Expanding the Size of the Board of Immigration Appeals, 8321-8323 [2018-03980]

Download as PDF 8321 Rules and Regulations Federal Register Vol. 83, No. 39 Tuesday, February 27, 2018 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. DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Part 1003 [Docket No. EOIR 183; A.G. Order No. 4119– 2018] RIN 1125–AA79 Expanding the Size of the Board of Immigration Appeals Executive Office for Immigration Review, Department of Justice. ACTION: Final rule. AGENCY: This final rule amends the Executive Office for Immigration Review (EOIR) regulations relating to the organization of the Board of Immigration Appeals (Board) by adding four additional Board member positions, thereby expanding the Board to 21 members. DATES: This rule is effective February 27, 2018. FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Acting Chief of the Immigration Law Division, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 1902, Falls Church, VA 20530, telephone (703) 305–0289 (not a toll-free call). SUPPLEMENTARY INFORMATION: daltland on DSKBBV9HB2PROD with RULES SUMMARY: I. Current Interim Rule On June 3, 2015, the Department of Justice (Department) published an interim rule amending 8 CFR 1003.1 to increase the Board of Immigration Appeals (Board) from 15 to 17 members, with a request for comments. 80 FR 31461 (June 3, 2015). As explained in the interim rule, expanding the number of Board members is necessary to accomplish EOIR’s commitment to promptly provide Board appellate review of timely filed immigration case appeals. The interim rule provided two primary reasons for increasing the VerDate Sep<11>2014 18:04 Feb 26, 2018 Jkt 244001 number of Board members from 15 to 17. First, EOIR was managing the largest caseload the immigration court system had ever seen. Second, the Department was in the process of hiring a substantial number of additional immigration judges, which the Department expected would increase the number of appeals filed with the Board. The Department provided an opportunity for post-promulgation comment even though this was a rule of internal agency organization and therefore notice-and-comment rulemaking was not required. The Department received two comments by the deadline of August 3, 2015. For the reasons set forth below, the Department is finalizing the interim rule amending 8 CFR part 1003, and adding four additional Board members for a total of 21 Board members. II. Background EOIR administers the Nation’s immigration court system. Generally, cases commence before an immigration judge when the Department of Homeland Security (DHS) files with the immigration court a charging document against an alien. See 8 CFR 1003.14(a). EOIR primarily decides whether foreign nationals whom DHS charges with violating immigration law pursuant to the Immigration and Nationality Act are removable as charged and, if so, whether they should be ordered removed from the United States, or should be granted protection or relief from removal and be permitted to remain in the United States. EOIR’s Office of the Chief Immigration Judge administers the adjudications of the immigration judges nationwide. Decisions of the immigration judges are subject to review by EOIR’s appellate body, the Board, which is currently composed of 17 Board members. The Board is the highest administrative tribunal for interpreting and applying U.S. immigration law. The Board’s decisions can be reviewed by the Attorney General, as provided in 8 CFR 1003.1(g) and (h). Decisions of the Board and the Attorney General are subject to judicial review in the United States Courts of Appeals. III. Expansion of Number of Board Members EOIR’s mission is to adjudicate immigration cases by fairly, PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. This task includes the initial adjudication of aliens’ cases in immigration courts nationwide, as well as appellate review by the Board when appeals are timely filed. In order to more efficiently accomplish the agency’s commitment to promptly decide an increasing volume of cases, as well as to review appeals in those cases, this rule serves to finalize the interim rule, with the addition of four additional Board members.1 This rule adopts a revision to the third sentence of 8 CFR 1003.1(a)(1). The remainder of paragraph (a)(1) is unchanged. Expanding the number of Board members was necessary when the interim rule was published in 2015 because EOIR was experiencing an increased caseload. Since the interim rule’s publication, EOIR’s caseload has continued to grow; EOIR is currently managing the largest caseload the immigration court system has ever seen. At the end of FY 2016, there were 518,545 total cases pending before the immigration courts, marking an increase of 58,988 cases pending above those at the end of FY 2015. See 2016 EOIR Statistics Yearbook W1.2 As of January 1, 2018, there were 667,292 total cases pending before the immigration courts. This total increase included an increase in the number of pending cases of detained aliens. EOIR’s highest priority is the efficient and timely adjudication of detained alien cases, and EOIR requires additional resources to handle the increased caseload. The Department is taking steps to address the unprecedented pending caseload. The Department hired 64 additional immigration judges in FY 2017 and continues to hire new immigration judges. The Department expects that, as these additional immigration judges enter on duty, the number of decisions rendered by the immigration judges nationwide will 1 The Department previously expanded the number of Board members—from 11 to 15 members—on December 7, 2006, when it published in the Federal Register an interim rule amending 8 CFR 1003.1. 71 FR 70855 (Dec. 7, 2006). On June 16, 2008, the Department published a final rule adopting, without change, that interim rule. 73 FR 33875 (June 16, 2008). 2 EOIR’s FY 2016 Statistics Yearbook, prepared by EOIR’s Office of Planning, Analysis, and Statistics, is available at https://www.justice.gov/eoir/page/ file/fysb16/download. E:\FR\FM\27FER1.SGM 27FER1 8322 Federal Register / Vol. 83, No. 39 / Tuesday, February 27, 2018 / Rules and Regulations daltland on DSKBBV9HB2PROD with RULES increase, and the number of appeals filed with the Board will increase as a result. The Department is also taking a number of management steps to more efficiently address the pending caseload, which EOIR expects will result in an increase in immigration judge decisions and, in turn, an increase in the flow of appeals to the Board.3 Since January 2017, the Board has experienced a steady increase in appeals. For example, the number of appeals increased throughout FY 2017, from 2,618 in October 2016 to 3,035 in September 2017. This caseload is burdensome and, given current trends, may become overwhelming were the Board to maintain 17 members. The interim rule modified the number of Board members to 17, and requested post-promulgation comment on the proposal to increase the number of Board members in light of the increased caseload. Keeping in mind the goal of maintaining cohesion and the ability to reach consensus, but recognizing the challenges the Board faces in light of its current and anticipated increased caseload, the Department has determined that four additional members should be added to the Board. The Department acknowledges the potential impact of the expansion to 21 members upon the Board’s ability to provide coherent direction and to issue precedential decisions, which require approval of a majority of the Board, and will continue to consider means to improve the Board’s operations over time. But the interim rule’s logic— balancing efficiency with administrability—supports increasing the size of the Board in the final rule to 21. These changes will help support an efficient system of appellate adjudication in light of the increasing caseload. IV. Public Comments The interim rule was exempt from the usual requirements of prior notice and comment and a 30-day delay in effective date because, as an internal delegation of authority, it is a rule of management or personnel and relates to a matter of agency organization, procedure, or practice. See 5 U.S.C. 553(a), (b), (d). Nonetheless, when promulgating the interim rule, the Department provided an opportunity for post-promulgation comment. The Department received two comments by the deadline, only one of which was responsive to the rule. The 3 Statement of James McHenry, Acting Director, Executive Office for Immigration Review, United States Department of Justice, Before the Subcommittee on Immigration and Border Security, Committee on the Judiciary, United States House of Representatives, November 1, 2017. VerDate Sep<11>2014 18:04 Feb 26, 2018 Jkt 244001 commenter stated that ‘‘[e]xpanding the Board of Immigration Appeals (BIA) to 17 members from 15 members is . . . a necessary action as the pending times for appeals has substantially increased as the docket of EOIR has expanded.’’ In response, the Department appreciates this expression of support. EOIR has steadily hired new immigration judges, and continues to hire new immigration judges, to adjudicate EOIR’s historically large caseload. As the number of immigration judges increases, so does the number of decisions rendered by immigration judges. In turn, the number of appeals filed with the Board also increases. Increasing the number of Board members will assist EOIR in accomplishing its mission of adjudicating appeals in a timely manner. V. Regulatory Requirements A. Administrative Procedure Act As this rule is the finalization of an interim final rule, further request for comment is not required. Alternately, comment is unnecessary because this final rule is a rule of management or personnel as well as a rule of agency organization, procedure, or practice. See 5 U.S.C. 553(a)(2), (b)(A). For the same reasons, this rule is not subject to a 30day delay in effective date. See 5 U.S.C. 553(a)(2), (d). B. Regulatory Flexibility Act Under the Regulatory Flexibility Act (RFA), ‘‘[w]henever an agency is required by section 553 of [the Administrative Procedure Act], or any other law, to publish general notice of proposed rulemaking for any proposed rule . . . the agency shall prepare and make available for public comment an initial regulatory flexibility analysis.’’ 5 U.S.C. 603(a); see 5 U.S.C. 604(a). Such analysis is not required when a rule is exempt from notice-and-comment rulemaking under 5 U.S.C. 553(b). Because this is a rule of internal agency organization and therefore is exempt from notice-and-comment rulemaking, no RFA analysis under 5 U.S.C. 603 or 604 is required for this rule. C. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 of the Unfunded Mandates Reform Act of 1995. D. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 13771 (Reducing Regulation and Controlling Regulatory Costs) This rule is limited to agency organization, management, or personnel matters and is therefore not subject to review by the Office of Management and Budget pursuant to section 3(d)(3) of Executive Order 12866, Regulatory Planning and Review. Nevertheless, the Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 12866, section 1(b), and Executive Order 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits, including consideration of potential economic, environmental, public health, and safety effects; distributive impacts; and equity. The benefits of this rule include providing the Department with an appropriate means of responding to the increased number of appeals to the Board. The public will benefit from the expansion of the number of Board members because such expansion will help EOIR better accomplish its mission of adjudicating cases in an efficient and timely manner. Overall, the benefits provided by the Board’s expansion outweigh the costs of employing additional federal employees. Finally, because this rule is one of internal organization, management, or personnel, it is not subject to the requirements of Executive Order 13771. E. Executive Order 13132—Federalism This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. F. Executive Order 12988—Civil Justice Reform This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. E:\FR\FM\27FER1.SGM 27FER1 Federal Register / Vol. 83, No. 39 / Tuesday, February 27, 2018 / Rules and Regulations G. Paperwork Reduction Act DEPARTMENT OF TRANSPORTATION 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 recordkeeping or reporting requirements. Federal Aviation Administration H. Congressional Review Act Airworthiness Directives; Airbus Airplanes This is not a major rule as defined by 5 U.S.C. 804(2). This action pertains to agency organization, management, and personnel and, accordingly, is not a ‘‘rule’’ as that term is used in 5 U.S.C. 804(3). Therefore, the reports to Congress and the Government Accountability Office specified by 5 U.S.C. 801 are not required. List of Subjects in 8 CFR Part 1003 Administrative practice and procedure, Aliens, Immigration, Legal services, Organization and functions (Government agencies). Accordingly, for the reasons stated in the preamble, the interim rule amending 8 CFR part 1003, which was published at 80 FR 31461 on June 3, 2015, is adopted as a final rule, with the following change: PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 1. The authority citation for 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. 2. Amend § 1003.1 by revising the third sentence of paragraph (a)(1) to read as follows: ■ daltland on DSKBBV9HB2PROD with RULES § 1003.1 Organization, jurisdiction, and powers of the Board of Immigration Appeals. (a)(1) * * * The Board shall consist of 21 members. * * * * * * * * Dated: February 20, 2018. Jefferson B. Sessions III, Attorney General. [FR Doc. 2018–03980 Filed 2–26–18; 8:45 am] BILLING CODE 4410–30–P VerDate Sep<11>2014 18:04 Feb 26, 2018 Jkt 244001 14 CFR Part 39 [Docket No. FAA–2016–9519; Product Identifier 2016–NM–099–AD; Amendment 39–19200; AD 2018–04–05] RIN 2120–AA64 Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. AGENCY: We are adopting a new airworthiness directive (AD) for certain Airbus Model A319–112, A319–115, A320–214, A320–232, and A321–211 airplanes. This AD was prompted by inservice experience and further analysis, which showed that the galley 5 without kick-load retainers, was unable to withstand the expected loading during several flight phases or in case of emergency landing. This AD requires modification of galley 5 trolley compartments by adding kick-load retainers. We are issuing this AD to address the unsafe condition on these products. SUMMARY: 8323 contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800–647– 5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone 206–231–3223; fax 206–231– 3398. SUPPLEMENTARY INFORMATION: Discussion We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A319–112, A319–115, A320–214, A320–232, and A321–211 airplanes. The SNPRM published in the Federal Register on November 9, 2017 (82 FR 52022) (‘‘the SNPRM’’). We preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on January 3, 2017 (82 FR 50) (‘‘the NPRM’’). The NPRM was prompted by in-service experience and further analysis, which showed that DATES: This AD is effective April 3, the galley 5 without kick-load retainers 2018. was unable to withstand the expected The Director of the Federal Register approved the incorporation by reference loading during several flight phases or in case of an emergency landing. The of certain publications listed in this AD NPRM proposed to require modification as of April 3, 2018. of galley 5 trolley compartments by ADDRESSES: For service information adding kick-load retainers. The SNPRM identified in this final rule, contact proposed to modify the applicability. Airbus, Airworthiness Office—EIAS, 1 We are issuing this AD to prevent Rond Point Maurice Bellonte, 31707 galley/trolley detachment and collapse Blagnac Cedex, France; telephone +33 5 into an adjacent cabin aisle or cabin 61 93 36 96; fax +33 5 61 93 44 51; email zone, possibly spreading loose galley account.airworth-eas@airbus.com; equipment items, compartment doors, internet http://www.airbus.com. You or leaking fluids. These hazards could may view this referenced service block an evacuation route and result in information at the FAA, Transport injury to crew or passengers. Standards Branch, 2200 South 216th The European Aviation Safety Agency Street, Des Moines, WA. For (EASA), which is the Technical Agent information on the availability of this for the Member States of the European material at the FAA, call 206–231–3195. Union, has issued EASA Airworthiness It is also available on the internet at Directive 2016–0040, dated March 2, http://www.regulations.gov by searching 2016 (referred to after this as the for and locating Docket No. FAA–2016– Mandatory Continuing Airworthiness 9519. Information, or ‘‘the MCAI’’), to correct an unsafe condition for certain Airbus Examining the AD Docket Model A319–112, A319–115, A320–214, You may examine the AD docket on A320–232, and A321–211 airplanes. the internet at http:// The MCAI states: www.regulations.gov by searching for Following in-service experience and and locating Docket No. FAA–2016– further analyses, it was ascertained that the 9519; or in person at the Docket galley 5 without kick load retainers on Management Facility between 9 a.m. external position could not withstand the and 5 p.m., Monday through Friday, expected loading during several flight phases except Federal holidays. The AD docket or in case of emergency landing. PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\27FER1.SGM 27FER1

Agencies

[Federal Register Volume 83, Number 39 (Tuesday, February 27, 2018)]
[Rules and Regulations]
[Pages 8321-8323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03980]



========================================================================
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. 

========================================================================


Federal Register / Vol. 83, No. 39 / Tuesday, February 27, 2018 / 
Rules and Regulations

[[Page 8321]]



DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1003

[Docket No. EOIR 183; A.G. Order No. 4119-2018]
RIN 1125-AA79


Expanding the Size of the Board of Immigration Appeals

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the Executive Office for Immigration 
Review (EOIR) regulations relating to the organization of the Board of 
Immigration Appeals (Board) by adding four additional Board member 
positions, thereby expanding the Board to 21 members.

DATES: This rule is effective February 27, 2018.

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Acting Chief of the 
Immigration Law Division, Office of Policy, Executive Office for 
Immigration Review, 5107 Leesburg Pike, Suite 1902, Falls Church, VA 
20530, telephone (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Current Interim Rule

    On June 3, 2015, the Department of Justice (Department) published 
an interim rule amending 8 CFR 1003.1 to increase the Board of 
Immigration Appeals (Board) from 15 to 17 members, with a request for 
comments. 80 FR 31461 (June 3, 2015). As explained in the interim rule, 
expanding the number of Board members is necessary to accomplish EOIR's 
commitment to promptly provide Board appellate review of timely filed 
immigration case appeals. The interim rule provided two primary reasons 
for increasing the number of Board members from 15 to 17. First, EOIR 
was managing the largest caseload the immigration court system had ever 
seen. Second, the Department was in the process of hiring a substantial 
number of additional immigration judges, which the Department expected 
would increase the number of appeals filed with the Board.
    The Department provided an opportunity for post-promulgation 
comment even though this was a rule of internal agency organization and 
therefore notice-and-comment rulemaking was not required. The 
Department received two comments by the deadline of August 3, 2015. For 
the reasons set forth below, the Department is finalizing the interim 
rule amending 8 CFR part 1003, and adding four additional Board members 
for a total of 21 Board members.

II. Background

    EOIR administers the Nation's immigration court system. Generally, 
cases commence before an immigration judge when the Department of 
Homeland Security (DHS) files with the immigration court a charging 
document against an alien. See 8 CFR 1003.14(a). EOIR primarily decides 
whether foreign nationals whom DHS charges with violating immigration 
law pursuant to the Immigration and Nationality Act are removable as 
charged and, if so, whether they should be ordered removed from the 
United States, or should be granted protection or relief from removal 
and be permitted to remain in the United States. EOIR's Office of the 
Chief Immigration Judge administers the adjudications of the 
immigration judges nationwide.
    Decisions of the immigration judges are subject to review by EOIR's 
appellate body, the Board, which is currently composed of 17 Board 
members. The Board is the highest administrative tribunal for 
interpreting and applying U.S. immigration law. The Board's decisions 
can be reviewed by the Attorney General, as provided in 8 CFR 1003.1(g) 
and (h). Decisions of the Board and the Attorney General are subject to 
judicial review in the United States Courts of Appeals.

III. Expansion of Number of Board Members

    EOIR's mission is to adjudicate immigration cases by fairly, 
expeditiously, and uniformly interpreting and administering the 
Nation's immigration laws. This task includes the initial adjudication 
of aliens' cases in immigration courts nationwide, as well as appellate 
review by the Board when appeals are timely filed. In order to more 
efficiently accomplish the agency's commitment to promptly decide an 
increasing volume of cases, as well as to review appeals in those 
cases, this rule serves to finalize the interim rule, with the addition 
of four additional Board members.\1\ This rule adopts a revision to the 
third sentence of 8 CFR 1003.1(a)(1). The remainder of paragraph (a)(1) 
is unchanged.
---------------------------------------------------------------------------

    \1\ The Department previously expanded the number of Board 
members--from 11 to 15 members--on December 7, 2006, when it 
published in the Federal Register an interim rule amending 8 CFR 
1003.1. 71 FR 70855 (Dec. 7, 2006). On June 16, 2008, the Department 
published a final rule adopting, without change, that interim rule. 
73 FR 33875 (June 16, 2008).
---------------------------------------------------------------------------

    Expanding the number of Board members was necessary when the 
interim rule was published in 2015 because EOIR was experiencing an 
increased caseload. Since the interim rule's publication, EOIR's 
caseload has continued to grow; EOIR is currently managing the largest 
caseload the immigration court system has ever seen. At the end of FY 
2016, there were 518,545 total cases pending before the immigration 
courts, marking an increase of 58,988 cases pending above those at the 
end of FY 2015. See 2016 EOIR Statistics Yearbook W1.\2\ As of January 
1, 2018, there were 667,292 total cases pending before the immigration 
courts. This total increase included an increase in the number of 
pending cases of detained aliens. EOIR's highest priority is the 
efficient and timely adjudication of detained alien cases, and EOIR 
requires additional resources to handle the increased caseload.
---------------------------------------------------------------------------

    \2\ EOIR's FY 2016 Statistics Yearbook, prepared by EOIR's 
Office of Planning, Analysis, and Statistics, is available at 
https://www.justice.gov/eoir/page/file/fysb16/download.
---------------------------------------------------------------------------

    The Department is taking steps to address the unprecedented pending 
caseload. The Department hired 64 additional immigration judges in FY 
2017 and continues to hire new immigration judges. The Department 
expects that, as these additional immigration judges enter on duty, the 
number of decisions rendered by the immigration judges nationwide will

[[Page 8322]]

increase, and the number of appeals filed with the Board will increase 
as a result. The Department is also taking a number of management steps 
to more efficiently address the pending caseload, which EOIR expects 
will result in an increase in immigration judge decisions and, in turn, 
an increase in the flow of appeals to the Board.\3\
---------------------------------------------------------------------------

    \3\ Statement of James McHenry, Acting Director, Executive 
Office for Immigration Review, United States Department of Justice, 
Before the Subcommittee on Immigration and Border Security, 
Committee on the Judiciary, United States House of Representatives, 
November 1, 2017.
---------------------------------------------------------------------------

    Since January 2017, the Board has experienced a steady increase in 
appeals. For example, the number of appeals increased throughout FY 
2017, from 2,618 in October 2016 to 3,035 in September 2017. This 
caseload is burdensome and, given current trends, may become 
overwhelming were the Board to maintain 17 members.
    The interim rule modified the number of Board members to 17, and 
requested post-promulgation comment on the proposal to increase the 
number of Board members in light of the increased caseload. Keeping in 
mind the goal of maintaining cohesion and the ability to reach 
consensus, but recognizing the challenges the Board faces in light of 
its current and anticipated increased caseload, the Department has 
determined that four additional members should be added to the Board. 
The Department acknowledges the potential impact of the expansion to 21 
members upon the Board's ability to provide coherent direction and to 
issue precedential decisions, which require approval of a majority of 
the Board, and will continue to consider means to improve the Board's 
operations over time. But the interim rule's logic--balancing 
efficiency with administrability--supports increasing the size of the 
Board in the final rule to 21. These changes will help support an 
efficient system of appellate adjudication in light of the increasing 
caseload.

IV. Public Comments

    The interim rule was exempt from the usual requirements of prior 
notice and comment and a 30-day delay in effective date because, as an 
internal delegation of authority, it is a rule of management or 
personnel and relates to a matter of agency organization, procedure, or 
practice. See 5 U.S.C. 553(a), (b), (d). Nonetheless, when promulgating 
the interim rule, the Department provided an opportunity for post-
promulgation comment. The Department received two comments by the 
deadline, only one of which was responsive to the rule. The commenter 
stated that ``[e]xpanding the Board of Immigration Appeals (BIA) to 17 
members from 15 members is . . . a necessary action as the pending 
times for appeals has substantially increased as the docket of EOIR has 
expanded.''
    In response, the Department appreciates this expression of support. 
EOIR has steadily hired new immigration judges, and continues to hire 
new immigration judges, to adjudicate EOIR's historically large 
caseload. As the number of immigration judges increases, so does the 
number of decisions rendered by immigration judges. In turn, the number 
of appeals filed with the Board also increases. Increasing the number 
of Board members will assist EOIR in accomplishing its mission of 
adjudicating appeals in a timely manner.

V. Regulatory Requirements

A. Administrative Procedure Act

    As this rule is the finalization of an interim final rule, further 
request for comment is not required. Alternately, comment is 
unnecessary because this final rule is a rule of management or 
personnel as well as a rule of agency organization, procedure, or 
practice. See 5 U.S.C. 553(a)(2), (b)(A). For the same reasons, this 
rule is not subject to a 30-day delay in effective date. See 5 U.S.C. 
553(a)(2), (d).

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), ``[w]henever an agency 
is required by section 553 of [the Administrative Procedure Act], or 
any other law, to publish general notice of proposed rulemaking for any 
proposed rule . . . the agency shall prepare and make available for 
public comment an initial regulatory flexibility analysis.'' 5 U.S.C. 
603(a); see 5 U.S.C. 604(a). Such analysis is not required when a rule 
is exempt from notice-and-comment rulemaking under 5 U.S.C. 553(b). 
Because this is a rule of internal agency organization and therefore is 
exempt from notice-and-comment rulemaking, no RFA analysis under 5 
U.S.C. 603 or 604 is required for this rule.

C. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

D. Executive Orders 12866 (Regulatory Planning and Review), 13563 
(Improving Regulation and Regulatory Review), and 13771 (Reducing 
Regulation and Controlling Regulatory Costs)

    This rule is limited to agency organization, management, or 
personnel matters and is therefore not subject to review by the Office 
of Management and Budget pursuant to section 3(d)(3) of Executive Order 
12866, Regulatory Planning and Review. Nevertheless, the Department 
certifies that this regulation has been drafted in accordance with the 
principles of Executive Order 12866, section 1(b), and Executive Order 
13563. Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits, including consideration of potential economic, 
environmental, public health, and safety effects; distributive impacts; 
and equity. The benefits of this rule include providing the Department 
with an appropriate means of responding to the increased number of 
appeals to the Board. The public will benefit from the expansion of the 
number of Board members because such expansion will help EOIR better 
accomplish its mission of adjudicating cases in an efficient and timely 
manner. Overall, the benefits provided by the Board's expansion 
outweigh the costs of employing additional federal employees. Finally, 
because this rule is one of internal organization, management, or 
personnel, it is not subject to the requirements of Executive Order 
13771.

E. Executive Order 13132--Federalism

    This rule will not have substantial direct effects on the States, 
on the relationship between the National Government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, this rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

F. Executive Order 12988--Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

[[Page 8323]]

G. 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 recordkeeping or reporting requirements.

H. Congressional Review Act

    This is not a major rule as defined by 5 U.S.C. 804(2). This action 
pertains to agency organization, management, and personnel and, 
accordingly, is not a ``rule'' as that term is used in 5 U.S.C. 804(3). 
Therefore, the reports to Congress and the Government Accountability 
Office specified by 5 U.S.C. 801 are not required.

List of Subjects in 8 CFR Part 1003

    Administrative practice and procedure, Aliens, Immigration, Legal 
services, Organization and functions (Government agencies).

    Accordingly, for the reasons stated in the preamble, the interim 
rule amending 8 CFR part 1003, which was published at 80 FR 31461 on 
June 3, 2015, is adopted as a final rule, with the following change:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
1. The authority citation for 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. Amend Sec.  1003.1 by revising the third sentence of paragraph 
(a)(1) to read as follows:


Sec.  1003.1  Organization, jurisdiction, and powers of the Board of 
Immigration Appeals.

    (a)(1) * * * The Board shall consist of 21 members. * * *
* * * * *

    Dated: February 20, 2018.
Jefferson B. Sessions III,
Attorney General.
[FR Doc. 2018-03980 Filed 2-26-18; 8:45 am]
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