[Federal Register: December 7, 2006 (Volume 71, Number 235)]
[Rules and Regulations]
[Page 70855-70857]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07de06-1]
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Rules and Regulations
Federal Register
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[[Page 70855]]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1003
[EOIR Docket No. 158I; AG Order No. 2848-2006]
RIN 1125-AA57
Board of Immigration Appeals: Composition of Board and Temporary
Board Members
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This interim rule amends the Executive Office for Immigration
Review (EOIR) regulations relating to the organization of the Board of
Immigration Appeals (Board) by adding four Board member positions,
thereby expanding the Board to 15 members. This rule also expands the
list of persons eligible to serve as temporary Board members to include
senior EOIR attorneys with at least ten years of experience in the
field of immigration law.
DATES: Effective date: This rule is effective December 7, 2006. Written
comments must be submitted on or before February 5, 2007.
ADDRESSES: Please submit written comments to Kevin Chapman, Acting
General Counsel, Executive Office for Immigration Review, 5107 Leesburg
Pike, Suite 2600, Falls Church, Virginia, 22041. To ensure proper
handling, please reference RIN No. 1125-AA57 or EOIR docket number 158I
on your correspondence. You may view an electronic version of this
proposed rule at http://www.regulations.gov. You may also comment via the
Internet to the Executive Office for Immigration Review (EOIR) at
eoir.regs@usdoj.gov or by using the http://www.regulations.gov comment form
for this regulation. When submitting comments electronically, you must
include RIN No. 1125-AA57 in the subject box.
FOR FURTHER INFORMATION CONTACT: Kevin Chapman, Acting General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2600, Falls Church, Virginia 22041; telephone (703) 305-0470 (not a
toll free call).
SUPPLEMENTARY INFORMATION:
I. Number of Board Members
On January 9, 2006, the Attorney General directed the Deputy
Attorney General and Associate Attorney General to conduct a
comprehensive review of the Immigration Courts and the Board of
Immigration Appeals (Board). This review was undertaken in response to
concerns about the quality of decisions being issued by the immigration
judges and the Board and reports of intemperate behavior on the part of
some immigration judges.
On August 9, 2006, the Attorney General announced that the review
was complete, and that he was directing that a series of measures be
taken to improve adjudications by the immigration judges and the Board.
One of these was a directive to the Director of the Executive Office of
Immigration Review to increase the number of Board members from 11 to
15. This rule carries out that directive by revising the third sentence
of 8 CFR 1003.1(a)(1) (leaving the remainder of paragraph (a)(1)
unchanged).
The size of the Board was last set through rules promulgated in
2002 to improve case management. See 67 FR 54878-01 (Aug. 26, 2002); 8
CFR 1003.1(a), (d), (e) and (g). Those rules, among other provisions,
expanded the use of affirmances without opinion and instituted single
Board member review of additional cases. At that time the Department
also determined that a reduction in the number of Board members was
appropriate, and that the number of Board members should be set at 11.
See 67 FR at 54893-94. The Department reached this conclusion based
upon ``the historic capacity of appellate courts and administrative
appellate bodies to adjudicate the law in a cohesive manner, the
ability of individuals to reach consensus on legal issues, and the
requirements of the existing and projected caseload.'' Id. at 54893.
The Department specifically noted that reducing the size of the Board
to 11 members ``should increase the coherence of Board decisions and
facilitate the en banc process, thereby improving the value of Board
precedents.'' Id. at 54894. The commentary concluded that the Attorney
General would consider reevaluating the staffing requirements of the
Board in the future in light of changing caseloads and legal
requirements. Id. at 54893.
The streamlining changes brought much needed efficiency to the
review process, enabling the Board to eliminate its backlog and provide
the parties with a final decision in a more timely fashion. The
Attorney General has concluded, however, that some adjustments to the
Board's streamlining practices are now appropriate in order to improve
the quality of the Board's review of complex or problematic cases.
Accordingly, in his August 9, 2006, directive, the Attorney General has
instructed the Board to encourage the increased use of one-member
written opinions to address poor or intemperate immigration judge
decisions, allow the limited use of three-member written opinions to
provide greater legal analysis in a small class of particularly complex
cases, and to publish more three-member panel decisions as precedent
decisions.\1\ The Attorney General recognizes that these changes will
affect the workload of the Board members by resulting in more detailed
one-member orders and more three-member orders. An increase in the
number of Board members is therefore warranted to put the Board in the
best position to implement these changes.
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\1\ The precise scope of these changes will be specified in a
separate rulemaking.
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Moreover, the Board has seen its filings increase from 35,000
appeals and motions in FY 2002 to 42,700 in FY 2005. The Attorney
General anticipates that more immigration judges will be needed to
handle a further increase in caseloads at the Immigration Courts, which
will in turn result in an increase in appeals. The current caseload is
extremely burdensome and may become overwhelming in the future for a
Board of 11 members.
At the same time, experience suggests that if the Board becomes too
large, it
[[Page 70856]]
will have considerably more difficulty fulfilling its responsibility of
providing coherent direction with respect to the immigration laws.
Keeping in mind the goal of maintaining cohesion and the ability to
reach consensus, but recognizing the challenges the Board faces in
light of its current and anticipated caseload, the Attorney General has
determined that four members should be added to the Board at this time.
II. Temporary Board Members
The rules at 8 CFR 1003.1(a)(4) allow the Director of EOIR to
designate immigration judges, retired Board members, retired
immigration judges, and administrative law judges employed within, or
retired from, EOIR to act as temporary Board members. These provisions
offer a mechanism through which the Department can provide the Board
temporary assistance without changing the number of Board members. This
is an appropriate means of responding to an unanticipated increase or
temporary surge in the number, size, or type of cases, and other short-
term circumstances that might impair the Board's ability to adjudicate
cases in a manner that is both timely and fair. Temporary Board members
appointed through this process do not participate in en banc Board
proceedings, so these provisions also offer the Department a mechanism
through which it can temporarily increase the Board's reviewing
capacity without impairing its ability to review cases en banc as
permanently expanding the Board beyond a certain number would be likely
to do. The Board is presently being assisted by three immigration
judges whom the Director has designated through this mechanism.
This rule enhances the utility of the temporary appointment
authority by making an additional category of people eligible to serve
as temporary Board members. It amends 8 CFR 1003.1(a)(4) to allow the
Director, with the approval of the Deputy Attorney General, to
designate senior EOIR attorneys with at least ten years of experience
in the field of immigration law to serve for up to six months in this
capacity. Because immigration judges generally are already required to
handle an exceptionally large caseload, designation of immigration
judges to sit on the Board as temporary Board members is not always
practical. In addition to taking immigration judges away from their
dockets, their designation can result in significant agency expenses,
including travel and housing. By contrast, many senior EOIR attorneys
with 10 years of experience are co-located with the Board, minimizing
expense and disruption, and allowing them to assume their new duties
immediately upon designation. This change will accordingly expand the
pool of available candidates to provide a modicum of additional
flexibility in making these appointments.
This change serves a similar function to a provision that at one
time authorized the Chief Attorney Examiner to serve as a temporary
Board member in exigent circumstances. Since the position of Chief
Attorney Examiner no longer exists, that particular provision is no
longer included in the current rules, but this rule similarly
authorizes a senior and highly experienced EOIR attorney to serve as a
temporary Board member. In order to allow greater flexibility, the rule
does not specify particular titles or job descriptions. Instead, this
rule simply authorizes the Director, with the approval of the Deputy
Attorney General, to designate one or more senior EOIR attorneys with
at least ten years of experience in the field of immigration law to
serve as a temporary Board member.
This rule also amends the current rule to state explicitly that
temporary Board members have the authority of a permanent Board member,
with the exception that a temporary Board member may not vote in en
banc proceedings.
Because this is a rule of internal agency organization, notice and
comment are not required prior to its promulgation. The Department is
nonetheless promulgating it as an interim rule with opportunity for
post-promulgation comment in order to provide an opportunity for public
comment before it issues a final rule on these matters.
Regulatory Requirements
A. Administrative Procedure Act
Compliance with 5 U.S.C. 553 as to notice of proposed rulemaking or
delayed effective date is unnecessary as this rule addresses only
internal agency organization and management. Accordingly, it is not a
``rule'' as that term is used by the Congressional Review Act (Subtitle
E of the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA)), and the reporting requirement of 5 U.S.C. 801 does not
apply.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) mandates that an agency
conduct an RFA analysis when an agency is ``required by section 553 * *
*, or any other law, to publish general notice of proposed rule making
for any proposed rule.'' 5 U.S.C. 603(a). RFA analysis is not required
when a rule is exempt from notice and comment rulemaking under 5 U.S.C.
553(b). This rule is exempt from notice and comment rulemaking.
Therefore, no RFA analysis under 5 U.S.C. 603 is required for this
rule.
C. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996, 5 U.S.C. 804. This
rule will not result in an annual effect on the economy of $100 million
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, innovation, or on the
ability of United States-based companies to compete with foreign-based
companies in domestic and export markets.
E. Executive Order 12866 (Regulatory Planning and Review)
The Department does not consider this rule to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review.
F. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, this rule does not have sufficient federalism
implications to warrant preparation of a federalism summary impact
statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule has been prepared in accordance with the standards in
sections 3(a) and 3(b)(2) of Executive Order 12988.
[[Page 70857]]
H. Paperwork Reduction Act
This rule does not create any information collection requirement.
List of Subjects in 8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
services, Organization and functions (Government agencies).
0
Accordingly, for the reasons stated in the preamble, chapter V of title
8 of the Code of Federal Regulations is amended as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
1. The authority citation for part 1003 is revised to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
0
2. Section 1003.1 is amended by revising paragraphs (a)(1) and (a)(4)
to read as follows:
Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.
(a)(1) Organization. There shall be in the Department of Justice a
Board of Immigration Appeals, subject to the general supervision of the
Director, Executive Office for Immigration Review (EOIR). The Board
members shall be attorneys appointed by the Attorney General to act as
the Attorney General's delegates in the cases that come before them.
The Board shall consist of 15 members. A vacancy, or the absence or
unavailability of a Board member, shall not impair the right of the
remaining members to exercise all the powers of the Board.
* * * * *
(4) Temporary Board members. The Director may in his discretion
designate immigration judges, retired Board members, retired
immigration judges, and administrative law judges employed within, or
retired from, EOIR to act as temporary Board members for terms not to
exceed six months. In addition, with the approval of the Deputy
Attorney General, the Director may designate one or more senior EOIR
attorneys with at least ten years of experience in the field of
immigration law to act as temporary Board members for terms not to
exceed six months. A temporary Board member shall have the authority of
a Board member to adjudicate assigned cases, except that temporary
Board members shall not have the authority to vote on any matter
decided by the Board en banc.
* * * * *
Dated: November 30, 2006.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E6-20720 Filed 12-6-06; 8:45 am]
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