Authorities Delegated to the Director of the Executive Office for Immigration Review, and the Chief Immigration Judge, 53673-53678 [E7-18526]
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Rules and Regulations
Federal Register
Vol. 72, No. 182
Thursday, September 20, 2007
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF JUSTICE
8 CFR Parts 1003 and 1240
[Docket No. EOIR 125F; AG Order No. 2907–
2007]
RIN 1125–AA27
Authorities Delegated to the Director of
the Executive Office for Immigration
Review, and the Chief Immigration
Judge
Executive Office for
Immigration Review, Department of
Justice.
ACTION: Final rule.
AGENCY:
SUMMARY: This rule revises the Attorney
General’s regulations relating to the
delegation of authority to the Director of
the Executive Office for Immigration
Review (EOIR) and the Chief
Immigration Judge with respect to the
adjudicatory process. These rules are
intended to improve the management of
EOIR.
DATES: This rule is effective October 22,
2007.
FOR FURTHER INFORMATION CONTACT:
Kevin Chapman, Acting General
Counsel, Executive Office for
Immigration Review, Office of the
General Counsel, 5107 Leesburg Pike,
Suite 2600, Falls Church, VA 22041;
telephone (703) 305–0470.
SUPPLEMENTARY INFORMATION:
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Background
On December 26, 2000, the
Department of Justice (Department)
published a proposed rule in the
Federal Register at 65 FR 81434, to
revise the Attorney General’s delegation
of management authority to officials of
the Executive Office for Immigration
Review (EOIR). Changes proposed by
that rule would add specific information
to 8 CFR on the organization of EOIR
and outline the respective authorities of
EOIR’s Director, the Chairman of the
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Board of Immigration Appeals, and the
Chief Immigration Judge.
On November 25, 2002, the President
signed into law the Homeland Security
Act of 2002 (HSA) creating the new
Department of Homeland Security
(DHS) and transferring the functions of
the former Immigration and
Naturalization Service (INS) to the DHS.
Pub. L. 107–296, tit. IV, subtits. D, E, F,
116 Stat. 2135, 2192 (Nov. 25, 2002)
(effective March 1, 2003). The Attorney
General retains the functions of the
EOIR in the Department of Justice. HSA
§ 1101, 6 U.S.C. 521; section 103(g) of
the Immigration and Nationality Act
(INA, or the Act), 8 U.S.C. 1103(g). In
order to implement the transfer of
functions under the HSA, the Attorney
General reorganized title 8 of the Code
of Federal Regulations and divided the
regulations into chapters, so that
chapter I contains regulations relating to
the functions of the former INS (now
DHS) and chapter V contains
regulations relating to the functions of
EOIR. 68 FR 9824 (Feb. 28, 2003); see
also 68 FR 10349 (March 5, 2003). The
regulations governing proceedings
before EOIR are now contained in 8 CFR
chapter V, beginning with part 1001.
Portions of the proposed rule relating
to the organization of the Board of
Immigration Appeals (Board) and the
powers delegated to the Chairman of the
Board have already been incorporated
into a separate final rule published by
the Department on August 26, 2002,
entitled Board of Immigration Appeals:
Procedural Reforms To Improve Case
Management, 67 FR 54878 (Aug. 26,
2002) (now codified at 8 CFR 1003.1).
The Department does not make any
further changes in this rule to the
powers of the Chairman or the
organization of the Board.
With respect to the remaining
provisions of the proposed rule relating
to the organization of EOIR and the
authority of the Director, the Chief
Immigration Judge, and the General
Counsel, this rule finalizes the
provisions as proposed in that rule as
final without substantial change, but
makes necessary modifications to that
rule to include technical changes to
reflect the enactment of the HSA,
including the reorganization and
renumbering of 8 CFR. In addition, as
discussed further below, the Department
is adding additional management
directives flowing from the Attorney
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General’s 2006 review of improving the
workings of the immigration hearing
process before the immigration judges
and the Board.
Public Comments
The Department allowed a 60-day
public comment period on the proposed
rule that ended on February 26, 2001.
The Department received comments
from three members of the public on the
proposed rule.
A few of the comments discussed
sections which pertained to the Board.
As mentioned above, the Department
has already published a regulation
relating to the organization of the Board
and the powers delegated to the
Chairman of the Board, and comments
relating to the Board were fully
discussed in that separate final rule,
with one exception discussed here.
One commenter objected to the
proposed redesignation of the members
of the Board to be known as appellate
immigration judges, citing possible
confusion by the public. The
Department has decided not to make
this change and withdraws that portion
of the proposed rule. The Act provides
that immigration proceedings are
conducted by officials known as
immigration judges, but the Act also
states clearly that these officials are
Department of Justice attorneys who are
designated by the Attorney General to
conduct such proceedings, and they are
subject to the Attorney General’s
direction and control. See section
101(b)(4) of the INA (8 U.S.C.
1101(b)(4)). However, there do appear to
have been at least some instances of
apparent confusion over time among
some observers regarding the role and
status of the immigration judges.
Similarly, the members of the Board are
Department of Justice attorneys who
serve as the Attorney General’s
delegates in deciding the cases that
come before them. See 8 CFR
1003.1(a)(1), (d)(1). In their quasijudicial roles, the immigration judges
and the Board members exercise very
important functions, making
adjudicatory decisions and exercising
discretion on behalf of the Attorney
General. However, they are Executive
Branch adjudicators and do not serve in
purely a judicial capacity. As the
Supreme Court has made clear, the
immigration adjudication process (and
the Board’s role in that process) is an
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executive function that implicates not
only legal and factual issues, but also
important immigration policy and
foreign relations interests, and the
‘‘judiciary is not well positioned to
shoulder primary responsibility’’ for
such determinations. INS v. AguirreAguirre, 526 U.S. 415, 425 (1999).1 The
Department has decided not to change
the title of the Board members, in order
to avoid possible confusion between the
key executive functions of the Board
and the judicial role of the Federal
courts.
The following is a discussion of the
remaining comments relating to the
organization of EOIR and the authority
of the Director and Chief Immigration
Judge, and the Department’s response.
All three commenters raised concerns
with the provisions that allow the
setting of priorities or time frames for
the resolution of cases. They expressed
concern that an official could direct the
outcome of a specific case by setting an
unyielding completion goal which
would prevent an immigration judge
from taking the time necessary to
adjudicate a case fairly. On this issue,
one commenter believes the rule can be
interpreted to abrogate the parties’ right
to a full and complete hearing. This
commenter would have the rule
recognize that only the immigration
judge should determine the amount of
time necessary to complete a case.
One commenter asks whether the rule
is intended (a) To authorize an official
to establish time frames for particular
types or classes of cases which would be
guidelines for the judges to follow, but
permit a departure from the guidelines
in individual cases when necessary; or
(b) to have an official direct a judge to
cut short a particular case regardless of
the judge’s need to take additional time.
The Department does not believe that
the authority to establish time frames
and guidelines ‘‘directs’’ the result of
the adjudication. Time frames and
guidelines are designed to ensure the
timely adjudication and conclusion of
proceedings, and their use is wellestablished in immigration procedure.
For example, asylum cases have a
statutory completion requirement of 180
1 As the Attorney General’s delegate, the Board
issues precedential decisions which have been
accorded appropriate deference under the Supreme
Court’s decisions in Chevron v. NRDC, 467 U.S. 837
(1984) (deference due agency interpretation of
statutes within delegated authority); INS v. AguirreAguirre, 526 U.S. 415, 425 (1999) (Attorney General,
and hence the Board, accorded Chevron deference);
and INS v. Cardoza-Fonseca, 480 U.S. 421, 448–49
(1987) (same), as administrative interpretations of
the Act. Chevron deference is appropriate because
the Board is interpreting the Act on behalf of the
Attorney General. See also Gonzales v. Thomas, 126
S. Ct. 1613 (2006).
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days, pursuant to section
208(d)(5)(A)(iii) of the INA. A credible
fear review by an immigration judge has
a statutory completion requirement of 7
days, under section 235(b)(1)(B)(iii)(III)
of the Act. In addition, the Board has an
established case management system
where single Board members dispose of
all assigned appeals within 90 days of
completion of the record on appeal, or
within 180 days after an appeal is
assigned to a three-member panel. 8
CFR 1003.1(e)(8)(i). Moreover,
individual immigration judges set
hearing calendars and prioritize cases.
Within each judge’s parameters for
calendaring a case, that judge will take
the time necessary for the case to be
completed. Some cases take less time to
complete, some more, and most fall
within the estimated times.
Experience has shown that the time
frames do not ‘‘direct the result’’ of a
particular case, but rather that the
guidelines promote timely results. The
Department shares the commenters’
concern for due process and fairness in
immigration proceedings. Timely
adjudications ensure due process and
fairness for the aliens in proceedings, as
well as for the government and its
citizens who have an interest in having
cases adjudicated, benefits conferred,
and the laws enforced. See generally
Capital Area Immigrants’ Rights
Coalition, v. U.S. Dep’t of Justice, 264 F.
Supp. 2d 14 (D.D.C. 2003) (rejecting
challenges to the Attorney General’s
reform of the Board’s procedures in
2002); see also Nash, v. Bowen, 869 F.2d
675, 681 (2d Cir. 1989) (rejecting
administrative law judge (ALJ)
challenge to efforts by the Social
Security Administration (SSA) to
improve the quality, timeliness, and
efficiency of the ALJ decision making
process; ‘‘those concerns are more
appropriately addressed by Congress or
by courts through the usual channels of
judicial review in Social Security cases.
The bottom line in this case is that it
was entirely within the Secretary’s
discretion to adopt reasonable
administrative measures in order to
improve the decision making process.’’)
(citations omitted).
Another commenter takes issue with
§ 1003.0(b)(2), which allows the Director
to delegate his authority to others. This
commenter is specifically concerned
with the Director’s ability to delegate his
authority to ‘‘any other EOIR
employee,’’ arguing that such a
delegation is too broad. The Department
disagrees with this comment and will
maintain the regulation as proposed.
EOIR is comprised of three adjudicating
components as well as certain
administrative components and
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functions. These administrative
components and programs are managed
by assistant directors and other senior
level management officials. On
occasion, as the Director shall decide,
these officials may be in the best
position to respond to a particular
delegation of the Director’s authority.
The Department expects that the
Director, who is ultimately responsible
for the supervision of EOIR, is best able
to delegate his authority and should not
be restricted to only a few agency
officials.
One commenter objected to the
General Counsel’s now being ‘‘co-equal’’
with the Deputy Director. The
commenter expresses concern that the
General Counsel is on ‘‘an equal
managerial basis with its second in
command.’’ The Department directs the
reader to § 1003.0(d) and (e). The
language is clear that the Deputy
Director ‘‘shall advise and assist . . . in
the management of EOIR,’’ while the
General Counsel, serving as chief legal
counsel of EOIR, ‘‘shall provide legal
advice and assistance to the Director
[and] Deputy Director’’. The Department
believes the language delineates the
distinction in duties and responsibilities
appropriately.
Finally, one commenter proposed a
change to the definition of immigration
court in § 1003.9(d) arguing that the
definition was inaccurate and that the
term ‘‘local sites’’ should be changed to
‘‘hearing location.’’ Currently, there are
54 immigration courts nationwide that
create or maintain records of
proceedings and serve as locations
where proceedings are held before
immigration judges. There are also other
hearing locations in detail cities or other
hearing sites such as correctional
facilities where immigration hearings
are held before an immigration judge.
These other hearing locations are all
serviced by an administrative control
immigration court and do not serve as
locations where documents and
correspondence pertaining to a record of
proceeding can be filed. Therefore these
facilities do not meet the definition of
‘‘immigration court’’ even though
hearings can be held at locations that
are designated by the Office of the Chief
Immigration Judge for administrative
and public convenience. As the
commenter correctly pointed out, state
detention facilities, where hearings are
held before an immigration judge,
would not meet the definition of
‘‘immigration court’’ since these
facilities do not create or maintain
records of proceedings. The Department
will therefore maintain the definition of
immigration court as proposed in order
to avoid any confusion with other
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hearing locations where documents and
correspondence pertaining to records of
proceedings are not accepted.
The Attorney General’s Management
Review of the Immigration Hearing
Process
On January 9, 2006, the Attorney
General directed a comprehensive
review of the Immigration Courts and
the Board of Immigration Appeals. This
review was undertaken in response to
concerns about the quality of decisions
being issued by the immigration judges
and the Board and about reports of
intemperate behavior by some
immigration judges. The Deputy
Attorney General and the Associate
Attorney General assembled a review
team, which over the course of several
months conducted hundreds of
interviews, administered an online
survey, and analyzed thousands of
documents to assess the EOIR
adjudicative process.
On August 9, 2006, the Attorney
General announced that the review was
complete, and he directed that a series
of measures be taken to improve
adjudications by the immigration judges
and the Board. EOIR has already been
implementing most of those initiatives
through administrative and management
actions, although several of the
initiatives require changes to the
existing regulations and are being
implemented through separate
rulemaking actions.
The following discussion reviews
some of the internal management
initiatives arising from the Attorney
General’s review. Although all of the
following changes are being
implemented through internal
management changes within EOIR, this
final rule has been revised to include a
brief summary of these key initiatives as
being among the Director’s specific
responsibilities, as a permanent
reflection of these changes which will
continue to be implemented over time.
Among the Attorney General’s key
priorities was to improve the existing
processes for dealing with fraud and
abuse in the immigration process. One
administrative step to further this goal
is the appointment of an anti-fraud
officer in EOIR who will be in a position
to respond to concerns about instances
of fraud arising in some of the hundreds
of thousands of cases being adjudicated
each year by the immigration judges and
the Board, providing for a single point
of contact for coordination (both within
EOIR and in communications with other
interested agencies). U.S. Citizenship
and Immigration Services (USCIS), a
component of DHS, has established an
Office of Fraud Detection and National
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Security with specific responsibility for
identifying instances of fraud among the
applications for immigration benefits
filed with USCIS, and U.S. Immigration
and Customs Enforcement (ICE) has
ongoing enforcement efforts against
aliens who have submitted fraudulent
documents or who seek immigration
benefits by fraud or misrepresentation.
The United States Attorneys have also
successfully prosecuted, or obtained
indictments against, numerous
individuals and rings that have engaged
in widespread immigration fraud (in
some cases involving hundreds of
instances of fraud in separate cases
perpetrated by the same conspirators).
Although the immigration judges and
the Board are authorized to respond to
such fraud on a case-by-case basis,2
there is also a need for a more
systematic response to identified
instances of fraud, particularly where
there are indications of wide-scale
organized efforts to engage in
immigration fraud. This final rule has
been revised to include a new provision
for the General Counsel of EOIR to
designate an anti-fraud officer to serve
as a point of contact and coordination
with respect to instances of fraud arising
in administrative proceedings before
EOIR.
The final rule also includes new
general provisions relating to training,
support, and review of the quality of the
adjudicatory process, reflecting several
of the directives contained in the
Attorney General’s memorandum of
August 9, 2006. Among the Attorney
General’s other specific directives in the
August 9 memorandum were:
#1—Performance appraisals for
immigration judges and Board
members
#2—Evaluation of newly-appointed
immigration judges and Board
members within 2 years
#3—Examination in immigration law for
newly-appointed immigration
judges and Board members
#4—Improved training for immigration
judges and Board members
#5—Improved training and guidance for
EOIR staff
#6—Improved on-bench reference
materials and decision templates
2 See, e.g., Ye v. U.S. Dep’t of Justice, 489 F.3d
517 (2d Cir. 2007) (upholding adverse credibility
finding where the immigration judge noted 23
striking similarities in form and substance between
an alien’s asylum affidavit and another applicant’s
affidavit submitted in a separate asylum case,
advised the alien of his concern about the
similarities, arranged for DHS to provide her with
a redacted copy of the affidavit submitted in the
other case, gave the alien several opportunities to
address the similarities and provide any innocent
explanation, and the alien failed to respond to the
immigration judge’s concerns).
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#7—Mechanisms to detect poor conduct
and quality
#11—Complaint procedures
In order to summarize and reflect
these new initiatives, for the
information of participants in
immigration proceedings and the
general public, this final rule adds
several brief new paragraphs to the
existing description of the duties of the
Director of EOIR in 8 CFR 1003.0(b)(1),
as follows:
• Adding a new para (v) to ‘‘Provide for
performance appraisals for
immigration judges and Board
members while fully respecting their
roles as adjudicators, including a
process for reporting adjudications
that reflect temperament problems or
poor decisional quality’’ (with respect
to Attorney General directives #1 and
#7)
• Adding a new para (vi) to
‘‘Administer an examination for
newly-appointed immigration judges
and Board members with respect to
their familiarity with key principles of
immigration law before they begin to
adjudicate matters, and evaluate the
temperament and skills of each new
immigration judge or Board member
within 2 years of appointment’’ (with
respect to Attorney General directives
#2 and #3)
• Adding a new para (vii) to ‘‘Provide
for comprehensive, continuing
training and support for Board
members, immigration judges, and
EOIR staff in order to promote the
quality and consistency of
adjudications’’ (with respect to
Attorney General directives #4, #5,
and #6)
• Adding a new para (viii) to
‘‘Implement a process for receiving,
evaluating, and responding to
complaints of inappropriate conduct
by EOIR adjudicators’’ (with respect
to Attorney General directive #11)
Regulatory Requirements
Administrative Procedure Act
The provisions of this rule, in general,
finalize without substantive change a
proposed rule previously published for
public notice and comment.
This final rule also incorporates
certain management directives relating
to the appointment of an anti-fraud
officer, and new general provisions
relating to training, support, and review
of the quality of the adjudicatory
process, reflecting several of the
directives contained in the Attorney
General’s memorandum of August 9,
2006. All of these changes are a matter
of agency organization, management, or
personnel and do not require prior
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notice and comment, and accordingly
they are being included in this final rule
relating to EOIR. See 5 U.S.C. 553(a)(2)
(exempting ‘‘a matter relating to agency
management or personnel’’); Id.
§ 553(b)(A) (exempting ‘‘rules of agency
organization, procedure, or practice’’).
Regulatory Flexibility Act
The Attorney General, in accordance
with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this rule
and, by approving it, certifies that it will
affect only Department employees,
individuals in immigration proceedings
before the EOIR, and practitioners who
appear before EOIR. Therefore, this rule
will not have a significant economic
impact on a substantial number of small
entities.
Paperwork Reduction Act
The provisions of the Paperwork
Reduction Act of 1995, Public Law 104–
13, 44 U.S.C. chapter 35, and its
implementing regulations, 5 CFR part
1320, do not apply to this final rule
because there are no new or revised
record keeping or reporting
requirements.
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.
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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
Fairness 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,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
Executive Order 12866
This rule has been drafted and
reviewed in accordance with Executive
Order 12866, section 1(b), Principles of
Regulation. This rule is limited to
agency organization, management and
personnel as described by Executive
Order 12866 § 3(d)(3) and, therefore, is
not a ‘‘regulation’’ or ‘‘rule’’ as defined
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by this Executive Order. Accordingly,
this action has not been reviewed by the
Office of Management and Budget.
I
Executive Order 13132
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, the Department of Justice
has determined that this rule does not
have sufficient federalism implications
to warrant a federalism summary impact
statement.
(a) Organization. Within the
Department of Justice, there shall be an
Executive Office for Immigration
Review (EOIR), headed by a Director
who is appointed by the Attorney
General. The Director shall be assisted
by a Deputy Director and by a General
Counsel. EOIR shall include the Board
of Immigration Appeals, the Office of
the Chief Immigration Judge, the Office
of the Chief Administrative Hearing
Officer, and such other staff as the
Attorney General or Director may
provide.
(b) Powers of the Director.— (1) In
general. The Director shall manage EOIR
and its employees and shall be
responsible for the direction and
supervision of the Board, the Office of
the Chief Immigration Judge, and the
Office of the Chief Administrative
Hearing Officer in the execution of their
respective duties pursuant to the Act
and the provisions of this chapter.
Unless otherwise provided by the
Attorney General, the Director shall
report to the Deputy Attorney General
and the Attorney General. The Director
shall have the authority to:
(i) Issue operational instructions and
policy, including procedural
instructions regarding the
implementation of new statutory or
regulatory authorities;
(ii) Direct the conduct of all EOIR
employees 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
adjudicators to cases; and otherwise to
manage the docket of matters to be
decided by the Board, the immigration
judges, the Chief Administrative
Hearing Officer, or the administrative
law judges;
(iii) Provide for appropriate
administrative coordination with the
other components of the Department of
Justice, with the Department of
Homeland Security, and with the
Department of State;
(iv) Evaluate the performance of the
Board of Immigration Appeals, the
Office of the Chief Immigration Judge,
the Office of the Chief Administrative
Hearing Officer, and other EOIR
activities, make appropriate reports and
inspections, and take corrective action
where needed;
(v) Provide for performance appraisals
for immigration judges and Board
members while fully respecting their
Executive Order 12988
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil
Justice Reform.
Congressional Review Act
This action pertains to agency
management, personnel and
organization and does not substantially
affect the rights or obligations of nonagency parties and, accordingly, 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)). Therefore, the reporting
requirement of 5 U.S.C. 801 does not
apply.
List of Subjects
8 CFR Part 1003
Administrative practice and
procedure, Aliens, Immigration, Legal
Services, Organization and function
(Government agencies).
8 CFR Part 1240
Administrative practice and
procedure and Aliens.
I Accordingly, parts 1003 and 1240 of
chapter V of title 8 of the Code of
Federal Regulations are amended as
follows:
PART 1003—EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW
1. The authority citation for 8 CFR
part 1003 continues to read as follows:
I
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.
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2. Revise § 1003.0 to read as follows:
§ 1003.0
Review.
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roles as adjudicators, including a
process for reporting adjudications that
reflect temperament problems or poor
decisional quality;
(vi) Administer an examination for
newly-appointed immigration judges
and Board members with respect to
their familiarity with key principles of
immigration law before they begin to
adjudicate matters, and evaluate the
temperament and skills of each new
immigration judge or Board member
within 2 years of appointment;
(vii) Provide for comprehensive,
continuing training and support for
Board members, immigration judges,
and EOIR staff in order to promote the
quality and consistency of
adjudications;
(viii) Implement a process for
receiving, evaluating, and responding to
complaints of inappropriate conduct by
EOIR adjudicators; and
(ix) Exercise such other authorities as
the Attorney General may provide.
(2) Delegations. The Director may
delegate the authority given to him by
this part or by the Attorney General to
the Deputy Director, the General
Counsel, the Chairman of the Board of
Immigration Appeals, the Chief
Immigration Judge, the Chief
Administrative Hearing Officer, or any
other EOIR employee.
(c) Limit on the Authority of the
Director. The Director shall have no
authority to adjudicate cases arising
under the Act or regulations and shall
not direct the result of an adjudication
assigned to the Board, an immigration
judge, the Chief Administrative Hearing
Officer, or an Administrative Law Judge;
provided, however, that nothing in this
part shall be construed to limit the
authority of the Director under
paragraph (b) of this section.
(d) Deputy Director. The Deputy
Director shall advise and assist the
Director in the management of EOIR and
the formulation of policy and
guidelines. Unless otherwise limited by
law or by order of the Director, the
Deputy Director shall exercise the full
authority of the Director in the
discharge of his or her duties.
(e) General Counsel. Subject to the
supervision of the Director, the General
Counsel shall serve as the chief legal
counsel of EOIR. The General Counsel
shall provide legal advice and assistance
to the Director, Deputy Director, and
heads of the components within EOIR,
and shall supervise all legal activities of
EOIR not related to adjudications arising
under the Act or this chapter.
(1) Professional standards. The
General Counsel shall administer
programs to protect the integrity of
immigration proceedings before EOIR,
VerDate Aug<31>2005
16:42 Sep 19, 2007
Jkt 211001
including administering the disciplinary
program for attorneys and accredited
representatives under subpart G of this
part.
(2) Fraud issues. The General Counsel
shall designate an anti-fraud officer who
shall—
(i) Serve as a point of contact relating
to concerns about possible fraud upon
EOIR, particularly with respect to
matters relating to fraudulent
applications or documents affecting
multiple removal proceedings,
applications for relief from removal,
appeals, or other proceedings before
EOIR;
(ii) Coordinate with investigative
authorities of the Department of
Homeland Security, the Department of
Justice, and other appropriate agencies
with respect to the identification of and
response to such fraud; and
(iii) Notify the EOIR disciplinary
counsel and other appropriate
authorities with respect to instances of
fraud, misrepresentation, or abuse
pertaining to an attorney or accredited
representative.
(f) Citizenship Requirement for
Employment. (1) An application to work
at EOIR, either as an employee or a
volunteer, must include a signed
affirmation from the applicant that he or
she is a citizen of the United States of
America. If requested, the applicant
must document United States
citizenship.
(2) The Director of EOIR may, by
explicit written determination and to
the extent permitted by law, authorize
the appointment of an alien to an EOIR
position when necessary to accomplish
the work of EOIR.
Subpart B—Office of the Chief
Immigration Judge
3. Revise the heading of Subpart B to
read as set forth above.
I 4. Revise § 1003.9 to read as follows:
I
§ 1003.9
Judge.
Office of the Chief Immigration
(a) Organization. Within the
Executive Office for Immigration
Review, there shall be an Office of the
Chief Immigration Judge (OCIJ),
consisting of the Chief Immigration
Judge, the immigration judges, and such
other staff as the Director deems
necessary. The Attorney General shall
appoint the Chief Immigration Judge.
The Director may designate immigration
judges to serve as Deputy and Assistant
Chief Immigration Judges as may be
necessary to assist the Chief
Immigration Judge in the management
of the OCIJ.
(b) Powers of the Chief Immigration
Judge. Subject to the supervision of the
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
53677
Director, the Chief Immigration Judge
shall be responsible for the supervision,
direction, and scheduling of the
immigration judges in the conduct of
the hearings and duties assigned to
them. The Chief Immigration Judge shall
have the authority to:
(1) Issue operational instructions and
policy, including procedural
instructions regarding the
implementation of new statutory or
regulatory authorities;
(2) Provide for appropriate training of
the immigration judges and other OCIJ
staff on the conduct of their powers and
duties;
(3) Direct the conduct of all
employees assigned to OCIJ 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 immigration judges to
cases, and otherwise to manage the
docket of matters to be decided by the
immigration judges;
(4) Evaluate the performance of the
Immigration Courts and other OCIJ
activities by making appropriate reports
and inspections, and take corrective
action where needed;
(5) Adjudicate cases as an
immigration judge; and
(6) Exercise such other authorities as
the Director may provide.
(c) Limit on the Authority of the Chief
Immigration Judge. The Chief
Immigration Judge shall have no
authority to direct the result of an
adjudication assigned to another
immigration judge, provided, however,
that nothing in this part shall be
construed to limit the authority of the
Chief Immigration Judge in paragraph
(b) of this section.
(d) Immigration Court. The term
Immigration Court shall refer to the
local sites of the OCIJ where
proceedings are held before immigration
judges and where the records of those
proceedings are created and maintained.
I 5. Revise § 1003.10 to read as follows:
§ 1003.10
Immigration judges.
(a) Appointment. The immigration
judges are attorneys whom the Attorney
General appoints as administrative
judges within the Office of the Chief
Immigration Judge to conduct specified
classes of proceedings, including
hearings under section 240 of the Act.
Immigration judges shall act as the
Attorney General’s delegates in the
cases that come before them.
(b) Powers and duties. In conducting
hearings under section 240 of the Act
and such other proceedings the
E:\FR\FM\20SER1.SGM
20SER1
53678
Federal Register / Vol. 72, No. 182 / Thursday, September 20, 2007 / Rules and Regulations
Attorney General may assign to them,
immigration judges shall exercise the
powers and duties delegated to them by
the Act and by the Attorney General
through regulation. In deciding the
individual cases before them, and
subject to the applicable governing
standards, immigration judges shall
exercise their independent judgment
and discretion and may take any action
consistent with their authorities under
the Act and regulations that is
appropriate and necessary for the
disposition of such cases. Immigration
judges shall administer oaths, receive
evidence, and interrogate, examine, and
cross-examine aliens and any witnesses.
Subject to §§ 1003.35 and 1287.4 of this
chapter, they may issue administrative
subpoenas for the attendance of
witnesses and the presentation of
evidence. In all cases, immigration
judges shall seek to resolve the
questions before them in a timely and
impartial manner consistent with the
Act and regulations.
(c) Review. Decisions of immigration
judges are subject to review by the
Board of Immigration Appeals in any
case in which the Board has jurisdiction
as provided in 8 CFR 1003.1.
(d) Governing standards. Immigration
judges shall be governed by the
provisions and limitations prescribed by
the Act and this chapter, by the
decisions of the Board, and by 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).
6. The authority citation for 8 CFR
part 1240 continues to read as follows:
I
Authority: 8 U.S.C. 1103, 1182, 1186a,
1224, 1225, 1226, 1227, 1251, 1252 note,
1252a, 1252b, 1362; secs. 202 and 203, Pub.
L. 105–100 (111 Stat. 2160, 2193); sec. 902,
Pub. L. 105–277 (112 Stat. 2681); 8 CFR part
2.
Subpart A—Removal Proceedings
[Amended]
7. Amend § 1240.1 by removing the
first and second sentences of paragraph
(a)(2).
rwilkins on PROD1PC63 with RULES
I
Dated: September 12, 2007.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E7–18526 Filed 9–19–07; 8:45 am]
BILLING CODE 4410–30–P
VerDate Aug<31>2005
16:42 Sep 19, 2007
Jkt 211001
Federal Aviation Administration
14 CFR Part 43
[Docket No. FAA–2007–28631; Amendment
No. 43–41]
RIN 2120–AJ11
Recording of Major Repairs and Major
Alterations
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
SUMMARY: This action amends
instructions to aviation maintenance
providers regarding submittal of FAA
Form 337, Major Repair and Alteration,
for either major repair or major
alteration; or for extended-range fuel
tanks installed within the passenger
compartment or a baggage compartment.
This change clarifies the mailing
instructions when submitting Form 337
to the FAA. The intent of this action is
to amend the regulation to ensure
mailing requirements are clear and
accurate.
This amendment becomes
effective September 20, 2007.
DATES:
Kim
Barnette, Aircraft Maintenance Division,
Flight Standards Service, Federal
Aviation Administration, 800
Independence Avenue, SW.,
Washington, DC 20591; telephone:
(202–493–4922); facsimile: (202–267–
5115); e-mail: kim.a.barnette@faa.gov.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Authority for This Rulemaking
PART 1240—PROCEEDINGS TO
DETERMINE REMOVABILITY OF
ALIENS IN THE UNITED STATES
§ 1240.1
DEPARTMENT OF TRANSPORTATION
The FAA’s authority to issue rules on
aviation safety is found in Title 49 of the
United States Code. Subtitle I, Section
106 describes the authority of the FAA
Administrator. Subtitle VII, Aviation
Programs, describes in more detail the
scope of the agency’s authority.
The FAA is issuing this rulemaking
under the authority set forth in 49
U.S.C. 44701(a)(5). This regulation is
within the scope of that authority
because the Administrator is charged
with promoting safe flight of civil
aircraft by, among other things,
prescribing regulations and minimum
standards for practices, methods, and
procedures the Administrator finds
necessary for safety in air commerce and
national security.
Background
On September 9, 1987, the FAA
published a final rule entitled ‘‘Aircraft
Identification and Retention of Fuel
System Modification Records,’’ (52 FR
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
34096). Among other changes, this rule
amended part 43, Appendix B, by
revising the introductory text of
paragraph (a) and adding a new
paragraph (d). This rule provided
instructions so major alterations for fuel
tanks and system modifications would
be segregated from other major repairs
and alterations.
The new paragraph (d) provided
instructions for disposition of the Form
337, Major Repair and Alteration,
whenever extended-range fuel tanks are
installed within the passenger
compartment or a baggage compartment.
As part of those instructions, paragraph
(c)(2) of Appendix B is referenced for
distribution of Form 337.
The FAA has found that since adding
paragraph (d), there has been a decline
in Form 337s received for extendedrange fuel tanks. Review of part 43,
Appendix B revealed a wrong address.
As currently written, paragraph (c)(2)
directs individuals to send a copy of
Form 337 to an incorrect address. Any
FAA Form 337 that describes a
modification to an aircraft fuel system
or that shows additional tanks installed,
should be mailed to the FAA, Aircraft
Registration Branch, AFS–751, P.O. Box
25724, Oklahoma City, OK. All other
FAA Form 337s should be mailed to the
FAA, Aircraft Registration Branch,
AFS–750, P.O. Box 25504, Oklahoma
City, OK.
The change in this final rule will
clarify and correct the mailing
instructions and does not affect any
other requirements in part 43.
Reason for Final Rule
This final rule amends the mailing
instructions for FAA Form 337 in part
43, Appendix B, paragraphs (c) and (d).
The change will allow submission of
FAA Form 337 to the correct address.
The intent of this action is to amend the
regulation to ensure that instructions for
submitting this form are clear and
accurate.
Justification for Immediate Adoption
Because the circumstances described
herein warrant immediate action, the
Administrator finds that notice and
public comment under 5 U.S.C. 553(b)
is impracticable and contrary to the
public interest. Further, the
Administrator finds that good cause
exists under 5 U.S.C. 553(d) for making
this rule effective in less than 30 days
after publication in the Federal
Register. The amendment ensures
FAA’s commitment to the Anti Drug
Abuse Act of 1988, Subtitle E, FAA
Drug Enforcement Assistance Act of
1988.
E:\FR\FM\20SER1.SGM
20SER1
]]>Agencies
[Federal Register Volume 72, Number 182 (Thursday, September 20, 2007)]
[Rules and Regulations]
[Pages 53673-53678]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-18526]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 72, No. 182 / Thursday, September 20, 2007 /
Rules and Regulations
[[Page 53673]]
DEPARTMENT OF JUSTICE
8 CFR Parts 1003 and 1240
[Docket No. EOIR 125F; AG Order No. 2907-2007]
RIN 1125-AA27
Authorities Delegated to the Director of the Executive Office for
Immigration Review, and the Chief Immigration Judge
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule revises the Attorney General's regulations relating
to the delegation of authority to the Director of the Executive Office
for Immigration Review (EOIR) and the Chief Immigration Judge with
respect to the adjudicatory process. These rules are intended to
improve the management of EOIR.
DATES: This rule is effective October 22, 2007.
FOR FURTHER INFORMATION CONTACT: Kevin Chapman, Acting General Counsel,
Executive Office for Immigration Review, Office of the General Counsel,
5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041; telephone (703)
305-0470.
SUPPLEMENTARY INFORMATION:
Background
On December 26, 2000, the Department of Justice (Department)
published a proposed rule in the Federal Register at 65 FR 81434, to
revise the Attorney General's delegation of management authority to
officials of the Executive Office for Immigration Review (EOIR).
Changes proposed by that rule would add specific information to 8 CFR
on the organization of EOIR and outline the respective authorities of
EOIR's Director, the Chairman of the Board of Immigration Appeals, and
the Chief Immigration Judge.
On November 25, 2002, the President signed into law the Homeland
Security Act of 2002 (HSA) creating the new Department of Homeland
Security (DHS) and transferring the functions of the former Immigration
and Naturalization Service (INS) to the DHS. Pub. L. 107-296, tit. IV,
subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002) (effective March
1, 2003). The Attorney General retains the functions of the EOIR in the
Department of Justice. HSA Sec. 1101, 6 U.S.C. 521; section 103(g) of
the Immigration and Nationality Act (INA, or the Act), 8 U.S.C.
1103(g). In order to implement the transfer of functions under the HSA,
the Attorney General reorganized title 8 of the Code of Federal
Regulations and divided the regulations into chapters, so that chapter
I contains regulations relating to the functions of the former INS (now
DHS) and chapter V contains regulations relating to the functions of
EOIR. 68 FR 9824 (Feb. 28, 2003); see also 68 FR 10349 (March 5, 2003).
The regulations governing proceedings before EOIR are now contained in
8 CFR chapter V, beginning with part 1001.
Portions of the proposed rule relating to the organization of the
Board of Immigration Appeals (Board) and the powers delegated to the
Chairman of the Board have already been incorporated into a separate
final rule published by the Department on August 26, 2002, entitled
Board of Immigration Appeals: Procedural Reforms To Improve Case
Management, 67 FR 54878 (Aug. 26, 2002) (now codified at 8 CFR 1003.1).
The Department does not make any further changes in this rule to the
powers of the Chairman or the organization of the Board.
With respect to the remaining provisions of the proposed rule
relating to the organization of EOIR and the authority of the Director,
the Chief Immigration Judge, and the General Counsel, this rule
finalizes the provisions as proposed in that rule as final without
substantial change, but makes necessary modifications to that rule to
include technical changes to reflect the enactment of the HSA,
including the reorganization and renumbering of 8 CFR. In addition, as
discussed further below, the Department is adding additional management
directives flowing from the Attorney General's 2006 review of improving
the workings of the immigration hearing process before the immigration
judges and the Board.
Public Comments
The Department allowed a 60-day public comment period on the
proposed rule that ended on February 26, 2001. The Department received
comments from three members of the public on the proposed rule.
A few of the comments discussed sections which pertained to the
Board. As mentioned above, the Department has already published a
regulation relating to the organization of the Board and the powers
delegated to the Chairman of the Board, and comments relating to the
Board were fully discussed in that separate final rule, with one
exception discussed here.
One commenter objected to the proposed redesignation of the members
of the Board to be known as appellate immigration judges, citing
possible confusion by the public. The Department has decided not to
make this change and withdraws that portion of the proposed rule. The
Act provides that immigration proceedings are conducted by officials
known as immigration judges, but the Act also states clearly that these
officials are Department of Justice attorneys who are designated by the
Attorney General to conduct such proceedings, and they are subject to
the Attorney General's direction and control. See section 101(b)(4) of
the INA (8 U.S.C. 1101(b)(4)). However, there do appear to have been at
least some instances of apparent confusion over time among some
observers regarding the role and status of the immigration judges.
Similarly, the members of the Board are Department of Justice attorneys
who serve as the Attorney General's delegates in deciding the cases
that come before them. See 8 CFR 1003.1(a)(1), (d)(1). In their quasi-
judicial roles, the immigration judges and the Board members exercise
very important functions, making adjudicatory decisions and exercising
discretion on behalf of the Attorney General. However, they are
Executive Branch adjudicators and do not serve in purely a judicial
capacity. As the Supreme Court has made clear, the immigration
adjudication process (and the Board's role in that process) is an
[[Page 53674]]
executive function that implicates not only legal and factual issues,
but also important immigration policy and foreign relations interests,
and the ``judiciary is not well positioned to shoulder primary
responsibility'' for such determinations. INS v. Aguirre-Aguirre, 526
U.S. 415, 425 (1999).\1\ The Department has decided not to change the
title of the Board members, in order to avoid possible confusion
between the key executive functions of the Board and the judicial role
of the Federal courts.
---------------------------------------------------------------------------
\1\ As the Attorney General's delegate, the Board issues
precedential decisions which have been accorded appropriate
deference under the Supreme Court's decisions in Chevron v. NRDC,
467 U.S. 837 (1984) (deference due agency interpretation of statutes
within delegated authority); INS v. Aguirre-Aguirre, 526 U.S. 415,
425 (1999) (Attorney General, and hence the Board, accorded Chevron
deference); and INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49 (1987)
(same), as administrative interpretations of the Act. Chevron
deference is appropriate because the Board is interpreting the Act
on behalf of the Attorney General. See also Gonzales v. Thomas, 126
S. Ct. 1613 (2006).
---------------------------------------------------------------------------
The following is a discussion of the remaining comments relating to
the organization of EOIR and the authority of the Director and Chief
Immigration Judge, and the Department's response.
All three commenters raised concerns with the provisions that allow
the setting of priorities or time frames for the resolution of cases.
They expressed concern that an official could direct the outcome of a
specific case by setting an unyielding completion goal which would
prevent an immigration judge from taking the time necessary to
adjudicate a case fairly. On this issue, one commenter believes the
rule can be interpreted to abrogate the parties' right to a full and
complete hearing. This commenter would have the rule recognize that
only the immigration judge should determine the amount of time
necessary to complete a case.
One commenter asks whether the rule is intended (a) To authorize an
official to establish time frames for particular types or classes of
cases which would be guidelines for the judges to follow, but permit a
departure from the guidelines in individual cases when necessary; or
(b) to have an official direct a judge to cut short a particular case
regardless of the judge's need to take additional time.
The Department does not believe that the authority to establish
time frames and guidelines ``directs'' the result of the adjudication.
Time frames and guidelines are designed to ensure the timely
adjudication and conclusion of proceedings, and their use is well-
established in immigration procedure. For example, asylum cases have a
statutory completion requirement of 180 days, pursuant to section
208(d)(5)(A)(iii) of the INA. A credible fear review by an immigration
judge has a statutory completion requirement of 7 days, under section
235(b)(1)(B)(iii)(III) of the Act. In addition, the Board has an
established case management system where single Board members dispose
of all assigned appeals within 90 days of completion of the record on
appeal, or within 180 days after an appeal is assigned to a three-
member panel. 8 CFR 1003.1(e)(8)(i). Moreover, individual immigration
judges set hearing calendars and prioritize cases. Within each judge's
parameters for calendaring a case, that judge will take the time
necessary for the case to be completed. Some cases take less time to
complete, some more, and most fall within the estimated times.
Experience has shown that the time frames do not ``direct the
result'' of a particular case, but rather that the guidelines promote
timely results. The Department shares the commenters' concern for due
process and fairness in immigration proceedings. Timely adjudications
ensure due process and fairness for the aliens in proceedings, as well
as for the government and its citizens who have an interest in having
cases adjudicated, benefits conferred, and the laws enforced. See
generally Capital Area Immigrants' Rights Coalition, v. U.S. Dep't of
Justice, 264 F. Supp. 2d 14 (D.D.C. 2003) (rejecting challenges to the
Attorney General's reform of the Board's procedures in 2002); see also
Nash, v. Bowen, 869 F.2d 675, 681 (2d Cir. 1989) (rejecting
administrative law judge (ALJ) challenge to efforts by the Social
Security Administration (SSA) to improve the quality, timeliness, and
efficiency of the ALJ decision making process; ``those concerns are
more appropriately addressed by Congress or by courts through the usual
channels of judicial review in Social Security cases. The bottom line
in this case is that it was entirely within the Secretary's discretion
to adopt reasonable administrative measures in order to improve the
decision making process.'') (citations omitted).
Another commenter takes issue with Sec. 1003.0(b)(2), which allows
the Director to delegate his authority to others. This commenter is
specifically concerned with the Director's ability to delegate his
authority to ``any other EOIR employee,'' arguing that such a
delegation is too broad. The Department disagrees with this comment and
will maintain the regulation as proposed. EOIR is comprised of three
adjudicating components as well as certain administrative components
and functions. These administrative components and programs are managed
by assistant directors and other senior level management officials. On
occasion, as the Director shall decide, these officials may be in the
best position to respond to a particular delegation of the Director's
authority. The Department expects that the Director, who is ultimately
responsible for the supervision of EOIR, is best able to delegate his
authority and should not be restricted to only a few agency officials.
One commenter objected to the General Counsel's now being ``co-
equal'' with the Deputy Director. The commenter expresses concern that
the General Counsel is on ``an equal managerial basis with its second
in command.'' The Department directs the reader to Sec. 1003.0(d) and
(e). The language is clear that the Deputy Director ``shall advise and
assist . . . in the management of EOIR,'' while the General Counsel,
serving as chief legal counsel of EOIR, ``shall provide legal advice
and assistance to the Director [and] Deputy Director''. The Department
believes the language delineates the distinction in duties and
responsibilities appropriately.
Finally, one commenter proposed a change to the definition of
immigration court in Sec. 1003.9(d) arguing that the definition was
inaccurate and that the term ``local sites'' should be changed to
``hearing location.'' Currently, there are 54 immigration courts
nationwide that create or maintain records of proceedings and serve as
locations where proceedings are held before immigration judges. There
are also other hearing locations in detail cities or other hearing
sites such as correctional facilities where immigration hearings are
held before an immigration judge. These other hearing locations are all
serviced by an administrative control immigration court and do not
serve as locations where documents and correspondence pertaining to a
record of proceeding can be filed. Therefore these facilities do not
meet the definition of ``immigration court'' even though hearings can
be held at locations that are designated by the Office of the Chief
Immigration Judge for administrative and public convenience. As the
commenter correctly pointed out, state detention facilities, where
hearings are held before an immigration judge, would not meet the
definition of ``immigration court'' since these facilities do not
create or maintain records of proceedings. The Department will
therefore maintain the definition of immigration court as proposed in
order to avoid any confusion with other
[[Page 53675]]
hearing locations where documents and correspondence pertaining to
records of proceedings are not accepted.
The Attorney General's Management Review of the Immigration Hearing
Process
On January 9, 2006, the Attorney General directed a comprehensive
review of the Immigration Courts and the Board of Immigration Appeals.
This review was undertaken in response to concerns about the quality of
decisions being issued by the immigration judges and the Board and
about reports of intemperate behavior by some immigration judges. The
Deputy Attorney General and the Associate Attorney General assembled a
review team, which over the course of several months conducted hundreds
of interviews, administered an online survey, and analyzed thousands of
documents to assess the EOIR adjudicative process.
On August 9, 2006, the Attorney General announced that the review
was complete, and he directed that a series of measures be taken to
improve adjudications by the immigration judges and the Board. EOIR has
already been implementing most of those initiatives through
administrative and management actions, although several of the
initiatives require changes to the existing regulations and are being
implemented through separate rulemaking actions.
The following discussion reviews some of the internal management
initiatives arising from the Attorney General's review. Although all of
the following changes are being implemented through internal management
changes within EOIR, this final rule has been revised to include a
brief summary of these key initiatives as being among the Director's
specific responsibilities, as a permanent reflection of these changes
which will continue to be implemented over time.
Among the Attorney General's key priorities was to improve the
existing processes for dealing with fraud and abuse in the immigration
process. One administrative step to further this goal is the
appointment of an anti-fraud officer in EOIR who will be in a position
to respond to concerns about instances of fraud arising in some of the
hundreds of thousands of cases being adjudicated each year by the
immigration judges and the Board, providing for a single point of
contact for coordination (both within EOIR and in communications with
other interested agencies). U.S. Citizenship and Immigration Services
(USCIS), a component of DHS, has established an Office of Fraud
Detection and National Security with specific responsibility for
identifying instances of fraud among the applications for immigration
benefits filed with USCIS, and U.S. Immigration and Customs Enforcement
(ICE) has ongoing enforcement efforts against aliens who have submitted
fraudulent documents or who seek immigration benefits by fraud or
misrepresentation. The United States Attorneys have also successfully
prosecuted, or obtained indictments against, numerous individuals and
rings that have engaged in widespread immigration fraud (in some cases
involving hundreds of instances of fraud in separate cases perpetrated
by the same conspirators). Although the immigration judges and the
Board are authorized to respond to such fraud on a case-by-case
basis,\2\ there is also a need for a more systematic response to
identified instances of fraud, particularly where there are indications
of wide-scale organized efforts to engage in immigration fraud. This
final rule has been revised to include a new provision for the General
Counsel of EOIR to designate an anti-fraud officer to serve as a point
of contact and coordination with respect to instances of fraud arising
in administrative proceedings before EOIR.
---------------------------------------------------------------------------
\2\ See, e.g., Ye v. U.S. Dep't of Justice, 489 F.3d 517 (2d
Cir. 2007) (upholding adverse credibility finding where the
immigration judge noted 23 striking similarities in form and
substance between an alien's asylum affidavit and another
applicant's affidavit submitted in a separate asylum case, advised
the alien of his concern about the similarities, arranged for DHS to
provide her with a redacted copy of the affidavit submitted in the
other case, gave the alien several opportunities to address the
similarities and provide any innocent explanation, and the alien
failed to respond to the immigration judge's concerns).
---------------------------------------------------------------------------
The final rule also includes new general provisions relating to
training, support, and review of the quality of the adjudicatory
process, reflecting several of the directives contained in the Attorney
General's memorandum of August 9, 2006. Among the Attorney General's
other specific directives in the August 9 memorandum were:
1--Performance appraisals for immigration judges and Board
members
2--Evaluation of newly-appointed immigration judges and Board
members within 2 years
3--Examination in immigration law for newly-appointed
immigration judges and Board members
4--Improved training for immigration judges and Board members
5--Improved training and guidance for EOIR staff
6--Improved on-bench reference materials and decision
templates
7--Mechanisms to detect poor conduct and quality
11--Complaint procedures
In order to summarize and reflect these new initiatives, for the
information of participants in immigration proceedings and the general
public, this final rule adds several brief new paragraphs to the
existing description of the duties of the Director of EOIR in 8 CFR
1003.0(b)(1), as follows:
Adding a new para (v) to ``Provide for performance appraisals
for immigration judges and Board members while fully respecting their
roles as adjudicators, including a process for reporting adjudications
that reflect temperament problems or poor decisional quality'' (with
respect to Attorney General directives 1 and 7)
Adding a new para (vi) to ``Administer an examination for
newly-appointed immigration judges and Board members with respect to
their familiarity with key principles of immigration law before they
begin to adjudicate matters, and evaluate the temperament and skills of
each new immigration judge or Board member within 2 years of
appointment'' (with respect to Attorney General directives 2
and 3)
Adding a new para (vii) to ``Provide for comprehensive,
continuing training and support for Board members, immigration judges,
and EOIR staff in order to promote the quality and consistency of
adjudications'' (with respect to Attorney General directives
4, 5, and 6)
Adding a new para (viii) to ``Implement a process for
receiving, evaluating, and responding to complaints of inappropriate
conduct by EOIR adjudicators'' (with respect to Attorney General
directive 11)
Regulatory Requirements
Administrative Procedure Act
The provisions of this rule, in general, finalize without
substantive change a proposed rule previously published for public
notice and comment.
This final rule also incorporates certain management directives
relating to the appointment of an anti-fraud officer, and new general
provisions relating to training, support, and review of the quality of
the adjudicatory process, reflecting several of the directives
contained in the Attorney General's memorandum of August 9, 2006. All
of these changes are a matter of agency organization, management, or
personnel and do not require prior
[[Page 53676]]
notice and comment, and accordingly they are being included in this
final rule relating to EOIR. See 5 U.S.C. 553(a)(2) (exempting ``a
matter relating to agency management or personnel''); Id. Sec.
553(b)(A) (exempting ``rules of agency organization, procedure, or
practice'').
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this rule and, by approving it,
certifies that it will affect only Department employees, individuals in
immigration proceedings before the EOIR, and practitioners who appear
before EOIR. Therefore, this rule will not have a significant economic
impact on a substantial number of small entities.
Paperwork Reduction Act
The provisions of the Paperwork Reduction Act of 1995, Public Law
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR
part 1320, do not apply to this final rule because there are no new or
revised record keeping or reporting requirements.
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.
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 Fairness 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,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Executive Order 12866
This rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. This
rule is limited to agency organization, management and personnel as
described by Executive Order 12866 Sec. 3(d)(3) and, therefore, is not
a ``regulation'' or ``rule'' as defined by this Executive Order.
Accordingly, this action has not been reviewed by the Office of
Management and Budget.
Executive Order 13132
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, the Department of Justice has determined that
this rule does not have sufficient federalism implications to warrant a
federalism summary impact statement.
Executive Order 12988
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.
Congressional Review Act
This action pertains to agency management, personnel and
organization and does not substantially affect the rights or
obligations of non-agency parties and, accordingly, 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)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
Services, Organization and function (Government agencies).
8 CFR Part 1240
Administrative practice and procedure and Aliens.
0
Accordingly, parts 1003 and 1240 of chapter V of title 8 of the Code of
Federal Regulations are amended as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
1. The authority citation for 8 CFR part 1003 continues 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. Revise Sec. 1003.0 to read as follows:
Sec. 1003.0 Executive Office for Immigration Review.
(a) Organization. Within the Department of Justice, there shall be
an Executive Office for Immigration Review (EOIR), headed by a Director
who is appointed by the Attorney General. The Director shall be
assisted by a Deputy Director and by a General Counsel. EOIR shall
include the Board of Immigration Appeals, the Office of the Chief
Immigration Judge, the Office of the Chief Administrative Hearing
Officer, and such other staff as the Attorney General or Director may
provide.
(b) Powers of the Director.-- (1) In general. The Director shall
manage EOIR and its employees and shall be responsible for the
direction and supervision of the Board, the Office of the Chief
Immigration Judge, and the Office of the Chief Administrative Hearing
Officer in the execution of their respective duties pursuant to the Act
and the provisions of this chapter. Unless otherwise provided by the
Attorney General, the Director shall report to the Deputy Attorney
General and the Attorney General. The Director shall have the authority
to:
(i) Issue operational instructions and policy, including procedural
instructions regarding the implementation of new statutory or
regulatory authorities;
(ii) Direct the conduct of all EOIR employees 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 adjudicators to cases; and otherwise to
manage the docket of matters to be decided by the Board, the
immigration judges, the Chief Administrative Hearing Officer, or the
administrative law judges;
(iii) Provide for appropriate administrative coordination with the
other components of the Department of Justice, with the Department of
Homeland Security, and with the Department of State;
(iv) Evaluate the performance of the Board of Immigration Appeals,
the Office of the Chief Immigration Judge, the Office of the Chief
Administrative Hearing Officer, and other EOIR activities, make
appropriate reports and inspections, and take corrective action where
needed;
(v) Provide for performance appraisals for immigration judges and
Board members while fully respecting their
[[Page 53677]]
roles as adjudicators, including a process for reporting adjudications
that reflect temperament problems or poor decisional quality;
(vi) Administer an examination for newly-appointed immigration
judges and Board members with respect to their familiarity with key
principles of immigration law before they begin to adjudicate matters,
and evaluate the temperament and skills of each new immigration judge
or Board member within 2 years of appointment;
(vii) Provide for comprehensive, continuing training and support
for Board members, immigration judges, and EOIR staff in order to
promote the quality and consistency of adjudications;
(viii) Implement a process for receiving, evaluating, and
responding to complaints of inappropriate conduct by EOIR adjudicators;
and
(ix) Exercise such other authorities as the Attorney General may
provide.
(2) Delegations. The Director may delegate the authority given to
him by this part or by the Attorney General to the Deputy Director, the
General Counsel, the Chairman of the Board of Immigration Appeals, the
Chief Immigration Judge, the Chief Administrative Hearing Officer, or
any other EOIR employee.
(c) Limit on the Authority of the Director. The Director shall have
no authority to adjudicate cases arising under the Act or regulations
and shall not direct the result of an adjudication assigned to the
Board, an immigration judge, the Chief Administrative Hearing Officer,
or an Administrative Law Judge; provided, however, that nothing in this
part shall be construed to limit the authority of the Director under
paragraph (b) of this section.
(d) Deputy Director. The Deputy Director shall advise and assist
the Director in the management of EOIR and the formulation of policy
and guidelines. Unless otherwise limited by law or by order of the
Director, the Deputy Director shall exercise the full authority of the
Director in the discharge of his or her duties.
(e) General Counsel. Subject to the supervision of the Director,
the General Counsel shall serve as the chief legal counsel of EOIR. The
General Counsel shall provide legal advice and assistance to the
Director, Deputy Director, and heads of the components within EOIR, and
shall supervise all legal activities of EOIR not related to
adjudications arising under the Act or this chapter.
(1) Professional standards. The General Counsel shall administer
programs to protect the integrity of immigration proceedings before
EOIR, including administering the disciplinary program for attorneys
and accredited representatives under subpart G of this part.
(2) Fraud issues. The General Counsel shall designate an anti-fraud
officer who shall--
(i) Serve as a point of contact relating to concerns about possible
fraud upon EOIR, particularly with respect to matters relating to
fraudulent applications or documents affecting multiple removal
proceedings, applications for relief from removal, appeals, or other
proceedings before EOIR;
(ii) Coordinate with investigative authorities of the Department of
Homeland Security, the Department of Justice, and other appropriate
agencies with respect to the identification of and response to such
fraud; and
(iii) Notify the EOIR disciplinary counsel and other appropriate
authorities with respect to instances of fraud, misrepresentation, or
abuse pertaining to an attorney or accredited representative.
(f) Citizenship Requirement for Employment. (1) An application to
work at EOIR, either as an employee or a volunteer, must include a
signed affirmation from the applicant that he or she is a citizen of
the United States of America. If requested, the applicant must document
United States citizenship.
(2) The Director of EOIR may, by explicit written determination and
to the extent permitted by law, authorize the appointment of an alien
to an EOIR position when necessary to accomplish the work of EOIR.
Subpart B--Office of the Chief Immigration Judge
0
3. Revise the heading of Subpart B to read as set forth above.
0
4. Revise Sec. 1003.9 to read as follows:
Sec. 1003.9 Office of the Chief Immigration Judge.
(a) Organization. Within the Executive Office for Immigration
Review, there shall be an Office of the Chief Immigration Judge (OCIJ),
consisting of the Chief Immigration Judge, the immigration judges, and
such other staff as the Director deems necessary. The Attorney General
shall appoint the Chief Immigration Judge. The Director may designate
immigration judges to serve as Deputy and Assistant Chief Immigration
Judges as may be necessary to assist the Chief Immigration Judge in the
management of the OCIJ.
(b) Powers of the Chief Immigration Judge. Subject to the
supervision of the Director, the Chief Immigration Judge shall be
responsible for the supervision, direction, and scheduling of the
immigration judges in the conduct of the hearings and duties assigned
to them. The Chief Immigration Judge shall have the authority to:
(1) Issue operational instructions and policy, including procedural
instructions regarding the implementation of new statutory or
regulatory authorities;
(2) Provide for appropriate training of the immigration judges and
other OCIJ staff on the conduct of their powers and duties;
(3) Direct the conduct of all employees assigned to OCIJ 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 immigration judges to cases, and otherwise
to manage the docket of matters to be decided by the immigration
judges;
(4) Evaluate the performance of the Immigration Courts and other
OCIJ activities by making appropriate reports and inspections, and take
corrective action where needed;
(5) Adjudicate cases as an immigration judge; and
(6) Exercise such other authorities as the Director may provide.
(c) Limit on the Authority of the Chief Immigration Judge. The
Chief Immigration Judge shall have no authority to direct the result of
an adjudication assigned to another immigration judge, provided,
however, that nothing in this part shall be construed to limit the
authority of the Chief Immigration Judge in paragraph (b) of this
section.
(d) Immigration Court. The term Immigration Court shall refer to
the local sites of the OCIJ where proceedings are held before
immigration judges and where the records of those proceedings are
created and maintained.
0
5. Revise Sec. 1003.10 to read as follows:
Sec. 1003.10 Immigration judges.
(a) Appointment. The immigration judges are attorneys whom the
Attorney General appoints as administrative judges within the Office of
the Chief Immigration Judge to conduct specified classes of
proceedings, including hearings under section 240 of the Act.
Immigration judges shall act as the Attorney General's delegates in the
cases that come before them.
(b) Powers and duties. In conducting hearings under section 240 of
the Act and such other proceedings the
[[Page 53678]]
Attorney General may assign to them, immigration judges shall exercise
the powers and duties delegated to them by the Act and by the Attorney
General through regulation. In deciding the individual cases before
them, and subject to the applicable governing standards, immigration
judges shall exercise their independent judgment and discretion and may
take any action consistent with their authorities under the Act and
regulations that is appropriate and necessary for the disposition of
such cases. Immigration judges shall administer oaths, receive
evidence, and interrogate, examine, and cross-examine aliens and any
witnesses. Subject to Sec. Sec. 1003.35 and 1287.4 of this chapter,
they may issue administrative subpoenas for the attendance of witnesses
and the presentation of evidence. In all cases, immigration judges
shall seek to resolve the questions before them in a timely and
impartial manner consistent with the Act and regulations.
(c) Review. Decisions of immigration judges are subject to review
by the Board of Immigration Appeals in any case in which the Board has
jurisdiction as provided in 8 CFR 1003.1.
(d) Governing standards. Immigration judges shall be governed by
the provisions and limitations prescribed by the Act and this chapter,
by the decisions of the Board, and by 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).
PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
0
6. The authority citation for 8 CFR part 1240 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227,
1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-
100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat.
2681); 8 CFR part 2.
Subpart A--Removal Proceedings
Sec. 1240.1 [Amended]
0
7. Amend Sec. 1240.1 by removing the first and second sentences of
paragraph (a)(2).
Dated: September 12, 2007.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E7-18526 Filed 9-19-07; 8:45 am]
BILLING CODE 4410-30-P
