torture (“CAT”).1 	The Immigration Judge also
denied the applicant’s motion for administrative closure, but granted the
applicant’s request for discretionary termination of his withholding-only
proceedings. 	The Department of Homeland Security (“DHS”) appeals the
termination of proceedings. The applicant, a native and citizen of Honduras,
did not appeal the denial of his applications and did not file a response to
DHS’ appeal. DHS’ appeal will be sustained.
The applicant was ordered removed from the United States on August 28,
2006. 	Following his removal, the applicant illegally reentered the United
States, and DHS reinstated the prior order of removal on July 11, 2024,
through the issuance of a Form I-871, Notice of Intent/Decision to Reinstate
Prior Order. The applicant expressed a fear of return, and an asylum officer
found the applicant had a “reasonable fear” of persecution or torture in his
1 	The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into
force for United States Nov. 20, 1994). 	8 C.F.R. § 1208.16(c) (2025); 8 C.F.R.
§ 1208.18(a) (2020).

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native Honduras. 	8 C.F.R. § 1241.8(e) (2025). 	On October 9, 2024, DHS
issued a Form I-863, Notice of Referral to Immigration Judge, referring the
applicant for withholding-only proceedings. 	See 8 C.F.R. §§ 1208.2(c)(2),
1208.31(e) (2025).
The 	Immigration 	Judge 	denied 	the 	applicant’s 	applications 	for
withholding of removal and CAT protection after analyzing the applicant’s
claims and finding him not credible. 	The applicant also filed a motion for
administrative closure based on his eligibility for a U nonimmigrant visa,
which the Immigration Judge denied. During the hearings, the Immigration
Judge stated that she did not favor granting administrative closure in detained
cases but that she understood the regulations might permit her to terminate
proceedings in her discretion. 	The applicant’s attorney said the applicant
would like to be considered for discretionary termination. The Immigration
Judge provided DHS with an opportunity to respond, and DHS filed an
opposition to discretionary termination.
The Immigration Judge granted the applicant discretionary termination of
his withholding-only proceedings under 8 C.F.R. § 1003.18(d)(2)(ii) (2025),
after balancing the positive and negative factors in the applicant’s case and
acknowledging that the applicant could pursue his U nonimmigrant visa
despite a prior removal order.2 We review de novo whether the Immigration
Judge erred in terminating the applicant’s withholding-only proceedings.
See 8 C.F.R. § 1003.1(d)(3)(ii) (2025).
An alien, like the applicant in this case, who reenters illegally after being
removed from the United States is subject to reinstatement of the prior
removal order and is statutorily ineligible for any form of discretionary relief.
See INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (providing that an alien subject
to an reinstated removal order “is not eligible and may not apply for any relief
under this chapter”); Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 (2006)
(stating that section “241(a)(5) [of the INA] applies to all illegal reentrants,
explicitly insulates the removal orders from review, and generally forecloses
discretionary relief from the terms of the reinstated order”). 	If the alien
expresses a fear of returning to the country of removal and is found by an
asylum officer to have a reasonable fear of persecution or torture, the officer
2 	Pertinent 	regulations 	provide 	that 	the 	applicant 	may 	continue 	to 	pursue 	a
U nonimmigrant visa directly with United States Citizenship and Immigration Services,
independent of these proceedings, even with his final order of removal. 	See 8 C.F.R.
§ 214.14(c)(1) (2025) (discussing application procedures for U nonimmigrant visas,
including for aliens with final orders of removal).

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refers the case to an Immigration Judge for “full consideration of the request
for withholding of removal only.” 8 C.F.R. § 1208.31(e).
The scope of review in withholding-only proceedings initiated by the
filing of a Form I-863 with the Immigration Court “shall be limited to a
determination of whether the alien is eligible for withholding or deferral of
removal.” 8 C.F.R. § 1208.2(c)(3)(i); see also Johnson v. Guzman Chavez,
594 U.S. 523, 535–36 (2021) (reiterating that withholding-only proceedings
are subject to the regulatory language of 8 C.F.R. § 1208.2(c)(3)(i)). “During
[withholding-only] proceedings, all parties are prohibited from raising or
considering 	any 	other 	issues, 	including 	but 	not 	limited 	to 	issues 	of
admissibility, deportability, eligibility for waivers, and eligibility for any
other form of relief.” 	8 C.F.R. § 1208.2(c)(3)(i); see also Ruiz-Perez v.
Garland, 	49 	F.4th 	972, 	977–79 	(5th 	Cir. 	2022) 	(holding 	that 	“[t]he
reinstatement statute applies to all aliens who have ‘reentered the United
States illegally after having been removed’” and that that the applicant in that
case, who was in withholding-only proceedings, was ineligible for special
rule 	cancellation 	of 	removal 	(quoting 	INA 	§ 	241(a)(5), 	8 	U.S.C.
§ 1231(a)(5))).
The Immigration Judge’s reliance on 8 C.F.R. § 1003.18(d)(2)(ii) to grant
discretionary termination was foreclosed by the limitations listed in 8 C.F.R.
§ 1003.18(d)(2)(iii): “Nothing in paragraphs (d)(2)(i) and (ii) of this section
authorizes immigration judges to terminate a case where prohibited by
another regulatory provision.” Here, the Immigration Judge was prohibited
by 	8 	C.F.R. 	§ 	1208.2(c)(3)(i) 	from 	considering 	any 	relief, 	including
termination, other than withholding and deferral of removal.
Based on the foregoing, we conclude that discretionary termination of an
applicant’s 	withholding-only 	proceedings 	is 	prohibited 	by 	8 	C.F.R.
§ 1208.2(c)(3)(i). Thus, the Immigration Judge did not have the authority to
terminate the applicant’s withholding-only proceedings based on his claimed
eligibility for a U nonimmigrant visa. DHS’ appeal will be sustained and the
portion 	of 	the 	Immigration 	Judge’s 	decision 	granting 	discretionary
termination is vacated.3 	The applicant should be removed pursuant to the
previously reinstated removal order.
3 	The applicant’s choice to pursue termination of his withholding-only proceedings could
be viewed as withdrawing his applications for withholding of removal and CAT protection,
as he has a final order of removal and was placed in withholding-only proceedings at his
request to pursue fear-based claims. We note, alternatively, that the applicant reserved
appeal, but ultimately did not pursue appeal of the Immigration Judge’s denial of his
applications for withholding of removal and CAT protection.

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ORDER: DHS’ appeal is sustained.
FURTHER ORDER: 	The portion of the Immigration Judge’s order
dated 	December 	26, 	2024, 	granting 	discretionary 	termination 	of 	the
applicant’s withholding-only proceedings is vacated.
NOTICE: 	If an applicant is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by DHS, or conspires to or takes any
action designed to prevent or hamper the applicant’s departure pursuant to
the order of removal, the applicant shall be subject to a civil monetary penalty
of up to $998 for each day the applicant is in violation. 	See INA § 274D,
8 U.S.C. § 1324d (2018); 8 C.F.R. § 280.53(b)(14) (2025). 	Further, any
applicant that has been denied admission to, removed from, or has departed
the United States while an order of exclusion, deportation, or removal is
outstanding and thereafter enters, attempts to enter, or is at any time found in
the United States shall be fined or imprisoned not more than 2 years, or both.
See INA § 276(a), 8 U.S.C. § 1326(a) (2018).