Fourth Circuit Clarifies Non-Binding Nature of EOIR OPPM 17-04 and the Limited Reach of the Accardi Doctrine in Cancellation-of-Removal Cap Cases

Introduction

The published opinion in Alex Zalaya Orellana v. Pamela Bondi, No. 24-1111, decided by the United States Court of Appeals for the Fourth Circuit on 24 June 2025, tackles a procedural conundrum that immigration courts frequently face when the annual statutory cap on cancellation of removal (“Cancellation”) grants has been reached.

Alex Francisco Zalaya Orellana (“Petitioner”), a Honduran national who has lived in the United States since 2003, initially persuaded Immigration Judge (IJ) Traci Hong to reserve a grant of Cancellation in October 2019. The reserved grant, however, could not be issued immediately because the 4,000-visa statutory cap for that fiscal year had already been met. By the time a visa number became available in January 2023, IJ Hong had retired. A newly assigned IJ, Raphael Choi, revisited the case, taking into account a February 2023 felony hit-and-run charge against Petitioner, and ultimately denied relief on good-moral-character and discretionary grounds.

The central question before the Fourth Circuit was whether an internal Executive Office for Immigration Review (EOIR) memorandum—Operating Policies and Procedures Memorandum (“OPPM”) 17-04—created a binding five-day deadline for issuing reserved Cancellation grants once a visa number becomes available. Petitioner asserted that, because EOIR did not issue the grant within five days, any subsequent proceedings (and resulting denial) violated agency rules and the so-called Accardi doctrine, which requires agencies to follow their own regulations. The court rejected that premise, denying the petition for review.

Summary of the Judgment

Judge Thacker, writing for a unanimous panel (Judges Niemeyer and Agee joining), held:

• OPPM 17-04 is an internal, non-binding policy intended for EOIR’s administrative efficiency; it does not confer enforceable rights on non-citizens.
• Therefore, the Accardi doctrine does not invalidate the immigration judge’s actions because the memorandum lacks the force of law.
• 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.
• Petitioner could not demonstrate substantial prejudice from any delay because (1) he possessed no vested right to an immediate decision, and (2) even a prompt issuance would have been subject to DHS appeal during which his subsequent felony arrest would still have undermined his eligibility.
• Accordingly, the petition for review was denied.

Analysis

A. Precedents Cited and Their Influence

1. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)
   Establishes that an agency must follow its own regulations when those regulations are intended to protect individuals. Petitioner relied heavily on this doctrine, arguing EOIR was bound to the five-day rule.
2. American Farm Lines v. Black Ball Freight Service, 397 U.S. 532 (1970)
   Clarifies that agencies can relax or modify internal “housekeeping” rules that do not bestow important procedural benefits. The Fourth Circuit applied this principle to conclude that internal EOIR memos lacking the force of law are modifiable and do not create enforceable rights absent prejudice.
3. Morton v. Ruiz, 415 U.S. 199 (1974)
   While Morton held an agency to its unpublished eligibility rules because they were meant to protect beneficiaries, the Fourth Circuit distinguished OPPM 17-04 as a purely administrative guideline not designed to benefit applicants.
4. Lower-Court Immigration Decisions and Sister-Circuit Opinions
   The panel cited Ninth, Seventh, Eighth, Fifth, and Eleventh Circuit cases (Diaz v. Rosen, Romeiro de Silva v. Smith, Prokopenko v. Ashcroft, and others) collectively holding that OPPMs, standing orders, and internal memoranda do not create substantive rights unless adopted through notice-and-comment procedures.

B. Legal Reasoning

The court’s reasoning proceeds in two linked stages:

1. Non-Binding Nature of OPPM 17-04
   The panel examined the text and purpose of the memorandum, noting its administrative orientation (e.g., docket codes, staff instructions). Because it is neither published in the Federal Register nor intended to protect applicants, it falls outside the ambit of binding regulations under the Administrative Procedure Act (“APA”). Thus, Accardi is inapplicable.
2. Even If Binding, the Five-Day Rule Did Not Apply
   OPPM 17-04’s Section VI imposes the five-day deadline only where the same IJ remains available. Section IX governs successor IJs and contains no deadline. Given IJ Hong’s retirement, the court found no textual support for requiring IJ Choi to decide the case within five days of visa availability.

Concluding that Petitioner could not establish an enforceable right, the court also required a showing of “substantial prejudice,” referencing American Farm Lines. Because Petitioner’s new felony would have surfaced during the BIA appeal of any grant, the court held no prejudice existed.

C. Impact of the Decision

• Clarification of Agency Guidance Hierarchy
  The decision draws a bright line between published regulations and internal memoranda, instructing practitioners that only the former confer enforceable rights.
• Immigration Court Practice
  Immigration judges reassigned to reserved-grant cases now have clear appellate backing to reconsider good-moral-character and discretionary factors without the looming threat of procedural default claims grounded in OPPM 17-04.
• Restriction of the Accardi Doctrine
  By limiting Accardi to rules designed to protect individuals, the Fourth Circuit narrows the circumstances in which non-citizens may challenge agency non-compliance with internal guidance.
• Litigation Strategy
  Applicants and counsel should anticipate that delays during cap-hold periods do not guarantee immunity from later negative discretionary findings, reinforcing the importance of maintaining good moral character throughout the life of a case.
• Administrative Procedure Act Jurisprudence
  The opinion joins a growing body of appellate authority refusing to convert agency “housekeeping” documents into binding law, fostering predictability in administrative-law disputes.

Complex Concepts Simplified

• Cancellation of Removal – A discretionary benefit allowing certain non-permanent residents to adjust to lawful-permanent-resident status if they meet statutory criteria and merit a favorable exercise of discretion.
• Statutory Cap (4,000) – Federal law limits the number of Cancellation grants per fiscal year. When the cap is reached, IJs must “reserve” favorable decisions until a visa becomes available in a subsequent year.
• OPPM 17-04 – An internal EOIR memorandum that instructs judges and staff how to manage Cancellation cases pending visa availability. It sets out draft-decision procedures, background-check requirements, and timelines, but is not promulgated through formal rulemaking.
• The Accardi Doctrine – A Supreme Court principle mandating that agencies follow regulations that carry the force of law when those regulations are designed to protect individuals’ substantive or procedural rights.
• Good Moral Character – A statutory requirement for Cancellation, assessed over a defined look-back period (and often continuing through final adjudication), that disqualifies applicants with disreputable conduct such as serious crimes or repeated alcohol-related offenses.

Conclusion

Alex Zalaya Orellana v. Pamela Bondi delivers two substantive precedential messages. First, EOIR’s OPPM 17-04 is an internal management directive, not a binding regulation, and cannot ground an Accardi claim. Second, even if the memorandum were binding, its own structure defeats the notion of a universal five-day deadline once a visa number is released, particularly when the presiding IJ changes.

In the broader legal landscape, this decision fortifies the distinction between published regulations and informal agency guidance, reinforcing that only the former impose legal obligations on adjudicators. Applicants must therefore focus on satisfying statutory criteria and sustaining good moral character throughout prolonged immigration proceedings rather than relying on internal agency timelines as shields against later discretionary scrutiny. Practitioners should advise clients accordingly and monitor for additional circuit decisions that either adopt or distinguish the Fourth Circuit’s approach to internal-rule challenges.