4.15 - Summary Affirmance

Under certain circumstances, the Board may affirm, without opinion, the decision of an immigration judge or DHS officer.  The Board may affirm a decision if all of these conditions are met:

• the immigration judge or DHS decision reached the correct result
• any errors in the decision were harmless or nonmaterial
• either (a) the issues on appeal are squarely controlled by existing Board or federal court precedent and do not involve the application of a precedent to a novel factual situation, or (b) the factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion

See 8 C.F.R § 1003.1(e)(4). By regulation, a summary affirmance order reads:  “The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination. See 8 C.F.R. 3.1(e)(4).” 8 C.F.R. § 1003.1(e)(4)(ii).

A summary affirmance order will not contain further explanation or reasoning.  Such an order approves the result reached by the immigration judge or DHS.  Summary affirmance does not mean that the Board approves of all the reasoning of that decision, but it does reflect that any errors in the decision were considered harmless or not material to the outcome of the case.  See 8 C.F.R. § 1003.1(e)(4).

Note that any motion to reconsider or motion to reopen filed after a summary affirmance order should be filed with the Board.  See Chapters 5.6 (Motions to Reopen) and 5.7 (Motions to Reconsider).  However, by regulation, the Board cannot entertain a motion based solely on an argument that the case should not have been affirmed without opinion.  See 8 C.F.R. § 1003.2(b)(3).