The Fourth Circuit Court of Appeals has ruled that internal immigration court guidelines are not legally binding on judges, limiting your ability to enforce EOIR procedural timelines in cancellation-of-removal cases with statutory visa caps. In Zalaya Orellana v. Bondi (4th Cir. June 24, 2025), a Honduran national had his cancellation granted in 2019 but reserved due to the annual cap; when a visa became available in January 2023, his original judge had retired and a new judge was assigned; the new judge scheduled a new merits hearing because the applicant had been charged with a felony. The court rejected his argument that internal EOIR policy required immediate issuance.
What changed
OPPM 17-04 is an internal EOIR memorandum that instructs judges and staff how to manage Cancellation cases pending visa availability, setting out draft-decision procedures, background-check requirements, and timelines, but it is not promulgated through formal rulemaking. The petitioner argued that EOIR was required by 8 C.F.R. § 1240.21 and OPPM 17-04 to issue the grant within five days of notification that a visa was available, calculating that deadline as January 20, 2023.
The Fourth Circuit held that although this agency memorandum provides useful guidance as to the time frame for an Immigration Judge to resolve a cancellation case when a visa number becomes available, it is not legally binding such that it creates a remedy for when that time frame is exceeded. EOIR’s OPPM 17-04 is an internal management directive, not a binding regulation, and cannot ground an Accardi claim because the memorandum lacks the force of law.
The court further ruled that a newly-assigned Immigration Judge is not bound by the first Immigration Judge’s reserved decision. Even if OPPM 17-04 were binding, a newly assigned IJ “is not bound by the original [IJ’s] preliminary decision” and has discretion to reassess the application on the merits.
Why it matters
This ruling eliminates a major procedural hook for appealing delayed cancellation decisions in the Fourth Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina). You can no longer argue that EOIR violated a binding timeline when a reserved decision sits unpublished for months or years—or when a new judge takes over the case.
The practical consequences are severe in cap-subject cases. If felony charges are filed during the interval between the initial judge’s reserved decision and assignment to a new judge, the new judge can hold a new hearing and reassess eligibility on good moral character grounds. Applicants who believed their relief was “locked in” by the first judge’s intent to grant may find their cases reopened, their records updated with new convictions or charges, and their eligibility reassessed from scratch.
Even if OPPM 17-04 were binding, its five-day issuance guideline applies only when the same IJ who drafted the reserved decision remains available; Section IX of the OPPM governs situations involving a different IJ and contains no timing requirement.
If your client’s case involves a long delay between reservation and issuance, and a new judge was assigned, you now face an uphill fight in the Fourth Circuit claiming procedural error—because the court has told you the memo is not law.
Way forward
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For capped-relief cases with reserved decisions: Document any material change in circumstances (new criminal charges, immigration violations) between the initial hearing and visa availability. The more time that passes, the greater the risk that a new judge will find new grounds to reassess.
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If representing a client facing recalendaring: Argue that any interval judge should follow the substance of the original reserved decision where no material change in law or fact has occurred since the first judge’s written findings. The Fourth Circuit did not hold that judges must reopen cases; only that they may if they choose.
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In other circuits: Check your circuit’s position on whether OPPM 17-04 or similar memos are binding. The Fourth Circuit is not alone in treating internal guidance as non-binding, but the law varies by jurisdiction.
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At the BIA: When appealing to the Board, distinguish between procedural abuse (judge capriciously departing from first judge’s reasoning) and the mere fact that a memo was not followed. Cite the regulation (8 C.F.R. § 1240.21) and statutory language, not the memo.
Disclaimer
This is a summary of case law provided for informational purposes only and should not be construed as legal advice. The immigration law addressed here can change without notice, and federal court precedent may evolve. Always consult a qualified immigration attorney licensed in your state and verify current law against primary court opinions and agency guidance before relying on this analysis in any legal matter. The full court opinion is available through federal courts databases and your case’s jurisdiction.