Retrospective Regulatory Review Under E.O. 13563, 59567-59571 [2012-23874]

Agencies

• Executive Office for Immigration Review
• Department of Justice

[Federal Register Volume 77, Number 189 (Friday, September 28, 2012)]
[Proposed Rules]
[Pages 59567-59571]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23874]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 77, No. 189 / Friday, September 28, 2012 / 
Proposed Rules

[[Page 59567]]



DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003, 1103, 1208, 1211, 1212, 1215, 1216, 1235

[EOIR No. 178]
RIN 1125-AA71


Retrospective Regulatory Review Under E.O. 13563

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: Following the issuance of Executive Order 13563, the 
Department of Justice (Department or DOJ) issued a Plan for 
Retrospective Analysis of Existing Rules (Plan) on August 22, 2011, 
identifying several regulations that it plans to review during the next 
two years. Pursuant to that Plan, the Department is conducting a 
retrospective review of portions of the regulations of the Executive 
Office for Immigration Review (EOIR). The Department is considering 
proposing amendments to the EOIR regulations in parts 1003, 1103, 1208, 
1211, 1212, 1215, 1216, and 1235 of chapter V of title 8 of the Code of 
Federal Regulations (CFR). The purpose of this Notice is to provide the 
public with advance notice of that future rulemaking and to request the 
public's input on potential amendments to the EOIR regulations.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before November 27, 2012.

ADDRESSES: You may submit comments, identified by EOIR Docket No. 178, 
by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments. Commenters should be 
aware that the electronic Federal Docket Management System will not 
accept comments after Midnight Eastern Time on the last day of the 
comment period.
     Mail: Acting General Counsel, Jean King, Office of the 
General Counsel, Executive Office for Immigration Review, 5107 Leesburg 
Pike, Suite 2600, Falls Church, VA 22041. To ensure proper handling, 
please reference EOIR Docket No. 178 on your correspondence. This 
mailing address may also be used for paper, disk, or CD-ROM 
submissions.
     Hand Delivery/Courier: Acting General Counsel, Jean King, 
Office of the General Counsel, Executive Office for Immigration Review, 
5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041. Contact 
Telephone Number (703) 305-0470 (not a toll-free call).

FOR FURTHER INFORMATION CONTACT: Acting General Counsel, Jean King, 
Office of the General Counsel, Executive Office for Immigration Review, 
5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone 
(703) 305-0470 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Executive Order 13563

    On January 18, 2011, President Barack Obama issued Executive Order 
(EO) 13563 directing Federal agencies to institutionalize a culture of 
retrospective review and analysis through periodic review of existing 
significant regulations. As part of the review, each agency must 
determine whether any regulations should be modified, streamlined, 
expanded, or repealed so as to make the agency's regulatory program 
more effective or less burdensome in achieving its regulatory 
objectives. Each agency must evaluate the costs and benefits of current 
regulatory approaches and consider available regulatory alternatives 
that maximize net benefits, including consideration of potential 
economic, environmental, public health, and safety effects, 
distributive impacts, and equity. The President further stressed the 
need for agencies to solicit public participation regularly as part of 
the rulemaking process.

II. The Department's Plan for Retrospective Analysis of Existing Rules

    In response to EO 13563, the Department published a Request for 
Information (RFI), entitled ``Reducing Regulatory Burden; Retrospective 
Review Under E.O. 13563,'' on March 1, 2011, requesting the public's 
input on the criteria for selecting regulations to be reviewed. See 76 
FR 11163 (Mar. 1, 2011). After review of comments received in response 
to the RFI and consultation with Departmental components, the 
Department issued its Plan identifying several regulations that it 
intends to review during the next two years. See ``Plan for 
Retrospective Analysis of Existing Rules'' (Plan), available online at 
https://www.justice.gov/open/doj-rr-final-plan.pdf. Based upon the 
public comments received, the Department selected regulations for 
review that: Are ineffective in achieving a stated regulatory goal; 
require harmonization or modernization; have objectives that may be 
achieved through less burdensome regulatory alternatives; have actual 
costs and benefits that are different from those projected; are 
burdensome; create distributional inequities; and/or cause unintended 
effects. See Plan at 11-12, 14,-15, 18.
    In the Plan, the Department identified EOIR as one of the 
Department's principal rulemaking components that would be featured in 
the first two-year round of retrospective review. See Plan at 2. The 
Department noted that, prior to the Plan's issuance, EOIR had already 
undertaken a retrospective review of its existing and proposed 
regulations, and had withdrawn two pending proposed rules (``Suspension 
of Deportation and Cancellation of Removal for Certain Battered Spouses 
and Children; Motions to Reopen for Certain Battered Spouses and 
Children,'' RIN 1125-AA35, and ``Rules Governing Immigration 
Proceedings,'' RIN 1125-AA53) that were no longer necessary as their 
intended purpose had been satisfied through other regulations, Board of 
Immigration Appeals (Board) precedent, and agency guidance documents. 
See Plan at 6. In the Plan, the Department also noted that EOIR has 
initiated a review of several of its regulations in response to 
petitions for rulemaking and meets regularly with affected parties to 
discuss a wide range of agency practices, including rulemaking. See 
Plan at 7.
    The purpose of this Notice is to provide advance notice to the 
public that the Department is considering

[[Page 59568]]

proposing amendments to the EOIR regulations in the upcoming year, and 
to solicit comments from the public about specific amendments being 
considered, as well as other amendments to meet the objectives of EO 
13563's retrospective analysis provisions. The Department has selected 
specific EOIR regulations to review during the first two-year round of 
retrospective review. The Department will be reviewing additional 
portions of the EOIR regulations in future rulemakings. The Department 
envisions that this future review will be a multi-year initiative to 
enhance the EOIR regulations.

III. Retrospective Review of EOIR Regulations

    In response to the RFI, the Department received several public 
comments requesting review of the EOIR regulations addressing practices 
and procedures before the immigration judges and the Board. The 
commenters requested amendment or repeal of various provisions of the 
EOIR regulations at parts 1003, 1208, 1240, and 1241. The commenters 
also requested promulgation of regulations to address ineffective 
assistance of counsel, discovery in proceedings before EOIR, and 
procedures for ``repapering'' (termination of deportation proceedings 
and reinstatement of proceedings as removal proceedings) for certain 
aliens rendered ineligible for relief from deportation.\1\ After review 
of these comments, the Department selected the specific regulations in 
chapter V of title 8 of the CFR that EOIR would review as part of the 
first two-year round of retrospective review. The Department selected 
for review the EOIR regulations at parts 1003, 1103, 1211, 1212, 1215, 
1216, and 1235, and, for limited purposes, part 1208.
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    \1\ Information on a proposed rulemaking of the former 
Immigration and Naturalization Service (INS) addressing repapering 
for certain aliens rendered ineligible for relief from deportation 
can be found in the Fall 2000 edition of the Unified Agenda of 
Regulatory and Deregulatory Actions. See ``Unified Agenda of 
Regulatory and Deregulatory Actions'' (Unified Agenda), available 
online at https://www.reginfo.gov; see also 65 FR 71273 (Nov. 30, 
2000).
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    In response to the public's comments, the Department will consider 
substantive amendments to the EOIR regulations at part 1003, including 
those addressing stays, telephonic or video hearings. In addition, the 
Department is considering other substantive amendments to the 
regulations at part 1003, including those governing venue, bond 
proceedings, and the authority and jurisdiction of the immigration 
judges and the Board. In particular, the Department is considering 
regulatory amendments to part 1003 that may improve the efficiency and 
fairness of adjudications before EOIR.
    EOIR notes that, given the volume of substantive comments received, 
it will not be able to address during this round of retrospective 
review all regulatory provisions for which it received public comments. 
In particular, the Department received several substantive comments 
requesting review of certain regulatory provisions of part 1208, 
including the regulatory provisions addressing hearing notices, in 
absentia decisions, the one-year filing deadline for asylum 
applications, and filing procedures with the immigration courts. The 
Department also received several substantive comments requesting review 
of part 1240, including the regulatory provisions addressing mental 
competency issues in proceedings before EOIR, voluntary departure, and 
jurisdiction over applications for relief filed pursuant to section 203 
of the Nicaraguan Adjustment and Central American Relief Act (NACARA). 
The Department also received a comment requesting that the regulations 
at part 1241 be revised to require that, in order for an alien to be 
removed, a functioning government must exist in the country to which 
the alien is ordered removed. During a future round of retrospective 
review, the Department will also review and consider amendments to the 
other regulatory provisions at parts 1208, 1240, and 1241 for which it 
received public comments.
    EOIR further notes that several of the issues addressed by 
commenters are already the subject of separate pending rulemakings and/
or petitions for rulemaking and may continue to be addressed through 
those separate rulemakings, rather than as part of this retrospective 
review. In particular, this Notice will not address the following 
issues that are currently under consideration in other pending 
rulemakings: regulatory provisions at part 1003 addressing the 
streamlining of Board adjudication (``Board of Immigration Appeals: 
Affirmance Without Opinion, Referral for Panel Review, and Publication 
of Decisions as Precedents,'' RIN 1125-AA58, EOIR No. 159); and, 
regulatory provisions at parts 1003 and 1208 addressing ineffective 
assistance of counsel (``Motions to Reopen Removal, Deportation, or 
Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of 
Counsel,'' RIN 1125-AA68, EOIR No. 170).\2\ The Department also plans 
to initiate a separate rulemaking proceeding to address the regulatory 
provision known as the ``departure bar.'' \3\ In addition, the 
Department is considering whether to initiate a rulemaking proceeding 
addressing an alien's mental competency in proceedings before EOIR.
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    \2\ EOIR encourages the public to review the Unified Agenda to 
learn about and comment on pending EOIR rulemakings. See Unified 
Agenda, available online at https://www.reginfo.gov.
    \3\ The ``departure bar'' is the regulatory provision at 8 CFR 
1003.2(d) and 1003.23(b)(1) that prohibits an alien from filing a 
motion to reopen or reconsider with the Board or immigration courts 
after his or her departure from the United States. This regulatory 
provision also renders a motion to reopen or reconsider withdrawn if 
the alien departs the United States while the motion is pending.
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    As provided in the Plan, this round of retrospective review will 
also focus on reviewing and amending the selected EOIR regulations to 
eliminate duplication, ensure consistency with the Department of 
Homeland Security's (DHS) regulations in chapter I of title 8 of the 
CFR, and delineate clearly the authority and jurisdiction of each 
agency. EOIR believes that such amendments to its regulations will 
improve the efficiency and fairness of adjudications before EOIR. Such 
regulatory amendments will reduce the likelihood of the public 
misfiling applications and petitions and the amount of time spent by 
immigration judges and agency personnel in explaining and assisting the 
public in navigating each agency's authority and jurisdiction. In 
addition, by eliminating the duplication in regulations, the Department 
will no longer be required to pay for printing the duplicative 
regulations as part of the annual publication of the Code of Federal 
Regulations. Thus, such regulatory amendments will result in resource, 
time, and financial savings to EOIR, as well as streamline the 
adjudicatory process for individuals appearing before the agency.
    Currently, many EOIR regulations are duplicative of DHS 
regulations. The overlap in regulations occurred as a result of the 
Homeland Security Act of 2002 (HSA), as amended, which transferred the 
functions of the former INS from the DOJ to DHS. However, the HSA 
retained under the authority of the Attorney General the functions of 
EOIR, a separate agency within the DOJ. As the existing regulations at 
that time often intermingled the responsibilities of the former INS and 
EOIR, this transfer required a reorganization of title 8 of the CFR in 
February 2003, including the establishment of a new chapter V in title 
8 of the CFR pertaining to EOIR. See 68 FR 9824 (Feb. 28, 2003). The 
time available did not permit a thorough

[[Page 59569]]

review of each provision where the responsibilities of EOIR and the 
former INS were intermingled. Therefore, a number of regulations 
pertaining to the responsibilities of DHS were intentionally duplicated 
in the new chapter V because those regulations also included provisions 
relating to the responsibilities of EOIR. Accordingly, chapter V 
contains many instances where the EOIR regulations duplicate the DHS 
regulations.
    The Department has already eliminated some of the duplication. For 
example, the Department revised the provisions in 8 CFR part 1274a that 
duplicate 8 CFR part 274a. See 74 FR 2337, 2339 (Jan. 15, 2009); 76 FR 
16525 (Mar. 24, 2011). As these duplicative regulations principally 
pertained to DHS' control of the employment of aliens, the Department 
removed the duplicative regulations in part 1274a and added a new 
section that cross-references the DHS regulations at 8 CFR part 274a. 
See id. The Department similarly revised the provisions in 8 CFR part 
1280, which duplicated 8 CFR part 280. See 76 FR 74625, 74628-74629 
(Dec. 1, 2011). As these duplicative regulations principally pertained 
to the authority of DHS to impose fines and civil monetary penalties, 
the Department removed the duplicative provisions in part 1280 and 
added a new section that cross-references the DHS regulations at 8 CFR 
part 280 and the EOIR regulations governing the Board's appellate 
authority at 8 CFR part 1003. See id. Most recently, the Department 
amended its regulations at 8 CFR parts 1003 and 1292 governing the 
discipline of practitioners before EOIR and DHS, in part to remove 
unnecessary regulations pertaining to DHS's responsibilities and to 
insert cross-references to the appropriate DHS regulations. See 77 FR 
2011, 2012-2013 (Jan. 13, 2012).
    In addition, DHS has been revising some of its regulations, which 
has had the unintended result of creating inconsistencies between the 
revised versions of the DHS regulations and the DOJ regulations, which 
continue to track the earlier version of the DHS regulations. See 76 FR 
53764 (Aug. 29, 2011) (making extensive amendments to the DHS 
regulations at 8 CFR chapter I); 76 FR 73475 (Nov. 29, 2011) 
(finalizing the 2011 amendments to the DHS regulations at 8 CFR chapter 
I); 73 FR 18384 (Apr. 3, 2008) (revising 8 CFR parts 212 and 235).
    Therefore, as part of the Department's ongoing effort to ensure 
that its regulations are clear, effective, non-duplicative, and up-to-
date, the Department will be reviewing 8 CFR parts 1003, 1103, 1211, 
1212, 1215, 1216, and 1235 during this first two-year round of 
retrospective review. The Department will amend these EOIR regulations 
to eliminate those provisions that are unnecessarily duplicative and, 
in some cases, inconsistent with DHS regulations, and to ensure that 
they make clear the distinct responsibilities of DHS and EOIR and, 
where appropriate, include cross-references to the applicable DHS 
regulations. In addition to the substantive amendments to part 1003 
discussed above, the Department will also consider substantive 
amendments to parts 1103, 1211, 1212, 1215, 1216, and 1235.\4\ As with 
part 1003, the Department is considering regulatory amendments to parts 
1103, 1211, 1212, 1215, 1216, and 1235 that may improve the efficiency 
and fairness of adjudications before EOIR.
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    \4\ See discussion infra.
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    The following is a summary of the amendments that the Department is 
currently considering during this round of the retrospective review:

Global Amendments

    For parts 1003, 1103, 1208, 1212, 1215, 1216, and 1235, the 
Department intends to standardize citations and terms to ensure 
consistency within the EOIR regulations and with respect to the DHS 
regulations.\5\ The Department intends to amend the EOIR regulations to 
standardize the capitalization of terms such as ``Immigration Court,'' 
``immigration judge,'' ``court administrator,'' and ``the Act,'' 
standardize internal citations to titles 8 of the CFR and the U.S. Code 
(U.S.C.), standardize references to the Board of Immigration Appeals, 
update references to DHS, such as revising the term ``the Service'' as 
``DHS'' and the term ``Office of the District Counsel'' as ``Office of 
the Chief Counsel,'' and change, as appropriate, ``shall'' to ``must'' 
to indicate mandatory language.
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    \5\ During this round of retrospective review, the Department 
intends to review part 1208 for the limited purposes of 
standardizing citations and terms, and updating references. As noted 
above, the Department intends to consider other amendments to part 
1208 during a future round of retrospective review.
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Part 1003

    Part 1003 addresses, in part, matters exclusively before EOIR, 
including procedures before the immigration judges and the Board. 
However, part 1003 also contains provisions, such as those addressing 
the List of Free Legal Services Providers and the professional conduct 
of practitioners, which affect both EOIR and DHS. As a part of the 
retrospective review, the Department will only focus on the subparts in 
part 1003 addressing matters exclusively before EOIR: subparts A (Board 
of Immigration Appeals), B (Office of the Chief Immigration Judge), and 
C (Immigration Court--Rules of Procedure). Subparts E and F will be 
addressed through two separate rulemakings: ``List of Pro Bono Legal 
Service Providers for Aliens in Immigration Proceedings,'' RIN 1125-
AA62, EOIR No. 164P, see Unified Agenda, available online at https://www.reginfo.gov, and ``Reorganization of Regulations on the 
Adjudication of Department of Homeland Security Practitioner 
Disciplinary Cases,'' see 77 FR 2011 (Jan. 13, 2012).\6\
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    \6\ Subpart D in 8 CFR part 1003 is currently reserved and, 
thus, not the subject of review.
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    In response to the RFI, the Department received several public 
comments requesting substantive amendments to part 1003, including 
requests to review the regulatory provisions governing stays, 
telephonic or video hearings, the ``departure bar,'' \7\ and procedures 
addressing the streamlining of Board adjudication and the review of 
custody/bond determinations for arriving aliens. In response to these 
comments, the Department is currently reviewing and considering 
amendments to the regulatory provisions in part 1003 addressing motions 
and stays. See 8 CFR 1003.19(i), 1003.23. The Department is also 
reviewing the regulatory provisions in part 1003 addressing venue and 
telephonic and video hearings, which is the subject of a pending 
rulemaking (``Jurisdiction and Venue in Removal Proceedings,'' RIN 
1125-AA52, EOIR No. 147). See Unified Agenda, available online at 
https://www.reginfo.gov; see also 8 CFR 1003.20. In addition, the 
Department is currently evaluating whether to provide for separate 
appearances in bond proceedings. As discussed above, the Department is 
reviewing streamlining of Board adjudication through a separate 
rulemaking and plans to initiate a separate rulemaking proceeding 
addressing the ``departure bar.''
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    \7\ See supra note 3.
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    In addition to reviewing part 1003 in response to public comments, 
the Department is reviewing other provisions in part 1003 to ensure 
that the regulatory provisions appropriately and adequately address the 
authority and jurisdiction of the immigration judges and the Board. For 
example, the Department is currently reviewing the regulatory 
provisions addressing the Board's appellate jurisdiction in section

[[Page 59570]]

1003.1(b). The Department is also considering revising part 1003 to 
reflect updated procedures related to forms, including, for example, 
the requirement in section 1003.15(d) that an alien must also file the 
Form EOIR-33, Alien's Change of Address, if he or she has changed his 
or her phone number.
    The retrospective review of part 1003 will also examine updates to 
the EOIR regulations to reflect current procedures and to eliminate 
duplicative and inconsistent provisions. In addition to the global 
amendments already discussed, the Department intends to change 
citations to the DHS regulations to the EOIR regulations where 
appropriate and update any incorrect or outdated citations. For 
example, in section 1003.1(b)(1), the Department is considering 
changing the citation to 8 CFR part 240 to 8 CFR part 1240 and, in 
section 1003.1(f), changing part 292 to part 1292.
    EOIR requests the public's comments on the potential amendments to 
part 1003 discussed in this Notice. For background information, EOIR 
encourages the public to review pending rulemakings affecting part 1003 
in the Unified Agenda. EOIR also invites the public to provide any 
additional proposed amendments to part 1003.

Part 1103

    Part 1103 addresses procedures before the DHS Administrative 
Appeals Unit (AAU) and is substantively duplicative of the DHS 
regulations at part 103. In addition, the duplicative EOIR regulations 
at part 1103 are no longer consistent with the DHS regulations at part 
103, which were revised in 2011. See, e.g., 76 FR 53764, 53780. The 
Department anticipates proposing amendments to part 1103 that would 
remove the provisions that are duplicative of the DHS regulations at 
part 103, retaining the provisions addressing the Board's jurisdiction 
and adding a cross-reference to the applicable DHS regulations at part 
103.
    Part 1103 also contains provisions addressing the payment of fees 
to the Board. Part 1003, which addresses only procedures before EOIR, 
also contains provisions addressing the payment of fees to the Board. 
The Department is considering revising part 1103 by removing the 
regulatory provisions addressing the payment of fees to the Board and 
consolidating those provisions in part 1003. EOIR welcomes public 
comment on the potential reorganization of the provisions addressing 
the payment of fees to the Board, as well as other improvements to part 
1103.

Part 1208

    Part 1208 addresses procedures for asylum and withholding of 
removal. As discussed above, the Department will review and consider 
amendments to the regulatory provisions at part 1208 during a future 
round of retrospective review. However, as noted above, the Department 
intends, during this round of retrospective review, to review part 1208 
for the limited purpose of standardizing citations and terms, and 
updating references.

Part 1211

    Part 1211 addresses DHS' waiver of the documentary requirements for 
returning legal permanent residents. While the EOIR regulations at part 
1211 focus on the alien's ability to renew his or her waiver 
application before an immigration judge, the DHS regulations at part 
211 contain detailed procedures addressing DHS' initial adjudication of 
such waivers. The Department intends to amend the EOIR regulations to 
delineate further that the initial adjudication of such waivers is 
before DHS but that an alien may renew his or her waiver application 
before an immigration judge. In particular, similar to the amendments 
previously made to parts 1274a and 1280, the Department is 
contemplating amending part 1211 by adding a cross-reference to the 
applicable DHS regulations at part 211. See, e.g., 76 FR 16525 
(addressing amendments to part 1274a); 74 FR 2337 (finalizing 
amendments to part 1274a); 76 FR 74625 (addressing amendments to part 
1280). The Department will retain in part 1211 the regulatory provision 
addressing an alien's ability to renew his or her waiver application 
before an immigration judge.

Part 1212

    Part 1212 addresses DHS' documentary requirements for 
nonimmigrants, including waivers of documentary requirements, admission 
of certain inadmissible aliens, and parole. Part 1212 is substantively 
duplicative of the DHS regulations at part 212. In addition, the 
duplicative EOIR regulations at part 1212 are no longer consistent with 
the DHS regulations at part 212, which were revised in 2008, 2009, and 
2011. See, e.g., 73 FR 18384, 18415; 74 FR 55726, 55734 (Oct. 28, 2009) 
(referring to the Department's planned review of parts 1212, 1215, and 
1235); 76 FR 53764, 53786.
    While part 1212 is substantively duplicative of the DHS regulations 
at part 212, several provisions in part 1212 address matters under the 
authority and jurisdiction of EOIR. For example, part 1212 includes 
regulatory provisions addressing the Board's jurisdiction over waivers 
of inadmissibility for nonimmigrants under section 212(d)(3) of the 
Act. See, e.g., 8 CFR 1212.4(b); see also 8 CFR 1003.1(b)(6). The 
Department intends to amend part 1212 to distinguish between the 
authority and jurisdiction of EOIR and DHS, removing any provisions 
that are no longer within the Attorney General's jurisdiction and do 
not need to be restated in the EOIR regulations. See, e.g., 74 FR 
55726, 55734.\8\
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    \8\ Note that the Department has already revised 8 CFR 1212.5 to 
remove DHS-related regulatory provisions for the granting of parole. 
See 69 FR 69490, 69497 (Nov. 29, 2004).
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Part 1215

    Part 1215 addresses DHS' control of aliens departing from the 
United States and is duplicative of the DHS regulations at part 215. 
The Department intends to amend part 1215 to remove any provisions that 
are no longer within the Attorney General's jurisdiction and do not 
need to be restated in the EOIR regulations. See, e.g., 74 FR 55726, 
55734. In particular, the Department will amend part 1215 by removing 
the provisions that are duplicative of the DHS regulations at part 215 
and adding a cross-reference to the applicable DHS regulations at part 
215.

Part 1216

    Part 1216 addresses DHS' procedures for adjudicating conditional 
lawful permanent resident status and is duplicative of the DHS 
regulations at part 216. The Department will amend part 1216 to remove 
any provisions that are no longer within the Attorney General's 
jurisdiction and do not need to be restated in the EOIR regulations. 
See, e.g., Matter of Herrera Del Orden, 25 I&N Dec. 589 (BIA 2011) 
(addressing the scope of an immigration judge's authority under 8 CFR 
1216.5(f) to review DHS' denial of an alien's petition for a waiver of 
the requirement to file a joint petition to remove the conditional 
basis of his or her permanent residence). In particular, the Department 
intends to amend part 1216 by removing the provisions that are 
duplicative of the DHS regulations at part 216 and adding a cross-
reference to the applicable DHS regulations at part 216.

Part 1235

    Part 1235 addresses DHS' inspection of persons applying for 
admission to the United States and is substantively duplicative of the 
DHS regulations at part 235. In addition, the duplicative

[[Page 59571]]

EOIR regulations at part 1235 are no longer consistent with the DHS 
regulations at part 235, which were revised in 2008, 2009, and 2011. 
See, e.g., 73 FR 18384, 18416; 74 FR 55726, 55739; 76 FR 53764, 53790. 
While part 1235 is substantively duplicative of the DHS regulations at 
part 235, several provisions in part 1235 address matters under the 
authority and jurisdiction of EOIR. For example, part 1235 includes 
procedures for an alien in expedited removal proceedings under section 
235 of the Act, and who receives a positive credible fear finding from 
DHS, to request asylum before an immigration judge in regular removal 
proceedings under section 240 of the Act. See, e.g., 8 CFR 
1235.3(b)(4); see also 8 CFR 1208.30(a). Similar to the other parts 
under review, the Department intends to amend part 1235 to distinguish 
between the authority and jurisdiction of EOIR and DHS, removing any 
provisions that are no longer within the Attorney General's 
jurisdiction and do not need to be restated in the EOIR regulations. 
See, e.g., 74 FR 55726, 55734. In particular, the Department intends to 
amend part 1235 by removing the provisions that are duplicative of the 
DHS regulations at part 235 and adding a cross-reference to the 
applicable DHS regulations at part 235 and the applicable EOIR 
regulations at part 1208.
    In addition to the comments that the Department received in 
response to the RFI, the Department is also reviewing a public comment 
that DHS received in response to its retrospective review recommending 
amendments to part 1235. See ``Reducing Regulatory Burden; 
Retrospective Review Under Executive Order 13563,'' available online at 
https://edocket.access.gpo.gov/2011/pdf/2011-5829.pdf; see also 
``Preliminary Plan for Retrospective Review of Existing Regulations,'' 
available online at https://www.gpo.gov/fdsys/pkg/FR-2011-06-06/pdf/2011-13801.pdf.\9\ In particular, the commenter requested promulgation 
and amendment of DHS and EOIR regulations in order to delineate the 
authority and jurisdiction of each agency to review the U.S. 
citizenship claims of aliens in expedited removal proceedings. As a 
result, the Department is considering whether to amend the EOIR 
regulations addressing an immigration judge's review of an alien's 
claim to U.S. citizenship status if DHS places the alien in expedited 
removal proceedings. The Department notes that there is no current 
regulatory procedure for DHS or an alien in expedited removal 
proceedings to appeal to the Board for review of an immigration judge's 
status determination for an alien claiming U.S. citizenship. See Matter 
of Lujan-Quintana, 25 I&N Dec. 53, 55-56 (BIA 2009) (finding that the 
Board lacks jurisdiction to review an appeal by DHS of an immigration 
judge's decision to vacate an expedited removal order after a claimed 
status review hearing pursuant to 8 CFR 1235.3(b)(5)(iv), at which the 
immigration judge determined the individual to be a U.S. citizen).
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    \9\ Comments received by DHS in response to ``Reducing 
Regulatory Burden; Retrospective Review Under Executive Order 
13563'' are available for viewing at https://www.regulations.gov and 
may be accessed with Docket No. DHS-2011-0015.
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    The Department is considering amending the regulations at parts 
1003 and 1235 to address this issue. One approach that the Department 
is considering is providing for an appeal process to the Board of an 
immigration judge's determination of status for an alien claiming U.S. 
citizenship in expedited removal proceedings. EOIR welcomes public 
comment on the need for addressing this issue, the proposed approach 
discussed in this Notice for addressing this issue, and any additional 
approaches.

IV. Public Comments

    EOIR welcomes the public's comments on the proposed amendments to 
parts 1003, 1103, 1211, 1212, 1215, 1216, and 1235 summarized in this 
Notice. EOIR is particularly interested in receiving examples of where 
the EOIR regulations should be amended to distinguish more effectively 
between the authority and jurisdiction of EOIR and DHS. See, e.g., 
Matter of Herrera Del Orden, supra. EOIR is also particularly 
interested in regulatory amendments that may improve the efficiency and 
fairness of adjudications before EOIR. The potential amendments to 
parts 1003, 1103, 1211, 1212, 1215, 1216, and 1235 discussed in this 
Notice are not exhaustive. EOIR invites the public to provide any 
additional proposed amendments to these regulatory provisions, 
including opportunities for eliminating unnecessary or duplicative 
provisions, revising confusing or outdated language, and updating 
statutory or regulatory citations. EOIR also invites commenters to 
provide information about the effects of proposed amendments, including 
information to assist the Department in monetizing or quantifying the 
benefits and costs of amendments, as well as identifying qualitative 
benefits and costs. For example, EOIR welcomes data from the public on 
whether and by how many hours--actual or billable--these regulatory 
amendments may reduce the time spent by aliens and practitioners in 
determining how or where to file applications and/or petitions with 
each agency. EOIR further welcomes data on how much time and money 
aliens and practitioners spend in redrafting and/or resending 
applications and petitions that were misfiled and returned to the 
sender.
    This round of the retrospective review is focused, at this point, 
only on parts 1003, 1103, 1211, 1212, 1215, 1216, and 1235, as well as, 
for limited purposes, on part 1208. As noted, the Department intends to 
review additional portions of the EOIR regulations in the future. In 
future rulemakings, the Department will also be considering amending 
the overall organization of the EOIR regulations so as to consolidate 
related regulatory provisions in one part. For example, the Department 
is considering consolidating all regulatory provisions related to 
representation and appearances in part 1292 by moving such provisions 
within part 1003 to part 1292. In anticipation of this future review 
and potential reorganization, EOIR also requests the public's comments 
on any additional amendments to its regulations, including 
opportunities for more effectively delineating the authority and 
jurisdiction of EOIR and DHS and improving the efficiency and fairness 
of adjudications before EOIR.
    Comments that will provide the most assistance to EOIR will 
reference a specific regulatory section, provide draft regulatory 
language, explain the reason for the recommended amendment, and include 
data, information, or authority that support the recommended amendment. 
EOIR encourages those members of the public submitting comments to 
review those comments described in the Department's Plan. See https://www.regulations.gov.

    Dated: September 19, 2012.
Juan P. Osuna,
Director.
[FR Doc. 2012-23874 Filed 9-27-12; 8:45 am]
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