The First Circuit has recognized that the Board of Immigration Appeals (BIA) has a settled course of adjudication of granting unopposed motions to remand for non-citizens to seek adjustment of status.
“The question is whether there is a ‘settled course"‘ by the BIA of routinely granting such unopposed remand requests so that petitioners in removal proceedings may proceed for an adjustment of status. As a matter of law, it is arbitrary and capricious for the BIA to suddenly and inexplicably depart from established policies, including its own precedents. Badose asserts that this is exactly what happened here. As noted, the government has not refuted that proposition.”
The court also noted that the BIA is prohibited from engaging in factfinding in connection with a motion to reopen, and not only in its adjudication of an appeal.
“On the record before us, we can only conclude that the BIA improperly denied Badose's unopposed remand motion both by arbitrarily deviating from a standard course of practice and by improperly engaging in factfinding in violation of 8 C.F.R. § 1003.1(d)(3). Badose is therefore entitled to a remand to the IJ so that he can present his case for adjustment of status based on his marriage.”
The full text of Badose v. Garland can be found here:
https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/23-1156P2-01A.pdf