[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR3.1]

[Page 12-18]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW--Table of Contents
 
                 Subpart A--Board of Immigration Appeals
 
Sec. 3.1  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. 
Within six months of the implementation of the case management screening 
system as provided in paragraph (e) of this section, or such other time 
as may be specified by the Attorney General, the Board shall be reduced 
to eleven members as designated by the Attorney General. 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.
    (2) Chairman. The Attorney General shall designate one of the Board 
members to serve as Chairman. The Attorney General may designate one or 
two Vice Chairmen to assist the Chairman in the performance of his 
duties and to exercise all of the powers and duties of the Chairman in 
the absence or unavailability of the Chairman.
    (i) The Chairman, subject to the supervision of the Director, shall 
direct, supervise, and establish internal operating procedures and 
policies of the Board. The Chairman shall have authority to:
    (A) Issue operational instructions and policy, including procedural 
instructions regarding the implementation of new statutory or regulatory 
authorities;
    (B) Provide for appropriate training of Board members and staff on 
the conduct of their powers and duties;
    (C) Direct the conduct of all employees assigned to the Board to 
ensure the efficient disposition of all pending cases, including the 
power, in his discretion, to set priorities or time frames for the 
resolution of cases; to direct that the adjudication of certain cases be 
deferred, to regulate the assignment of Board members to cases, and 
otherwise to manage the docket of matters to be decided by the Board;
    (D) Evaluate the performance of the Board by making appropriate 
reports and inspections, and take corrective action where needed;
    (E) Adjudicate cases as a Board member; and
    (F) Exercise such other authorities as the Director may provide.
    (ii) The Chairman shall have no authority to direct the result of an 
adjudication assigned to another Board member or to a panel; provided, 
however, that nothing in this section shall be construed to limit the 
management authority of the Chairman under paragraph (a)(2)(i) of this 
section.
    (3) Panels. The Chairman shall divide the Board into three-member 
panels and designate a presiding member of

[[Page 13]]

each panel if the Chairman or Vice Chairman is not assigned to the 
panel. The Chairman may from time to time make changes in the 
composition of such panels and of presiding members. Each three-member 
panel shall be empowered to decide cases by majority vote, and a 
majority of the Board members assigned to the panel shall constitute a 
quorum for such panel. In addition, the Chairman shall assign any number 
of Board members, as needed, to serve on the screening panel to 
implement the case management process as provided in paragraph (e) of 
this section.
    (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, additional Board members for terms not to 
exceed six months. A temporary Board member assigned to a case may 
continue to participate in the case to its normal conclusion, but shall 
have no role in the actions of the Board en banc.
    (5) En banc process. A majority of the permanent Board members shall 
constitute a quorum for purposes of convening the Board en banc. The 
Board may on its own motion by a majority vote of the permanent Board 
members, or by direction of the Chairman, consider any case en banc, or 
reconsider as the Board en banc any case that has been considered or 
decided by a three-member panel. En banc proceedings are not favored, 
and shall ordinarily be ordered only where necessary to address an issue 
of particular importance or to secure or maintain consistency of the 
Board's decisions.
    (6) Board staff. There shall also be attached to the Board such 
number of attorneys and other employees as the Deputy Attorney General, 
upon recommendation of the Director, shall from time to time direct.
    (7) Affirmance without opinion. (i) The Chairman may designate, from 
time-to-time, permanent Board Members who are authorized, acting alone, 
to affirm decisions of Immigration Judges and the Service without 
opinion. The Chairman may designate certain categories of cases as 
suitable for review pursuant to this paragraph.
    (ii) The single Board Member to whom a case is assigned may affirm 
the decision of the Service or the Immigration Judge, without opinion, 
if the Board Member determines that the result reached in the decision 
under review was correct; that any errors in the decision under review 
were harmless or nonmaterial; and that
    (A) The issue on appeal is squarely controlled by existing Board or 
federal court precedent and does not involve the application of 
precedent to a novel fact situation; or
    (B) The factual and legal questions raised on appeal are so 
insubstantial that three-Member review is not warranted.
    (iii) If the Board Member determines that the decision should be 
affirmed without opinion, the Board shall issue an order that reads as 
follows: ``The Board affirms, without opinion, the result of the 
decision below. The decision below is, therefore, the final agency 
determination. See 8 CFR 3.1(a)(7).'' An order affirming without 
opinion, issued under authority of this provision, shall not include 
further explanation or reasoning. Such an order approves the result 
reached in the decision below; it does not necessarily imply approval of 
all of the reasoning of that decision, but does signify the Board's 
conclusion that any errors in the decision of the Immigration Judge or 
the Service were harmless or nonmaterial.
    (iv) If the Board Member determines that the decision is not 
appropriate for affirmance without opinion, the case will be assigned to 
a three-Member panel for review and decision. The panel to which the 
case is assigned also has the authority to determine that a case should 
be affirmed without opinion.
    (b) Appellate jurisdiction. Appeals may be filed with the Board of 
Immigration Appeals from the following:
    (1) Decisions of Immigration Judges in exclusion cases, as provided 
in 8 CFR part 240, subpart D.
    (2) Decisions of Immigration Judges in deportation cases, as 
provided in 8 CFR part 240, subpart E, except that no appeal shall lie 
seeking review of a

[[Page 14]]

length of a period of voluntary departure granted by an Immigration 
Judge under section 244E of the Act as it existed prior to April 1, 
1997.
    (3) Decisions of Immigration Judges in removal proceedings, as 
provided in 8 CFR part 240, except that no appeal shall lie seeking 
review of the length of a period of voluntary departure granted by an 
immigration judge under section 240B of the Act or part 240 of this 
chapter.
    (4) Decisions involving administrative fines and penalties, 
including mitigation thereof, as provided in part 280 of this chapter.
    (5) Decisions on petitions filed in accordance with section 204 of 
the act (except petitions to accord preference classifications under 
section 203(a)(3) or section 203(a)(6) of the act, or a petition on 
behalf of a child described in section 101(b)(1)(F) of the act), and 
decisions on requests for revalidation and decisions revoking the 
approval of such petitions, in accordance with section 205 of the act, 
as provided in parts 204 and 205, respectively, of this chapter.
    (6) Decisions on applications for the exercise of the discretionary 
authority contained in section 212(d)(3) of the act as provided in part 
212 of this chapter.
    (7) Determinations relating to bond, parole, or detention of an 
alien as provided in 8 CFR part 236, subpart A.
    (8) Decisions of Immigration Judges in rescission of adjustment of 
status cases, as provided in part 246 of this chapter.
    (9) Decisions of Immigration Judges in asylum proceedings pursuant 
to Sec. 208.2(b) of this chapter.
    (10) Decisions of Immigration Judges relating to Temporary Protected 
Status as provided in 8 CFR part 244.
    (11) Decisions on applications from organizations or attorneys 
requesting to be included on a list of free legal services providers and 
decisions on removals therefrom pursuant to Sec. 3.65.
    (12) Decisions of Immigration Judges on applications for adjustment 
of status referred on a Notice of Certification (Form I-290C) to the 
Immigration Court in accordance with Secs. 245.13(n)(2) and 245.15(n)(3) 
of this chapter or remanded to the Immigration Court in accordance with 
Secs. 245.13(d)(2) and 245.15(e)(2) of this chapter.
    (13) Decisions of adjudicating officials in practitioner 
disciplinary proceedings as provided in subpart G of this part.
    (14) Decisions of immigration judges regarding custody of aliens 
subject to a final order of removal made pursuant to Sec. 241.14 of this 
chapter.
    (c) Jurisdiction by certification. The Commissioner, or any other 
duly authorized officer of the Service, any Immigration Judge, or the 
Board may in any case arising under paragraph (b) of this section 
certify such case to the Board. The Board in its discretion may review 
any such case by certification without regard to the provisions of 
Sec. 3.7 if it determines that the parties have already been given a 
fair opportunity to make representations before the Board regarding the 
case, including the opportunity request oral argument and to submit a 
brief.
    (d) Powers of the Board--(1) Generally. The Board shall function as 
an appellate body charged with the review of those administrative 
adjudications under the Act that the Attorney General may by regulation 
assign to it. The Board shall resolve the questions before it in a 
manner that is timely, impartial, and consistent with the Act and 
regulations. In addition, the Board, through precedent decisions, shall 
provide clear and uniform guidance to the Service, the immigration 
judges, and the general public on the proper interpretation and 
administration of the Act and its implementing regulations.
    (i) The Board shall be governed by the provisions and limitations 
prescribed by applicable law, regulations, and procedures, and by 
decisions of the Attorney General (through review of a decision of the 
Board, by written order, or by determination and ruling pursuant to 
section 103 of the Act).
    (ii) Subject to these governing standards, Board members shall 
exercise their independent judgment and discretion in considering and 
determining the cases coming before the Board, and a panel or Board 
member to whom a case is assigned may take any action consistent with 
their authorities under

[[Page 15]]

the Act and the regulations as is appropriate and necessary for the 
disposition of the case.
    (2) Summary dismissal of appeals--(i) Standards. A single Board 
member or panel may summarily dismiss any appeal or portion of any 
appeal in any case in which:
    (A) The party concerned fails to specify the reasons for the appeal 
on Form EOIR-26 or Form EOIR-29 (Notices of Appeal) or other document 
filed therewith;
    (B) The only reason for the appeal specified by the party concerned 
involves a finding of fact or a conclusion of law that was conceded by 
that party at a prior proceeding;
    (C) The appeal is from an order that granted the party concerned the 
relief that had been requested;
    (D) The Board is satisfied, from a review of the record, that the 
appeal is filed for an improper purpose, such as to cause unnecessary 
delay, or that the appeal lacks an arguable basis in fact or in law 
unless the Board determines that it is supported by a good faith 
argument for extension, modification, or reversal of existing law;
    (E) The party concerned indicates on Form EOIR-26 or Form EOIR-29 
that he or she will file a brief or statement in support of the appeal 
and, thereafter, does not file such brief or statement, or reasonably 
explain his or her failure to do so, within the time set for filing;
    (F) The appeal does not fall within the Board's jurisdiction, or 
lies with the Immigration Judge rather than the Board;
    (G) The appeal is untimely, or barred by an affirmative waiver of 
the right of appeal that is clear on the record; or
    (H) The appeal fails to meet essential statutory or regulatory 
requirements or is expressly excluded by statute or regulation.
    (ii) Action by the Board. The Board's case management screening plan 
shall promptly identify cases that are subject to summary dismissal 
pursuant to this paragraph. An order dismissing any appeal pursuant to 
this paragraph (d)(2) shall constitute the final decision of the Board.
    (iii) Disciplinary consequences. The filing by an attorney or 
representative accredited under Sec. 292.2(d) of this chapter of an 
appeal that is summarily dismissed under paragraph (d)(2)(i) of this 
section may constitute frivolous behavior under Sec. 3.102(j). Summary 
dismissal of an appeal under paragraph (d)(2)(i) of this section does 
not limit the other grounds and procedures for disciplinary action 
against attorneys or representatives.
    (3) Scope of review. (i) The Board will not engage in de novo review 
of findings of fact determined by an immigration judge. Facts determined 
by the immigration judge, including findings as to the credibility of 
testimony, shall be reviewed only to determine whether the findings of 
the immigration judge are clearly erroneous.
    (ii) The Board may review questions of law, discretion, and judgment 
and all other issues in appeals from decisions of immigration judges de 
novo.
    (iii) The Board may review all questions arising in appeals from 
decisions issued by Service officers de novo.
    (iv) Except for taking administrative notice of commonly known facts 
such as current events or the contents of official documents, the Board 
will not engage in factfinding in the course of deciding appeals. A 
party asserting that the Board cannot properly resolve an appeal without 
further factfinding must file a motion for remand. If further 
factfinding is needed in a particular case, the Board may remand the 
proceeding to the immigration judge or, as appropriate, to the Service.
    (4) Rules of practice. The Board shall have authority, with the 
approval of the Director, EOIR, to prescribe procedures governing 
proceedings before it.
    (5) Discipline of attorneys and representatives. The Board shall 
determine whether any organization or individual desiring to represent 
aliens in immigration proceedings meets the requirements as set forth in 
Sec. 292.2 of this chapter. It shall also determine whether any 
organization desiring representation is of a kind described in 
Sec. 1.1(j) of this chapter, and shall regulate the conduct of 
attorneys, representatives of organizations, and others who appear in a 
representative capacity before the Board or the Service or any 
immigration judge.

[[Page 16]]

    (6) Finality of decision. The decision of the Board shall be final 
except in those cases reviewed by the Attorney General in accordance 
with paragraph (h) of this section. The Board may return a case to the 
Service or an immigration judge for such further action as may be 
appropriate, without entering a final decision on the merits of the 
case.
    (e) Case management system. The Chairman shall establish a case 
management system to screen all cases and to manage the Board's 
caseload. Unless a case meets the standards for assignment to a three-
member panel under paragraph (e)(6) of this section, all cases shall be 
assigned to a single Board member for disposition. The Chairman, under 
the supervision of the Director, shall be responsible for the success of 
the case management system. The Chairman shall designate, from time to 
time, a screening panel comprising a sufficient number of Board members 
who are authorized, acting alone, to adjudicate appeals as provided in 
this paragraph.
    (1) Initial screening. All cases shall be referred to the screening 
panel for review. Appeals subject to summary dismissal as provided in 
paragraph (d)(2) of this section should be promptly dismissed.
    (2) Miscellaneous dispositions. A single Board member may grant an 
unopposed motion or a motion to withdraw an appeal pending before the 
Board. In addition, a single Board member may adjudicate a Service 
motion to remand any appeal from the decision of a Service officer where 
the Service requests that the matter be remanded to the Service for 
further consideration of the appellant's arguments or evidence raised on 
appeal; a case where remand is required because of a defective or 
missing transcript; and other procedural or ministerial issues as 
provided by the case management plan.
    (3) Merits review. In any case that has not been summarily 
dismissed, the case management system shall arrange for the prompt 
completion of the record of proceedings and transcript, and the issuance 
of a briefing schedule. A single Board member assigned under the case 
management system shall determine the appeal on the merits as provided 
in paragraph (e)(4) or (e)(5) of this section, unless the Board member 
determines that the case is appropriate for review and decision by a 
three-member panel under the standards of paragraph (e)(6) of this 
section. The Board member may summarily dismiss an appeal after 
completion of the record of proceeding.
    (4) Affirmance without opinion. (i) The Board member to whom a case 
is assigned shall affirm the decision of the Service or the immigration 
judge, without opinion, if the Board member determines that the result 
reached in the decision under review was correct; that any errors in the 
decision under review were harmless or nonmaterial; and that
    (A) The issues on appeal are squarely controlled by existing Board 
or federal court precedent and do not involve the application of 
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 in 
the case.
    (ii) If the Board member determines that the decision should be 
affirmed without opinion, the Board shall issue an order that reads as 
follows: ``The Board affirms, without opinion, the result of the 
decision below. The decision below is, therefore, the final agency 
determination. See 8 CFR 3.1(e)(4).'' An order affirming without 
opinion, issued under authority of this provision, shall not include 
further explanation or reasoning. Such an order approves the result 
reached in the decision below; it does not necessarily imply approval of 
all of the reasoning of that decision, but does signify the Board's 
conclusion that any errors in the decision of the immigration judge or 
the Service were harmless or nonmaterial.
    (5) Other decisions on the merits by single Board member. If the 
Board member to whom an appeal is assigned determines, upon 
consideration of the merits, that the decision is not appropriate for 
affirmance without opinion, the Board member shall issue a brief order 
affirming, modifying, or remanding the decision under review, unless the 
Board member designates the case for decision by a three-member panel 
under paragraph (e)(6) of this section under the standards of the case 
management

[[Page 17]]

plan. A single Board member may reverse the decision under review if 
such reversal is plainly consistent with and required by intervening 
Board or judicial precedent, by an intervening Act of Congress, or by an 
intervening final regulation. A motion to reconsider or to reopen a 
decision that was rendered by a single Board member may be adjudicated 
by that Board member unless the case is reassigned to a three-member 
panel as provided under the standards of the case management plan.
    (6) Panel decisions. Cases may only be assigned for review by a 
three-member panel if the case presents one of these circumstances:
    (i) The need to settle inconsistencies among the rulings of 
different immigration judges;
    (ii) The need to establish a precedent construing the meaning of 
laws, regulations, or procedures;
    (iii) The need to review a decision by an immigration judge or the 
Service that is not in conformity with the law or with applicable 
precedents;
    (iv) The need to resolve a case or controversy of major national 
import;
    (v) The need to review a clearly erroneous factual determination by 
an immigration judge; or
    (vi) The need to reverse the decision of an immigration judge or the 
Service, other than a reversal under Sec. 3.1(e)(5).
    (7) Oral argument. When an appeal has been taken, a request for oral 
argument if desired shall be included in the Notice of Appeal. A three-
member panel or the Board en banc may hear oral argument, as a matter of 
discretion, at such date and time as is established under the Board's 
case management plan. Oral argument shall be held at the offices of the 
Board unless the Deputy Attorney General or his designee authorizes oral 
argument to be held elsewhere. The Service may be represented before the 
Board by an officer of the Service designated by the Service. No oral 
argument will be allowed in a case that is assigned for disposition by a 
single Board member.
    (8) Timeliness. As provided under the case management system, the 
Board shall promptly enter orders of summary dismissal, or other 
miscellaneous dispositions, in appropriate cases. In other cases, after 
completion of the record on appeal, including any briefs, motions, or 
other submissions on appeal, the Board member or panel to which the case 
is assigned shall issue a decision on the merits as soon as practicable, 
with a priority for cases or custody appeals involving detained aliens.
    (i) Except in exigent circumstances as determined by the Chairman, 
the Board shall dispose of all appeals assigned to a single Board member 
within 90 days of completion of the record on appeal, or within 180 days 
after an appeal is assigned to a three-member panel (including any 
additional opinion by a member of the panel).
    (ii) In exigent circumstances, the Chairman may grant an extension 
in particular cases of up to 60 days as a matter of discretion. Except 
as provided in paragraph (e)(8)(iii) or (iv) of this section, in those 
cases where the panel is unable to issue a decision within the 
established time limits, as extended, the Chairman shall either assign 
the case to himself or a Vice-Chairman for final decision within 14 days 
or shall refer the case to the Attorney General for decision. If a 
dissenting or concurring panel member fails to complete his or her 
opinion by the end of the extension period, the decision of the majority 
will be issued without the separate opinion.
    (iii) In rare circumstances, when an impending decision by the 
United States Supreme Court or a United States Court of Appeals, or 
impending Department regulatory amendments, or an impending en banc 
Board decision may substantially determine the outcome of a case or 
group of cases pending before the Board, the Chairman may hold the case 
or cases until such decision is rendered, temporarily suspending the 
time limits described in this paragraph (e)(8).
    (iv) For any case ready for adjudication as of September 25, 2002, 
and that has not been completed within the established time lines, the 
Chairman may, as a matter of discretion, grant an extension of up to 120 
days.
    (v) The Chairman shall notify the Director of EOIR and the Attorney 
General if a Board member consistently fails to meet the assigned 
deadlines for the disposition of appeals, or otherwise fails to adhere 
to the standards of the

[[Page 18]]

case management system. The Chairman shall also prepare a report 
assessing the timeliness of the disposition of cases by each Board 
member on an annual basis.
    (vi) The provisions of this paragraph (e)(8) establishing time 
limits for the adjudication of appeals reflect an internal management 
directive in favor of timely dispositions, but do not affect the 
validity of any decision issued by the Board and do not, and shall not 
be interpreted to, create any substantive or procedural rights 
enforceable before any immigration judge or the Board, or in any court 
of law or equity.
    (f) Service of Board decisions. The decision of the Board shall be 
in writing and copies thereof shall be transmitted by the Board to the 
Service and a copy shall be served upon the alien or party affected as 
provided in part 292 of this chapter.
    (g) Decisions of the Board as precedents. Except as they may be 
modified or overruled by the Board or the Attorney General, decisions of 
the Board shall be binding on all officers and employees of the Service 
or immigration judges in the administration of the Act. By majority vote 
of the permanent Board members, selected decisions of the Board rendered 
by a three-member panel or by the Board en banc may be designated to 
serve as precedents in all proceedings involving the same issue or 
issues.
    (h) Referral of cases to the Attorney General. (1) The Board shall 
refer to the Attorney General for review of its decision all cases 
which:
    (i) The Attorney General directs the Board to refer to him.
    (ii) The Chairman or a majority of the Board believes should be 
referred to the Attorney General for review.
    (iii) The Commissioner requests be referred to the Attorney General 
for review.
    (2) In any case in which the Attorney General reviews the decision 
of the Board, the decision of the Attorney General shall be stated in 
writing and shall be transmitted to the Board for transmittal and 
service as provided in paragraph (f) of this section.

[23 FR 9117, Nov. 26, 1958]

    Editorial Note: For Federal Register citations affecting Sec. 3.1, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.