Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 31463-31471 [2019-13933]

Download as PDF Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Rules and Regulations DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Parts 1003 and 1292 [EOIR Docket No. 159; AG Order No. 4478– 2019] RIN 1125–AA58 Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents Executive Office for Immigration Review, Department of Justice. ACTION: Final rule. AGENCY: II. Introduction The Department of Justice (Department) is publishing this final rule (‘‘final rule’’ or ‘‘rule’’) to amend the regulations regarding the administrative review procedures of the Board of Immigration Appeals (BIA or Board). This final rule sets forth the Department’s longstanding position that the regulations providing for an affirmance without opinion (AWO), a single-member opinion, or a threemember panel opinion are not intended to create any substantive right to a particular manner of review or decision. The final rule also clarifies that the BIA is presumed to have considered all of the parties’ relevant issues and claims of error on appeal regardless of the type of the BIA’s decision, and that the parties are obligated to raise issues and exhaust claims of error before the BIA. In addition, the final rule codifies standards for the BIA’s consideration in evaluating whether to designate particular decisions as precedents. Finally, the final rule provides clarity surrounding precedent decisions in the context of decisions from the Executive Office for Immigration Review (EOIR) regarding the recognition of organizations and the designation of accredited representatives. DATES: This rule is effective September 3, 2019. FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2616, Falls Church, Virginia 22041; telephone (703) 305–0289 (not a toll-free call). SUPPLEMENTARY INFORMATION: khammond on DSKBBV9HB2PROD with RULES SUMMARY: I. Public Participation The Department published a proposed rule with request for comments in the Federal Register in June 2008. See Board of Immigration Appeals: VerDate Sep<11>2014 15:49 Jul 01, 2019 Jkt 247001 Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 73 FR 34654 (June 18, 2008). At the conclusion of the comment period on August 18, 2008, three public interest law and advocacy groups; two law professors; a law student and a recent law school graduate; and one non-attorney had submitted six sets of comments. Because some comments overlapped, and because other commenters covered multiple topics, the comments are addressed summarily by topic in Section III, infra. A. Background On October 18, 1999, the Department published a final rule authorizing a single BIA member to affirm the decision of an immigration judge by a summary written order without issuing a separate written opinion. See Executive Office for Immigration Review; Board of Immigration Appeals: Streamlining, 64 FR 56135 (Oct. 18, 1999). The written order used for this purpose is commonly referred to as an affirmance without opinion (AWO). The AWO contains only two sentences, both prescribed by regulation, without any additional language or explanation for the affirmance. Under the relevant regulations, the AWO states: ‘‘The Board affirms, without opinion, the result of the decision below [i.e., the decision of the immigration judge or the Department of Homeland Security (DHS) officer that was appealed to the BIA]. The decision below is, therefore, the final agency determination. See 8 CFR 3.1(a)(7).’’ 1 See 8 CFR 1003.1(e)(4)(ii).2 In 2002, the Department published a final rule that, while maintaining the basic AWO process, mandated the use of an AWO in any case that met the regulatory threshold criteria. See Board of Immigration Appeals: Procedural Reforms To Improve Case Management, 67 FR 54878 (Aug. 26, 2002). Compare 8 CFR 3.1(a)(7)(ii) (2000) (providing that a single BIA member ‘‘may’’ affirm without opinion), with 8 CFR 1003.1(e)(4) (2003) 3 (providing that a 1 The text later changed to cite to 8 CFR 3.1(e)(4). See 67 FR at 54903. 2 The background discussion accompanying the proposed rule published in the current rulemaking proceeding contains an account of the history and use of AWOs. 73 FR at 34655–57. 3 In 2003, the Attorney General redesignated the previous regulations in 8 CFR part 3, relating to EOIR, as 8 CFR part 1003 in connection with the abolition of the former Immigration and Naturalization Service and the transfer of its responsibilities to DHS. See Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 FR 9824 (Feb. 28, 2003). Under the Homeland PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 31463 single BIA member ‘‘shall’’ affirm without opinion). Under the 2002 rule, an AWO is issued if the BIA member concludes that ‘‘the result reached in the decision under review was correct,’’ that any errors in the decision were ‘‘harmless or nonmaterial,’’ and that either the issues on appeal are ‘‘squarely controlled’’ by precedent and do not present a novel factual scenario that requires a decision to apply precedent or are not so substantial as to warrant issuance of a written opinion by the BIA. 8 CFR 1003.1(e)(4)(i) (2003). On January 9, 2006, Attorney General Alberto Gonzales directed a comprehensive review of the immigration courts and the BIA. The Department undertook the review in response to concerns about the quality of the decisions of the immigration judges and the BIA and to reports of intemperate behavior by some immigration judges. The review team received comments about the BIA’s streamlining process and its reform regulations. Critics of the procedural reforms rule speculated that the revised procedures allowed BIA members insufficient time to review cases thoroughly and made it more difficult for the BIA to publish adequate numbers of precedent decisions. Supporters observed that the reforms brought much-needed efficiency to the appellate process, which allowed the BIA to eliminate a large backlog of cases and to adjudicate cases in a more timely manner. On August 9, 2006, Attorney General Gonzales announced that the review was complete and directed that EOIR implement 22 measures to improve adjudications by the immigration judges and the BIA. This final rule is one of several regulatory actions relating to that review. B. The Proposed Regulatory Changes The 2008 proposed rule stated that the Department had evaluated the BIA’s caseload and resources and found that ‘‘the basic principles set forth in the [2002] Board reform rule were still necessary to prevent future backlogs and delays in adjudication.’’ 73 FR at 34655. Thus, the proposed rule did not seek comment on whether the BIA should continue to use AWOs. Id. (stating that ‘‘the Department is not reopening or seeking public comment on the existing final regulations that were adopted in 2002’’). Rather, the Department Security Act, EOIR (including the BIA and the immigration judges) remains under the authority of the Attorney General. See 6 U.S.C. 521; 8 U.S.C. 1103(g). E:\FR\FM\02JYR1.SGM 02JYR1 31464 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Rules and Regulations proposed three specific adjustments that would: (1) Encourage the increased use of single-member written decisions instead of AWOs to address poor or intemperate decisions of immigration judges, (2) allow the use of threemember written decisions for the purpose of providing greater legal analysis for particularly complex cases, and (3) authorize three-member panels, by majority vote, to designate their decisions as precedent decisions. Id. khammond on DSKBBV9HB2PROD with RULES C. Decisions Regarding the Recognition of Organizations and the Accreditation of Representatives At the time of the underlying proposed rule’s publication, responsibility for administering EOIR’s recognition and accreditation program, which recognizes organizations and authorizes accredited representatives to represent aliens in immigration proceedings before EOIR and in cases with DHS, lay with the BIA. Consequently, under its general authority to issue precedent decisions, the BIA would intermittently issue precedent decisions in cases involving recognition and accreditation issues. See, e.g., Matter of United Farm Workers Found., 26 I&N Dec. 454 (BIA 2014) (addressing whether a recognized organization needs to apply for a representative’s accreditation at more than one location). In 2017, responsibility for the recognition and accreditation program within EOIR was transferred from the BIA to the Office of Legal Access Programs (OLAP), but the transfer did not provide a mechanism by which EOIR could designate decisions as precedents. See Recognition of Organizations and Accreditation of Non-Attorney Representatives, 81 FR 92346 (Dec. 19, 2016). This rule would correct that deficiency. III. Intent and Nature of the Regulations In each of the respects discussed below, the Department in this rulemaking is revising the regulations to clarify the intent and nature of the regulations relating to the form of BIA decisions and the scope of the BIA’s consideration of issues presented on appeal. The Department’s interpretations of the intended meaning of its regulations are fully consistent with the Attorney General’s authority to issue regulations and clarify the intent, purpose, and nature of those regulations. See INS v. Stanisic, 395 U.S. 62, 72 (1969) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (an administrative agency’s interpretation of its own regulations is entitled to ‘‘‘controlling VerDate Sep<11>2014 15:49 Jul 01, 2019 Jkt 247001 weight unless it is plainly erroneous or inconsistent with the regulation’’’); Matter of Armendarez-Mendez, 24 I&N Dec. 646, 653 (BIA 2008). With regard to the provisions of the 2008 proposed rulemaking, the Department has considered the public comments, the continuing need to maintain AWOs as a necessary resource for BIA adjudication, and the goal of securing finality in immigration cases as efficiently as possible. With respect to one proposal outlined in the proposed rule, the Department has determined that it will not revise EOIR’s regulations to provide for publication of precedent decisions by majority vote of the permanent Board members assigned to a three-member panel. Although the Department recognizes that a single member or a panel of BIA members is able to address and resolve issues in a thorough and judicious manner, the Department also recognizes that the BIA’s published decisions representing the views of the majority of the en banc BIA are important in ensuring accuracy, consistency, uniformity, and clarity in the BIA’s guidance and interpretation of relevant law and regulation. The current process better provides for the consistency of BIA case law. See Matter of Burbano, 20 I&N Dec. 872, 873–74 (BIA 1994). Apart from this decision regarding publication by majority vote, this final rule adopts, with changes, the regulatory amendments set forth in the proposed rule. Finally, the Department is including a related revision to the regulations to clarify the intent to provide for the issuance of precedent decisions in the context of the recognition and accreditation program. A. The Form of a Board Decision The 2008 proposed rule discussed the Department’s interpretation of the BIA’s regulatory structure regarding the BIA’s decision to issue an AWO or a singlemember or three-member decision. 73 FR at 34656–57. The purpose of thats discussion was to clarify that institutional concerns, which are uniquely within the BIA’s expertise, may factor into the assessment of what form of decision to issue. The Department presented that discussion in regards to both the proposal to allow BIA members to exercise discretion in determining whether to issue an AWO, 73 FR at 34656, and the proposal to clarify that the regulations do not create any substantive or procedural right to a particular form of BIA decision, 73 FR at 34657. Commenters raised several objections to the discussion in both contexts. With PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 regard to the BIA’s discretion, the proposed rule stated that: In determining whether to exercise its discretion to issue an AWO or a singlemember opinion, the Board may consider available resources to balance the need to complete cases efficiently while evaluating whether there is a need to provide further guidance to the immigration judge, the parties, and the federal courts through a written decision addressing the issues in a case. 73 FR at 34356. The commenters who raised issues concerning this statement argued that the BIA’s caseload and resources should have no bearing on what form of decision the BIA uses or whether to resolve an appeal by an AWO or other type of decision. One commenter suggested that if caseload and resources are considerations, a BIA member might use the streamlining process to ‘‘deny an immigrant’s claim, rather than grant relief, on the grounds that the Board member reviewing the case simply lacked the time or inclination to spend his or her resources writing a reasoned, public opinion for that particular case.’’ The BIA employs a staff of attorneys, paralegals, and support personnel that prepares the cases and draft decisions for BIA member review. In particular, under the BIA’s case-processing system, a staff attorney reviews a case and recommends issuance of a decision as an AWO, a single-member decision, or a three-member decision. A BIA member then decides what form of decision to issue after an independent review of the record of proceedings and consideration of the nature of the case, the issues and arguments presented by the parties in support of the appeal or motion, and prior agency decisions. The BIA member also assesses whether the regulatory criteria set forth in 8 CFR 1003.1(e)(4)(i), (e)(5), or (e)(6) require the issuance of an AWO decision, warrant a single-member decision, or warrant referral to a three-member panel for decision. Thus, a BIA member—in contrast to the commenter’s suggestion—does not decide whether to issue an AWO based on whether he ‘‘lack[s] the time or inclination to spend his or her resources writing a reasoned, public opinion for that particular case.’’ The Department seeks to clarify that the use of an AWO does not reflect an abbreviated review of a case, but rather reflects the use of an abbreviated order to describe that review where the regulatory requirements of 8 CFR 1003.1(e)(4)(i) are met. The Department also seeks to clarify that a case before the BIA undergoes tiers of staff screening and review with a BIA member who ultimately determines E:\FR\FM\02JYR1.SGM 02JYR1 khammond on DSKBBV9HB2PROD with RULES Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Rules and Regulations what form of decision to use. Accordingly, the Department is satisfied that each case has undergone thorough and complete review before a determination of whether an AWO is required. This final rule retains an AWO as a mandatory form of decision to be issued in appropriate situations. Taking into account caseload and resources in deciding what form of decision the BIA chooses to issue is not new. In 1999, Attorney General Janet Reno linked resource and caseload concerns to the form of the BIA’s dispositions when she created the first AWO and single-member reforms and observed that three-member written opinions are time consuming, require significant resources, and should be used selectively. See 64 FR at 56136–38; see also Matter of Burbano, 20 I&N Dec. at 874 (recognizing that ‘‘summary treatment of a case does not mean that we have conducted an abbreviated review of the record or have failed to exercise our own discretion’’). The BIA in 1998 received in excess of 28,000 new cases, and concerns about resource management have grown only more pronounced in the intervening years; in fiscal year 2018, for example, the BIA received more than 49,000 new cases. Attorney General Reno also explained that, ‘‘[e]ven in routine cases,’’ the ‘‘process of screening, assigning, tracking, drafting, revising, and circulating cases is extremely time consuming.’’ 64 FR at 56137. In addition, she explained that ‘‘disagreements concerning the rationale or style of a draft decision can require significant time to resolve.’’ Id. Attorney General Reno concluded that the BIA should use more streamlined forms of dispositions and become selective in using three-member decisions. Id. The Department further stated in the 1999 rule that using streamlined forms of decisions would ‘‘allow the Board to manage its caseload in a more timely manner’’ and ‘‘maintain a viable appellate organization that handles an extraordinarily large caseload.’’ 64 FR at 56138. Similarly, in 2002, Attorney General John Ashcroft cited caseload and resource considerations as the justification for expanding the streamlining procedures to promote the issuance of AWOs and to normalize single-member decisions. See 67 FR at 54879. Although former Attorney General Reno’s statements in the proposed rule about caseload considerations, internal resources, and layers of review pertained primarily to issuing single-member decisions instead of three-member decisions, these considerations are also relevant when a single BIA member assesses whether an VerDate Sep<11>2014 15:49 Jul 01, 2019 Jkt 247001 AWO would most efficiently use the BIA’s limited resources in resolving an appeal. The 2008 proposed rule expressed concern that some courts have construed the regulations to permit judicial review of the BIA’s decision about what form of opinion to issue, independently of the merits of the final agency position, and that this ‘‘additional layer of review in some circuits is not consistent with the [2002] rule’s goal of promoting efficiency and finality in the immigration system.’’ 73 FR at 34657. The proposed rule sought to address this concern by clarifying that regulations providing for an AWO, a single-member opinion, or a threemember panel opinion were intended to reflect an internal agency directive created for the purpose of efficient case management and disposition of cases pending before the BIA, and were not to be interpreted to create any substantive or procedural rights enforceable before any immigration judge, the BIA, or any court. Several commenters raised issues concerning this proposed amendment. The commenters wrote that the agency may not eliminate an alien’s ‘‘right’’ to review of a BIA member’s judgment to issue an AWO or other form of BIA decision. The courts of appeals that have reviewed challenges to the streamlining process have uniformly concluded, however, that respondents have no constitutional or statutory right to a particular form or manner of a BIA decision. See Zhang v. U.S. Dept. of Justice, 362 F.3d 155, 157–58 (2d Cir. 2004); Yuk v. Ashcroft, 355 F.3d 1222, 1229–32 (10th Cir. 2004); Dia v. Ashcroft, 353 F.3d 228, 242 (3d Cir. 2003) (en banc); Denko v. INS, 351 F.3d 717, 729–30 (6th Cir. 2003); Falcon Carriche v. Ashcroft, 350 F.3d 845, 850– 51 (9th Cir. 2003); Khattak v. Ashcroft, 332 F.3d 250, 252–53 (4th Cir. 2003); Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1288–89 (11th Cir. 2003); Albathani v. INS, 318 F.3d 365, 376–77 (1st Cir. 2003). Thus, the Department is not eliminating an existing substantive right, but is simply clarifying the original intent underlying the streamlining regulation that the form of the BIA’s decision should not be reviewable. Indeed, the 2002 final rulemaking explained that there is no statutory right or law requiring a particular form of decision or method of review before the BIA. 67 FR at 54883, 54888–90. Because the BIA is established under the Attorney General’s regulations, he ‘‘is free to tailor the scope and procedures of administrative review of immigration matters as a matter of discretion.’’ 67 FR PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 31465 at 54882 (citing, e.g., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524–25 (1978)). The 2002 final rulemaking also quoted the Supreme Court’s admonition against review of certain agency matters, stating that ‘‘ ‘administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.’ ’’ Id. (quoting Vermont Yankee, 435 U.S. at 524–25 (quoting FCC v. Pottsville Broad. Co., 309 U.S. 134, 143 (1940))). Commenters also suggested that an independent review of the judgment of a single BIA member to issue an AWO is necessary to ensure the adequacy of the BIA’s review. One commenter claimed that ‘‘the AWO formula . . . affirms the result reached by the Immigration Judge but expressly eschews reliance on the Immigration Judge’s reasoning and affords no information concerning the BIA’s reasoning in affirming the decision.’’ However, the immigration judge’s decision becomes the final agency decision for the court’s review and provides reasons for the decision that can themselves be reviewed. The 2002 final rulemaking explained that ‘‘[t]he immigration judge’s order provides the rationale’’ for an AWO, and ‘‘[t]he Department does not believe there is any basis for believing that providing a regurgitation of the same facts and legal reasoning . . . will be beneficial to the respondent or the reviewing courts in most cases.’’ 67 FR at 54885–86. The 2002 final rule expressly designated the immigration judge’s decision as the one to be reviewed, required standard language to that effect in each AWO, and prohibited the BIA from adding any explanation or reasoning. See 8 CFR 1003.1(e)(4)(ii). This prohibition pertains to a single member’s reasons for affirming the immigration judge’s decision. Thus, the language of the AWO itself states, ‘‘The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination.’’ Id. (emphasis added). Moreover, as several courts have already recognized, the BIA’s judgment to issue an AWO is similar to the practices of several courts of appeals to issue a summary disposition, as a matter of judicial efficiency, in cases that are viewed as not raising novel or complex issues, or whose issues were adequately addressed by the lower court. See, e.g., Ngure v. Ashcroft, 367 F.3d 975, 984–85 (8th Cir. 2004); Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 281–82 (4th Cir. 2004); Dia, 353 F.3d at 240 n.7; Soadje v. Ashcroft, 324 F.3d 830, 832 (5th Cir. E:\FR\FM\02JYR1.SGM 02JYR1 khammond on DSKBBV9HB2PROD with RULES 31466 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Rules and Regulations 2003); see also 8th Cir. R. 47B (allowing the use of an AWO if an opinion would have no precedential value and (1) factfindings are not clearly erroneous, (2) the evidence in support of a jury verdict is not insufficient, (3) the relevant administrative order is supported by substantial evidence on the record as a whole, or (4) no error of law appears); 3d Cir. Internal Operating Procedures 10.6 (after affording parties opportunity to submit argument regarding summary action, ‘‘the court . . . may take summary action . . . if it clearly appears that no substantial question is presented or that subsequent precedent or a change in circumstances warrants such action’’); 4th Cir. R. 36.3 (allowing the use of summary affirmance, following oral argument, where all judges on a panel agree that ‘‘a case would have no precedential value, and that summary disposition is otherwise appropriate’’). It has never been thought that the Supreme Court would review the propriety of a court’s decision to use one of these summary dispositions, as opposed to the merits of the underlying decision, or that these sorts of summary dispositions are improper. See Ngure, 367 F.3d at 985. Commenters also argued that the decision to dispose of an appeal by AWO should be reviewable as a means of resolving the ‘‘jurisdictional conundrum’’ that arises when a court is unable to determine, by virtue of the AWO, the extent to which the agency’s decision rests upon grounds that it may review. This objection is invalid for several reasons. As a preliminary matter, should a court be unable to ascertain if it has jurisdiction, the court may remand under traditional principles to the agency for clarification, without reviewing the decision to issue an AWO. See SEC v. Chenery Corp., 318 U.S. 80 (1943); see also Zhu v. Ashcroft, 382 F.3d 521 (5th Cir. 2004) (finding flawed analysis of merits of asylum claim and remanding for clarification of whether the BIA agreed with the immigration judge’s determination that the asylum application was untimely). If there have been new developments between the time of the immigration judge’s decision and the BIA’s AWO, and if the court is unable to determine the agency’s decision on a question reserved for appeal, the court also has authority under Ventura principles to remand for an agency decision, again, without resorting to independent review of the decision to issue an AWO. See INS v. Ventura, 537 U.S. 12, 16–18 (2002) (per curiam); Haoud v Ashcroft, 350 F.3d 201, 208–09 (1st Cir. 2003) (remanding for an agency decision in VerDate Sep<11>2014 15:49 Jul 01, 2019 Jkt 247001 the first instance where there were intervening developments after the immigration judge’s decision not addressed by his decision). Additionally, when it is possible to conclude that one reviewable ground of the agency’s decision is valid and suffices as a basis for the immigration judge’s decision, the jurisdictional conundrum simply falls away. See, e.g., Garcia-Melendez v. Ashcroft, 351 F.3d 657, 661–62 (5th Cir. 2003) (finding that respondent applying for cancellation of removal had not established ten years’ continuous physical presence in the United States and denying the petition on that basis); cf. Dia, 353 F.3d at 272– 73 (Stapleton, J., dissenting) (noting that the court may remand for further explanation if the court, upon examination of the record, is unable to sustain the decision on the grounds stated by the immigration judge and is unable to determine the agency’s reasoning on a particular point). Commenters also objected that the Department’s intent regarding the nature and purpose of its regulations is immaterial to whether a court may independently review the BIA’s decision to issue an AWO. Settled case law, however, restricts judicial review of an agency’s compliance with procedural rules in instances in which the rule in question is designed primarily to benefit the agency carrying out its functions, rather than ‘‘to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion.’’ Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 538–39 (1970). Agencies possess authority to create internal rules to govern their management and performance of their duties that are not intended to also create judicially enforceable rights. See, e.g., Sandin v. Conner, 515 U.S. 472, 481–83 (1995) (recognizing that regulations governing the adjudication of inmate disciplinary charges may be designed primarily to guide correctional officials in administering a prison, and not to create judicially enforceable rights in inmates). Under such circumstances, the agency’s compliance with its processes is traditionally not subject to review because the decision whether to follow those processes is committed to agency discretion by law. See Heckler v. Chaney, 470 U.S. 821, 826, 836 (1985) (FDA policy statement that agency is ‘‘obligated’’ to investigate unapproved uses of an approved drug when such use became ‘‘widespread’’ or ‘‘endanger[ed] the public health’’ did not create procedural right to insist on PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 investigation of state’s use of drugs in executing condemned prisoners). The foregoing discussion and the relevant text in the final regulation seek to set forth the Department’s position as it has existed since the establishment of the streamlining process and to clarify that the rules governing § 1003.1(e)(4) through (6) are internal agency rules designed to assist the BIA in efficiently managing its caseload and carrying out its duties. The 2002 rule was successful in creating procedures that increased efficiency and promoted finality in immigration cases. The rule was not intended to create an additional layer of judicial review or a substantive right to review the form of the BIA’s decision. The efficient and fair adjudication of immigration appeals remains a priority of the Department. This revision to the regulations in no way reflects a diminished commitment to timely and fair adjudications at the administrative appeal level. Accordingly, this final rule does not adopt the changes to 8 CFR 1003.1(e)(4) related to the AWO process in the proposed rule and retains the language noting that the decision to issue an AWO remains mandatory in appropriate circumstances. It also clarifies that a decision to issue any particular form of decision is a decision based on an internal agency rule or directive created for the purpose of efficient case management that does not create any substantive or procedural rights. B. Scope of BIA’s Dispositions on Appeal The 2008 proposed rule sought to provide regulatory authority for the Department’s longstanding position regarding the scope of a BIA decision regardless of the form of the decision. First, the proposed regulatory text provided that ‘‘[a] decision by the Board . . . carries the presumption that the Board properly and thoroughly considered all issues, arguments, claims and record evidence raised or presented by the parties, whether or not specifically mentioned in the decision.’’ 73 FR at 34663. The purpose of the proposed rule was to clarify that ‘‘the Board need not specifically address every issue raised on appeal, but is presumed to have considered all properly raised issues on appeal in reaching its decision, even if that decision is an AWO or short order that does not specifically discuss every issue the parties may have raised on appeal.’’ 73 FR at 34658 (citing, e.g., Toussaint v. Att’y Gen., 455 F.3d 409 (3d. Cir. 2006)). Second, the rule proposed that the BIA’s decision, whether in the form of an AWO, a single-member decision, or E:\FR\FM\02JYR1.SGM 02JYR1 khammond on DSKBBV9HB2PROD with RULES Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Rules and Regulations a three-member panel decision, is based on issues and claims of error that the parties raised on appeal and is not to be construed as waiving a party’s obligation to exhaust issues and claims before the BIA. 73 FR at 34663. The proposed rule sought to clarify the parties’ obligations to identify issues, arguments, and claims of error on appeal in a meaningful manner and with sufficient precision, even in instances where the BIA, in its discretion, sua sponte considers issues not raised on appeal. 73 FR at 34658. Third, the rule proposed to make clear that ‘‘the Board may address an issue that was not raised on appeal sua sponte.’’ Id. One commenter objected to the stated formalization of a presumption that the BIA properly and thoroughly adjudicates appeals before it, contending that the proposed rule would impede judicial review of BIA decisions and, in effect, would supersede the Department’s commitment to provide a reasoned agency decision adequate for judicial review. The Department rejects this argument. The proposed presumption is simply a particularized statement of the well-settled presumption of regularity that attaches to agency processes. See, e.g., INS v. Miranda, 459 U.S. 14, 18 (1982) (presumption of regularity applied to agency adjudication of application for lawful permanent resident status). Board Members, like other government officials, ‘‘d[o] their jobs fairly, conscientiously and thoroughly.’’ Angov v. Lynch, 788 F.3d 893, 905 (9th Cir. 2015) (applying the presumption of regularity to a Department of State letter reflecting the overseas investigation of an asylum claim). Moreover, the proposed rule does not supersede other regulations that govern BIA adjudications and is not intended to impede judicial review or supersede pertinent circuit precedent. See 8 CFR 1003.1; Matter of OlivaresMartinez, 23 I&N Dec. 148 (BIA 2001); Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989). With regard to exhaustion, the commenter objected to the proposed rule on the grounds that it is an improper attempt to regulate the jurisdiction of the courts of appeals and that use of the term ‘‘meaningful manner’’ creates a more demanding standard than the prevailing standards reflected in judicial opinions. In light of the comment, and upon further consideration, the Department believes that revisions are warranted to clarify the intent of the proposed rule. As initially proposed in 2008, the rule provided that a BIA decision ‘‘is not to VerDate Sep<11>2014 15:49 Jul 01, 2019 Jkt 247001 be construed as waiving a party’s obligation to exhaust administrative remedies by raising in a meaningful manner all issues and claims of error in the first instance on appeal to the Board.’’ 73 FR at 34663. In adjudicating appeals, the BIA follows the party presentation rule. See, e.g., Matter of M– A–S–, 24 I&N Dec. 762, 767 n.2 (BIA 2009) (noting that DHS did not advance any argument on appeal about additional conditions on the immigration judge’s voluntary departure order) (citing Greenlaw v. United States, 554 U.S. 237 (2008)). Under this rule, it is the responsibility of each party to advance its arguments on appeal to the BIA because adversarial proceedings ‘‘rely on the parties to frame the issues for decision and assign to [the adjudicator] the role of neutral arbiter of matters the parties present.’’ Greenlaw, 554 U.S. at 243. This principle applies throughout ‘‘our adversary system, in both civil and criminal cases, in the first instance and on appeal.’’ Id.; see also Honcharov v. Barr, No. 15–71554, 2019 U.S. App. LEXIS 15804, at *5–6 (9th Cir. May 29, 2019) (explaining that ‘‘[w]aiver and forfeiture are . . . important tools for preserving the structure of hierarchical court systems,’’ and that these principles likewise ‘‘hold in the context of removal proceedings in the [EOIR]’’). The proposed rule sought to reaffirm the obligation of the parties to raise any and all issues and claims before the BIA. See 8 CFR 1003.3(b), 1003.2(b); see also 8 CFR 1003.2(c) (requiring the parties moving to reopen proceedings to identify and specify findings and errors and state new facts to be proved). Indeed, when a party fails to specify the reasons for appeal, the BIA may summarily dismiss it without further consideration of the underlying merits of the case. 8 CFR 1003.1(d)(2)(i)(A). The requirement that the parties allege errors, issues, arguments, or claims with particularity aids the Board in adjudicating the cases before it. Thus, as is its practice, the BIA may decide an appeal or motion based on a party’s failure to raise an alleged error, issue, argument, or claim before the BIA, the immigration court, or DHS immigration officer, if such error, issue, argument, or claim existed at the time of adjudication of the appealed matter. See, e.g., Honcharov, 2019 U.S. App. LEXIS 15804, at *6–7 (joining ‘‘every other circuit to have addressed the issue’’ in concluding that ‘‘the Board may apply a procedural default rule to arguments raised for the first time on appeal’’). The Department seeks to clarify that the ‘‘obligation to exhaust,’’ as set forth PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 31467 in the proposed rule, is a separate and distinct matter from the doctrine of ‘‘exhaustion of administrative remedies,’’ as set forth in section 242(d)(1) of the Immigration and Naturalization Act (the Act), which refers to the jurisdictional limits of a federal court’s review of an issue.4 See id. at *5 n.2 (explaining that ‘‘[w]aiver and forfeiture in this context are related to, but distinct from, the doctrine[ ] of exhaustion’’). Nonetheless, for purposes of clarification, the Department has removed the reference to exhaustion of administrative remedies in this final rule. The Department also has removed the ‘‘meaningful manner’’ language because it is not the Department’s intention to establish a novel ‘‘meaningful manner’’ standard for presenting claims before the BIA. Instead, the rule seeks to simply reaffirm the need of the parties to raise any and all issues to the BIA on appeal. The rule further clarifies that the BIA, in the exercise of its discretion, may rule on an issue not raised by the parties on appeal if the issue was addressed in the underlying decision. However, this rule is not intended to alter the BIA’s practice of not considering evidence proffered for the first time on appeal. See, e.g., Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988). Finally, the Department has determined that, given the content of this aspect of the rule, this provision is more appropriately included in a new paragraph at § 1003.1(e)(9), rather than paragraph (e)(4), as previously proposed. Accordingly, this final rule, in new § 1003.1(e)(9), states that a decision by the Board under paragraph (e)(4), (5), or (6) of that section carries the presumption that ‘‘the Board properly and thoroughly considered all issues, arguments, and claims raised or presented by the parties on appeal or in a motion that were deemed appropriate to the disposition of the appeal or motion, whether or not specifically mentioned in the decision.’’ A decision also carries the presumption that the 4 Language in some decisions of the courts of appeals suggests that the BIA can waive the application of the exhaustion of remedies requirement set forth in section 242(d)(1) of the Act. However, that language, properly read, refers to the BIA’s authority to consider an issue that was not presented, specified, or identified by the parties where the Board determines it is ‘‘administrativelyripe to warrant its appellate review,’’ as distinguished from the separate question of whether an issue has been preserved for appellate review in the courts of appeals. Sidabutar v. Gonzales, 503 F.3d 1116, 1119–22 (10th Cir. 2007); see also Bin Lin v. Att’y Gen., 543 F.3d 114, 122–26 (3d Cir. 2008); Pasha v. Gonzales, 433 F.3d 530, 532–33 (7th Cir. 2005); Hassan v. Gonzales, 403 F.3d 429, 432– 33 (6th Cir. 2005); Johnson v. Ashcroft, 378 F.3d 164, 170 (2d Cir. 2004). E:\FR\FM\02JYR1.SGM 02JYR1 31468 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Rules and Regulations khammond on DSKBBV9HB2PROD with RULES BIA did not need to consider any issue, argument, or claim not raised or presented by the parties on appeal or in the motion. In addition to the issues discussed above, one commenter contended that the provision authorizing the BIA to consider issues sua sponte authorizes violations of the BIA’s review standards and permits the BIA to engage in factfinding in violation of regulatory or court rules. The commenter argued that allowing the BIA to consider issues sua sponte would ‘‘empower the BIA to provide the reasoning missing from an Immigration Judge’s opinion so long as the issue was somehow presented before the Immigration Judge.’’ The commenter misunderstands the purpose of the rule. This rule is not intended to undermine the fact-finding authority or to supplement the factfinding of the immigration judge. Rather, this rule is intended to allow the BIA to resolve issues, when necessary or appropriate, to ensure proper and thorough review of the appeal or motion before it, to provide guidance on the interpretation of the immigration laws and regulations, or to address recurring legal, procedural, and factual issues. Lastly, this provision permits the BIA to address the conduct of immigration judges when appropriate and where such issues were not raised by the parties. Thus, the BIA must have the tools and flexibility to properly adjudicate the appeals and motions before it. The Department agrees with the commenter that there should be a vehicle by which parties, in appropriate cases, may be provided an opportunity to address dispositive issues the BIA wishes to consider sua sponte before the BIA renders a decision. For this reason, the final rule permits the BIA to set a supplementary briefing schedule where it chooses to consider an issue not raised by the parties in its discretion by stating, in § 1003.1(e)(9), that in any decision under paragraph (e)(5) or (6) of that section, ‘‘the Board may rule, in the exercise of its discretion as provided under this part, on any issue, argument, or claim not raised by the parties, and the Board may solicit supplemental briefing from the parties on the issue(s) to be considered before rendering a decision.’’ C. Three-Member Panel Decisions The 2008 proposed rule sought to improve the BIA’s review of complex and problematic cases by expanding the criteria for three-member decisions under 8 CFR 1003.1(e)(6). The public comments that addressed this provision VerDate Sep<11>2014 15:49 Jul 01, 2019 Jkt 247001 supported the decision to expand the criteria. The proposed rule added a seventh criterion that would have allowed a BIA member, in the exercise of discretion, to refer a case to a three-member panel when the case presents a ‘‘complex, novel, or unusual issue of law or fact.’’ See 73 FR at 34663. Upon further consideration, the Department is revising this criterion to state that a BIA member may refer a case for threemember review ‘‘to resolve a complex, novel, unusual, or recurring issue of law or fact.’’ (Emphasis added.) Addition of the word ‘‘recurring’’ recognizes that the BIA is in the best position to identify issues that are recurring nationwide. Such issues may not result in inconsistent decisions among immigrations judges or rise to the level of ‘‘major national import,’’ see 8 CFR 1003.1(e)(6)(i), (iv), yet immigration judges, attorneys, respondents, and the federal courts still might benefit from guidance from the BIA on how to address such recurring issues. Allowing for referral to a three-member panel will result in enhanced review and analysis and perhaps publication of a precedent decision to provide nationwide guidance, if necessary. Accordingly, the final rule adopts the proposal to expand the criteria to allow for referral to a three-member panel. This final rule amends 8 CFR 1003.1(e)(6) by adding a new paragraph (vii) to allow assignment to a threemember panel for review when there is a ’’ need to resolve a complex, novel, unusual, or recurring issue of law or fact.’’ D. Publication of Precedent Decisions One comment, which was endorsed by another commenter, expressed concern with the proposal to authorize a vote by three-member panels on whether to issue precedent decisions. The comment stated that the proposal is unnecessary, ripe for possible misuse, and lacking in adequate oversight and guarantees of uniformity. The comment stated that it would be a mistake to allow two permanent members of the BIA to issue a precedent decision without first obtaining approval of a majority of permanent BIA members. The comment reasoned that the proposed regulation allows only for notice to other members of the BIA; that there is nothing in the supplemental information to indicate that the existing system is burdensome or unworkable; and that the change will result in increased numbers of precedent decisions. The comment concluded that the BIA is currently issuing an adequate number of decisions and that the courts PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 are demonstrating appropriate deference to the BIA. In general, the Department agrees with these comments and has decided not to adopt the proposal to allow the BIA to issue precedent decisions by majority vote of permanent members of a three-member panel. Although the number of BIA precedent decisions has varied from year to year, the Board has averaged nearly 29 precedent decisions each year over the last 14 years, and it has issued fewer than 23 precedent decisions only once, in 2005, when it issued 11. Consequently, it does not appear that the Board’s current process for precedent decisions is unworkable or has inhibited it from providing necessary guidance through published decisions. In short, the Department has determined that the process currently in place for BIA’s designation and publication of precedent decisions is appropriate and adequate. Under this process, the BIA will continue to publish its precedent decisions as three-member panel decisions through the process of a majority vote of permanent members of the BIA and not, as initially proposed, by majority vote of the permanent BIA members assigned to a three-member panel. Adopting the proposed change would be counterproductive and inefficient, creating a greater likelihood of inconsistency among BIA member panels involving similar cases and issues that could be potentially selected for publication. Such potential for greater inconsistency and lack of uniformity among the panel decisions selected for publication would be further amplified by a recent regulation increasing the size of the BIA from 17 to 21 members. See Expanding the Size of the Board of Immigration Appeals, 83 FR 8321 (Feb. 27, 2018). Moreover, the mechanism for resolving this issue, considering a case en banc, does not substantively differ from the current procedure in which Board members vote en banc to publish a decision as precedent. Thus, the proposed change would simply add an additional level of process in order to ultimately achieve a similar result as the current process. The BIA, as an appellate body and the highest administrative tribunal interpreting immigration law, is charged with, inter alia, providing clear and uniform guidance across the country in applying and interpreting immigration law. Ensuring that only the majority of permanent BIA members vote on and select cases to serve as precedent will continue to provide an invaluable safeguard against unnecessary and potentially conflicting outcomes in cases under the BIA’s review. Moreover, E:\FR\FM\02JYR1.SGM 02JYR1 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Rules and Regulations khammond on DSKBBV9HB2PROD with RULES the participation of all BIA members in the precedent decision selection and voting process is essential to the efficient and collaborative function of the BIA. This final rule therefore does not adopt the proposal to allow the BIA to issue precedent decisions by majority vote of permanent members of threemember panels. The Department did not receive any comments on the criteria for publication, in § 1003.1(g)(3)(i) through (vi) of the proposed rule, and adopts this provision with only one change. In addition to the standard in the proposed rule for a decision that ‘‘modifies or clarifies a rule of law or prior precedent,’’ the final rule also includes a reference to a decision that ‘‘distinguishes’’ a rule of law or prior precedent. This standard will allow the BIA to not only consider whether publication of a decision that ‘‘modifies, clarifies, or distinguishes’’ a rule of law or prior precedent is necessary to maintain consistency and uniformity, but also to consider whether a choice not to publish a decision that could potentially be seen as clarifying or distinguishing a prior precedent may result in a lack of clear guidance to immigration judges and parties as to the proper course to follow in other cases because an unpublished decision by the BIA is not binding in other cases. As discussed above, the Attorney General expects that the BIA will continue to exercise its authority to issue precedent decisions as widely as is practicable to promote the consistency and uniformity of adjudications and to provide authoritative nationwide guidance to the immigration judges, the government, the respondents in immigration proceedings, petitioners for certain alien relatives, members of the immigration bar, and the federal courts with respect to the interpretation of ambiguous provisions of the immigration statutes and regulations and recurring legal, procedural, and factual issues arising in the adjudication of cases before the immigration judges, the U.S. Citizenship and Immigration Services, and the BIA. E. Review of Decisions Involving Recognition and Accreditation Although the regulations transferring responsibility for the recognition and accreditation program clarified the new designation of officials responsible for issuing decisions in those cases,5 the 5 The OLAP Director adjudicates initial applications for recognition or accreditation, adjudicates requests for renewal of recognition or accreditation, and makes determinations on administrative termination of recognition or accreditation; he also adjudicates requests for VerDate Sep<11>2014 15:49 Jul 01, 2019 Jkt 247001 prior regulatory changes did not address the precedential nature of any such decisions going forward, leaving EOIR without any specified authority to continue to issue precedent decisions to provide guidance in these cases. This oversight was unintentional, and EOIR continues to maintain that precedential guidance in recognition and accreditation cases is important, especially now that the BIA no longer issues the decisions in those cases. See 8 CFR 1292.18. The revisions to this part are matters relating to agency management or personnel and impose no burdens on the public. Further, although the Attorney General maintains plenary authority over immigration matters handled by EOIR, the transfer of oversight responsibility for the recognition and accreditation program from the BIA to OLAP did not include a specific mechanism for the referral of recognition and accreditation cases for review by the Attorney General. For these reasons, the final rule corrects an oversight regarding precedent decisions involving EOIR’s recognition and accreditation program. This correction, which is a logical outgrowth of the broader review of the BIA’s use of precedent in the 2008 proposed rulemaking, allows for the continued publication of precedent decisions pertaining to recognition and accreditation, even though those decisions are no longer issued by the BIA. The final rule also corrects a related oversight by reestablishing an explicit mechanism for decisions involving recognition and accreditation to be referred to the Attorney General now that they are no longer adjudicated by the BIA. IV. Regulatory Requirements A. Regulatory Flexibility Act Pursuant to the Regulatory Flexibility Act, the Attorney General certifies that this rule will not have a significant economic impact on a substantial number of small businesses or small governmental entities. This rule is related to agency organization and management of cases pending before the immigration judges and the Board. Accordingly, the preparation of a Regulatory Flexibility Analysis is not required. reconsideration of any of these decisions. 8 CFR 1292.13, 1292.16, 1292.17. The EOIR Director adjudicates requests to review the reconsideration decisions of the OLAP Director. 8 CFR 1292.18. PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 31469 B. 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. C. Congressional Review Act of 1996 This rule is not a major rule as defined by section 251 of the Congressional Review Act, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. D. Executive Orders 12866, 13563, and 13771 (Regulatory Review) 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 potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of using the best available methods to quantify costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 13771 directs agencies to reduce regulation and control regulatory costs and, for all qualifying regulations, to identify at least two existing regulations for elimination. This rule has been drafted in accordance with the principles of Executive Order 12866, section 1(b), and Executive Order 13563. Although the notice of proposed rulemaking in 2008 proposed changes to the AWO process, the final regulation does not adopt those changes and does not actually change any part of the AWO process nor amend the portions of 8 CFR 1003.1(e)(4) relating to AWOs. Consequently, there is no expected increase in the use of AWOs due to the final regulation. Although the use of AWOs is not expected to increase as a result of the final regulation, the Department acknowledges that the final rule may nonetheless raise novel legal or policy issues. The Department thus considers E:\FR\FM\02JYR1.SGM 02JYR1 31470 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Rules and Regulations the rule to be a ‘‘significant regulatory action’’ under section 3(f)(4) of Executive Order 12866, and the regulation has accordingly been submitted to the Office of Management and Budget for review. Finally, this rule is exempt from the requirements of Executive Order 13771 because this rule concerns regulations related to agency organization, management, or personnel. The final rule is an internal rule of procedure that relates to the management of immigration cases on appeal. It does not alter any substantive rights, and it conforms to existing directives on the efficient management and disposition of cases. Accordingly, it does not impose any additional costs on the processing of cases on appeal. 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 preparation of a federalism summary impact statement. F. Executive Order 12988 (Civil Justice Reform) This rule has been prepared in accordance with the standards in sections 3(a) and 3(b)(2) of Executive Order 12988. G. Paperwork Reduction Act This rule is exempt from the requirements of the Paperwork Reduction Act because it does not create any information collection requirements. List of Subjects khammond on DSKBBV9HB2PROD with RULES 8 CFR Part 1003 Administrative practice and procedure, Aliens, Immigration, Legal services, Organization and functions (Government agencies). 8 CFR Part 1292 Administrative practice and procedure, Immigration, Lawyers, Referrals, Precedent decisions. Accordingly, for the reasons set forth in the preamble, 8 CFR parts 1003 and 1292 are amended as follows: PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 1. The authority citation for part 1003 continues to read as follows: ■ VerDate Sep<11>2014 15:49 Jul 01, 2019 Jkt 247001 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. Section 1003.1 is amended: a. In paragraph (e)(6)(iii), by removing ‘‘the Service’’ and adding in its place ‘‘DHS’’; ■ b. In paragraph (e)(6)(v), by removing ‘‘or’’; ■ c. In paragraph (e)(6)(vi), by removing ‘‘the Service’’ and adding in its place ‘‘DHS’’ and by removing the period at the end and adding in its place ‘‘; or’’; ■ d. By adding paragraphs (e)(6)(vii) and (e)(9); and ■ e. By revising paragraph (g). The additions and revision read as follows: ■ ■ § 1003.1 Organization, jurisdiction, and powers of the Board of Immigration Appeals. * * * * * (e) * * * (6) * * * (vii) The need to resolve a complex, novel, unusual, or recurring issue of law or fact. * * * * * (9) The provisions of paragraphs (e)(4)(i) and (e)(5) and (6) of this section are internal agency directives for the purpose of efficient management and disposition of cases pending before the Board and are not intended to create any substantive or procedural rights to a particular form of Board decision. A decision by the Board under paragraph (e)(4), (5), or (6) of this section carries the presumption that the Board properly and thoroughly considered all issues, arguments, and claims raised or presented by the parties on appeal or in a motion that were deemed appropriate to the disposition of the appeal or motion, whether or not specifically mentioned in the decision. A decision by the Board under paragraph (e)(4), (5), or (6) also carries the presumption that the Board did not need to consider any issue, argument, or claim not raised or presented by the parties on appeal or in a motion to the Board. In any decision under paragraph (e)(5) or (6) of this section, the Board may rule, in the exercise of its discretion as provided under this part, on any issue, argument, or claim not raised by the parties, and the Board may solicit supplemental briefing from the parties on the issues to PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 be considered before rendering a decision. * * * * * (g) Decisions as precedents—(1) In general. Except as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board and decisions of the Attorney General are binding on all officers and employees of DHS or immigration judges in the administration of the immigration laws of the United States. (2) Precedent decisions. Selected decisions designated by the Board, decisions of the Attorney General, and decisions of the Secretary of Homeland Security as provided in paragraph (h)(2)(i) of this section will be published and serve as precedents in all proceedings involving the same issue or issues. (3) Designation of precedents. By majority vote of the permanent Board members, or as directed by the Attorney General or his designee, selected decisions of the Board issued by a threemember panel or by the Board en banc may be designated to be published and to serve as precedents in all proceedings involving the same issue or issues. In determining whether to publish a precedent decision, the Board may take into account relevant considerations, in the exercise of discretion, including among other matters: (i) Whether the case involves a substantial issue of first impression; (ii) Whether the case involves a legal, factual, procedural, or discretionary issue that can be expected to arise frequently in immigration cases; (iii) Whether the issuance of a precedent decision is needed because the decision announces a new rule of law, or modifies, clarifies, or distinguishes a rule of law or prior precedent; (iv) Whether the case involves a conflict in decisions by immigration judges, the Board, or the federal courts; (v) Whether there is a need to achieve, maintain, or restore national uniformity of interpretation of issues under the immigration laws or regulations; and (vi) Whether the case warrants publication in light of other factors that give it general public interest. * * * * * PART 1292—REPRESENTATION AND APPEARANCES 3. The authority citation for part 1292 continues to read as fol1ows: ■ Authority: 8 U.S.C. 1103, 1362. 4. In § 1292.18, add paragraphs (c) and (d) to read as follows: ■ E:\FR\FM\02JYR1.SGM 02JYR1 Federal Register / Vol. 84, No. 127 / Tuesday, July 2, 2019 / Rules and Regulations § 1292.18 Administrative review of denied requests for reconsideration. * * * * * (c) Referral of cases to the Attorney General. The Director will refer to the Attorney General for review of decisions pursuant to this section in all cases that the Attorney General directs the Director to refer to him or that the Director believes should be referred to him. (d) Decisions as precedents. The Director, in his discretion, may cause reconsideration decisions by the OLAP Director pursuant to § 1292.13(e), § 1292.16(f), or § 1292.17(d), or decisions by the Director pursuant to this section to be published as precedents in the same manner as decisions of the Board and the Attorney General. Such decisions by the OLAP Director, except as overruled by the Director, and such decisions by the Director, except as overruled by the Attorney General, will serve as precedents in all proceedings under part 1292 involving the same issue or issues. Dated: June 25, 2019. William P. Barr, Attorney General. [FR Doc. 2019–13933 Filed 7–1–19; 8:45 am] BILLING CODE 4410–30–P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 10 and 800 [Docket No. FDA–2016–N–2378] RIN 0910–AH37 Internal Agency Review of Decisions; Requests for Supervisory Review of Certain Decisions Made by the Center for Devices and Radiological Health AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. The Food and Drug Administration (FDA or Agency) is issuing a final rule to amend its regulations regarding internal agency supervisory review of certain decisions related to devices regulated by the Center for Devices and Radiological Health (CDRH or the Center) under the Federal Food, Drug, and Cosmetic Act (FD&C Act) to conform to the applicable provisions in the FD&C Act, as amended by the Food and Drug Administration Safety and Innovation Act (FDASIA) and the 21st Century Cures Act (Cures Act). This final rule codifies the khammond on DSKBBV9HB2PROD with RULES SUMMARY: VerDate Sep<11>2014 15:49 Jul 01, 2019 Jkt 247001 procedures and timeframes for supervisory review of significant decisions pertaining to devices within CDRH. FDA is also finalizing regulations to provide new procedural requirements for requesting internal agency supervisory review within CDRH of other types of decisions made by CDRH not addressed in FDASIA and the Cures Act. This action is also part of FDA’s implementation of Executive Orders (EOs) 13771 and 13777. Under these EOs, FDA is comprehensively reviewing existing regulations to identify opportunities for repeal, replacement, or modification that will result in meaningful burden reduction, while allowing the Agency to achieve its public health mission and fulfill statutory obligations. DATES: This rule is effective August 1, 2019. ADDRESSES: For access to the docket to read background documents or comments received, go to https:// www.regulations.gov and insert the docket number found in brackets in the heading of this final rule into the ‘‘Search’’ box and follow the prompts, and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852. FOR FURTHER INFORMATION CONTACT: With regard to the final rule: Adaeze Teme, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5574, Silver Spring, MD 20993–0002, 240–402–0768; or the Ombudsman for the Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 4282, Silver Spring, MD 20993–0002, 301–796–5669, or CDRHOmbudsman@fda.hhs.gov. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary A. Purpose of the Final Rule B. Summary of the Major Provisions of the Final Rule C. Legal Authority D. Costs and Benefits II. Table of Abbreviations/Commonly Used Acronyms in This Document III. Background A. Need for the Regulation/History of the Rulemaking B. Summary of Comments in Response to the Proposed Rule IV. Legal Authority V. Comments on the Proposed Rule and FDA Response A. Introduction B. Description of Comments and FDA Responses VI. Effective Date VII. Economic Analysis of Impacts VIII. Analysis of Environmental Impact PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 31471 IX. Paperwork Reduction Act of 1995 X. Federalism XI. Consultation and Coordination With Indian Tribal Governments I. Executive Summary A. Purpose of the Final Rule FDA is issuing this final rule to implement regulations on the procedures regarding internal agency supervisory review of certain decisions made by CDRH under the FD&C Act. Section 603 of FDASIA (Pub. L. 112– 144) added new section 517A to the FD&C Act (21 U.S.C. 360g–1), which was amended by sections 3051 and 3058 of the Cures Act (Pub. L. 114–255). These provisions established procedures and timeframes for supervisory review under Title 21 of the Code of Federal Regulations (CFR) § 10.75 (21 CFR 10.75) of significant decisions by CDRH pertaining to devices. After the enactment of FDASIA, FDA issued a guidance document entitled ‘‘Center for Devices and Radiological Health Appeals Processes: Questions and Answers About 517A—Guidance for Industry and Food and Drug Administration Staff’’ (Q&A Guidance) to provide interpretation of key provisions of section 517A of the FD&C Act, including those that pertain to requests for supervisory review of significant decisions by CDRH (available at: https://www.fda.gov/downloads/ MedicalDevices/DeviceRegulation andGuidance/GuidanceDocuments/ UCM352254.pdf). FDA is finalizing this regulation to codify: (1) The procedures and timeframes for § 10.75 appeals of ‘‘significant decisions’’ by CDRH established under section 517A and (2) the interpretation of key provisions of section 517A of the FD&C Act regarding supervisory review. In addition, the regulations codify new procedural requirements for supervisory review within CDRH of other CDRH decisions that were not addressed in FDASIA and the Cures Act. The final rule provides transparency and clarity for internal and external stakeholders on CDRH’s process for supervisory review of decisions and provides requesters new predictability through binding deadlines for FDA action on a request for supervisory review within CDRH and the Center’s internal agency review of ‘‘significant decisions.’’ Furthermore, this final rule codifies the types of decisions that are considered ‘‘significant decisions,’’ for which the timeframes apply. The final regulations also codify the timeframe for submission of requests for the review of other decisions within CDRH. E:\FR\FM\02JYR1.SGM 02JYR1

Agencies

[Federal Register Volume 84, Number 127 (Tuesday, July 2, 2019)]
[Rules and Regulations]
[Pages 31463-31471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13933]



[[Page 31463]]

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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003 and 1292

[EOIR Docket No. 159; AG Order No. 4478-2019]
RIN 1125-AA58


Board of Immigration Appeals: Affirmance Without Opinion, 
Referral for Panel Review, and Publication of Decisions as Precedents

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

ACTION: Final rule.

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SUMMARY: The Department of Justice (Department) is publishing this 
final rule (``final rule'' or ``rule'') to amend the regulations 
regarding the administrative review procedures of the Board of 
Immigration Appeals (BIA or Board). This final rule sets forth the 
Department's longstanding position that the regulations providing for 
an affirmance without opinion (AWO), a single-member opinion, or a 
three-member panel opinion are not intended to create any substantive 
right to a particular manner of review or decision. The final rule also 
clarifies that the BIA is presumed to have considered all of the 
parties' relevant issues and claims of error on appeal regardless of 
the type of the BIA's decision, and that the parties are obligated to 
raise issues and exhaust claims of error before the BIA. In addition, 
the final rule codifies standards for the BIA's consideration in 
evaluating whether to designate particular decisions as precedents. 
Finally, the final rule provides clarity surrounding precedent 
decisions in the context of decisions from the Executive Office for 
Immigration Review (EOIR) regarding the recognition of organizations 
and the designation of accredited representatives.

DATES: This rule is effective September 3, 2019.

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, 
Office of Policy, Executive Office for Immigration Review, 5107 
Leesburg Pike, Suite 2616, Falls Church, Virginia 22041; telephone 
(703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

    The Department published a proposed rule with request for comments 
in the Federal Register in June 2008. See Board of Immigration Appeals: 
Affirmance Without Opinion, Referral for Panel Review, and Publication 
of Decisions as Precedents, 73 FR 34654 (June 18, 2008). At the 
conclusion of the comment period on August 18, 2008, three public 
interest law and advocacy groups; two law professors; a law student and 
a recent law school graduate; and one non-attorney had submitted six 
sets of comments. Because some comments overlapped, and because other 
commenters covered multiple topics, the comments are addressed 
summarily by topic in Section III, infra.

II. Introduction

A. Background

    On October 18, 1999, the Department published a final rule 
authorizing a single BIA member to affirm the decision of an 
immigration judge by a summary written order without issuing a separate 
written opinion. See Executive Office for Immigration Review; Board of 
Immigration Appeals: Streamlining, 64 FR 56135 (Oct. 18, 1999). The 
written order used for this purpose is commonly referred to as an 
affirmance without opinion (AWO). The AWO contains only two sentences, 
both prescribed by regulation, without any additional language or 
explanation for the affirmance. Under the relevant regulations, the AWO 
states: ``The Board affirms, without opinion, the result of the 
decision below [i.e., the decision of the immigration judge or the 
Department of Homeland Security (DHS) officer that was appealed to the 
BIA]. The decision below is, therefore, the final agency determination. 
See 8 CFR 3.1(a)(7).'' \1\ See 8 CFR 1003.1(e)(4)(ii).\2\
---------------------------------------------------------------------------

    \1\ The text later changed to cite to 8 CFR 3.1(e)(4). See 67 FR 
at 54903.
    \2\ The background discussion accompanying the proposed rule 
published in the current rulemaking proceeding contains an account 
of the history and use of AWOs. 73 FR at 34655-57.
---------------------------------------------------------------------------

    In 2002, the Department published a final rule that, while 
maintaining the basic AWO process, mandated the use of an AWO in any 
case that met the regulatory threshold criteria. See Board of 
Immigration Appeals: Procedural Reforms To Improve Case Management, 67 
FR 54878 (Aug. 26, 2002). Compare 8 CFR 3.1(a)(7)(ii) (2000) (providing 
that a single BIA member ``may'' affirm without opinion), with 8 CFR 
1003.1(e)(4) (2003) \3\ (providing that a single BIA member ``shall'' 
affirm without opinion).
---------------------------------------------------------------------------

    \3\ In 2003, the Attorney General redesignated the previous 
regulations in 8 CFR part 3, relating to EOIR, as 8 CFR part 1003 in 
connection with the abolition of the former Immigration and 
Naturalization Service and the transfer of its responsibilities to 
DHS. See Aliens and Nationality; Homeland Security; Reorganization 
of Regulations, 68 FR 9824 (Feb. 28, 2003). Under the Homeland 
Security Act, EOIR (including the BIA and the immigration judges) 
remains under the authority of the Attorney General. See 6 U.S.C. 
521; 8 U.S.C. 1103(g).
---------------------------------------------------------------------------

    Under the 2002 rule, an AWO is issued if the BIA member concludes 
that ``the result reached in the decision under review was correct,'' 
that any errors in the decision were ``harmless or nonmaterial,'' and 
that either the issues on appeal are ``squarely controlled'' by 
precedent and do not present a novel factual scenario that requires a 
decision to apply precedent or are not so substantial as to warrant 
issuance of a written opinion by the BIA. 8 CFR 1003.1(e)(4)(i) (2003).
    On January 9, 2006, Attorney General Alberto Gonzales directed a 
comprehensive review of the immigration courts and the BIA. The 
Department undertook the review in response to concerns about the 
quality of the decisions of the immigration judges and the BIA and to 
reports of intemperate behavior by some immigration judges.
    The review team received comments about the BIA's streamlining 
process and its reform regulations. Critics of the procedural reforms 
rule speculated that the revised procedures allowed BIA members 
insufficient time to review cases thoroughly and made it more difficult 
for the BIA to publish adequate numbers of precedent decisions. 
Supporters observed that the reforms brought much-needed efficiency to 
the appellate process, which allowed the BIA to eliminate a large 
backlog of cases and to adjudicate cases in a more timely manner.
    On August 9, 2006, Attorney General Gonzales announced that the 
review was complete and directed that EOIR implement 22 measures to 
improve adjudications by the immigration judges and the BIA. This final 
rule is one of several regulatory actions relating to that review.

B. The Proposed Regulatory Changes

    The 2008 proposed rule stated that the Department had evaluated the 
BIA's caseload and resources and found that ``the basic principles set 
forth in the [2002] Board reform rule were still necessary to prevent 
future backlogs and delays in adjudication.'' 73 FR at 34655. Thus, the 
proposed rule did not seek comment on whether the BIA should continue 
to use AWOs. Id. (stating that ``the Department is not reopening or 
seeking public comment on the existing final regulations that were 
adopted in 2002''). Rather, the Department

[[Page 31464]]

proposed three specific adjustments that would: (1) Encourage the 
increased use of single-member written decisions instead of AWOs to 
address poor or intemperate decisions of immigration judges, (2) allow 
the use of three-member written decisions for the purpose of providing 
greater legal analysis for particularly complex cases, and (3) 
authorize three-member panels, by majority vote, to designate their 
decisions as precedent decisions. Id.

C. Decisions Regarding the Recognition of Organizations and the 
Accreditation of Representatives

    At the time of the underlying proposed rule's publication, 
responsibility for administering EOIR's recognition and accreditation 
program, which recognizes organizations and authorizes accredited 
representatives to represent aliens in immigration proceedings before 
EOIR and in cases with DHS, lay with the BIA. Consequently, under its 
general authority to issue precedent decisions, the BIA would 
intermittently issue precedent decisions in cases involving recognition 
and accreditation issues. See, e.g., Matter of United Farm Workers 
Found., 26 I&N Dec. 454 (BIA 2014) (addressing whether a recognized 
organization needs to apply for a representative's accreditation at 
more than one location). In 2017, responsibility for the recognition 
and accreditation program within EOIR was transferred from the BIA to 
the Office of Legal Access Programs (OLAP), but the transfer did not 
provide a mechanism by which EOIR could designate decisions as 
precedents. See Recognition of Organizations and Accreditation of Non-
Attorney Representatives, 81 FR 92346 (Dec. 19, 2016). This rule would 
correct that deficiency.

III. Intent and Nature of the Regulations

    In each of the respects discussed below, the Department in this 
rulemaking is revising the regulations to clarify the intent and nature 
of the regulations relating to the form of BIA decisions and the scope 
of the BIA's consideration of issues presented on appeal. The 
Department's interpretations of the intended meaning of its regulations 
are fully consistent with the Attorney General's authority to issue 
regulations and clarify the intent, purpose, and nature of those 
regulations. See INS v. Stanisic, 395 U.S. 62, 72 (1969) (quoting 
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (an 
administrative agency's interpretation of its own regulations is 
entitled to ```controlling weight unless it is plainly erroneous or 
inconsistent with the regulation'''); Matter of Armendarez-Mendez, 24 
I&N Dec. 646, 653 (BIA 2008).
    With regard to the provisions of the 2008 proposed rulemaking, the 
Department has considered the public comments, the continuing need to 
maintain AWOs as a necessary resource for BIA adjudication, and the 
goal of securing finality in immigration cases as efficiently as 
possible.
    With respect to one proposal outlined in the proposed rule, the 
Department has determined that it will not revise EOIR's regulations to 
provide for publication of precedent decisions by majority vote of the 
permanent Board members assigned to a three-member panel. Although the 
Department recognizes that a single member or a panel of BIA members is 
able to address and resolve issues in a thorough and judicious manner, 
the Department also recognizes that the BIA's published decisions 
representing the views of the majority of the en banc BIA are important 
in ensuring accuracy, consistency, uniformity, and clarity in the BIA's 
guidance and interpretation of relevant law and regulation. The current 
process better provides for the consistency of BIA case law. See Matter 
of Burbano, 20 I&N Dec. 872, 873-74 (BIA 1994). Apart from this 
decision regarding publication by majority vote, this final rule 
adopts, with changes, the regulatory amendments set forth in the 
proposed rule.
    Finally, the Department is including a related revision to the 
regulations to clarify the intent to provide for the issuance of 
precedent decisions in the context of the recognition and accreditation 
program.

A. The Form of a Board Decision

    The 2008 proposed rule discussed the Department's interpretation of 
the BIA's regulatory structure regarding the BIA's decision to issue an 
AWO or a single-member or three-member decision. 73 FR at 34656-57. The 
purpose of thats discussion was to clarify that institutional concerns, 
which are uniquely within the BIA's expertise, may factor into the 
assessment of what form of decision to issue. The Department presented 
that discussion in regards to both the proposal to allow BIA members to 
exercise discretion in determining whether to issue an AWO, 73 FR at 
34656, and the proposal to clarify that the regulations do not create 
any substantive or procedural right to a particular form of BIA 
decision, 73 FR at 34657.
    Commenters raised several objections to the discussion in both 
contexts. With regard to the BIA's discretion, the proposed rule stated 
that:

    In determining whether to exercise its discretion to issue an 
AWO or a single-member opinion, the Board may consider available 
resources to balance the need to complete cases efficiently while 
evaluating whether there is a need to provide further guidance to 
the immigration judge, the parties, and the federal courts through a 
written decision addressing the issues in a case.

73 FR at 34356. The commenters who raised issues concerning this 
statement argued that the BIA's caseload and resources should have no 
bearing on what form of decision the BIA uses or whether to resolve an 
appeal by an AWO or other type of decision. One commenter suggested 
that if caseload and resources are considerations, a BIA member might 
use the streamlining process to ``deny an immigrant's claim, rather 
than grant relief, on the grounds that the Board member reviewing the 
case simply lacked the time or inclination to spend his or her 
resources writing a reasoned, public opinion for that particular 
case.''
    The BIA employs a staff of attorneys, paralegals, and support 
personnel that prepares the cases and draft decisions for BIA member 
review. In particular, under the BIA's case-processing system, a staff 
attorney reviews a case and recommends issuance of a decision as an 
AWO, a single-member decision, or a three-member decision. A BIA member 
then decides what form of decision to issue after an independent review 
of the record of proceedings and consideration of the nature of the 
case, the issues and arguments presented by the parties in support of 
the appeal or motion, and prior agency decisions. The BIA member also 
assesses whether the regulatory criteria set forth in 8 CFR 
1003.1(e)(4)(i), (e)(5), or (e)(6) require the issuance of an AWO 
decision, warrant a single-member decision, or warrant referral to a 
three-member panel for decision. Thus, a BIA member--in contrast to the 
commenter's suggestion--does not decide whether to issue an AWO based 
on whether he ``lack[s] the time or inclination to spend his or her 
resources writing a reasoned, public opinion for that particular 
case.''
    The Department seeks to clarify that the use of an AWO does not 
reflect an abbreviated review of a case, but rather reflects the use of 
an abbreviated order to describe that review where the regulatory 
requirements of 8 CFR 1003.1(e)(4)(i) are met. The Department also 
seeks to clarify that a case before the BIA undergoes tiers of staff 
screening and review with a BIA member who ultimately determines

[[Page 31465]]

what form of decision to use. Accordingly, the Department is satisfied 
that each case has undergone thorough and complete review before a 
determination of whether an AWO is required. This final rule retains an 
AWO as a mandatory form of decision to be issued in appropriate 
situations.
    Taking into account caseload and resources in deciding what form of 
decision the BIA chooses to issue is not new. In 1999, Attorney General 
Janet Reno linked resource and caseload concerns to the form of the 
BIA's dispositions when she created the first AWO and single-member 
reforms and observed that three-member written opinions are time 
consuming, require significant resources, and should be used 
selectively. See 64 FR at 56136-38; see also Matter of Burbano, 20 I&N 
Dec. at 874 (recognizing that ``summary treatment of a case does not 
mean that we have conducted an abbreviated review of the record or have 
failed to exercise our own discretion''). The BIA in 1998 received in 
excess of 28,000 new cases, and concerns about resource management have 
grown only more pronounced in the intervening years; in fiscal year 
2018, for example, the BIA received more than 49,000 new cases.
    Attorney General Reno also explained that, ``[e]ven in routine 
cases,'' the ``process of screening, assigning, tracking, drafting, 
revising, and circulating cases is extremely time consuming.'' 64 FR at 
56137. In addition, she explained that ``disagreements concerning the 
rationale or style of a draft decision can require significant time to 
resolve.'' Id. Attorney General Reno concluded that the BIA should use 
more streamlined forms of dispositions and become selective in using 
three-member decisions. Id. The Department further stated in the 1999 
rule that using streamlined forms of decisions would ``allow the Board 
to manage its caseload in a more timely manner'' and ``maintain a 
viable appellate organization that handles an extraordinarily large 
caseload.'' 64 FR at 56138. Similarly, in 2002, Attorney General John 
Ashcroft cited caseload and resource considerations as the 
justification for expanding the streamlining procedures to promote the 
issuance of AWOs and to normalize single-member decisions. See 67 FR at 
54879. Although former Attorney General Reno's statements in the 
proposed rule about caseload considerations, internal resources, and 
layers of review pertained primarily to issuing single-member decisions 
instead of three-member decisions, these considerations are also 
relevant when a single BIA member assesses whether an AWO would most 
efficiently use the BIA's limited resources in resolving an appeal.
    The 2008 proposed rule expressed concern that some courts have 
construed the regulations to permit judicial review of the BIA's 
decision about what form of opinion to issue, independently of the 
merits of the final agency position, and that this ``additional layer 
of review in some circuits is not consistent with the [2002] rule's 
goal of promoting efficiency and finality in the immigration system.'' 
73 FR at 34657. The proposed rule sought to address this concern by 
clarifying that regulations providing for an AWO, a single-member 
opinion, or a three-member panel opinion were intended to reflect an 
internal agency directive created for the purpose of efficient case 
management and disposition of cases pending before the BIA, and were 
not to be interpreted to create any substantive or procedural rights 
enforceable before any immigration judge, the BIA, or any court. 
Several commenters raised issues concerning this proposed amendment.
    The commenters wrote that the agency may not eliminate an alien's 
``right'' to review of a BIA member's judgment to issue an AWO or other 
form of BIA decision. The courts of appeals that have reviewed 
challenges to the streamlining process have uniformly concluded, 
however, that respondents have no constitutional or statutory right to 
a particular form or manner of a BIA decision. See Zhang v. U.S. Dept. 
of Justice, 362 F.3d 155, 157-58 (2d Cir. 2004); Yuk v. Ashcroft, 355 
F.3d 1222, 1229-32 (10th Cir. 2004); Dia v. Ashcroft, 353 F.3d 228, 242 
(3d Cir. 2003) (en banc); Denko v. INS, 351 F.3d 717, 729-30 (6th Cir. 
2003); Falcon Carriche v. Ashcroft, 350 F.3d 845, 850-51 (9th Cir. 
2003); Khattak v. Ashcroft, 332 F.3d 250, 252-53 (4th Cir. 2003); 
Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003); Mendoza v. U.S. 
Att'y Gen., 327 F.3d 1283, 1288-89 (11th Cir. 2003); Albathani v. INS, 
318 F.3d 365, 376-77 (1st Cir. 2003). Thus, the Department is not 
eliminating an existing substantive right, but is simply clarifying the 
original intent underlying the streamlining regulation that the form of 
the BIA's decision should not be reviewable.
    Indeed, the 2002 final rulemaking explained that there is no 
statutory right or law requiring a particular form of decision or 
method of review before the BIA. 67 FR at 54883, 54888-90. Because the 
BIA is established under the Attorney General's regulations, he ``is 
free to tailor the scope and procedures of administrative review of 
immigration matters as a matter of discretion.'' 67 FR at 54882 
(citing, e.g., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 
519, 524-25 (1978)). The 2002 final rulemaking also quoted the Supreme 
Court's admonition against review of certain agency matters, stating 
that `` `administrative agencies should be free to fashion their own 
rules of procedure and to pursue methods of inquiry capable of 
permitting them to discharge their multitudinous duties.' '' Id. 
(quoting Vermont Yankee, 435 U.S. at 524-25 (quoting FCC v. Pottsville 
Broad. Co., 309 U.S. 134, 143 (1940))).
    Commenters also suggested that an independent review of the 
judgment of a single BIA member to issue an AWO is necessary to ensure 
the adequacy of the BIA's review. One commenter claimed that ``the AWO 
formula . . . affirms the result reached by the Immigration Judge but 
expressly eschews reliance on the Immigration Judge's reasoning and 
affords no information concerning the BIA's reasoning in affirming the 
decision.'' However, the immigration judge's decision becomes the final 
agency decision for the court's review and provides reasons for the 
decision that can themselves be reviewed. The 2002 final rulemaking 
explained that ``[t]he immigration judge's order provides the 
rationale'' for an AWO, and ``[t]he Department does not believe there 
is any basis for believing that providing a regurgitation of the same 
facts and legal reasoning . . . will be beneficial to the respondent or 
the reviewing courts in most cases.'' 67 FR at 54885-86. The 2002 final 
rule expressly designated the immigration judge's decision as the one 
to be reviewed, required standard language to that effect in each AWO, 
and prohibited the BIA from adding any explanation or reasoning. See 8 
CFR 1003.1(e)(4)(ii). This prohibition pertains to a single member's 
reasons for affirming the immigration judge's decision. Thus, the 
language of the AWO itself states, ``The Board affirms, without 
opinion, the result of the decision below. The decision below is, 
therefore, the final agency determination.'' Id. (emphasis added).
    Moreover, as several courts have already recognized, the BIA's 
judgment to issue an AWO is similar to the practices of several courts 
of appeals to issue a summary disposition, as a matter of judicial 
efficiency, in cases that are viewed as not raising novel or complex 
issues, or whose issues were adequately addressed by the lower court. 
See, e.g., Ngure v. Ashcroft, 367 F.3d 975, 984-85 (8th Cir. 2004); 
Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 281-82 (4th Cir. 2004); 
Dia, 353 F.3d at 240 n.7; Soadje v. Ashcroft, 324 F.3d 830, 832 (5th 
Cir.

[[Page 31466]]

2003); see also 8th Cir. R. 47B (allowing the use of an AWO if an 
opinion would have no precedential value and (1) fact-findings are not 
clearly erroneous, (2) the evidence in support of a jury verdict is not 
insufficient, (3) the relevant administrative order is supported by 
substantial evidence on the record as a whole, or (4) no error of law 
appears); 3d Cir. Internal Operating Procedures 10.6 (after affording 
parties opportunity to submit argument regarding summary action, ``the 
court . . . may take summary action . . . if it clearly appears that no 
substantial question is presented or that subsequent precedent or a 
change in circumstances warrants such action''); 4th Cir. R. 36.3 
(allowing the use of summary affirmance, following oral argument, where 
all judges on a panel agree that ``a case would have no precedential 
value, and that summary disposition is otherwise appropriate''). It has 
never been thought that the Supreme Court would review the propriety of 
a court's decision to use one of these summary dispositions, as opposed 
to the merits of the underlying decision, or that these sorts of 
summary dispositions are improper. See Ngure, 367 F.3d at 985.
    Commenters also argued that the decision to dispose of an appeal by 
AWO should be reviewable as a means of resolving the ``jurisdictional 
conundrum'' that arises when a court is unable to determine, by virtue 
of the AWO, the extent to which the agency's decision rests upon 
grounds that it may review. This objection is invalid for several 
reasons.
    As a preliminary matter, should a court be unable to ascertain if 
it has jurisdiction, the court may remand under traditional principles 
to the agency for clarification, without reviewing the decision to 
issue an AWO. See SEC v. Chenery Corp., 318 U.S. 80 (1943); see also 
Zhu v. Ashcroft, 382 F.3d 521 (5th Cir. 2004) (finding flawed analysis 
of merits of asylum claim and remanding for clarification of whether 
the BIA agreed with the immigration judge's determination that the 
asylum application was untimely). If there have been new developments 
between the time of the immigration judge's decision and the BIA's AWO, 
and if the court is unable to determine the agency's decision on a 
question reserved for appeal, the court also has authority under 
Ventura principles to remand for an agency decision, again, without 
resorting to independent review of the decision to issue an AWO. See 
INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); Haoud v 
Ashcroft, 350 F.3d 201, 208-09 (1st Cir. 2003) (remanding for an agency 
decision in the first instance where there were intervening 
developments after the immigration judge's decision not addressed by 
his decision). Additionally, when it is possible to conclude that one 
reviewable ground of the agency's decision is valid and suffices as a 
basis for the immigration judge's decision, the jurisdictional 
conundrum simply falls away. See, e.g., Garcia-Melendez v. Ashcroft, 
351 F.3d 657, 661-62 (5th Cir. 2003) (finding that respondent applying 
for cancellation of removal had not established ten years' continuous 
physical presence in the United States and denying the petition on that 
basis); cf. Dia, 353 F.3d at 272-73 (Stapleton, J., dissenting) (noting 
that the court may remand for further explanation if the court, upon 
examination of the record, is unable to sustain the decision on the 
grounds stated by the immigration judge and is unable to determine the 
agency's reasoning on a particular point).
    Commenters also objected that the Department's intent regarding the 
nature and purpose of its regulations is immaterial to whether a court 
may independently review the BIA's decision to issue an AWO. Settled 
case law, however, restricts judicial review of an agency's compliance 
with procedural rules in instances in which the rule in question is 
designed primarily to benefit the agency carrying out its functions, 
rather than ``to confer important procedural benefits upon individuals 
in the face of otherwise unfettered discretion.'' Am. Farm Lines v. 
Black Ball Freight Serv., 397 U.S. 532, 538-39 (1970). Agencies possess 
authority to create internal rules to govern their management and 
performance of their duties that are not intended to also create 
judicially enforceable rights. See, e.g., Sandin v. Conner, 515 U.S. 
472, 481-83 (1995) (recognizing that regulations governing the 
adjudication of inmate disciplinary charges may be designed primarily 
to guide correctional officials in administering a prison, and not to 
create judicially enforceable rights in inmates). Under such 
circumstances, the agency's compliance with its processes is 
traditionally not subject to review because the decision whether to 
follow those processes is committed to agency discretion by law. See 
Heckler v. Chaney, 470 U.S. 821, 826, 836 (1985) (FDA policy statement 
that agency is ``obligated'' to investigate unapproved uses of an 
approved drug when such use became ``widespread'' or ``endanger[ed] the 
public health'' did not create procedural right to insist on 
investigation of state's use of drugs in executing condemned 
prisoners).
    The foregoing discussion and the relevant text in the final 
regulation seek to set forth the Department's position as it has 
existed since the establishment of the streamlining process and to 
clarify that the rules governing Sec.  1003.1(e)(4) through (6) are 
internal agency rules designed to assist the BIA in efficiently 
managing its caseload and carrying out its duties. The 2002 rule was 
successful in creating procedures that increased efficiency and 
promoted finality in immigration cases. The rule was not intended to 
create an additional layer of judicial review or a substantive right to 
review the form of the BIA's decision. The efficient and fair 
adjudication of immigration appeals remains a priority of the 
Department. This revision to the regulations in no way reflects a 
diminished commitment to timely and fair adjudications at the 
administrative appeal level.
    Accordingly, this final rule does not adopt the changes to 8 CFR 
1003.1(e)(4) related to the AWO process in the proposed rule and 
retains the language noting that the decision to issue an AWO remains 
mandatory in appropriate circumstances. It also clarifies that a 
decision to issue any particular form of decision is a decision based 
on an internal agency rule or directive created for the purpose of 
efficient case management that does not create any substantive or 
procedural rights.

B. Scope of BIA's Dispositions on Appeal

    The 2008 proposed rule sought to provide regulatory authority for 
the Department's longstanding position regarding the scope of a BIA 
decision regardless of the form of the decision. First, the proposed 
regulatory text provided that ``[a] decision by the Board . . . carries 
the presumption that the Board properly and thoroughly considered all 
issues, arguments, claims and record evidence raised or presented by 
the parties, whether or not specifically mentioned in the decision.'' 
73 FR at 34663. The purpose of the proposed rule was to clarify that 
``the Board need not specifically address every issue raised on appeal, 
but is presumed to have considered all properly raised issues on appeal 
in reaching its decision, even if that decision is an AWO or short 
order that does not specifically discuss every issue the parties may 
have raised on appeal.'' 73 FR at 34658 (citing, e.g., Toussaint v. 
Att'y Gen., 455 F.3d 409 (3d. Cir. 2006)).
    Second, the rule proposed that the BIA's decision, whether in the 
form of an AWO, a single-member decision, or

[[Page 31467]]

a three-member panel decision, is based on issues and claims of error 
that the parties raised on appeal and is not to be construed as waiving 
a party's obligation to exhaust issues and claims before the BIA. 73 FR 
at 34663. The proposed rule sought to clarify the parties' obligations 
to identify issues, arguments, and claims of error on appeal in a 
meaningful manner and with sufficient precision, even in instances 
where the BIA, in its discretion, sua sponte considers issues not 
raised on appeal. 73 FR at 34658. Third, the rule proposed to make 
clear that ``the Board may address an issue that was not raised on 
appeal sua sponte.'' Id.
    One commenter objected to the stated formalization of a presumption 
that the BIA properly and thoroughly adjudicates appeals before it, 
contending that the proposed rule would impede judicial review of BIA 
decisions and, in effect, would supersede the Department's commitment 
to provide a reasoned agency decision adequate for judicial review. The 
Department rejects this argument. The proposed presumption is simply a 
particularized statement of the well-settled presumption of regularity 
that attaches to agency processes. See, e.g., INS v. Miranda, 459 U.S. 
14, 18 (1982) (presumption of regularity applied to agency adjudication 
of application for lawful permanent resident status). Board Members, 
like other government officials, ``d[o] their jobs fairly, 
conscientiously and thoroughly.'' Angov v. Lynch, 788 F.3d 893, 905 
(9th Cir. 2015) (applying the presumption of regularity to a Department 
of State letter reflecting the overseas investigation of an asylum 
claim). Moreover, the proposed rule does not supersede other 
regulations that govern BIA adjudications and is not intended to impede 
judicial review or supersede pertinent circuit precedent. See 8 CFR 
1003.1; Matter of Olivares-Martinez, 23 I&N Dec. 148 (BIA 2001); Matter 
of Anselmo, 20 I&N Dec. 25 (BIA 1989).
    With regard to exhaustion, the commenter objected to the proposed 
rule on the grounds that it is an improper attempt to regulate the 
jurisdiction of the courts of appeals and that use of the term 
``meaningful manner'' creates a more demanding standard than the 
prevailing standards reflected in judicial opinions. In light of the 
comment, and upon further consideration, the Department believes that 
revisions are warranted to clarify the intent of the proposed rule.
    As initially proposed in 2008, the rule provided that a BIA 
decision ``is not to be construed as waiving a party's obligation to 
exhaust administrative remedies by raising in a meaningful manner all 
issues and claims of error in the first instance on appeal to the 
Board.'' 73 FR at 34663. In adjudicating appeals, the BIA follows the 
party presentation rule. See, e.g., Matter of M-A-S-, 24 I&N Dec. 762, 
767 n.2 (BIA 2009) (noting that DHS did not advance any argument on 
appeal about additional conditions on the immigration judge's voluntary 
departure order) (citing Greenlaw v. United States, 554 U.S. 237 
(2008)). Under this rule, it is the responsibility of each party to 
advance its arguments on appeal to the BIA because adversarial 
proceedings ``rely on the parties to frame the issues for decision and 
assign to [the adjudicator] the role of neutral arbiter of matters the 
parties present.'' Greenlaw, 554 U.S. at 243. This principle applies 
throughout ``our adversary system, in both civil and criminal cases, in 
the first instance and on appeal.'' Id.; see also Honcharov v. Barr, 
No. 15-71554, 2019 U.S. App. LEXIS 15804, at *5-6 (9th Cir. May 29, 
2019) (explaining that ``[w]aiver and forfeiture are . . . important 
tools for preserving the structure of hierarchical court systems,'' and 
that these principles likewise ``hold in the context of removal 
proceedings in the [EOIR]''). The proposed rule sought to reaffirm the 
obligation of the parties to raise any and all issues and claims before 
the BIA. See 8 CFR 1003.3(b), 1003.2(b); see also 8 CFR 1003.2(c) 
(requiring the parties moving to reopen proceedings to identify and 
specify findings and errors and state new facts to be proved). Indeed, 
when a party fails to specify the reasons for appeal, the BIA may 
summarily dismiss it without further consideration of the underlying 
merits of the case. 8 CFR 1003.1(d)(2)(i)(A). The requirement that the 
parties allege errors, issues, arguments, or claims with particularity 
aids the Board in adjudicating the cases before it. Thus, as is its 
practice, the BIA may decide an appeal or motion based on a party's 
failure to raise an alleged error, issue, argument, or claim before the 
BIA, the immigration court, or DHS immigration officer, if such error, 
issue, argument, or claim existed at the time of adjudication of the 
appealed matter. See, e.g., Honcharov, 2019 U.S. App. LEXIS 15804, at 
*6-7 (joining ``every other circuit to have addressed the issue'' in 
concluding that ``the Board may apply a procedural default rule to 
arguments raised for the first time on appeal'').
    The Department seeks to clarify that the ``obligation to exhaust,'' 
as set forth in the proposed rule, is a separate and distinct matter 
from the doctrine of ``exhaustion of administrative remedies,'' as set 
forth in section 242(d)(1) of the Immigration and Naturalization Act 
(the Act), which refers to the jurisdictional limits of a federal 
court's review of an issue.\4\ See id. at *5 n.2 (explaining that 
``[w]aiver and forfeiture in this context are related to, but distinct 
from, the doctrine[ ] of exhaustion''). Nonetheless, for purposes of 
clarification, the Department has removed the reference to exhaustion 
of administrative remedies in this final rule. The Department also has 
removed the ``meaningful manner'' language because it is not the 
Department's intention to establish a novel ``meaningful manner'' 
standard for presenting claims before the BIA. Instead, the rule seeks 
to simply reaffirm the need of the parties to raise any and all issues 
to the BIA on appeal. The rule further clarifies that the BIA, in the 
exercise of its discretion, may rule on an issue not raised by the 
parties on appeal if the issue was addressed in the underlying 
decision. However, this rule is not intended to alter the BIA's 
practice of not considering evidence proffered for the first time on 
appeal. See, e.g., Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988). 
Finally, the Department has determined that, given the content of this 
aspect of the rule, this provision is more appropriately included in a 
new paragraph at Sec.  1003.1(e)(9), rather than paragraph (e)(4), as 
previously proposed.
---------------------------------------------------------------------------

    \4\ Language in some decisions of the courts of appeals suggests 
that the BIA can waive the application of the exhaustion of remedies 
requirement set forth in section 242(d)(1) of the Act. However, that 
language, properly read, refers to the BIA's authority to consider 
an issue that was not presented, specified, or identified by the 
parties where the Board determines it is ``administratively-ripe to 
warrant its appellate review,'' as distinguished from the separate 
question of whether an issue has been preserved for appellate review 
in the courts of appeals. Sidabutar v. Gonzales, 503 F.3d 1116, 
1119-22 (10th Cir. 2007); see also Bin Lin v. Att'y Gen., 543 F.3d 
114, 122-26 (3d Cir. 2008); Pasha v. Gonzales, 433 F.3d 530, 532-33 
(7th Cir. 2005); Hassan v. Gonzales, 403 F.3d 429, 432-33 (6th Cir. 
2005); Johnson v. Ashcroft, 378 F.3d 164, 170 (2d Cir. 2004).
---------------------------------------------------------------------------

    Accordingly, this final rule, in new Sec.  1003.1(e)(9), states 
that a decision by the Board under paragraph (e)(4), (5), or (6) of 
that section carries the presumption that ``the Board properly and 
thoroughly considered all issues, arguments, and claims raised or 
presented by the parties on appeal or in a motion that were deemed 
appropriate to the disposition of the appeal or motion, whether or not 
specifically mentioned in the decision.'' A decision also carries the 
presumption that the

[[Page 31468]]

BIA did not need to consider any issue, argument, or claim not raised 
or presented by the parties on appeal or in the motion.
    In addition to the issues discussed above, one commenter contended 
that the provision authorizing the BIA to consider issues sua sponte 
authorizes violations of the BIA's review standards and permits the BIA 
to engage in fact-finding in violation of regulatory or court rules. 
The commenter argued that allowing the BIA to consider issues sua 
sponte would ``empower the BIA to provide the reasoning missing from an 
Immigration Judge's opinion so long as the issue was somehow presented 
before the Immigration Judge.''
    The commenter misunderstands the purpose of the rule. This rule is 
not intended to undermine the fact-finding authority or to supplement 
the fact-finding of the immigration judge. Rather, this rule is 
intended to allow the BIA to resolve issues, when necessary or 
appropriate, to ensure proper and thorough review of the appeal or 
motion before it, to provide guidance on the interpretation of the 
immigration laws and regulations, or to address recurring legal, 
procedural, and factual issues. Lastly, this provision permits the BIA 
to address the conduct of immigration judges when appropriate and where 
such issues were not raised by the parties.
    Thus, the BIA must have the tools and flexibility to properly 
adjudicate the appeals and motions before it. The Department agrees 
with the commenter that there should be a vehicle by which parties, in 
appropriate cases, may be provided an opportunity to address 
dispositive issues the BIA wishes to consider sua sponte before the BIA 
renders a decision. For this reason, the final rule permits the BIA to 
set a supplementary briefing schedule where it chooses to consider an 
issue not raised by the parties in its discretion by stating, in Sec.  
1003.1(e)(9), that in any decision under paragraph (e)(5) or (6) of 
that section, ``the Board may rule, in the exercise of its discretion 
as provided under this part, on any issue, argument, or claim not 
raised by the parties, and the Board may solicit supplemental briefing 
from the parties on the issue(s) to be considered before rendering a 
decision.''

C. Three-Member Panel Decisions

    The 2008 proposed rule sought to improve the BIA's review of 
complex and problematic cases by expanding the criteria for three-
member decisions under 8 CFR 1003.1(e)(6). The public comments that 
addressed this provision supported the decision to expand the criteria.
    The proposed rule added a seventh criterion that would have allowed 
a BIA member, in the exercise of discretion, to refer a case to a 
three-member panel when the case presents a ``complex, novel, or 
unusual issue of law or fact.'' See 73 FR at 34663. Upon further 
consideration, the Department is revising this criterion to state that 
a BIA member may refer a case for three-member review ``to resolve a 
complex, novel, unusual, or recurring issue of law or fact.'' (Emphasis 
added.) Addition of the word ``recurring'' recognizes that the BIA is 
in the best position to identify issues that are recurring nationwide. 
Such issues may not result in inconsistent decisions among immigrations 
judges or rise to the level of ``major national import,'' see 8 CFR 
1003.1(e)(6)(i), (iv), yet immigration judges, attorneys, respondents, 
and the federal courts still might benefit from guidance from the BIA 
on how to address such recurring issues. Allowing for referral to a 
three-member panel will result in enhanced review and analysis and 
perhaps publication of a precedent decision to provide nationwide 
guidance, if necessary.
    Accordingly, the final rule adopts the proposal to expand the 
criteria to allow for referral to a three-member panel. This final rule 
amends 8 CFR 1003.1(e)(6) by adding a new paragraph (vii) to allow 
assignment to a three-member panel for review when there is a '' need 
to resolve a complex, novel, unusual, or recurring issue of law or 
fact.''

D. Publication of Precedent Decisions

    One comment, which was endorsed by another commenter, expressed 
concern with the proposal to authorize a vote by three-member panels on 
whether to issue precedent decisions. The comment stated that the 
proposal is unnecessary, ripe for possible misuse, and lacking in 
adequate oversight and guarantees of uniformity. The comment stated 
that it would be a mistake to allow two permanent members of the BIA to 
issue a precedent decision without first obtaining approval of a 
majority of permanent BIA members. The comment reasoned that the 
proposed regulation allows only for notice to other members of the BIA; 
that there is nothing in the supplemental information to indicate that 
the existing system is burdensome or unworkable; and that the change 
will result in increased numbers of precedent decisions. The comment 
concluded that the BIA is currently issuing an adequate number of 
decisions and that the courts are demonstrating appropriate deference 
to the BIA. In general, the Department agrees with these comments and 
has decided not to adopt the proposal to allow the BIA to issue 
precedent decisions by majority vote of permanent members of a three-
member panel.
    Although the number of BIA precedent decisions has varied from year 
to year, the Board has averaged nearly 29 precedent decisions each year 
over the last 14 years, and it has issued fewer than 23 precedent 
decisions only once, in 2005, when it issued 11. Consequently, it does 
not appear that the Board's current process for precedent decisions is 
unworkable or has inhibited it from providing necessary guidance 
through published decisions. In short, the Department has determined 
that the process currently in place for BIA's designation and 
publication of precedent decisions is appropriate and adequate.
    Under this process, the BIA will continue to publish its precedent 
decisions as three-member panel decisions through the process of a 
majority vote of permanent members of the BIA and not, as initially 
proposed, by majority vote of the permanent BIA members assigned to a 
three-member panel. Adopting the proposed change would be 
counterproductive and inefficient, creating a greater likelihood of 
inconsistency among BIA member panels involving similar cases and 
issues that could be potentially selected for publication. Such 
potential for greater inconsistency and lack of uniformity among the 
panel decisions selected for publication would be further amplified by 
a recent regulation increasing the size of the BIA from 17 to 21 
members. See Expanding the Size of the Board of Immigration Appeals, 83 
FR 8321 (Feb. 27, 2018). Moreover, the mechanism for resolving this 
issue, considering a case en banc, does not substantively differ from 
the current procedure in which Board members vote en banc to publish a 
decision as precedent. Thus, the proposed change would simply add an 
additional level of process in order to ultimately achieve a similar 
result as the current process.
    The BIA, as an appellate body and the highest administrative 
tribunal interpreting immigration law, is charged with, inter alia, 
providing clear and uniform guidance across the country in applying and 
interpreting immigration law. Ensuring that only the majority of 
permanent BIA members vote on and select cases to serve as precedent 
will continue to provide an invaluable safeguard against unnecessary 
and potentially conflicting outcomes in cases under the BIA's review. 
Moreover,

[[Page 31469]]

the participation of all BIA members in the precedent decision 
selection and voting process is essential to the efficient and 
collaborative function of the BIA. This final rule therefore does not 
adopt the proposal to allow the BIA to issue precedent decisions by 
majority vote of permanent members of three-member panels.
    The Department did not receive any comments on the criteria for 
publication, in Sec.  1003.1(g)(3)(i) through (vi) of the proposed 
rule, and adopts this provision with only one change. In addition to 
the standard in the proposed rule for a decision that ``modifies or 
clarifies a rule of law or prior precedent,'' the final rule also 
includes a reference to a decision that ``distinguishes'' a rule of law 
or prior precedent. This standard will allow the BIA to not only 
consider whether publication of a decision that ``modifies, clarifies, 
or distinguishes'' a rule of law or prior precedent is necessary to 
maintain consistency and uniformity, but also to consider whether a 
choice not to publish a decision that could potentially be seen as 
clarifying or distinguishing a prior precedent may result in a lack of 
clear guidance to immigration judges and parties as to the proper 
course to follow in other cases because an unpublished decision by the 
BIA is not binding in other cases.
    As discussed above, the Attorney General expects that the BIA will 
continue to exercise its authority to issue precedent decisions as 
widely as is practicable to promote the consistency and uniformity of 
adjudications and to provide authoritative nationwide guidance to the 
immigration judges, the government, the respondents in immigration 
proceedings, petitioners for certain alien relatives, members of the 
immigration bar, and the federal courts with respect to the 
interpretation of ambiguous provisions of the immigration statutes and 
regulations and recurring legal, procedural, and factual issues arising 
in the adjudication of cases before the immigration judges, the U.S. 
Citizenship and Immigration Services, and the BIA.

E. Review of Decisions Involving Recognition and Accreditation

    Although the regulations transferring responsibility for the 
recognition and accreditation program clarified the new designation of 
officials responsible for issuing decisions in those cases,\5\ the 
prior regulatory changes did not address the precedential nature of any 
such decisions going forward, leaving EOIR without any specified 
authority to continue to issue precedent decisions to provide guidance 
in these cases. This oversight was unintentional, and EOIR continues to 
maintain that precedential guidance in recognition and accreditation 
cases is important, especially now that the BIA no longer issues the 
decisions in those cases. See 8 CFR 1292.18. The revisions to this part 
are matters relating to agency management or personnel and impose no 
burdens on the public. Further, although the Attorney General maintains 
plenary authority over immigration matters handled by EOIR, the 
transfer of oversight responsibility for the recognition and 
accreditation program from the BIA to OLAP did not include a specific 
mechanism for the referral of recognition and accreditation cases for 
review by the Attorney General.
---------------------------------------------------------------------------

    \5\ The OLAP Director adjudicates initial applications for 
recognition or accreditation, adjudicates requests for renewal of 
recognition or accreditation, and makes determinations on 
administrative termination of recognition or accreditation; he also 
adjudicates requests for reconsideration of any of these decisions. 
8 CFR 1292.13, 1292.16, 1292.17. The EOIR Director adjudicates 
requests to review the reconsideration decisions of the OLAP 
Director. 8 CFR 1292.18.
---------------------------------------------------------------------------

    For these reasons, the final rule corrects an oversight regarding 
precedent decisions involving EOIR's recognition and accreditation 
program. This correction, which is a logical outgrowth of the broader 
review of the BIA's use of precedent in the 2008 proposed rulemaking, 
allows for the continued publication of precedent decisions pertaining 
to recognition and accreditation, even though those decisions are no 
longer issued by the BIA. The final rule also corrects a related 
oversight by reestablishing an explicit mechanism for decisions 
involving recognition and accreditation to be referred to the Attorney 
General now that they are no longer adjudicated by the BIA.

IV. Regulatory Requirements

A. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, the Attorney General 
certifies that this rule will not have a significant economic impact on 
a substantial number of small businesses or small governmental 
entities. This rule is related to agency organization and management of 
cases pending before the immigration judges and the Board. Accordingly, 
the preparation of a Regulatory Flexibility Analysis is not required.

B. 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.

C. Congressional Review Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Congressional Review Act, 5 U.S.C. 804. This rule will not result in an 
annual effect on the economy of $100 million or more; a major increase 
in costs or prices; or significant adverse effects on competition, 
employment, investment, innovation, or on the ability of United States-
based enterprises to compete with foreign-based enterprises in domestic 
and export markets.

D. Executive Orders 12866, 13563, and 13771 (Regulatory Review)

    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 potential economic, environmental, public 
health and safety, and other advantages; distributive impacts; and 
equity). Executive Order 13563 emphasizes the importance of using the 
best available methods to quantify costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility. Executive Order 13771 
directs agencies to reduce regulation and control regulatory costs and, 
for all qualifying regulations, to identify at least two existing 
regulations for elimination.
    This rule has been drafted in accordance with the principles of 
Executive Order 12866, section 1(b), and Executive Order 13563. 
Although the notice of proposed rulemaking in 2008 proposed changes to 
the AWO process, the final regulation does not adopt those changes and 
does not actually change any part of the AWO process nor amend the 
portions of 8 CFR 1003.1(e)(4) relating to AWOs. Consequently, there is 
no expected increase in the use of AWOs due to the final regulation.
    Although the use of AWOs is not expected to increase as a result of 
the final regulation, the Department acknowledges that the final rule 
may nonetheless raise novel legal or policy issues. The Department thus 
considers

[[Page 31470]]

the rule to be a ``significant regulatory action'' under section 
3(f)(4) of Executive Order 12866, and the regulation has accordingly 
been submitted to the Office of Management and Budget for review.
    Finally, this rule is exempt from the requirements of Executive 
Order 13771 because this rule concerns regulations related to agency 
organization, management, or personnel. The final rule is an internal 
rule of procedure that relates to the management of immigration cases 
on appeal. It does not alter any substantive rights, and it conforms to 
existing directives on the efficient management and disposition of 
cases. Accordingly, it does not impose any additional costs on the 
processing of cases on appeal.

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 preparation of a federalism summary impact 
statement.

F. Executive Order 12988 (Civil Justice Reform)

    This rule has been prepared in accordance with the standards in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

    This rule is exempt from the requirements of the Paperwork 
Reduction Act because it does not create any information collection 
requirements.

List of Subjects

8 CFR Part 1003

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

8 CFR Part 1292

    Administrative practice and procedure, Immigration, Lawyers, 
Referrals, Precedent decisions.

    Accordingly, for the reasons set forth in the preamble, 8 CFR parts 
1003 and 1292 are amended as follows:

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. Section 1003.1 is amended:
0
a. In paragraph (e)(6)(iii), by removing ``the Service'' and adding in 
its place ``DHS'';
0
b. In paragraph (e)(6)(v), by removing ``or'';
0
c. In paragraph (e)(6)(vi), by removing ``the Service'' and adding in 
its place ``DHS'' and by removing the period at the end and adding in 
its place ``; or'';
0
d. By adding paragraphs (e)(6)(vii) and (e)(9); and
0
e. By revising paragraph (g).
    The additions and revision read as follows:


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

* * * * *
    (e) * * *
    (6) * * *
    (vii) The need to resolve a complex, novel, unusual, or recurring 
issue of law or fact.
* * * * *
    (9) The provisions of paragraphs (e)(4)(i) and (e)(5) and (6) of 
this section are internal agency directives for the purpose of 
efficient management and disposition of cases pending before the Board 
and are not intended to create any substantive or procedural rights to 
a particular form of Board decision. A decision by the Board under 
paragraph (e)(4), (5), or (6) of this section carries the presumption 
that the Board properly and thoroughly considered all issues, 
arguments, and claims raised or presented by the parties on appeal or 
in a motion that were deemed appropriate to the disposition of the 
appeal or motion, whether or not specifically mentioned in the 
decision. A decision by the Board under paragraph (e)(4), (5), or (6) 
also carries the presumption that the Board did not need to consider 
any issue, argument, or claim not raised or presented by the parties on 
appeal or in a motion to the Board. In any decision under paragraph 
(e)(5) or (6) of this section, the Board may rule, in the exercise of 
its discretion as provided under this part, on any issue, argument, or 
claim not raised by the parties, and the Board may solicit supplemental 
briefing from the parties on the issues to be considered before 
rendering a decision.
* * * * *
    (g) Decisions as precedents--(1) In general. Except as Board 
decisions may be modified or overruled by the Board or the Attorney 
General, decisions of the Board and decisions of the Attorney General 
are binding on all officers and employees of DHS or immigration judges 
in the administration of the immigration laws of the United States.
    (2) Precedent decisions. Selected decisions designated by the 
Board, decisions of the Attorney General, and decisions of the 
Secretary of Homeland Security as provided in paragraph (h)(2)(i) of 
this section will be published and serve as precedents in all 
proceedings involving the same issue or issues.
    (3) Designation of precedents. By majority vote of the permanent 
Board members, or as directed by the Attorney General or his designee, 
selected decisions of the Board issued by a three-member panel or by 
the Board en banc may be designated to be published and to serve as 
precedents in all proceedings involving the same issue or issues. In 
determining whether to publish a precedent decision, the Board may take 
into account relevant considerations, in the exercise of discretion, 
including among other matters:
    (i) Whether the case involves a substantial issue of first 
impression;
    (ii) Whether the case involves a legal, factual, procedural, or 
discretionary issue that can be expected to arise frequently in 
immigration cases;
    (iii) Whether the issuance of a precedent decision is needed 
because the decision announces a new rule of law, or modifies, 
clarifies, or distinguishes a rule of law or prior precedent;
    (iv) Whether the case involves a conflict in decisions by 
immigration judges, the Board, or the federal courts;
    (v) Whether there is a need to achieve, maintain, or restore 
national uniformity of interpretation of issues under the immigration 
laws or regulations; and
    (vi) Whether the case warrants publication in light of other 
factors that give it general public interest.
* * * * *

PART 1292--REPRESENTATION AND APPEARANCES

0
3. The authority citation for part 1292 continues to read as fol1ows:

    Authority: 8 U.S.C. 1103, 1362.


0
4. In Sec.  1292.18, add paragraphs (c) and (d) to read as follows:

[[Page 31471]]

Sec.  1292.18  Administrative review of denied requests for 
reconsideration.

* * * * *
    (c) Referral of cases to the Attorney General. The Director will 
refer to the Attorney General for review of decisions pursuant to this 
section in all cases that the Attorney General directs the Director to 
refer to him or that the Director believes should be referred to him.
    (d) Decisions as precedents. The Director, in his discretion, may 
cause reconsideration decisions by the OLAP Director pursuant to Sec.  
1292.13(e), Sec.  1292.16(f), or Sec.  1292.17(d), or decisions by the 
Director pursuant to this section to be published as precedents in the 
same manner as decisions of the Board and the Attorney General. Such 
decisions by the OLAP Director, except as overruled by the Director, 
and such decisions by the Director, except as overruled by the Attorney 
General, will serve as precedents in all proceedings under part 1292 
involving the same issue or issues.

    Dated: June 25, 2019.
William P. Barr,
Attorney General.
[FR Doc. 2019-13933 Filed 7-1-19; 8:45 am]
BILLING CODE 4410-30-P