Executive Office for Immigration Review Electronic Case Access and Filing, 70708-70725 [2021-26853]

Download as PDF 70708 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations a. In paragraph (a)(2), add the words ‘‘and supplemental history’’ after the words ‘‘production history’’; ■ b. Revise paragraph (f); and ■ c. Add paragraph (n). The revision and addition read as follows: ■ § 1430.407 PART 1434—NONRECOURSE MARKETING ASSISTANCE LOANS AND LOAN DEFICIENCY PAYMENTS FOR HONEY DEPARTMENT OF JUSTICE 54. The authority citation for part 1434 continues to read as follows: 8 CFR Parts 1001, 1003, 1103, 1208, 1240, 1245, 1246, and 1292 ■ Buy-up coverage. * * * * * (f) The annual premium due for a participating dairy operation is calculated: (1) For production history, by multiplying: (i) The covered production history; and (ii) The premium per cwt of milk specified in paragraph (e) of this section for the coverage level elected in paragraph (d) of this section by the dairy operation; and (2) For supplemental production history, by multiplying: (i) The covered supplemental production history; and (ii) The premium per cwt of milk in paragraph (e) of this section for the coverage level elected in paragraph (d) of this section by the dairy operation. * * * * * (n) The premium rate for supplemental pounds eligible under a multi-year lock in contract maintains the basic rate according to paragraph (e) of this section and will not receive the 25 percent premium discount rate. ■ 52. Amend § 1430.409 as follows: ■ a. In paragraph (b)(2), remove the word ‘‘and’’ at the end; ■ b. In paragraph (b)(3), remove the period at the end and add ‘‘; and’’ in its place; and ■ c. Add paragraph (b)(4). The addition reads as follows: § 1430.409 Dairy margin coverage payments. * * * * * (b) * * * (4) Supplemental history. The supplemental production history of the dairy operation, divided by 12. * * * * * ■ 53. Amend § 1430.411 by revising paragraph (c)(3) to read as follows: Authority: 7 U.S.C. 7231–7237, 7931– 7936, and 9031–40; and 15 U.S.C. 714b and c. [EOIR Docket No. 018–0203; A.G. Order No. 5257–2021] § 1434.1 Executive Office for Immigration Review Electronic Case Access and Filing [Amended] 55. Amend § 1434.1 in paragraph (a) by removing the words ‘‘payment limitation and’’. ■ PART 1435—SUGAR PROGRAM 56. The authority citation for part 1435 continues to read as follows: ■ Authority: 7 U.S.C. 1359aa–1359jj, 7272, and 8110; 15 U.S.C. 714b and 714c. Subpart B—Sugar Loan Program § 1435.101 [Amended] 57. Amend § 1435.101 as follows: a. In paragraph (a), remove the words ‘‘is 18.75 cents per pound’’ and add the words ‘‘may be established based on rates that comply with applicable statutes, and may be adjusted by CCC to reflect grade, type, quality, and other factors as applicable’’ in their place; and ■ b. In paragraph (b), remove the words ‘‘is equal to 128.5 percent of the loan rate per pound of raw cane sugar’’ and add the words ‘‘may be established based on rates that comply with applicable statutes, and may be adjusted by CCC to reflect grade, type, quality, and other factors as applicable’’ in their place. ■ ■ Zach Ducheneaux, Administrator, Farm Service Agency. Robert Ibarra, Executive Vice President, Commodity Credit Corporation. [FR Doc. 2021–26827 Filed 12–10–21; 8:45 am] BILLING CODE 3410–05–P § 1430.411 Calculation of average feed cost and actual dairy production margins. khammond on DSKJM1Z7X2PROD with RULES * * * * * (c) * * * (3) For alfalfa hay, the full month price received during the month by farmers in the United States for high quality (premium and supreme) alfalfa hay as reported in the monthly Agricultural Prices report by USDA NASS will be used to calculate the hay price. * * * * * VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 Executive Office for Immigration Review PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 RIN 1125–AA81 Executive Office for Immigration Review, Department of Justice. ACTION: Final rule. AGENCY: On December 4, 2020, the Executive Office for Immigration Review (‘‘EOIR’’) published a notice of proposed rulemaking (‘‘NPRM’’ or ‘‘proposed rule’’), proposing to amend EOIR’s regulations in order to implement electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals (‘‘BIA’’). The NPRM also proposed amendments to the regulations regarding law student filing and accompaniment procedures. This final rule responds to comments received in response to the NPRM and adopts the NPRM with changes as described below. DATES: This rule is effective on February 11, 2022. FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305–0289 (not a toll-free call). SUPPLEMENTARY INFORMATION: SUMMARY: I. Notice of Proposed Rulemaking On December 4, 2020, EOIR published an NPRM in the Federal Register, proposing to amend EOIR’s regulations in order to implement electronic filing and records applications, known as EOIR’s Courts & Appeals System (‘‘ECAS’’), for all cases before the immigration courts and the BIA, as well as to update law student filing and accompaniment procedures. See Executive Office for Immigration Review Electronic Case Access and Filing, 85 FR 78240 (Dec. 4, 2020). The NPRM proposed revisions to 8 CFR parts 1001, 1003, 1208, 1240, 1245, 1246, and 1292. These revisions included: (1) Adding or updating relevant definitions; (2) mandating electronic filing, subject to certain E:\FR\FM\13DER1.SGM 13DER1 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations exceptions, for the Department of Homeland Security (‘‘DHS’’), attorneys, and accredited representatives, as well as providing for future voluntary use by pro se respondents, applicants, and petitioners; reputable individuals; and accredited officials; (3) providing standards for electronic filing relating to signatures, service of process, system outages, and the filing of classified information; (4) updating fee language to account for electronic payments; (5) removing the in-duplicate filing requirement for electronic filings; (6) revising the procedures for law student and law graduate filing and accompaniment; and (7) making various technical amendments to update outdated references and to conform with EOIR’s style guidelines. The comment period for the NPRM opened on December 4, 2020, and closed on January 4, 2021, with six organizational comments received. The Department summarizes and responds to the public comments below, followed by a description of changes made to the NPRM in this final rule. II. Public Comments on the Proposed Rule and Responses The Department received six organizational comments on the NPRM, which are organized by topic below. khammond on DSKJM1Z7X2PROD with RULES A. Law Student or Law Graduate Accompaniment Comment: One commenter requested that EOIR modify the proposed rule to clarify that supervising attorneys should not be required to be physically present in the same location as the law student or law graduate during a telephonic or video teleconference (VTC) hearing. Response: After consideration, the Department has determined that the regulations should not specify that the law student or law graduate and the supervising attorney or accredited representative must all be physically present in the same location for each hearing. Instead, the Department has decided to remove the physical presence requirement and leave the determination regarding the parties’ manner of appearance to the adjudicator’s discretion, as is the case with all other types of representatives. For example, subject to the adjudicator’s discretion, the supervising attorney or accredited representative may attend the hearing from a separate location, so long as the supervising attorney or accredited representative is able to proceed with the hearing if necessary. The change is described in more detail in Section III below. VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 B. System Outages Comment: One commenter stated that the rule’s planned outage standards should match the unplanned outage standards, which automatically moves the filing deadline in the case of an EOIR-recognized unplanned outage. The commenter was concerned about situations in which planned outages are not announced with sufficient notice or where a planned outage is not adequately publicized. Response: The Department considered the commenter’s suggestion and has decided to leave the planned outage process unchanged but will extend the minimum notice of planned outages from three to five days to ensure sufficient notice. The Department believes that this updated planned outage standard provides users with sufficient notice to ensure that filers will be able to complete any filings as necessary. The rule states that, for any planned outage, EOIR will issue public communications regarding the planned outage. See 8 CFR 1003.2(g)(5), 1003.3(g)(2), 1003.31(b). These communications may include email notifications via EOIR’s GovDelivery service and postings on EOIR’s website, consistent with the standard practice of other court systems. See, e.g., U.S. Ct. of App. for the Fed. Cir., CM/ECF Scheduled Maintenance Outages, available at https:// www.cafc.uscourts.gov/cmecfscheduled-maintenance-outages (last visited Feb. 26, 2021). In addition, any planned outages announced with five or fewer business days prior to the outage will be treated as an unplanned outage and filing deadlines will be adjusted accordingly. See 8 CFR 1003.2(g)(5), 1003.3(g)(2), 1003.31(b). Therefore, for any properly noticed planned outage, filers will have at least six business days’ notice, which the Department believes is sufficient to allow filers to plan their filings accordingly to meet all applicable filing deadlines. C. Proof of Fee Payments Comment: One commenter requested that EOIR clarify that proof of fee payments is sufficient when filing fee receipts, as the commenter stated that DHS is often delayed in providing a fee receipt in a timely manner. Response: After consideration, the Department has updated the rule to account for situations in which a fee receipt has not been provided to the filer by the deadline set by the immigration court. The specific changes are described in further detail in Section III of this preamble. PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 70709 D. Email Filings Comment: One commenter requested clarity on the interaction between EOIR’s implementation of electronic filing through this rule and EOIR’s use of email filing due to the COVID–19 pandemic. The commenter asked whether the email inboxes would remain after the launch of electronic filing in an immigration court and questioned whether they should remain for pro se respondents. Response: EOIR created temporary email inboxes to allow for basic electronic filing due to the COVID–19 pandemic. See EOIR, Filing by Email— Immigration Courts, available at https:// www.justice.gov/eoir-operational-status/ filing-email-immigration-courts (last updated September 7, 2021). As explained on the website, the email inboxes were intended for use only by non-ECAS users. See id. (‘‘If you have opted-in to ECAS, do not use email in lieu of filing through ECAS.’’). The email inboxes were intended to support the public and did not create efficiencies for EOIR, as they required court staff to print all filings for paper cases and to manually upload any filings for cases with electronic records of proceedings (‘‘eROPs’’). These email inboxes are now discontinued and were not intended to be long-term solutions for electronic filing at EOIR. Id. (‘‘Filing by Email Expiration Date’’). Instead, EOIR continues to pursue full implementation of ECAS, a full-fledged electronic filing and records system, which provides filers with a secure portal to electronically view and file documents in eligible cases and sends automatic service notifications from EOIR. Regarding pro se respondents, EOIR is focused on determining how to securely register them for ECAS, which will then enable willing pro se respondents to use ECAS for electronic filing. E. Pro Se Access and Registration Comment: One commenter requested additional information on EOIR’s planned steps for providing pro se access to electronic filing. The commenter noted that the electronic filing system should ensure language accessibility for pro se respondents and that any electronic filing should be free of charge. Another commenter provided suggestions on registering pro se users for electronic filing, including using an identity verification system such as www.login.gov, or providing an inperson registration code. Response: This rule creates a framework for allowing pro se respondents to use ECAS, including a E:\FR\FM\13DER1.SGM 13DER1 70710 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations registration requirement and standards for opting in and out of voluntary electronic filing. See 8 CFR 1003.2(g)(4), 1003.3(g)(1), 1003.31(a). The Department continues to review options for registering pro se respondents for electronic filing and appreciates commenters’ suggestions. Once EOIR determines how best to register pro se respondents, EOIR will provide further guidance as necessary. Regarding accessibility, EOIR intends to fully comply with the requirements of Executive Order 13166 to provide meaningful access to the immigration courts to limited English proficiency (‘‘LEP’’) persons. See Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, 65 FR 50121 (Aug. 16, 2000). To date, EOIR has released a language access plan detailing the agency’s efforts to comply with Executive Order 13166. See EOIR, The Executive Office for Immigration Review’s Plan for Ensuring Limited English Proficient Persons Have Meaningful Access to EOIR Services, May 31, 2012, available at https:// www.justice.gov/sites/default/files/eoir/ legacy/2012/05/31/EOIRLanguage AccessPlan.pdf. When EOIR implements ECAS for pro se respondents, who are the main EOIR population constituting LEP persons, EOIR will determine if Executive Order 13166 requires any additional changes to its public-facing systems to ensure meaningful access. Lastly, the rule does not impose any standalone fees for electronic filing. khammond on DSKJM1Z7X2PROD with RULES F. Representative Registration Process Comment: One commenter requested that EOIR include changes to its eRegistry process by removing the inperson identity verification step. Response: The Department believes that the request to remove in-person verification from the eRegistry process is outside the scope of this rule, as the rule does not make any changes to the eRegistry process. See 85 FR at 78244 (explaining that this rule does not add any additional eRegistry requirements). G. Change of Address Comment: One commenter requested that EOIR develop a centralized system for filing the change of address form, Form EOIR–33, in order to provide a simple and reliable process for pro se respondents and representatives. Response: To the extent that the commenter requests a separate centralized system to submit Form EOIR–33, the Department believes such request is outside the scope of this regulation. Nevertheless, the VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 Department notes that Form EOIR–33 is currently available for electronic filing through ECAS. In addition, as EOIR continues to pursue enhancements to its ECAS system, the agency will consider potential changes to its change of address filing and processing procedures to ensure a simple and efficient process for filers. H. Service of Process Comment: One commenter raised concerns about electronic service of process, noting that representatives could miss an email that ends up in a spam folder or is not received due to a technical issue. The commenter was also concerned about electronic service on pro se respondents and respondents who receive only limited representation. As a result, the commenter stated that DHS should be required to paper serve pro se respondents or their representatives in addition to any electronic service of process. Response: The Department has no concerns regarding electronic service, which is standard practice in most court systems. See, e.g., Ninth Cir. Ct. of App. Fed. R. App. P. 25.5(f)(1) (stating that, subject to some exceptions, ‘‘[w]hen a document . . . is submitted electronically, the Appellate Electronic Filing System will automatically notify the other parties and counsel who are registered for electronic filing of the submission; no certificate of service or service of paper copies upon other parties and counsel registered for electronic filing is necessary.’’). In addition, EOIR has been successfully piloting ECAS since June 2018, including by sending email notifications to filers. In general, representatives should vigilantly monitor their email inboxes, including any spam folders, for service notifications from EOIR, just as a person would for any important email communication. Regarding cases involving pro se respondents who choose not to use ECAS, the rule requires DHS to complete service outside of the ECAS system consistent with current practice. See, e.g., 8 CFR 1003.32(c). The Department also notes that EOIR currently does not allow for limited representation aside from bond hearings. If a respondent retains a representative for a proceeding before EOIR, that representative will be required under this rule to electronically file and receive electronic service so long as they have a valid Form EOIR–27 or EOIR–28 on file, as applicable. If the immigration court or BIA later grants the representative’s withdrawal from the proceeding, the respondent becomes pro se, and the PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 electronic filing and service procedures no longer apply. Lastly, in response to the suggestion that DHS be required to complete paper service in all cases in addition to any electronic service, the Department declines to create additional service requirements for DHS that would not be similarly required of the opposing party. The Department is confident in the electronic service process, and requiring duplicative paper service would only reduce the efficiencies of the electronic filing and service process. I. Electronic Filing for Existing Paper Cases Comment: One commenter requested that EOIR allow for electronic filing in existing paper cases to increase usage among willing representatives. Response: The Department appreciates the commenter’s suggestion and enthusiasm for electronic filing. However, EOIR is unable to provide electronic filing in existing paper cases at this time due to resource constraints surrounding the digitization of existing case files. In the future, EOIR may consider converting paper records to eROPs, depending on cost, technological feasibility, and agency operational requirements. In addition, the Department believes that applying this rule prospectively to newly initiated cases will also help ensure a smooth transition into electronic filing and eROPs. J. Signature Requirements Comment: One commenter requested clarity regarding ink signatures on forms that require ink signatures and how those should be handled through electronic filing. Another commenter requested that EOIR allow for digital signatures on paper filings. Response: As stated in the NPRM, the rule’s signature requirements are subject to any form requirements regarding signatures. See 85 FR at 78246. Therefore, if a form requires an ink signature, the user must follow the form requirements. The user may then electronically file a scanned copy of the ink-signed form through ECAS, so long as the user maintains the original document for inspection upon request. Id. (‘‘In practice, if the user was electronically filing, the user would sign the application in ink and then scan and electronically file the application with EOIR.’’). Second, the rule already also allows for the use of electronic and encrypted digital signatures on documents filed in paper. See 85 FR at 78246 (‘‘First, EOIR proposes to accept documents with original, handwritten ink signatures, E:\FR\FM\13DER1.SGM 13DER1 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations encrypted digital signatures, or electronic signatures, whether filing electronically or on paper.’’). khammond on DSKJM1Z7X2PROD with RULES K. Transition Period Comment: One commenter stated that EOIR should implement a transition period before making electronic filing mandatory for attorneys and accredited representatives in order for representatives to ensure they have the necessary staffing, training, and file storage. Response: After consideration, the Department declines to implement an explicit transition period for attorneys and accredited representatives. The Department believes that electronic filing is standard practice in most court systems and that most, if not all, users should already be familiar with uploading documents electronically. EOIR has devoted resources to developing the EOIR Case Portal, an updated electronic filing portal that features an intuitive user interface for electronically filing documents at the immigration courts and the BIA and will be providing training materials and technical support to filers as necessary. For example, users can currently view training materials, including infographics and videos on how to upload and download documents, on EOIR’s website. See EOIR, Resources— Attorneys and Accredited Representatives, available at https:// www.justice.gov/eoir/ecas/attorney-andar-resources (last updated Aug. 25, 2021). This rule also includes a 60-day waiting period before it becomes effective, which provides additional time for filers to familiarize themselves with ECAS. Moreover, ECAS has been in production at many pilot courts for more than two years without issue, evincing a stable electronic filing system. See EOIR Electronic Filing Pilot Program, 83 FR 29575 (June 25, 2018). In addition, this rule only applies to cases initiated after the ECAS release in a specific court or the BIA. See 8 CFR 1001.1(cc) (defining ‘‘case eligible for electronic filing’’). Therefore, attorneys and accredited representatives will only be required to electronically file documents in newly initiated cases, which will act as a de facto transition period. L. Interaction with Other EOIR Proposed Rules Comment: One commenter raised concerns about the rule’s interaction with the September 30, 2020 NPRM entitled, ‘‘Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances,’’ 85 FR 61640 (Sept. 30, 2020) VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 (‘‘September NPRM’’). The commenter requested clarification on the interaction between electronic filing under this rule and the September NPRM and recommended that the comment period be reopened to allow commenters additional time to explore potential interactions between the two rules. Response: The Department finds it unnecessary to extend the comment period as requested because this rule and the September NPRM address two different, though admittedly related, topics. In the September NPRM, the Department proposed a new manner of appearance before the immigration courts and the BIA: Document assistance that would not trigger the full range of responsibilities and obligations required for full representation. See 85 FR at 61645. This rule establishes electronic filing requirements for attorneys and accredited representatives who have filed a Form EOIR–27 or EOIR–28 and are the representative of record, and creates a system that allows for voluntary and permissible electronic filing in the future by the respondent, applicant, or petitioner; reputable individuals and accredited officials; and any other authorized individuals. As discussed below in Section III, this final rule provides further clarification regarding when the electronic filing requirements apply so that it is clear that only attorneys or representatives who are the representative of record have a mandatory filing requirement. As the Department works to finalize the September NPRM, the Department will include any further clarity or provisions as needed in that final rule. In addition, the Department notes that, as a general matter under the current system requirements, only representatives with a valid EOIR–27 or EOIR–28 entry of appearance on file for a specific case may view and file documents electronically for that case through ECAS. M. Electronic Filing System Comment: One commenter stated that EOIR should study other courts’ electronic filing systems to serve as a model, including CM/ECF and those of other agencies and state courts. Response: EOIR considered many existing court electronic filing systems in designing ECAS and will continue to solicit feedback from users in an effort to continually improve the system. See EOIR, Contact—Attorneys and Accredited Representatives, available at https://www.justice.gov/eoir/ecas/ attorney-and-ar-contact (last updated Jan. 25, 2021) (providing an email inbox to submit ECAS-related suggestions). PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 70711 N. Comment Period Comment: Commenters raised concerns with the rule’s 30-day comment period, stating that the comment period was too short in light of the holiday season, the COVID–19 pandemic, and EOIR’s other pending proposed rules. Commenters requested that EOIR reopen the comment period for further comment. Response: The Department believes the 30-day comment period on the NPRM was sufficient to allow for meaningful public input. See, e.g., Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2385 (2020) (‘‘The object [of notice and comment], in short, is one of fair notice.’’ (citation omitted; alteration in the original)). The Administrative Procedure Act (‘‘APA’’) does not require a specific comment period length. See generally 5 U.S.C. 553(b)–(c). Although Executive Orders 12866 and 13563 recommend a comment period of at least 60 days, no specific length is required by executive order or statute. See Vt. Yank. Nucl. Power Corp. v. NRDC, 435 U.S. 519, 524 (1978) (explaining that, aside from ‘‘extremely rare’’ circumstances, the APA ‘‘established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures’’). Federal courts have found 30 days to be a reasonable comment period length. For example, the D.C. Circuit has stated that ‘‘[w]hen substantial rule changes are proposed, a 30-day comment period is generally the shortest time period sufficient for interested persons to meaningfully review a proposed rule and provide informed comment.’’ Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1102, 1117 (D.C. Cir. 2019) (citing Petry v. Block, 737 F.2d 1193, 1201 (D.C. Cir. 1984)). Further, litigation has mainly focused on the reasonableness of comment periods shorter than 30 days, often in the face of exigent circumstances. See, e.g., North Carolina Growers’ Ass’n. v. United Farm Workers, 702 F.3d 755, 770 (4th Cir. 2012) (analyzing the sufficiency of a 10day comment period); Omnipoint Corp. v. FCC, 78 F.3d 620, 629–30 (D.C. Cir. 1996) (15-day comment period); Northwest Airlines, Inc. v. Goldschmidt, 645 F.2d 1309, 1321 (8th Cir. 1981) (7day comment period). Here, the Department decided that this rule, which codifies straightforward standards for electronic filing, was not overly complex or so ‘‘substantial’’ such that it necessitated a lengthy comment period. Nat’l Lifeline Ass’n, 921 F.3d at E:\FR\FM\13DER1.SGM 13DER1 70712 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 1117. The NPRM did not present a novel concept with which commenters would have been entirely unfamiliar. In the last three years, the Department has published a notice in the Federal Register announcing pilot programs for electronic filing, 83 FR 29575; begun more than 40 pilot programs at immigration court locations across the country; and developed a robust website and portal, including technical support contacts, infographics, video tutorials, and user manuals. See generally EOIR, EOIR Courts & Appeals System (ECAS)—Online Filing, available at https://www.justice.gov/eoir/ECAS (last updated July 11, 2021). For these reasons, the Department finds it unnecessary to extend the comment period beyond the 30 days provided. Moreover, the Department does not believe that the COVID–19 pandemic, the holiday season, or EOIR’s other proposed rulemakings should have precluded the use of a 30-day comment period. Regarding the COVID–19 pandemic, proposed rulemakings allow for electronic comment submissions, and employers around the country have adopted telework flexibilities to the greatest extent possible, which reduces potential hardships from the COVID–19 pandemic. In addition, holidays within a comment period are unavoidable throughout much of the year, and commenters are expected to plan accordingly. Lastly, this rule is unrelated to any other proposed rules that EOIR issued during the same time period, and the Department does not believe that unrelated NPRMs provide cause for extending comment periods. III. Final Rule After reviewing public comments on the NPRM, the Department now adopts the NPRM as written with the following changes: (1) Removing the regulatory requirement that supervising attorneys or accredited representatives be physically present in the same location as the law students or law graduates they supervise for purposes of representation before EOIR, and instead leaving the determination regarding the parties’ manner of appearance to the adjudicator’s discretion; (2) correcting a scrivener’s error regarding the supervisor requirements for law graduates; (3) allowing filers to include proof of fee payment with DHS when DHS has not provided a fee receipt within the filing deadline set by the immigration judge; (4) including language requiring sealed medical records to be filed in paper and not electronically; (5) broadening immigration judge discretion to accept paper filings from parties otherwise VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 required to file electronically under this rule; (6) modifying the process for fee waiver denials at the BIA; (7) extending the minimum notice requirement for planned outages from three to five days; (8) removing duplicative examples of improper filings; (9) clarifying to whom the filing requirements apply; (10) clarifying the registration procedures for permissive electronic filers; and (11) making additional minor technical amendments to update outdated references. First, the final rule modifies 8 CFR 1292.1(a)(2)(iv) so that supervising attorneys or accredited representatives are not required by regulation to be physically present in the same location as the law students or law graduates they supervise for purposes of representation before the immigration court or the BIA, and instead leaves the determination regarding the parties’ manner of appearance (e.g., video teleconference; in-person) subject to the adjudicator’s discretion. This clarification enhances flexibility for supervising attorneys or accredited representatives of law students or law graduates while maintaining the requirement that the supervising attorney or accredited representative be able to participate fully and be prepared to proceed with the case, including inperson appearance when required. See 8 CFR 1003.10(b). Second, the final rule amends 8 CFR 1292.1(a)(2)(iii) to correct a scrivener’s error that excluded the requirement that law graduates appear under the supervision of an EOIR-registered licensed attorney or accredited representative. While the Department included this requirement in the NPRM at 8 CFR 1292.1(a)(2)(ii) as applied to law students appearing before EOIR, and indicated its clear intent that law students and law graduates be subject to the same supervision requirements through the paragraph regarding filings by law students and law graduates, it inadvertently excluded the supervisors’ registration requirement in the paragraph regarding law graduates. Because the supervisors of both law students and law graduates must be able to proceed with the case at all times, 8 CFR 1292.1(a)(2)(iv), it is logical that the supervisors in both circumstances must be EOIR-registered. Indeed, the Department indicated its intent in the NPRM that law graduates’ supervisors be registered in the same manner as law students’ supervisors. See 85 FR at 78243 (‘‘Further, this rulemaking proposes that law graduates, currently required to have ‘supervision’ under the regulations, 8 CFR 1292.1(a)(2)(iii), would also need to file through an PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 attorney or accredited representative registered with EOIR.’’) Third, the final rule modifies 8 CFR 1001.1(dd)(2), 1003.23(b)(1)(ii), 1003.31(g), and 1103.7(a)(3) to allow filers to submit proof of fee payment made to DHS in the event that filers are not provided a fee receipt within the applicable filing deadline set by the immigration judge. This change will provide flexibility when filers cannot meet EOIR filing deadlines through no fault of their own. However, the rule makes clear that the filer must still submit the actual fee receipt within a later deadline set by the immigration judge or, if no deadline is set, within 45 days of the submission of the underlying filing. Fourth, the final rule modifies 8 CFR 1003.2(g)(7), 1003.3(g)(4), and 1003.31(e) to add an additional requirement that sealed medical records must be filed in paper and not electronically. Most commonly, respondents are required to submit a sealed Form I–693 when applying for adjustment of status. See 8 CFR 1245.5; U.S. Citizenship and Immigration Services, Form I–693—Instructions for Report of Medical Examination and Vaccination Record, available at https:// www.uscis.gov/sites/default/files/ document/forms/i-693instr.pdf (explaining that the completed form will be returned if not sealed when submitted). Since documents in sealed envelopes cannot be electronically transmitted, respondents in these cases must submit the sealed Form I–693 medical report in paper to ensure the integrity of the record, which the immigration judge will open and scan into the electronic record of proceeding. This modification will provide clarification to ensure that the confidentiality of these medical records is maintained and that the medical records are not erroneously opened by the parties and filed electronically. Fifth, the final rule modifies 8 CFR 1003.31(b) to broaden the ability of immigration judges to accept paper filings in all cases. The NPRM provided the BIA full discretion to accept paper filings as necessary but limited immigration judges to situations involving (1) rebuttal or impeachment; (2) good cause shown, provided that the filing is otherwise admissible and the immigration judge finds that any applicable filing deadline should be excused; or (3) when the opposing party does not object to the paper filing. By updating this language in the final rule, the Department recognizes that providing immigration judges with maximum discretion to accept paper filings will help provide the necessary E:\FR\FM\13DER1.SGM 13DER1 khammond on DSKJM1Z7X2PROD with RULES Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations flexibility to receive evidence as the immigration judge deems necessary and will provide consistency between the immigration courts and the BIA. Sixth, the final rule modifes 8 CFR 1001.1(dd), 1003.8(a)(3), and 1003.24(d) to update the fee waiver denial process at the BIA. The NPRM changed the existing BIA fee waiver process so that, if the BIA denied a fee waiver request, the BIA would hold the underlying filing in a pending state while allowing the filer a 10-day cure period to submit the required fee or to submit a new fee waiver request, which would also serve to toll any applicable filing deadlines. However, after further review, the Department has decided to modify this language to more closely match the existing process, while retaining the filing deadline tolling period. The final rule states that, if a fee waiver request is denied, the BIA will reject the filing consistent with existing practice but allow the filer 15 days to re-file the document with the proper payment or a new fee waiver request. Any applicable filing deadlines will be tolled during this 15-day period. The Department believes this modification provides a more standardized process for filings at the BIA and will prevent any issues stemming from the BIA needing to hold any filings in a pending state while waiting for a fee payment or new fee waiver. Seventh, the final rule modifies 8 CFR 1003.2(g)(5), 1003.3(g)(2), and 1003.31(b) to extend the minimum notice for planned system outages from three to five days. As a result, any planned outages announced with five or fewer days’ notice will be treated as an unplanned outage and filing deadlines will be extended until the first day of system availability that is not a Saturday, Sunday, or legal holiday. For planned outages with more than five days’ notice, filers must electronically file documents during system availability within the applicable filing deadline or paper file documents within the applicable filing deadline. Extending the notice period will further ensure that filers have sufficient time to account for planned outages when filing their documents. Eighth, the final rule removes proposed 8 CFR 1001.1(dd)(2), which provided a non-exhaustive list of improper filings subject to rejection by the immigration courts and the BIA. The requirements for proper filings are contained within various statutory and regulatory provisions. See, e.g., INA 240(c)(4)(B), 8 U.S.C. 1229a(c)(4)(B) (requiring compliance with application instructions); 8 CFR 1003.31 (fee requirements), 1003.32 (proof of service VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 and document formatting requirements), 1003.33 (document translation requirements). The proposed language in the NPRM was non-exhaustive and risked duplication and confusion with these and other similar provisions. Therefore, the Department has removed the language from the final rule. Ninth, this rule amends the provisions at 8 CFR 1003.2(g)(4), 1003.3(g)(1), and 1003.31(a) regarding parties that are either required to or allowed to electronically file documents with EOIR. Specifically, this rule adds a qualifier that the mandatory electronic filing requirement for attorneys and accredited representatives applies only in those cases in which the attorney or accredited representative has entered an appearance on a Form EOIR–27 or a Form EOIR–28. This rule also amends the explanation of who may permissively file documents electronically so that it is clear that reputable individuals and accredited officials may also do so in those cases in which they have entered an appearance on a Form EOIR–27 or a Form EOIR–28. Finally, this rule includes a catchall that ‘‘other authorized individuals’’ may file documents electronically. For example, depending on sytem development, EOIR may authorize third-party electronic filing akin to the current availability of courier services. Tenth, the final rule modifies 8 CFR 1003.2(g)(4), 1003.3(g)(1), and 1003.31(a) regarding the requirement for parties who may permsissibly and voluntarily participate in electronic filing with the immigration courts and the BIA. Previously, the proposed rule stated that such parties must first register with EOIR ‘‘in conformity with 8 CFR 1292.1(f).’’ That paragraph, however, only sets out registration procedures for attorneys and accredited representatives who appear before EOIR. Accordingly, the final rule replaces these references to 8 CFR 1292.1(f) with a general requirement that unrepresented respondents, reputable individuals, accredited officials, and any other authorized persons must first register with EOIR as a prerequisite to being able to electronically file documents with the immigration courts and the BIA. This amendment does not change the Department’s expectation, as explained in the NPRM, that the registration procedures for these officials, once available, will mimic those that are set out in 8 CFR 1292.1(f) and that currently apply to attorneys and accredited representative. 85 FR at 78242 (‘‘EOIR will adapt its current registration system as appropriate to allow pro se respondents, applicants, or PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 70713 petitioners and reputable individuals and accredited officials to register in order to be able to utilize ECAS.’’). Lastly, the final rule includes two additional technical amendments to correct additional outdated references to the Immigration and Naturalization Service in 8 CFR 1214.2 and 1245.21. IV. Regulatory Requirements A. Regulatory Flexibility Act The Department has reviewed this rule in accordance with the Regulatory Flexibility Act and has determined that this rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b). This rule regulates attorneys and accredited representatives, most of whom qualify as ‘‘small entities’’ under the Regulatory Flexibility Act. See 5 U.S.C. 601(3)–(4), (6). However, all attorneys and accredited representatives already are required to enroll in eRegistry in order to practice before EOIR. Thus, they are already eligible to participate in the electronic filing system, which is currently being made available in many locations through a voluntary pilot program. This rule mandates electronic filing in eligible cases. The Department anticipates that the adoption of electronic filing will lead to substantial net cost savings for these attorneys and accredited representatives because they will no longer be required to bear the burdens and expenses of mailing or serving paper copies in each of their cases for filings submitted to the immigration court or to the BIA or for service of process on opposing counsel. Therefore, this rule will not have an adverse economic effect on attorneys or accredited representatives; instead the Department expects it to result in net cost savings. A more detailed analysis of the costs and benefits of this rule are detailed in Section IV.D of this preamble. 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 This rule is not a major rule as defined by section 804 of the Congressional Review Act. 5 U.S.C. E:\FR\FM\13DER1.SGM 13DER1 70714 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations 804(2). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreignbased enterprises in domestic and export markets. The Department will report to Congress and to the Comptroller General as required by 5 U.S.C. 801(a). khammond on DSKJM1Z7X2PROD with RULES D. Executive Order 12866 and Executive Order 13563 (Regulatory Planning and 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 effects, distributive impacts, and equity). The Office of Information and Regulatory Affairs of the Office of Management and Budget (‘‘OMB’’) has determined that this rule is not a ‘‘significant regulatory action’’ under section 3(f) of Executive Order 12866. It will neither result in an annual effect on the economy greater than $100 million nor adversely affect the economy or sectors of the economy. It does not pertain to entitlements, grants, user fees, or loan programs, nor does it raise novel legal or policy issues. It does not create inconsistencies or interfere with actions taken by other agencies. Accordingly, this rule is not a significant regulatory action subject to review by OMB pursuant to Executive Order 12866. Executive Order 13563 directs 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. The Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 13563. 1. ECAS-Related Costs and Savings The Department estimates that implementation of ECAS will result in a total savings of $68,103,621 over the VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 first 10 years of its implementation.1 Specifically, the Department estimates that electronic filing will cost EOIR $32,897,808 over 10 years, primarily due to increased technology costs to implement and maintain the new technology infrastructure. These costs are outweighed, however, by the predicted savings to the public— $101,001,429, which primarily relate to cost savings from no longer having to file documents via mail or in person. These costs and savings for EOIR and the public are discussed in further detail individually below. TABLE 1—OVERVIEW OF TOTAL COST AND SAVINGS: EOIR AND THE PUBLIC 2 Entity Savings/costs EOIR OCIJ ........................ BIA ........................... OIT ........................... OGC ........................ Public .............................. ($32,897,808) 12,910,888 2,710,950 (51,275,937) 2,757,920 101,001,429 Total ......................... 68,103,621 Despite the financial cost to EOIR to develop and maintain the technology for ECAS, the Department believes that electronic filings will be a net benefit for the agency. During the electronic filing pilot program, EOIR has already begun to realize efficiencies in case processing. For example, in Fiscal Year (‘‘FY’’) 2019 DHS initiated 37,074 cases electronically (out of 465,790 cases initiated in the same time period), and 161 bond proceedings were initiated electronically. According to internal pilot metrics, charging documents filed electronically at the pilot sites are being processed nearly 10 times faster than charging documents filed in paper. Similarly, the time it takes to receive and process a non-charging supporting document is approximately 25 percent faster than processing a paper-filed supporting document. This represents a significant savings in terms of court staff time and in terms of the overall 1 All dollar amounts cited in this discussion are calculated to correspond with what would have been the value in December 2016 using the U.S. Bureau of Labor Statistics (BLS) Consumer Price Index inflation calculator found at https:// www.bls.gov/data/inflation_calculator.htm (last visited Mar. 1, 2021). 2 Savings listed are an overestimation as they include all filings, rather than only those filings that can be done electronically at this time (i.e., the savings include filings by pro se respondents who cannot yet use ECAS). In addition, the Department notes that any differences in the amount of cost and benefits listed herein from those noted in the NPRM are the result of changes in when the Department applied rounding in the calculation for consistency and not due to substantive changes in the calculations. PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 processing time for the 2,574 electronically filed motions that EOIR has received during the ECAS pilot program from its inception to the end of January 2020. This rule will only increase these time savings when all attorneys and accredited representatives begin filing documents electronically. a. Office of the Chief Immigration Judge The Department estimates that implementation of the rule will reduce the immigration courts’ costs by the equivalent of approximately $12.9 million over the first 10 years of implementation. This reduction includes the cost of labor that will be reallocated to other tasks due to the more efficient processing of electronic documents. Cost changes for the courts will be realized primarily in initial case processing; individual hearing processing; and processing and shipping costs for changes of venue, appeals, and records retirement. To reach its estimates, the Department determined the costs for adjudicating a typical case after the implementation of the rule. Using this methodology, the Department identified and analyzed three separate scenarios: (1) Legacy paper ROPs that were started but not completed before this rule; (2) eROPs for pro se respondents that are submitted in paper and scanned by court staff; and (3) eROPs for represented respondents that are completely electronic. The Department then estimated the economic impact of the rule on the immigration courts for each of the next 10 years by calculating the average costs for each of the three scenarios above; multiplying each scenario’s average cost by the expected annual number of cases received for the immigration courts and expected annual hearings for the immigration courts in each scenario over the next decade; separately calculating the baseline cost (i.e., the cost without mandatory electronic filing), using existing time estimates and labor rates, for the next 10 years; and subtracting the post-regulation cost from the baseline cost for each of the next 10 years. This economic impact reflects labor hours that will be saved in terms of dollars. In actuality, labor can be reallocated to higher-impact tasks, and more efficient labor usage could offset future hiring and resource needs, which may lead to more quantifiable realized savings. As shown in Table 2, the expected cost savings increase every year. This is a result of legacy paper ROPs leaving the system as cases are adjudicated and a higher percentage of the future pending cases having E:\FR\FM\13DER1.SGM 13DER1 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations mandatory eROPs as a result of this regulation. TABLE 2—OFFICE OF THE CHIEF IMMIGRATION JUDGE COST SAVINGS Year Expected cost savings 1 ............................................ 2 ............................................ 3 ............................................ 4 ............................................ 5 ............................................ 6 ............................................ 7 ............................................ 8 ............................................ 9 ............................................ 10 .......................................... $140,304 526,622 816,841 1,115,708 1,320,399 1,500,104 1,666,355 1,816,269 1,947,925 2,060,361 Total ............................... 12,910,888 Since all paper-filed documents, per this new regulation, will be scanned and maintained in an eROP, initial case processing is estimated to become marginally more expensive as court staff must scan the paper documents into the eROP. However, this increase in cost will be outweighed by the time savings, calculated in terms of the cost of labor, for individual hearing processing and change of venue processing, as filing becomes more expeditious for court staff in each individual case. Additionally, annual shipping costs will be reduced, since changes of venue, appeals, and records retirement transfers will occur electronically instead of manually shipping the paper ROP to another court, the BIA, or the Federal Records Center. Cost changes have been calculated with the assumption that all other processes remain the same. However, eROPs enable the possibility of further cost savings through more efficient case adjudication. For example, widely available eROPs may enable immigration judges to hear a case via video teleconference (‘‘VTC’’) almost instantly. Under the current paper ROP system, the ROP needs to be shipped to the immigration judge’s location before a VTC hearing can be held. In contrast, an eROP could enable a judge to open any eROP and hear a case immediately. This new paradigm has the potential to improve the efficiency of workload adjudication by judges and their staff members. EOIR may also realize savings through the reduced growth of storage requirements at court locations. EOIR currently stores paper ROPs at immigration courts, utilizing valuable storage space in courtrooms, offices, and hallways. Conversion to an eROP system may ease the strain on the system as new pending cases will have an eROP that will not require physical storage space. With the information currently available, storage space utilization and savings cannot be specifically calculated. However, this regulation will likely reduce costs for the immigration courts by allowing current space to be used for functional purposes, rather than storage. 70715 The impacts to the BIA largely mirror the immigration courts in that scanning paper filings into the eROP is likely to increase costs by increasing staff workload. Further, the largest cost savings are likely to come from reduced shipping. The BIA’s process requires that all ROPs sent to the BIA from the immigration court must be shipped back to the court upon completion of the appeal. Shipping costs will be eliminated for future eROPs because they will be transferred electronically, reducing costs for the BIA. c. Office of Information Technology The Department estimates that the implementation of the rule will increase EOIR’s Office of Information Technology’s (‘‘OIT’’) costs by a total of approximately $51.3 million across the first 10 years of implementation. These costs are due to the additional effort required to develop, deploy, and b. Board of Immigration Appeals maintain the electronic infrastructure The Department also estimates that that serves as the backbone for implementation of the rule will reduce electronic filing. the BIA’s costs by approximately $2.7 Because OIT developed the tools and million over the first 10 years of processes necessary for the implementation. Cost changes for the implementation of mandatory electronic BIA will be realized in three main filing throughout EOIR, it is the largest process areas: Scanning pro se ROPs; driver of quantifiable costs from receiving ROPs from the immigration mandatory electronic filing courts; and returning ROPs to the implementation. The deployment and immigration courts. training for mandatory electronic filing will be particularly resource-intensive TABLE 3—BIA COSTS SAVINGS for OIT, as it will be responsible for the Expected cost deployment and maintenance of the Year savings hardware and software necessary to 1 ............................................ ($23,064) digitize and store documents along with 2 ............................................ 176,822 delivering training to court staff. Costs 3 ............................................ 201,808 related to electronic filing deployment 4 ............................................ 250,818 are estimated to be approximately $21.7 5 ............................................ 285,414 million, including $2.3 million in 6 ............................................ 314,243 hardware purchases, $1.7 million in 7 ............................................ 342,112 travel to deliver training and install 8 ............................................ 367,098 9 ............................................ 388,240 systems, and $3.4 million in external 10 .......................................... 407,459 services, software, and licensing for necessary cloud computing services. Total ............................... 2,710,950 TABLE 4—OIT ELECTRONIC FILING DEPLOYMENT COSTS khammond on DSKJM1Z7X2PROD with RULES Category Year 1 External Services (e.g., MS Azure Premier Access) .................................................................. Software ....................................................................................................................................... Travel ........................................................................................................................................... Labor/Hardware 3 ......................................................................................................................... Support Labor: Program Support .................................................................................................................. Training ................................................................................................................................. Service Desk/Operations ...................................................................................................... Product Labor: eROP .................................................................................................................................... Electronic Filing .................................................................................................................... VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 Year 2 Total $999,429 625,988 830,295 11,316,689 $999,429 726,171 830,295 5,355,028 $1,998,858 1,352,159 1,660,590 16,671,717 1,717,020 754,782 482,417 900,298 431,820 482,417 2,617,318 1,186,602 964,834 2,699,130 3,741,362 1,322,681 1,833,416 4,021,811 5,574,778 E:\FR\FM\13DER1.SGM 13DER1 70716 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations TABLE 4—OIT ELECTRONIC FILING DEPLOYMENT COSTS—Continued Category Year 1 Year 2 Total Hardware ..................................................................................................................................... 1,921,978 384,396 2,306,374 Total ...................................................................................................................................... 13,772,401 7,910,923 21,683,324 Costs are estimated to be highest in the first year of the deployment, as hardware is purchased, software systems are finalized and implemented, and training is delivered to court staff. Costs are estimated to decrease by over 40 percent in the second deployment year as OIT completes training court staff and transitions to a steady state of software and hardware maintenance. The cost reductions in the second year of deployment will be driven by a 47 percent reduction in labor costs and an 80 percent reduction in hardware costs. Once training and deployment are complete, OIT’s costs will stabilize. While OIT will no longer incur costs related to training court staff, OIT will be using more labor than before mandatory electronic filing. This is due to the additional staff necessary to provide help desk support to the courts and IT services related to the electronic filing system. OIT will also continually accrue expenses for cloud computing platform licensing and hardware repairs, upgrades, and replacements required to support electronic filing. OIT estimates that overall costs will increase by approximately 1 percent each year, primarily driven by increases in labor costs. These ongoing expenses will represent the new steady state for OIT. The eight years following completion of the deployment phase are estimated to cost an additional $29.6 million due to mandatory electronic filing. TABLE 5—OIT ELECTRONIC FILING STEADY STATE COSTS Category Year 3 Year 10 Total External Services (e.g., MS Azure Premier Access) ................... Software ....................................................................................... Travel ........................................................................................... Labor/Hardware ........................................................................... Support Labor: Program Support .................................................................. Training ................................................................................. Service Desk/Operations ...................................................... Products Labor: eROP .................................................................................... Electronic Filing .................................................................... Electronic Filing Hardware ........................................................... $999,429 366,521 0 2,227,541 $999,429 366,521 0 2,255,993 ................ ................ ................ ................ $999,429 366,521 0 2,445,561 $7,995,432 2,932,168 0 18,666,644 239,564 172,728 482,417 239,564 172,728 482,417 ................ ................ ................ 239,564 172,728 482,417 1,916,512 1,381,824 3,859,336 466,808 481,628 384,396 480,812 496,076 384,396 ................ ................ ................ 574,115 592,341 384,396 4,151,015 4,282,793 3,075,168 Total ...................................................................................... 3,593,491 3,621,943 ................ 3,811,510 29,594,242 caseload will have mandatory eROPs as a result of this regulation, which will cause the ratio of eROPs to paper ROPs, and thus expected cost savings, to increase over time, as detailed in Table 6. The Department estimates that the implementation of the rule will increase efficiencies for the EOIR Office of the General Counsel (‘‘OGC’’) programs. For example, digitization of files will allow for more expeditious compliance with Freedom of Information Act (‘‘FOIA’’) and other requests for information, reducing the time burden of such activities on EOIR staff. Specifically, the Department estimates that costs associated with FOIA compliance will decrease by approximately $2.8 million across the first 10 years of implementation. These savings will be realized through reduced shipping costs in the FOIA response process as more ROPs are accessible electronically instead of requiring storage retrieval and shipping. As electronic filing becomes more widespread, the proportion of FOIA requests that can be satisfied through electronic records searches will proportionally increase. A higher percentage of the future pending 3 Labor/Hardware represents a total of the individual categories of support labor, product labor, and hardware. 4 Years 5 through 9 are not included in this visual, but are factored into the totals calculations. OIT estimates that labor costs will increase by 3 percent per year. Non-labor costs, such as hardware, software, and external services, remain constant through each year. As mandatory filing is implemented and electronic filing progresses, the Department anticipates that this will lead to significant additional efficiencies in case processing. This may include more expeditious case scheduling and adjudication, improved data quality, increased performance monitoring and tracking, augmented data analytics capabilities, and better alignment with information storage best practices. There may also be further impacts to EOIR’s internal datainformed decision-making process, as the digitization of the data may allow for increased analysis of the relationship between various practices, procedures, and outcomes. khammond on DSKJM1Z7X2PROD with RULES (4) Year 4 d. Office of the General Counsel VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 TABLE 6—OGC COST SAVINGS Year 5 1 2 3 4 5 6 7 8 9 ............................................ ............................................ ............................................ ............................................ ............................................ ............................................ ............................................ ............................................ ............................................ E:\FR\FM\13DER1.SGM 13DER1 Expected cost savings $0 0 60,052 203,084 295,661 360,279 404,478 443,370 479,318 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations keep data regarding what methods (e.g., Federal Express (‘‘FedEx’’), United States Postal Service (‘‘USPS’’), hand delivery by an attorney’s office or a pro Expected cost 5 Year savings se party, or local courier) are used to file paper documents with EOIR and to 10 .......................................... 511,678 serve those filings on the opposing Total ............................... 2,757,920 party, anecdotal evidence points to filings with the immigration courts and the BIA and service on the opposing The public may also see the added party typically being sent using FedEx qualitative benefit of more expeditious FOIA compliance, as OGC will not have or courier to ensure filings are timely. This is particularly true for filings with to wait for records to be shipped the BIA, because the filer must ensure between locations to satisfy FOIA actual receipt by the BIA in Falls requests and will instead be able to Church, Virginia, no later than the close search and access the records of business of the clerk’s office on the electronically. established deadline. e. The Public To analyze the public cost savings associated with electronic filing, EOIR The benefits to the public are high as considered the average costs of sending well. Parties will be able to file filings through FedEx and USPS, the documents at any time of day from any location with internet, thereby reducing hourly rates for couriers and postage costs and the need to physically immigration attorneys, and the time savings from avoiding use of the appear at an immigration court during immigration courts’ intra-office mailing business hours. For many parties, this systems. Based on these preliminary will be a substantial benefit, as the nearest immigration court may be hours estimates and filings from the previous year, if filers used FedEx for one-third away. The parties will also be able to view the eROP electronically, providing of filings and used USPS for two-thirds of filings, electronic filing would have instant access to necessary documents saved filers $38,780.64 in FedEx and and eliminating the need to appear at the immigration court to view the paper USPS costs in the five pilot courts in FY 2018.8 This is compared to a cost of record. Further, parties will save on $1,958,898.28 in FedEx costs 9 and paper and toner costs required to print $2,772,594.49 in USPS filing costs 10 copies of filings, and costs associated (assuming one-third filings via FedEx with required process service. and two-thirds filings via USPS) in the The Department believes that the other 55 courts. These estimates are biggest savings to the parties before based on an $18.85 average FedEx filing EOIR will be from reduced costs rate ($8.57 average Express Saver cost + associated with mailing or hand$20.03 average second day cost + $27.97 delivering filings that would have been incurred without the implementation of overnight cost, divided by three) and a $13.34 average USPS filing rate ($7.75 electronic filing. In FY 2018, EOIR’s average priority mail + $28.59 average immigration courts received 311,761 priority mail express + $3.68 first-class paper filings and 2,555 electronic parcel, divided by three). The filings,6 and the BIA received 49,522 Department notes that this savings is 7 paper filings. While EOIR does not likely an underestimate due to the tendency for many filers to use next-day 5 FOIA volume is estimated at 50,000 per year, an service. approximation based on EOIR’s FY 2018 FOIA volume. According to the U.S. Bureau of Labor 6 These numbers represent the paper and Statistics, the mean hourly wage for electronic filing of initial Forms I–862, Notice to couriers, such as those individuals law Appear, and I–863, Notice of Referral to the firms may hire to deliver documents to Immigration Judge, by DHS at the immigration the immigration court, is $14.13. U.S. courts nationwide for the fiscal year. EOIR does not have data regarding the number of paper vs. Bureau of Labor Statistics, Occupational electronic filings directly by respondents in Employment Statistics: Occupational khammond on DSKJM1Z7X2PROD with RULES TABLE 6—OGC COST SAVINGS— Continued proceedings or their representatives, such as the relative number of paper vs. electronically filed motions, applications for relief or protection, or evidence packets. Accordingly, this analysis uses the number of electronic and paper filings by DHS as a proxy for those by the respondents and their representatives since EOIR does not have similar data for that population but would expect the percentage of paper and electronic to be the same for both. 7 See EOIR, Statistics Yearbook: Fiscal Year 2018, Aug. 30, 2019, available at https://www.justice.gov/ VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 eoir/file/1198896/download. As with the immigration courts, the Department uses the number of cases filed at the BIA as a proxy for the number of filings at the BIA because the Department does not have specific data regarding the number of individual filings by the parties. 8 852 filings * $18.85 average FedEx cost + 1,703 filings * $13.34 average USPS cost. 9 103,920 filings * $18.85 average FedEx cost. 10 207,841 filings * $13.34 average USPS cost. PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 70717 Employment and Wages, May 2018: 43– 5021 Couriers and Messengers, available at https://www.bls.gov/oes/2018/may/ oes435021.htm (last visited Aug. 28, 2021).11 Further, if an attorney makes the trip to the immigration court or to the BIA to handle the filing, the average cost would be $66.54 for one hour of work.12 Assuming that approximately one-quarter of paper filings are handled via a courier, one-quarter of paper filings are handled via an attorney,13 and one-half are filed using USPS or FedEx, with two-thirds of those via USPS and one-third via FedEx, the cost savings to the public of eFiling in the five pilot courts was approximately $70,916.15 ($8,026.96 for FedEx 14 + $11,361.23 for USPS 15 + $42,502.43 for the attorneys 16 + $9,025.54 for the couriers 17). Overall, the Department’s estimates predict an annual savings to the public from electronic filing before the immigration courts and the BIA of approximately $10,100,142.88 ($70,916.15/2,555 filings = $27.76; $27.76 * (311,761 + 2,555 + 49,522 = 363,838 total filings)). Over the course of 10 years, these savings would equal $101,001,428.80 if the annual number of filings remains constant. The Department, however, expects that the true savings will be higher as EOIR hires additional immigration judges and opens additional immigration courts, expanding the annual case processing capacity. See, e.g., EOIR, Adjudication Statistics: New Cases and Total Completions, July 8, 2021, available at https://www.justice.gov/eoir/page/file/ 1060841/download (showing that initial case completions increased from 195,127 in FY 2018 to 276,984 in FY 2019). Further, additional savings are expected based on gas and tolls, paper, toner, and other office supplies. 11 $14.72 in May 2018 is equivalent to $14.13 in December 2016. 12 U.S. Bureau of Labor Statistics, Occupational Employment Statistics: Occupational Employment and Wages, May 2018: 23–1011 Lawyers, available at https://www.bls.gov/oes/2018/may/ oes231011.htm (last visited Mar. 1, 2021) (stating the mean hourly wage in May 2018 was $69.34). $69.34 in May 2018 is equivalent to $66.54 in December 2016. 13 This calculation further assumes that the filings would require one hour of time by the attorney or courier. 14 426 filings * $18.85 average FedEx cost. 15 852 filings * $13.34 average USPS cost. 16 639 filings * $66.54 mean hourly attorney wage. 17 639 filings * $14.13 mean hourly courier wage. E:\FR\FM\13DER1.SGM 13DER1 70718 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations TABLE 7—COST AND SAVINGS FOR PUBLIC [FY18] FedEx express saver FedEx envelope rates FedEx Local (0–150 miles) ........................................................................................ FedEx Regional (151–600 miles) .............................................................................. FedEx National (601+ miles) ..................................................................................... Average Cost ............................................................................................................. Costs of 1⁄3 OCIJ Paper Filings (103,920): ............................................................... Total Costs of 1⁄3 BIA Paper Filings (16,507): ........................................................... Savings from eFilings (2,555): ................................................................................... USPS rates by zone 18 Priority mail 19 USPS Zone 1&2 (0–150 miles) ................................................................................. USPS Zone 3 (151–300 miles) ................................................................................. USPS Zone 4 (301–600 miles) ................................................................................. USPS Zone 5 (601–1000 miles) ............................................................................... USPS Zone 6 (1001–1400 miles) ............................................................................. USPS Zone 7 (1401–1800) ....................................................................................... USPS Zone 8 (1801+) ............................................................................................... Average Cost ............................................................................................................. Costs of 2⁄3 OCIJ Paper Filings (207,841): ............................................................... Costs of 2⁄3 BIA Paper Filings (16,507): .................................................................... Savings from eFilings (2,555): ................................................................................... khammond on DSKJM1Z7X2PROD with RULES Documents will also be served by electronic notification where applicable, which will provide near-instantaneous service. This will particularly benefit the parties when EOIR electronically serves orders and decisions on parties participating in electronic filing, as the appeal clock begins to run when the order is sent. This will allow the parties to begin preparing for any potential appeals immediately without having to wait for the order or decision to arrive in the mail as is currently the practice. These potential benefits are reflected in the private bar’s long-standing requests for electronic filing with EOIR. See, e.g., EOIR, EOIR/AILA Liaison Meeting, Sept. 26, 2002, available at https://www.justice.gov/eoir/eoir-ailasep26-2002 (last updated Feb. 13, 2015) (discussing ‘‘e-filing initiative’’). In addition, since the July 2018 launch of the electronic filing pilot program, more than 15,000 attorneys have signed up for 18 This chart does not include the USPS rates for zone 9 as there are no immigration court locations in the Republic of Palau, Federated States of Micronesia, and the Republic of the Marshall Islands. See USPS Office of Inspector General, Audit Report Management of Postal Zones 4, Mar. 25, 2020, available at https://www.uspsoig.gov/ sites/default/files/document-library-files/2020/ 19RG009MS000-20.pdf (last visited Aug. 26, 2021). 19 These rates correspond with the USPS priority mail rates for letters, large envelopes, and parcels that do not exceed one pound. 20 These rates correspond with the USPS priority mail express rates for letters, large envelopes, and parcels that do not exceed 0.5 pound. 21 These rates correspond with the USPS first class package service rates for retail parcels that do not exceed one ounce. VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 $7.64 8.16 9.90 8.57 890,257.26 141,467.85 21,896.35 $6.95 7.28 7.42 7.65 7.83 8.21 8.90 7.75 1,610,765.17 255,863.67 19,801.25 ECAS, indicating a strong interest in electronic filing. Moreover, at the pilot sites, approximately half of all active attorneys and accredited representatives in those sites have signed up for the pilot despite having no obligation to participate. 2. Costs and Savings Related to Rules Regarding Law Student and Law Graduate Filings This rulemaking also proposes changes to law student and law graduate filing and accompaniment rules. First, EOIR believes that there will be minimal, if any, costs associated with requiring the supervisor to electronically file documents with EOIR, rather than the law student or law graduate filing on paper. And, if there are any associated costs, they will be outweighed by the substantial benefits of electronic filing, including immediate access to the eROP and the ability to file at any time of day from any location with internet access without the cost or reliance on mail carriers. As to the proposed accompaniment change, EOIR does not maintain data on how many law students appear in immigration court or how many of those appear without a supervisor present, though it understands that in most cases, a supervisor does accompany the law student. Moreover, regardless of EOIR’s rules, in many cases a supervisor is required to accompany the law student or graduate in order to comply with applicable state bar rules. See, e.g., Cal. R. Ct. 9.42(d)(3) (allowing certified PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 FedEx 2day $17.83 19.34 22.92 20.03 2,081,524.28 330,641.89 51,176.65 Priority express 20 $24.43 24.66 25.50 28.47 30.37 32.27 34.45 28.59 5,942,164.66 943,889.32 73,047.45 FedEx standard overnight $23.53 25.80 34.57 27.97 2,906,651.72 457,253.13 71,463.35 First-class parcel 21 $3.52 3.57 3.62 3.66 3.71 3.76 3.89 3.68 764,853.65 121,493.70 9,402.40 California law students to appear ‘‘on behalf of the client in any public trial, hearing, arbitration, or proceeding, or before any arbitrator, court, public agency, referee, magistrate, commissioner, or hearing officer, to the extent approved by such arbitrator, court, public agency, referee, magistrate, commissioner, or hearing officer,’’ provided that, among other requirements, the certified law student ‘‘[p]erforms the activity under the direct and immediate supervision and in the personal presence of the supervising attorney’’). EOIR recognizes that in rare cases in which a law school clinic or similar program does not currently send a supervising attorney to every hearing at which a law student or law graduate appears, there may be some increased cost. EOIR expects those increased costs to be minimal, however, due to the rarity of cases in which law students and law graduates appear unsupervised, the availability of telephonic appearances, and the final rule’s modification to allow law students and law graduates to appear from locations separate from their supervisors with adjudicator permission.22 Further, EOIR 22 Due to the current outbreak of COVID–19, many immigration judges have adopted standing orders allowing practitioners to appear by telephone without the need for filing a motion. See EOIR Policy Manual, Part II, Ch. 14.1, available at https://www.justice.gov/eoir/eoir-policy-manual/ii/ 14/1 (last updated Jan. 13, 2021); EOIR, Operational Status Map, available at https://www.justice.gov/ eoir-operational-status/operational-status-map (providing standing orders for each immigration E:\FR\FM\13DER1.SGM 13DER1 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations believes that the benefits of ensuring that every case has a single licensed representative responsible for service of process and ultimate representation in the case outweighs the potential costs associated with the increased accompaniment requirements.23 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, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. F. Executive Order 12988 (Civil Justice Reform) This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. G. Paperwork Reduction Act This rulemaking does not propose new or revisions to existing ‘‘collection[s] of information’’ as that term is defined in the Paperwork Reduction Act of 1995, Public Law 104– 13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320. List of Subjects 8 CFR Part 1001 khammond on DSKJM1Z7X2PROD with RULES Administrative practice and procedure, Immigration. court). Although EOIR cannot predict how long such standing orders will remain in effect, it reiterates that nothing in this proposed rule precludes a law school clinic from filing a motion for a telephonic appearance in order to reduce the need for in-person appearances. 23 Although most law school clinics and similar programs only take cases at immigration courts that are located in nearby geographic proximity, both to minimize operational and logistical difficulties and to avoid the complications of complying with practice rules for different state jurisdictions, EOIR also recognizes that there may be unique situations in which a law school clinic takes a case that requires atypical travel arrangements. In that situation, coupled with the similarly unique situation of an unsupervised law student appearing alone on behalf of a respondent, EOIR acknowledges there may be an increase in cost associated with this rule because it would require the supervisor to accompany the student to those courts, but the benefit of the rule outweighs any cost associated with this highly unlikely situation. In addition, the final rule has been modified to allow law students and law graduates to appear from locations separate from their supervisor with the adjudicator’s permission, which would diminish the potential for the scenario described. See 8 CFR 1292.1(a)(2)(iv). VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 8 CFR Part 1003 Administrative practice and procedure, Aliens, Immigration, Legal services, Organization and functions (Government agencies). 8 CFR Part 1103 Administrative practice and procedure, Authority delegations (Government agencies), Reporting and recordkeeping requirements. 8 CFR Part 1208 Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 1214 Administrative practice and procedure, Aliens. 8 CFR Part 1240 Administrative practice and procedure, Aliens. 8 CFR Part 1245 Aliens, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 1246 Administrative practice and procedure, Aliens, Immigration. 8 CFR Part 1292 Administrative practice and procedure, Immigration, Lawyers, Reporting and recordkeeping requirements. Accordingly, for the reasons set forth in the preamble, the Department amends 8 CFR parts 1001, 1003, 1103, 1208, 1214, 1240, 1245, 1246, and 1292 as follows: PART 1001—DEFINITIONS 1. The authority citation for part 1001 continues to read as follows: ■ Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107–296, 116 Stat. 2135; Title VII of Pub. L. 110–229. 2. Amend § 1001.1 by revising paragraph (s) and adding paragraphs (cc), (dd), and (ee) to read as follows: ■ § 1001.1 Definitions. * * * * * (s) The terms government counsel or DHS counsel, in the context of proceedings in which DHS has appeared, mean any officer assigned to represent DHS in any proceeding before an immigration judge or the Board of Immigration Appeals. * * * * * (cc) The term case eligible for electronic filing means any case that DHS seeks to bring before an PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 70719 immigration court after EOIR has formally established an electronic filing system for that court, or any case before an immigration court or the Board of Immigration Appeals that has an electronic record of proceeding. Any reference to a record of proceeding in this chapter shall include an electronic record of proceeding. (dd) The term filing means the actual receipt of a document by the appropriate immigration court or the Board of Immigration Appeals. An electronic filing that is accepted by the Board or an immigration court will be deemed filed on the date it was submitted. A paper filing that is accepted by the Board or an immigration court will be deemed filed on the date it was received by the Board or the immigration court. A filing that is rejected by the Board or the immigration court as an improper filing will not be deemed filed on the date it was submitted or received. (ee) The term service means physically presenting, mailing, or electronically providing a document to the appropriate party or parties; except that an Order to Show Cause or Notice of Deportation Hearing shall be served in person to the alien, or by certified mail to the alien or the alien’s attorney, and a Notice to Appear shall be served to the alien in person, or if personal service is not practicable, shall be served by regular mail to the alien or the alien’s attorney of record. PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 3. 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. 4. Amend § 1003.1 by revising paragraph (f) to read as follows: ■ § 1003.1 Organization, jurisdiction, and powers of the Board of Immigration Appeals. * * * * * (f) Service of Board decisions. The decision of the Board shall be in writing. The Board shall transmit a copy to DHS and serve a copy upon the alien or the alien’s representative, as provided in part 1292 of this chapter. * * * * * ■ 5. Amend § 1003.2 by: E:\FR\FM\13DER1.SGM 13DER1 70720 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations a. Revising paragraph (g) introductory text, (g)(1), and (g)(2)(i) through (iii); and ■ b. Adding paragraphs (g)(4) through (9). The revisions and additions read as follows: ■ § 1003.2 Reopening or reconsideration before the Board of Immigration Appeals. khammond on DSKJM1Z7X2PROD with RULES * * * * * (g) Filing procedures. This paragraph applies to the filing of documents related to reopening and reconsideration before the Board. (1) English language and entry of appearance. A motion and any submission made in conjunction with a motion must be in English or accompanied by a certified English translation. If the moving party, other than DHS, is represented, Form EOIR– 27, Notice of Entry of Appearance as Attorney or Representative Before the Board, must be filed with the motion. (2) * * * (i) A motion to reopen or motion to reconsider a decision of the Board pertaining to proceedings before an immigration judge shall be filed directly with the Board. Such motion must be accompanied by a payment in a manner authorized by EOIR or fee waiver request in satisfaction of the fee requirements of § 1003.8. The record of proceeding pertaining to such a motion shall be forwarded to the Board upon the request or order of the Board. (ii) A motion to reopen or a motion to reconsider a decision of the Board pertaining to a matter initially adjudicated by an officer of DHS shall be filed with the officer of DHS having administrative control over the record of proceeding. (iii) If the motion is made by DHS in proceedings in which DHS has administrative control over the record of proceedings, the record of proceedings in the case and the motion shall be filed directly with the Board. If such motion is filed directly with an office of DHS, the entire record of proceeding shall be forwarded to the Board by the DHS officer promptly upon receipt of the briefs of the parties, or upon expiration of the time allowed for the submission of such briefs. * * * * * (4) Filing parties. DHS and all attorneys and accredited representatives of record for respondents, applicants, or petitioners are required to electronically file all documents with the Board through EOIR’s electronic filing application in all cases eligible for electronic filing. Although not required, unrepresented respondents, applicants, or petitioners; reputable individuals and VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 accredited officials who are the representatives of record; other authorized individuals; and practitioners filing an EOIR–60, may electronically file documents with the Board through EOIR’s electronic filing application in cases eligible for electronic filing. An unrepresented respondent, applicant, or petitioner; reputable individual; accredited official; other authorized individual; or practitioner filing an EOIR–60, who elects to use EOIR’s electronic filing application shall be required to register with EOIR as a condition of using that application. If a party not required to file electronically opts to use EOIR’s electronic filing application for a case, the individual must electronically file all documents with the Board for that case unless the Board, only upon a motion filed by the individual with good cause shown, grants leave to opt out of using the electronic filing application. Such an indvidual who has been granted leave to opt out of using EOIR’s electronic filing application for a case may not subsequently opt in again to use that application for the same case. (5) Filing requirements. Parties must make the originals of all filed documents available upon request to the Board or the opposing party for review. If EOIR’s electronic filing application is unavailable due to an unplanned system outage on the last day for filing in a specific case, then the filing deadline will be extended to the first day that the electronic filing application becomes accessible that is not a Saturday, Sunday, or legal holiday. For planned system outages, parties must electronically file documents during system availability within the applicable filing deadline or paper file documents within the applicable filing deadline. EOIR will issue public communications for planned system outages ahead of the scheduled outage. Any planned system outage announced five or fewer business days prior to the start of the outage will be treated as an unplanned outage. The Board retains discretion to accept paper filings in all cases. (6) Classified information. Notwithstanding any other provision of this chapter, classified information is never allowed to be electronically filed. (7) Sealed medical documents. Notwithstanding any other provision of this chapter, parties are not permitted to file electronically any sealed medical documents. (8) Signatures. All documents filed with the Board that require a signature must have an original, handwritten ink signature, an encrypted digital signature, or an electronic signature. PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 Electronic filings submitted through EOIR’s electronic filing application that require the user’s signature may have a conformed signature. This paragraph (g)(8) is subject to the requirements of the application or document being submitted. (9) Service. The service of filings with the Board depends on whether the documents are filed through EOIR’s electronic filing application or in paper. (i) Service of electronic filings. If all parties are using EOIR’s electronic filing application in a specific case, the parties do not need to serve a document that is filed through EOIR’s electronic filing application on the opposing party. EOIR’s electronic filing application will effectuate service by providing a notification of all electronically filed documents on all parties by email. Upon successful upload by one of the parties, EOIR will email a notification to the email addresses provided in paragraph (g)(9)(ii) of this section. If one or more parties are not filing through EOIR’s electronic filing application in a specific case, the parties must follow the service procedures in paragraph (g)(9)(iii) of this section. (ii) Valid email address. Use of EOIR’s electronic filing application requires a valid email address for electronic service. The Board will use the email address provided through eRegistry for electronic service on participating parties. Users must immediately update their eRegistry account if their email address changes. Representatives must additionally file a new Form EOIR–27 with the Board if their email address changes. EOIR will consider service completed when the electronic notification is delivered to the last email address on file provided by the user. (iii) Service of paper filings. If electronic filing is not being used in a particular case, the party filing with the Board must serve a copy of the filing on the opposing party and include a certificate of service showing service on the opposing party with their filing. If the moving party is not DHS, service of the motion shall be made upon the ICE Office of the Principal Legal Advisor for the field location in which the case was completed before the immigration judge. * * * * * ■ 6. Amend § 1003.3 by revising paragraphs (a)(2) and (3) and (c)(2) and adding paragraph (g) to read as follows: § 1003.3 Notice of appeal. (a) * * * (2) Appeal from decision of a DHS officer. A party affected by a decision of a DHS officer that may be appealed to the Board under this chapter shall be E:\FR\FM\13DER1.SGM 13DER1 khammond on DSKJM1Z7X2PROD with RULES Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations given notice of the opportunity to file an appeal. An appeal from a decision of a DHS officer shall be taken by filing a Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer (Form EOIR–29) directly with the DHS office having administrative control over the record of proceeding within 30 days of the service of the decision being appealed. An appeal is not properly filed until it is received at the appropriate DHS office, together with all required documents, and the fee provisions of § 1003.8 are satisfied. (3) General requirements for all appeals. The appeal must be accompanied by a payment in a manner authorized by EOIR or fee waiver request in satisfaction of the fee requirements of § 1003.8. If the respondent or applicant is represented, a Notice of Entry of Appearance as Attorney or Representative Before the Board (Form EOIR–27) must be filed with the Notice of Appeal. The appeal and all attachments must be in English or accompanied by a certified English translation. * * * * * (c) * * * (2) Appeal from decision of a DHS officer. Briefs in support of or in opposition to an appeal from a decision of a DHS officer shall be filed directly with the DHS office having administrative control over the file. The alien and DHS shall be provided 21 days in which to file a brief, unless a shorter period is specified by the DHS officer from whose decision the appeal is taken, and reply briefs shall be permitted only by leave of the Board. Upon written request of the alien, the DHS officer from whose decision the appeal is taken or the Board may extend the period for filing a brief for good cause shown. The Board may authorize the filing of briefs directly with the Board. In its discretion, the Board may consider a brief that has been filed out of time. All briefs and other documents filed in conjunction with an appeal, unless filed by an alien directly with a DHS office, shall include proof of service on the opposing party. * * * * * (g) Filing. This paragraph applies to the filing of documents related to appeals before the Board. (1) Filing parties. DHS and all attorneys and accredited representatives of record for respondents, applicants, or petitioners are required to electronically file all documents with the Board through EOIR’s electronic filing application in all cases eligible for electronic filing. Although not required, VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 unrepresented respondents, applicants, or petitioners; reputable individuals and accredited officials, who are the representatives of record; other authorized individuals; and practitioners filing an EOIR–60, may electronically file documents with the Board through EOIR’s electronic filing application in cases eligible for electronic filing. An unrepresented respondent, applicant, or petitioner; reputable individual; accredited official; other authorized individual; or practitioner filing an EOIR–60, who elects to use EOIR’s electronic filing application shall be required to register with EOIR as a condition of using that application. If a party not required to file electronically opts to use EOIR’s electronic filing application for a case, the individual must electronically file all documents with the Board for that case unless the Board, only upon a motion filed by the individual with good cause shown, grants leave to opt out of using the electronic filing application. Such an individual who has been granted leave to opt out of using EOIR’s electronic filing application for a case may not subsequently opt in to use that application for the same case. (2) Filing requirements. Parties must make the originals of all filed documents available upon request to the Board or to the opposing party for review. If EOIR’s electronic filing application is unavailable due to an unplanned system outage on the last day for filing in a specific case, then the filing deadline will be extended to the first day that the electronic filing application becomes accessible that is not a Saturday, Sunday, or legal holiday. For planned system outages, parties must electronically file documents during system availability within the applicable filing deadline or paper file documents within the applicable filing deadline. EOIR will issue public communications for planned system outages ahead of the scheduled outage. Any planned system outage announced five or fewer business days prior to the start of the outage will be treated as an unplanned outage. The Board retains discretion to accept paper filings in all cases. (3) Classified information. Notwithstanding any other provision of this chapter, classified information is never allowed to be electronically filed. (4) Sealed medical documents. Notwithstanding any other provision of this chapter, parties are not permitted to file electronically any sealed medical documents. (5) Signatures. All documents filed with the Board that require a signature PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 70721 must have an original, handwritten ink signature, an encrypted digital signature, or an electronic signature. Electronic filings submitted through EOIR’s electronic filing application that require the user’s signature may have a conformed signature. This paragraph is subject to the requirements of the application or document being submitted. (6) Service. The service of filings with the Board depends on whether the documents are filed through EOIR’s electronic filing application or in paper. (i) Service of electronic filings. If all parties are using EOIR’s electronic filing application in a specific case, the parties do not need to serve a document that is filed through EOIR’s electronic filing application on the opposing party. EOIR’s electronic filing application will effectuate service by providing a notification of all electronically filed documents on all parties by email. Upon successful upload by one of the parties, EOIR will email a notification to the email addresses provided in paragraph (g)(6)(ii) of this section. If one or more parties are not filing through EOIR’s electronic filing application in a specific case, the parties must follow the service procedures in paragraph (g)(6)(iii) of this section. (ii) Valid email address. Use of EOIR’s electronic filing application requires a valid email address for electronic service. The Board will use the email address provided through eRegistry for electronic service on participating parties. Users must immediately update their eRegistry account if their email address changes. Representatives must additionally file a new Form EOIR–27 with the Board if their email address changes. EOIR will consider service completed when the electronic notification is delivered to the last email address on file provided by the user. (iii) Service of paper filings. If electronic filing is not being used in a particular case, the party filing with the Board must serve a copy of the filing on the opposing party and include a certificate of service showing service on the opposing party with their filing. ■ 7. Amend § 1003.8 by revising the last sentence of paragraph (a)(3) to read as follows: § 1003.8 Fees before the Board. (a) * * * (3) * * * If the fee waiver request does not establish the inability to pay the required fee, the appeal or motion will not be deemed properly filed, provided the Board grants 15 days to refile the rejected document with the filing fee or new fee waiver request and E:\FR\FM\13DER1.SGM 13DER1 70722 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations in paper, the motion must be filed in duplicate with the immigration court. * * * * * ■ 11. Amend § 1003.24 by revising the last sentence of paragraph (d) to read as follows: tolls any applicable filing deadline during the 15-day cure period. * * * * * § 1003.13 [Amended] 8. Amend § 1003.13 by removing the definitions of ‘‘Filing’’ and ‘‘Service’’. ■ 9. Amend § 1003.17 by revising paragraph (a) to read as follows: ■ § 1003.17 § 1003.24 Fees pertaining to matters within the jurisdiction of an immigration judge. * Appearances. (a) In any proceeding before an immigration judge in which the alien is represented, the attorney or representative shall file a Notice of Entry of Appearance on Form EOIR–28 with the immigration court, and shall serve a copy of the Notice of Entry of Appearance on DHS as required by § 1003.32. The entry of appearance of an attorney or representative in a custody or bond proceeding shall be separate and apart from an entry of appearance in any other proceeding before the immigration court. An attorney or representative may file a Form EOIR–28 indicating whether the entry of appearance is for custody or bond proceedings only, any other proceedings only, or for all proceedings. Such Notice of Entry of Appearance must be filed and served even if a separate Notice of Entry of Appearance(s) has previously been filed with DHS for appearance(s) before DHS. * * * * * ■ 10. Amend § 1003.23 by revising paragraph (b)(1)(ii) to read as follows: § 1003.23 Reopening or reconsideration before the immigration court. khammond on DSKJM1Z7X2PROD with RULES * * * * * (b) * * * (1) * * * (ii) Filing. Motions to reopen or reconsider a decision of an immigration judge must be filed with the immigration court having administrative control over the Record of Proceeding. If necessary under § 1003.32, a motion to reopen or a motion to reconsider shall include a certificate showing service on the opposing party of the motion and all attachments. If the moving party is not DHS, service of the motion shall be made upon the ICE Office of the Principal Legal Advisor for the field location in which the case was completed. If the moving party, other than DHS, is represented, a Form EOIR– 28, Notice of Appearance as Attorney or Representative Before an Immigration Judge must be filed with the motion. For any motion requiring a fee, that motion must be accompanied by a fee receipt, an alternate proof of payment consistent with § 1103.7(a)(3), or a fee waiver request pursuant to § 1103.7(c). If filed VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 * * * * (d) * * * If the request for a fee waiver is denied, the application or motion will not be deemed properly filed, provided the immigration judge grants 15 days to re-file the rejected document with the filing fee or new fee waiver request and tolls any applicable filing deadline during the 15-day cure period. ■ 12. Revise § 1003.31 to read as follows: § 1003.31 Filing documents and applications. This section applies to the filing of all documents, including motions and applications, before the immigration courts. (a) Filing parties. DHS and all attorneys and accredited representatives of record for persons appearing before the immigration courts are required to electronically file all documents, including charging documents, with the immigration courts through EOIR’s electronic filing application in all cases eligible for electronic filing. Although not required, unrepresented respondents or applicants; reputable individuals and accredited officials who are representatives of record; other authorized individuals; and practitioners filing an EOIR–61, may electronically file documents with the immigration courts through EOIR’s electronic filing application in cases eligible for electronic filing. An unrepresented respondent or applicant; reputable individual; accredited official; other authorized individual; or practitioner filing an EOIR–61, who elects to use EOIR’s electronic filing application shall be required to register with EOIR as a condition of using that application. If a party not required to file electronically opts to use EOIR’s electronic filing application for a case, the individual must electronically file all documents with the immigration courts for that case unless an immigration judge, only upon a motion filed by the individual with good cause shown, grants leave to opt out of using the electronic filing application. Such an individual who has been granted leave to opt out of using EOIR’s electronic filing application for a case may not subsequently opt in to use that application for the same case. PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 (b) Filing requirements. If EOIR’s electronic filing application is unavailable due to an unplanned system outage on the last day for filing in a specific case, then the filing deadline will be extended to the first day that the electronic filing application becomes accessible that is not a Saturday, Sunday, or legal holiday. For planned system outages, parties must electronically file documents during system availability within the applicable filing deadline or paper file documents within the applicable filing deadline. EOIR will issue public communications for planned system outages ahead of the scheduled outage. Any planned system outage announced five or fewer business days prior to the start of the outage will be treated as an unplanned outage. In all other situations in cases eligible for electronic filing, an immigration judge retains the discretion to accept paper filings in all cases. (c) Originals. Parties must make the originals of all filed documents available upon request to the immigration court or the opposing party for review. (d) Classified information. Notwithstanding any other provision of this chapter, classified information is never allowed to be electronically filed. (e) Sealed medical documents. Notwithstanding any other provision of this chapter, parties are not permitted to file electronically any sealed medical documents. (f) Where to file. All documents that are to be considered in a proceeding before an immigration judge must be filed with the immigration court having administrative control over the Record of Proceeding. (g) Fees. Except as provided in § 1240.11(f) of this chapter, all documents or applications filed with the immigration courts requiring the payment of a fee must be accompanied by a fee receipt from DHS, alternate proof of payment consistent with § 1103.7(a)(3) of this chapter, or a fee waiver request pursuant to § 1103.7(c). Except as provided in § 1003.8, any fee relating to immigration judge proceedings shall be paid to, and accepted by, any DHS office authorized to accept fees for other purposes pursuant to § 1103.7(a). (h) Filing deadlines. The immigration judge may set and extend time limits for the filing of applications and related documents and responses thereto, if any. If an application or document is not filed within the time set by the immigration judge, the opportunity to file that application or document shall be deemed waived. E:\FR\FM\13DER1.SGM 13DER1 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations (i) Filing under seal. DHS may file documents under seal by including a cover sheet identifying the contents of the submission as containing information which is being filed under seal. Documents filed under seal shall only be examined by persons with authorized access to the administrative record. (j) Signatures. All documents filed with the immigration courts that require a signature must have an original, handwritten ink signature, an encrypted digital signature, or an electronic signature. Electronic filings submitted through EOIR’s electronic filing application that require the user’s signature may have a conformed signature. This paragraph is subject to the requirements of the application or document being submitted. ■ 13. Revise § 1003.32 to read as follows: khammond on DSKJM1Z7X2PROD with RULES § 1003.32 Service and size of documents. The service of filings with the immigration courts depends on whether the documents are filed through EOIR’s electronic filing application or in paper. (a) Service of electronic filings. If all parties are using EOIR’s electronic filing application in a specific case, the parties do not need to serve a document that is filed through EOIR’s electronic filing application on the opposing party. If all parties are using EOIR’s electronic filing application in a specific case, EOIR’s electronic filing application will effectuate service by providing a notification of all electronically filed documents on all parties. Upon successful upload by one of the parties, EOIR will email a notification to the email addresses provided in paragraph (b) of this section. If one or more parties are not filing through EOIR’s electronic filing application in a specific case, the parties must follow the service procedures in paragraph (c) of this section. (b) Valid email address. Use of EOIR’s electronic filing application requires a valid email address for electronic service. The immigration courts will use the email address provided through eRegistry for electronic service on participating parties. Users must immediately update their eRegistry account if their email address changes. Representatives must additionally file a new Form EOIR–28 with the immigration court if their email address changes. EOIR will consider service completed when the electronic notification is delivered to the last email address on file provided by the user. (c) Service of paper filings. If electronic filing is not being used in a particular case, the party filing with the VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 70723 immigration court must serve a copy of the filing on the opposing party and include a certificate of service showing service on the opposing party with their filing. The immigration judge will not consider any documents or applications that do not contain a certificate of service unless service is made on the record during a hearing. (d) Size and format of documents. Unless otherwise permitted by the immigration judge, all written material presented to immigration judges including offers of evidence, correspondence, briefs, memoranda, or other documents must be submitted on 81⁄2″ x 11″ size pages, whether filed electronically or in paper. The immigration judge may require that exhibits and other written material presented be indexed, paginated, and that a table of contents be provided. ■ 14. Amend § 1003.37 by revising paragraph (a) to read as follows: (2) * * * All responses must be filed with the Director and include proof of service of a copy of such response on the commenting party. ■ 17. Amend § 1003.64 by revising the last sentence in paragraph (b) introductory text to read as follows: § 1003.37 * Decisions. (a) A decision of the immigration judge may be rendered orally or in writing. If the decision is oral, it shall be stated by the immigration judge in the presence of the parties and a memorandum summarizing the oral decision shall be served on the parties. If the decision is in writing, it shall be served on the parties by personal service, mail, or electronic notification. * * * * * ■ 15. Amend § 1003.38 by revising paragraph (b) to read as follows: § 1003.38 Appeals. * * * * * (b) The Notice of Appeal from a Decision of an Immigration Judge (Form EOIR–26) shall be filed directly with the Board of Immigration Appeals within 30 calendar days after the stating of an immigration judge’s oral decision or the mailing or electronic notification of an immigration judge’s written decision. If the final date for filing falls on a Saturday, Sunday, or legal holiday, this appeal time shall be extended to the next business day. A Notice of Appeal (Form EOIR–26) may not be filed by any party who has waived appeal. * * * * * ■ 16. Amend § 1003.63 by revising the last sentence in paragraphs (f)(1) and (2) to read as follows: § 1003.63 Applications. * * * * * (f) * * * (1) * * * A comment or recommendation not sent to the Director electronically must include proof of service on the applicant. PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 § 1003.64 Approval and denial of applications. * * * * * (b) * * * The written notice shall be served at the address provided on the application unless the applicant subsequently provides a change of address pursuant to § 1003.66, or shall be transmitted to the applicant electronically. * * * * * ■ 18. Amend § 1003.65 by revising the first sentence in paragraph (d)(3) to read as follows: § 1003.65 List. Removal of a provider from the * * * * (d) * * * (3) * * * The provider may submit a written answer within 30 days from the date the notice is served or is sent to the provider electronically. * * * * * * * * ■ 19. Amend § 1003.106 by revising the second sentence in paragraph (a)(2)(ii) and the seventh sentence in paragraph (b) to read as follows: § 1003.106 Right to be heard and disposition. (a) * * * (2) * * * (ii) * * * When designating the time and place of a hearing, the adjudicating official shall provide for the service of a notice of hearing on the practitioner or the authorized officer of the recognized organization and the counsel for the government. * * * * * * * * (b) * * * The adjudicating official shall provide for service of a written decision or memorandum summarizing an oral decision on the practitioner or, in cases involving a recognized organization, on the authorized officer of the organization and on the counsel for the government. * * * * * * * * PART 1103—APPEALS, RECORDS, AND FEES 20. The authority citation for part 1103 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 28 U.S.C. 509, 510. 21. Amend § 1103.7 by revising paragraph (a)(3) to read as follows: ■ E:\FR\FM\13DER1.SGM 13DER1 70724 § 1103.7 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations Fees. (a) * * * (3) All other fees payable in connection with immigration proceedings. Except as provided in 8 CFR 1003.8, the Executive Office for Immigration Review does not accept the payment of any fee relating to Executive Office for Immigration Review proceedings. Instead, such fees, when required, shall be paid to, and accepted by, an office of the Department of Homeland Security authorized to accept fees, as provided in 8 CFR 103.7(a)(1). The Department of Homeland Security shall return to the payer, at the time of payment, a receipt for any fee paid, and shall also return to the payer any documents, submitted with the fee, relating to any immigration proceeding. The fee receipt and the application or motion shall then be submitted to the Executive Office for Immigration Review. If the payer has paid any required fee but has not received the fee receipt from the Department of Homeland Security by the deadline set by the immigration judge, the payer must instead provide to the immigration court a copy of proof of the payment to the Department of Homeland Security with the filing. The payer must then submit a copy of the fee receipt by a new deadline set by the immigration judge. If the immigration judge does not set a deadline, the alien must submit the fee receipt no later than 45 days after the date of filing of the application. Remittances to the Department of Homeland Security for applications, motions, or forms filed in connection with immigration proceedings shall be payable subject to the provisions of 8 CFR 103.7(a)(2). * * * * * PART 1208—PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL 22. The authority citation for part 1208 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of Pub. L. 110–229; Pub. L. 115–218. 23. Amend § 1208.4 by revising the fifth sentence of paragraph (a)(2)(ii) to read as follows: ■ § 1208.4 Filing the application. khammond on DSKJM1Z7X2PROD with RULES * * * * * (a) * * * (2) * * * (ii) * * * For cases before the immigration court, the application is considered to have been filed on the date it is received by the immigration court. * * * * * * * * VerDate Sep<11>2014 15:56 Dec 10, 2021 Jkt 256001 24. The authority citation for part 1214 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301–1305 and 1372; sec. 643, Pub. L. 104– 208, 110 Stat. 3009–708; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and 1931 note, respectively; 8 CFR part 2. § 1214.2 PART 1240—PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES 26. The authority citation for part 1240 continues to read as follows: ■ Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226, 1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202 and 203, Pub. L. 105–100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105–277 (112 Stat. 2681). 27. Amend § 1240.2 by: a. Revising the section heading; b. Removing the words ‘‘Service counsel’’ and adding in their place the words ‘‘DHS counsel’’ in paragraph (a), wherever they appear; ■ c. Removing the words ‘‘Service attorney’’ and adding in their place the words ‘‘DHS counsel’’ in paragraph (b), wherever they appear; and ■ d. Removing the words ‘‘the Service’’ and adding in their place the word ‘‘DHS’’, wherever they appear. The revision reads as follows: ■ ■ ■ * * § 1240.10 DHS Counsel. * * * [Amended] 28. Amend § 1240.10 by: a. Removing the words ‘‘an Service counsel’’ and adding in their place the words ‘‘DHS counsel’’ in paragraph (d); and ■ b. Removing the words ‘‘the Service’’ and adding in their place the word ‘‘DHS’’ in paragraphs (d) and (e). ■ ■ § 1240.11 ■ [Amended] 29. Amend § 1240.11 by: PO 00000 § 1240.13 [Amended] 30. Amend § 1240.13 by removing the words ‘‘Service counsel’’ and adding in their place the words ‘‘DHS counsel’’ in paragraphs (a) through (c), wherever they appear. ■ [Amended] 25. Amend § 1214.2 by: a. Removing the words ‘‘Service counsel’’ and adding in their place the words ‘‘DHS counsel’’ in paragraph (a); ■ b. Removing the words ‘‘Service custody’’ and adding in their place the words ‘‘DHS custody’’ in paragraph (a); and ■ c. Removing the words ‘‘the Service’’ and adding in their place the word ‘‘DHS’’, wherever they appear. ■ ■ § 1240.2 a. Removing the words ‘‘Service counsel’’ and adding in their place the words ‘‘DHS counsel’’ in paragraphs (c)(3)(iv) and (c)(4); and ■ b. Removing the words ‘‘the Service’’ and adding in their place the word ‘‘DHS’’ in paragraph (e), wherever they appears. ■ PART 1214—REVIEW OF NONIMMIGRANT CLASSES Frm 00036 Fmt 4700 Sfmt 4700 § 1240.26 [Amended] 31. Amend § 1240.26 by: a. Removing the words ‘‘Service counsel’’ and adding in their place the words ‘‘DHS counsel’’ in paragraph (b)(2); ■ b. Removing the words ‘‘the Service’’ and adding in their place the word ‘‘DHS’’ in paragraphs (a), (b)(3)(i) introductory text, (b)(3)(i)(B), and (b)(3)(ii); ■ c. Removing the words ‘‘The Service’’ and adding in their place the word ‘‘DHS’’ in paragraph (b)(3)(ii), wherever they appear, and in paragraph (c)(2). ■ ■ § 1240.32 [Amended] 32. Amend § 1240.32 by: a. Removing the words ‘‘Service counsel’’ and adding in their place the words ‘‘DHS counsel’’ in paragraph (c); ■ b. Removing the words ‘‘the Service’’ and adding in their place the word ‘‘DHS’’ in paragraph (c), wherever they appear; and ■ c. Removing the words ‘‘The Service’’ and adding in their place the word ‘‘DHS’’ in paragraph (c). ■ ■ § 1240.33 [Amended] 33. Amend § 1240.33 by removing the words ‘‘Service counsel’’ and adding in their place the words ‘‘DHS counsel’’ in paragraphs (c)(4) and (d). ■ § 1240.48 [Amended] 34. Amend § 1240.48 by: a. Removing the words ‘‘the Service’’ and adding in their place the word ‘‘DHS’’; and ■ b. Removing the words ‘‘Service counsel’’ and adding in their place the words ‘‘DHS counsel’’. ■ ■ § 1240.49 [Amended] 35. Amend § 1240.49 by: a. Removing the words ‘‘Service counsel’’ and adding in their place the words ‘‘DHS counsel’’ in paragraphs (c)(4)(iv) and (c)(5); and ■ b. Removing the words ‘‘the Service’’ and adding in their place the word ‘‘DHS’’ in paragraph (e); and ■ ■ E:\FR\FM\13DER1.SGM 13DER1 Federal Register / Vol. 86, No. 236 / Monday, December 13, 2021 / Rules and Regulations § 1240.51 [Amended] 36. Amend § 1240.51 by removing the words ‘‘Service counsel’’ and adding in their place the words ‘‘DHS counsel’’ in paragraphs (a) and (b). ■ 37. Amend § 1240.53 by revising paragraph (a) to read as follows: ■ § 1240.53 Appeals. (a) Appeal to the Board. Pursuant to 8 CFR part 1003, an appeal shall lie from a decision of an immigration judge to the Board, except that no appeal shall lie from an order of deportation entered in absentia. The procedures regarding the filing of a Form EOIR–26, Notice of Appeal, fees, and briefs are set forth in §§ 1003.3, 1003.31, and 1003.38 of this chapter. An appeal shall be filed within 30 calendar days after the mailing or electronic notification of a written decision, the stating of an oral decision, or the service of a summary decision. The filing date is defined as the date of receipt of the Notice of Appeal by the Board. The reasons for the appeal shall be stated in the Form EOIR–26, Notice of Appeal, in accordance with the provisions of § 1003.3(b) of this chapter. Failure to do so may constitute a ground for dismissal of the appeal by the Board pursuant to § 1003.1(d)(2) of this chapter. * * * * * PART 1245—ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE 38. The authority citation for part 1245 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1182, 1255; section 202, Pub. L. 105–100, 111 Stat. 2160, 2193; section 902, Pub. L. 105–277, 112 Stat. 2681; Title VII of Pub. L. 110–229. § 1245.21 [Amended] 39. Amend § 1245.21 by: a. Removing the words ‘‘The Service’’ and adding in their place the word ‘‘DHS’’ in paragraphs (a) introductory text, (b)(1) introductory text, (d)(2), and (m)(2) and (4), wherever they appear; ■ b. Removing the words ‘‘the Service’’ and adding in their place the word ‘‘DHS’’ in paragraphs (b)(1)(i), (c), (d) introductory text, (d)(2) and (4), (h) through (l), and (m)(2) through (4), wherever they appear; ■ c. Removing the words ‘‘Service counsel’’ and adding in their place the words ‘‘DHS counsel’’ in paragraph (c); ■ d. Removing the words ‘‘the Service’s’’ and adding in their place the word ‘‘DHS’s’’ in paragraphs (j) and (m)(2); and ■ khammond on DSKJM1Z7X2PROD with RULES ■ VerDate Sep<11>2014 15:56 Dec 10, 2021 e. Removing the words ‘‘Service files’’ and adding in their place the words ‘‘DHS files’’ in paragraph (g)(3). ■ Jkt 256001 70725 Dated: December 4, 2021. Lisa O. Monaco, Deputy Attorney General. [FR Doc. 2021–26853 Filed 12–10–21; 8:45 am] PART 1246—RECISSION OF ADJUSTMENT OF STATUS BILLING CODE 4410–30–P 40. The authority citation for part 1246 continues to read as follows: DEPARTMENT OF TRANSPORTATION Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259; 8 CFR part 2. Federal Aviation Administration § 1246.5 14 CFR Part 39 ■ [Amended] 41. Amend § 1246.5 by removing the words ‘‘Service counsel’’ and adding in their place the words ‘‘DHS counsel’’, in paragraph (a), wherever they appear. [Docket No. FAA–2021–1066; Project Identifier AD–2021–01189–R; Amendment 39–21859; AD 2021–26–01] PART 1292—REPRESENTATION AND APPEARANCES Airworthiness Directives; Bell Textron Canada Limited Helicopters ■ 42. The authority citation for part 1292 continues to read as follows: ■ Authority: 8 U.S.C. 1103, 1362. 43. Amend § 1292.1 by revising paragraphs (a)(2)(ii) through (iv) and adding paragraph (a)(2)(v) to read as follows: ■ § 1292.1 Representation of others. (a) * * * (2) * * * (ii) In the case of a law student, he or she has filed a statement that he or she is participating, under the direct supervision of an EOIR-registered licensed attorney or accredited representative, in a legal aid program or clinic conducted by a law school or non-profit organization, and that he or she is without direct or indirect remuneration from the alien he or she represents; (iii) In the case of a law graduate, he or she has filed a statement that he or she is appearing under the supervision of an EOIR-registered licensed attorney or accredited representative and that he or she is appearing without direct or indirect remuneration from the alien he or she represents; (iv) When the law student or law graduate appears before the immigration court or the Board of Immigration Appeals, the law student or law graduate is supervised by an attorney or accredited representative who must appear simultaneously at the same hearing. The accompanying attorney or accredited representative must be authorized to practice before EOIR and be prepared to proceed with the case at all times; and (v) All filings by law students and law graduates are made through an EOIRregistered attorney or accredited representative. * * * * * PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 RIN 2120–AA64 Federal Aviation Administration (FAA), DOT. ACTION: Final rule; request for comments. AGENCY: The FAA is adopting a new airworthiness directive (AD) for certain Bell Textron Canada Limited Model 505 helicopters. This AD was prompted by a report of chafing of the right forward tail rotor (T/R) control cable. This AD requires inspecting the right forward T/R cable and, depending on the results, removing the cable assembly from service. This AD also requires measuring the clearance between the right forward T/R control cable and the roller bracket cut out and, depending on the results, adjusting the height of the roller bracket assembly position. The FAA is issuing this AD to address the unsafe condition on these products. DATES: This AD is effective December 28, 2021. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of December 28, 2021. The FAA must receive comments on this AD by January 27, 2022. ADDRESSES: You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods: • Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the instructions for submitting comments. • Fax: (202) 493–2251. • Mail: U.S. Department of Transportation, Docket Operations, M– 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590. • Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For Bell service information identified in this final rule, contact Bell Textron SUMMARY: E:\FR\FM\13DER1.SGM 13DER1

Agencies

[Federal Register Volume 86, Number 236 (Monday, December 13, 2021)]
[Rules and Regulations]
[Pages 70708-70725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26853]

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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1001, 1003, 1103, 1208, 1240, 1245, 1246, and 1292

[EOIR Docket No. 018-0203; A.G. Order No. 5257-2021]
RIN 1125-AA81

Executive Office for Immigration Review Electronic Case Access
and Filing

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

ACTION: Final rule.

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

SUMMARY: On December 4, 2020, the Executive Office for Immigration
Review (``EOIR'') published a notice of proposed rulemaking (``NPRM''
or ``proposed rule''), proposing to amend EOIR's regulations in order
to implement electronic filing and records applications for all cases
before the immigration courts and the Board of Immigration Appeals
(``BIA''). The NPRM also proposed amendments to the regulations
regarding law student filing and accompaniment procedures. This final
rule responds to comments received in response to the NPRM and adopts
the NPRM with changes as described below.

DATES: This rule is effective on February 11, 2022.

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
Office of Policy, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-
0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Notice of Proposed Rulemaking

On December 4, 2020, EOIR published an NPRM in the Federal
Register, proposing to amend EOIR's regulations in order to implement
electronic filing and records applications, known as EOIR's Courts &
Appeals System (``ECAS''), for all cases before the immigration courts
and the BIA, as well as to update law student filing and accompaniment
procedures. See Executive Office for Immigration Review Electronic Case
Access and Filing, 85 FR 78240 (Dec. 4, 2020).
The NPRM proposed revisions to 8 CFR parts 1001, 1003, 1208, 1240,
1245, 1246, and 1292. These revisions included: (1) Adding or updating
relevant definitions; (2) mandating electronic filing, subject to
certain

[[Page 70709]]

exceptions, for the Department of Homeland Security (``DHS''),
attorneys, and accredited representatives, as well as providing for
future voluntary use by pro se respondents, applicants, and
petitioners; reputable individuals; and accredited officials; (3)
providing standards for electronic filing relating to signatures,
service of process, system outages, and the filing of classified
information; (4) updating fee language to account for electronic
payments; (5) removing the in-duplicate filing requirement for
electronic filings; (6) revising the procedures for law student and law
graduate filing and accompaniment; and (7) making various technical
amendments to update outdated references and to conform with EOIR's
style guidelines.
The comment period for the NPRM opened on December 4, 2020, and
closed on January 4, 2021, with six organizational comments received.
The Department summarizes and responds to the public comments below,
followed by a description of changes made to the NPRM in this final
rule.

II. Public Comments on the Proposed Rule and Responses

The Department received six organizational comments on the NPRM,
which are organized by topic below.

A. Law Student or Law Graduate Accompaniment

Comment: One commenter requested that EOIR modify the proposed rule
to clarify that supervising attorneys should not be required to be
physically present in the same location as the law student or law
graduate during a telephonic or video teleconference (VTC) hearing.
Response: After consideration, the Department has determined that
the regulations should not specify that the law student or law graduate
and the supervising attorney or accredited representative must all be
physically present in the same location for each hearing. Instead, the
Department has decided to remove the physical presence requirement and
leave the determination regarding the parties' manner of appearance to
the adjudicator's discretion, as is the case with all other types of
representatives. For example, subject to the adjudicator's discretion,
the supervising attorney or accredited representative may attend the
hearing from a separate location, so long as the supervising attorney
or accredited representative is able to proceed with the hearing if
necessary. The change is described in more detail in Section III below.

B. System Outages

Comment: One commenter stated that the rule's planned outage
standards should match the unplanned outage standards, which
automatically moves the filing deadline in the case of an EOIR-
recognized unplanned outage. The commenter was concerned about
situations in which planned outages are not announced with sufficient
notice or where a planned outage is not adequately publicized.
Response: The Department considered the commenter's suggestion and
has decided to leave the planned outage process unchanged but will
extend the minimum notice of planned outages from three to five days to
ensure sufficient notice. The Department believes that this updated
planned outage standard provides users with sufficient notice to ensure
that filers will be able to complete any filings as necessary.
The rule states that, for any planned outage, EOIR will issue
public communications regarding the planned outage. See 8 CFR
1003.2(g)(5), 1003.3(g)(2), 1003.31(b). These communications may
include email notifications via EOIR's GovDelivery service and postings
on EOIR's website, consistent with the standard practice of other court
systems. See, e.g., U.S. Ct. of App. for the Fed. Cir., CM/ECF
Scheduled Maintenance Outages, available at https://www.cafc.uscourts.gov/cmecf-scheduled-maintenance-outages (last visited
Feb. 26, 2021).
In addition, any planned outages announced with five or fewer
business days prior to the outage will be treated as an unplanned
outage and filing deadlines will be adjusted accordingly. See 8 CFR
1003.2(g)(5), 1003.3(g)(2), 1003.31(b). Therefore, for any properly
noticed planned outage, filers will have at least six business days'
notice, which the Department believes is sufficient to allow filers to
plan their filings accordingly to meet all applicable filing deadlines.

C. Proof of Fee Payments

Comment: One commenter requested that EOIR clarify that proof of
fee payments is sufficient when filing fee receipts, as the commenter
stated that DHS is often delayed in providing a fee receipt in a timely
manner.
Response: After consideration, the Department has updated the rule
to account for situations in which a fee receipt has not been provided
to the filer by the deadline set by the immigration court. The specific
changes are described in further detail in Section III of this
preamble.

D. Email Filings

Comment: One commenter requested clarity on the interaction between
EOIR's implementation of electronic filing through this rule and EOIR's
use of email filing due to the COVID-19 pandemic. The commenter asked
whether the email inboxes would remain after the launch of electronic
filing in an immigration court and questioned whether they should
remain for pro se respondents.
Response: EOIR created temporary email inboxes to allow for basic
electronic filing due to the COVID-19 pandemic. See EOIR, Filing by
Email--Immigration Courts, available at https://www.justice.gov/eoir-operational-status/filing-email-immigration-courts (last updated
September 7, 2021). As explained on the website, the email inboxes were
intended for use only by non-ECAS users. See id. (``If you have opted-
in to ECAS, do not use email in lieu of filing through ECAS.''). The
email inboxes were intended to support the public and did not create
efficiencies for EOIR, as they required court staff to print all
filings for paper cases and to manually upload any filings for cases
with electronic records of proceedings (``eROPs''). These email inboxes
are now discontinued and were not intended to be long-term solutions
for electronic filing at EOIR. Id. (``Filing by Email Expiration
Date'').
Instead, EOIR continues to pursue full implementation of ECAS, a
full-fledged electronic filing and records system, which provides
filers with a secure portal to electronically view and file documents
in eligible cases and sends automatic service notifications from EOIR.
Regarding pro se respondents, EOIR is focused on determining how to
securely register them for ECAS, which will then enable willing pro se
respondents to use ECAS for electronic filing.

E. Pro Se Access and Registration

Comment: One commenter requested additional information on EOIR's
planned steps for providing pro se access to electronic filing. The
commenter noted that the electronic filing system should ensure
language accessibility for pro se respondents and that any electronic
filing should be free of charge. Another commenter provided suggestions
on registering pro se users for electronic filing, including using an
identity verification system such as www.login.gov, or providing an in-
person registration code.
Response: This rule creates a framework for allowing pro se
respondents to use ECAS, including a

[[Page 70710]]

registration requirement and standards for opting in and out of
voluntary electronic filing. See 8 CFR 1003.2(g)(4), 1003.3(g)(1),
1003.31(a). The Department continues to review options for registering
pro se respondents for electronic filing and appreciates commenters'
suggestions. Once EOIR determines how best to register pro se
respondents, EOIR will provide further guidance as necessary.
Regarding accessibility, EOIR intends to fully comply with the
requirements of Executive Order 13166 to provide meaningful access to
the immigration courts to limited English proficiency (``LEP'')
persons. See Executive Order 13166, Improving Access to Services for
Persons with Limited English Proficiency, 65 FR 50121 (Aug. 16, 2000).
To date, EOIR has released a language access plan detailing the
agency's efforts to comply with Executive Order 13166. See EOIR, The
Executive Office for Immigration Review's Plan for Ensuring Limited
English Proficient Persons Have Meaningful Access to EOIR Services, May
31, 2012, available at https://www.justice.gov/sites/default/files/eoir/legacy/2012/05/31/EOIRLanguageAccessPlan.pdf. When EOIR implements
ECAS for pro se respondents, who are the main EOIR population
constituting LEP persons, EOIR will determine if Executive Order 13166
requires any additional changes to its public-facing systems to ensure
meaningful access.
Lastly, the rule does not impose any standalone fees for electronic
filing.

F. Representative Registration Process

Comment: One commenter requested that EOIR include changes to its
eRegistry process by removing the in-person identity verification step.
Response: The Department believes that the request to remove in-
person verification from the eRegistry process is outside the scope of
this rule, as the rule does not make any changes to the eRegistry
process. See 85 FR at 78244 (explaining that this rule does not add any
additional eRegistry requirements).

G. Change of Address

Comment: One commenter requested that EOIR develop a centralized
system for filing the change of address form, Form EOIR-33, in order to
provide a simple and reliable process for pro se respondents and
representatives.
Response: To the extent that the commenter requests a separate
centralized system to submit Form EOIR-33, the Department believes such
request is outside the scope of this regulation. Nevertheless, the
Department notes that Form EOIR-33 is currently available for
electronic filing through ECAS. In addition, as EOIR continues to
pursue enhancements to its ECAS system, the agency will consider
potential changes to its change of address filing and processing
procedures to ensure a simple and efficient process for filers.

H. Service of Process

Comment: One commenter raised concerns about electronic service of
process, noting that representatives could miss an email that ends up
in a spam folder or is not received due to a technical issue. The
commenter was also concerned about electronic service on pro se
respondents and respondents who receive only limited representation. As
a result, the commenter stated that DHS should be required to paper
serve pro se respondents or their representatives in addition to any
electronic service of process.
Response: The Department has no concerns regarding electronic
service, which is standard practice in most court systems. See, e.g.,
Ninth Cir. Ct. of App. Fed. R. App. P. 25.5(f)(1) (stating that,
subject to some exceptions, ``[w]hen a document . . . is submitted
electronically, the Appellate Electronic Filing System will
automatically notify the other parties and counsel who are registered
for electronic filing of the submission; no certificate of service or
service of paper copies upon other parties and counsel registered for
electronic filing is necessary.''). In addition, EOIR has been
successfully piloting ECAS since June 2018, including by sending email
notifications to filers. In general, representatives should vigilantly
monitor their email inboxes, including any spam folders, for service
notifications from EOIR, just as a person would for any important email
communication.
Regarding cases involving pro se respondents who choose not to use
ECAS, the rule requires DHS to complete service outside of the ECAS
system consistent with current practice. See, e.g., 8 CFR 1003.32(c).
The Department also notes that EOIR currently does not allow for
limited representation aside from bond hearings. If a respondent
retains a representative for a proceeding before EOIR, that
representative will be required under this rule to electronically file
and receive electronic service so long as they have a valid Form EOIR-
27 or EOIR-28 on file, as applicable. If the immigration court or BIA
later grants the representative's withdrawal from the proceeding, the
respondent becomes pro se, and the electronic filing and service
procedures no longer apply.
Lastly, in response to the suggestion that DHS be required to
complete paper service in all cases in addition to any electronic
service, the Department declines to create additional service
requirements for DHS that would not be similarly required of the
opposing party. The Department is confident in the electronic service
process, and requiring duplicative paper service would only reduce the
efficiencies of the electronic filing and service process.

I. Electronic Filing for Existing Paper Cases

Comment: One commenter requested that EOIR allow for electronic
filing in existing paper cases to increase usage among willing
representatives.
Response: The Department appreciates the commenter's suggestion and
enthusiasm for electronic filing. However, EOIR is unable to provide
electronic filing in existing paper cases at this time due to resource
constraints surrounding the digitization of existing case files. In the
future, EOIR may consider converting paper records to eROPs, depending
on cost, technological feasibility, and agency operational
requirements. In addition, the Department believes that applying this
rule prospectively to newly initiated cases will also help ensure a
smooth transition into electronic filing and eROPs.

J. Signature Requirements

Comment: One commenter requested clarity regarding ink signatures
on forms that require ink signatures and how those should be handled
through electronic filing. Another commenter requested that EOIR allow
for digital signatures on paper filings.
Response: As stated in the NPRM, the rule's signature requirements
are subject to any form requirements regarding signatures. See 85 FR at
78246. Therefore, if a form requires an ink signature, the user must
follow the form requirements. The user may then electronically file a
scanned copy of the ink-signed form through ECAS, so long as the user
maintains the original document for inspection upon request. Id. (``In
practice, if the user was electronically filing, the user would sign
the application in ink and then scan and electronically file the
application with EOIR.'').
Second, the rule already also allows for the use of electronic and
encrypted digital signatures on documents filed in paper. See 85 FR at
78246 (``First, EOIR proposes to accept documents with original,
handwritten ink signatures,

[[Page 70711]]

encrypted digital signatures, or electronic signatures, whether filing
electronically or on paper.'').

K. Transition Period

Comment: One commenter stated that EOIR should implement a
transition period before making electronic filing mandatory for
attorneys and accredited representatives in order for representatives
to ensure they have the necessary staffing, training, and file storage.
Response: After consideration, the Department declines to implement
an explicit transition period for attorneys and accredited
representatives. The Department believes that electronic filing is
standard practice in most court systems and that most, if not all,
users should already be familiar with uploading documents
electronically. EOIR has devoted resources to developing the EOIR Case
Portal, an updated electronic filing portal that features an intuitive
user interface for electronically filing documents at the immigration
courts and the BIA and will be providing training materials and
technical support to filers as necessary. For example, users can
currently view training materials, including infographics and videos on
how to upload and download documents, on EOIR's website. See EOIR,
Resources--Attorneys and Accredited Representatives, available at
https://www.justice.gov/eoir/ecas/attorney-and-ar-resources (last
updated Aug. 25, 2021). This rule also includes a 60-day waiting period
before it becomes effective, which provides additional time for filers
to familiarize themselves with ECAS. Moreover, ECAS has been in
production at many pilot courts for more than two years without issue,
evincing a stable electronic filing system. See EOIR Electronic Filing
Pilot Program, 83 FR 29575 (June 25, 2018).
In addition, this rule only applies to cases initiated after the
ECAS release in a specific court or the BIA. See 8 CFR 1001.1(cc)
(defining ``case eligible for electronic filing''). Therefore,
attorneys and accredited representatives will only be required to
electronically file documents in newly initiated cases, which will act
as a de facto transition period.

L. Interaction with Other EOIR Proposed Rules

Comment: One commenter raised concerns about the rule's interaction
with the September 30, 2020 NPRM entitled, ``Professional Conduct for
Practitioners--Rules and Procedures, and Representation and
Appearances,'' 85 FR 61640 (Sept. 30, 2020) (``September NPRM''). The
commenter requested clarification on the interaction between electronic
filing under this rule and the September NPRM and recommended that the
comment period be reopened to allow commenters additional time to
explore potential interactions between the two rules.
Response: The Department finds it unnecessary to extend the comment
period as requested because this rule and the September NPRM address
two different, though admittedly related, topics. In the September
NPRM, the Department proposed a new manner of appearance before the
immigration courts and the BIA: Document assistance that would not
trigger the full range of responsibilities and obligations required for
full representation. See 85 FR at 61645. This rule establishes
electronic filing requirements for attorneys and accredited
representatives who have filed a Form EOIR-27 or EOIR-28 and are the
representative of record, and creates a system that allows for
voluntary and permissible electronic filing in the future by the
respondent, applicant, or petitioner; reputable individuals and
accredited officials; and any other authorized individuals. As
discussed below in Section III, this final rule provides further
clarification regarding when the electronic filing requirements apply
so that it is clear that only attorneys or representatives who are the
representative of record have a mandatory filing requirement. As the
Department works to finalize the September NPRM, the Department will
include any further clarity or provisions as needed in that final rule.
In addition, the Department notes that, as a general matter under
the current system requirements, only representatives with a valid
EOIR-27 or EOIR-28 entry of appearance on file for a specific case may
view and file documents electronically for that case through ECAS.

M. Electronic Filing System

Comment: One commenter stated that EOIR should study other courts'
electronic filing systems to serve as a model, including CM/ECF and
those of other agencies and state courts.
Response: EOIR considered many existing court electronic filing
systems in designing ECAS and will continue to solicit feedback from
users in an effort to continually improve the system. See EOIR,
Contact--Attorneys and Accredited Representatives, available at https://www.justice.gov/eoir/ecas/attorney-and-ar-contact (last updated Jan.
25, 2021) (providing an email inbox to submit ECAS-related
suggestions).

N. Comment Period

Comment: Commenters raised concerns with the rule's 30-day comment
period, stating that the comment period was too short in light of the
holiday season, the COVID-19 pandemic, and EOIR's other pending
proposed rules. Commenters requested that EOIR reopen the comment
period for further comment.
Response: The Department believes the 30-day comment period on the
NPRM was sufficient to allow for meaningful public input. See, e.g.,
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania,
140 S. Ct. 2367, 2385 (2020) (``The object [of notice and comment], in
short, is one of fair notice.'' (citation omitted; alteration in the
original)).
The Administrative Procedure Act (``APA'') does not require a
specific comment period length. See generally 5 U.S.C. 553(b)-(c).
Although Executive Orders 12866 and 13563 recommend a comment period of
at least 60 days, no specific length is required by executive order or
statute. See Vt. Yank. Nucl. Power Corp. v. NRDC, 435 U.S. 519, 524
(1978) (explaining that, aside from ``extremely rare'' circumstances,
the APA ``established the maximum procedural requirements which
Congress was willing to have the courts impose upon agencies in
conducting rulemaking procedures'').
Federal courts have found 30 days to be a reasonable comment period
length. For example, the D.C. Circuit has stated that ``[w]hen
substantial rule changes are proposed, a 30-day comment period is
generally the shortest time period sufficient for interested persons to
meaningfully review a proposed rule and provide informed comment.''
Nat'l Lifeline Ass'n v. FCC, 921 F.3d 1102, 1117 (D.C. Cir. 2019)
(citing Petry v. Block, 737 F.2d 1193, 1201 (D.C. Cir. 1984)). Further,
litigation has mainly focused on the reasonableness of comment periods
shorter than 30 days, often in the face of exigent circumstances. See,
e.g., North Carolina Growers' Ass'n. v. United Farm Workers, 702 F.3d
755, 770 (4th Cir. 2012) (analyzing the sufficiency of a 10-day comment
period); Omnipoint Corp. v. FCC, 78 F.3d 620, 629-30 (D.C. Cir. 1996)
(15-day comment period); Northwest Airlines, Inc. v. Goldschmidt, 645
F.2d 1309, 1321 (8th Cir. 1981) (7-day comment period).
Here, the Department decided that this rule, which codifies
straightforward standards for electronic filing, was not overly complex
or so ``substantial'' such that it necessitated a lengthy comment
period. Nat'l Lifeline Ass'n, 921 F.3d at

[[Page 70712]]

1117. The NPRM did not present a novel concept with which commenters
would have been entirely unfamiliar. In the last three years, the
Department has published a notice in the Federal Register announcing
pilot programs for electronic filing, 83 FR 29575; begun more than 40
pilot programs at immigration court locations across the country; and
developed a robust website and portal, including technical support
contacts, infographics, video tutorials, and user manuals. See
generally EOIR, EOIR Courts & Appeals System (ECAS)--Online Filing,
available at https://www.justice.gov/eoir/ECAS (last updated July 11,
2021). For these reasons, the Department finds it unnecessary to extend
the comment period beyond the 30 days provided.
Moreover, the Department does not believe that the COVID-19
pandemic, the holiday season, or EOIR's other proposed rulemakings
should have precluded the use of a 30-day comment period. Regarding the
COVID-19 pandemic, proposed rulemakings allow for electronic comment
submissions, and employers around the country have adopted telework
flexibilities to the greatest extent possible, which reduces potential
hardships from the COVID-19 pandemic. In addition, holidays within a
comment period are unavoidable throughout much of the year, and
commenters are expected to plan accordingly. Lastly, this rule is
unrelated to any other proposed rules that EOIR issued during the same
time period, and the Department does not believe that unrelated NPRMs
provide cause for extending comment periods.

III. Final Rule

After reviewing public comments on the NPRM, the Department now
adopts the NPRM as written with the following changes: (1) Removing the
regulatory requirement that supervising attorneys or accredited
representatives be physically present in the same location as the law
students or law graduates they supervise for purposes of representation
before EOIR, and instead leaving the determination regarding the
parties' manner of appearance to the adjudicator's discretion; (2)
correcting a scrivener's error regarding the supervisor requirements
for law graduates; (3) allowing filers to include proof of fee payment
with DHS when DHS has not provided a fee receipt within the filing
deadline set by the immigration judge; (4) including language requiring
sealed medical records to be filed in paper and not electronically; (5)
broadening immigration judge discretion to accept paper filings from
parties otherwise required to file electronically under this rule; (6)
modifying the process for fee waiver denials at the BIA; (7) extending
the minimum notice requirement for planned outages from three to five
days; (8) removing duplicative examples of improper filings; (9)
clarifying to whom the filing requirements apply; (10) clarifying the
registration procedures for permissive electronic filers; and (11)
making additional minor technical amendments to update outdated
references.
First, the final rule modifies 8 CFR 1292.1(a)(2)(iv) so that
supervising attorneys or accredited representatives are not required by
regulation to be physically present in the same location as the law
students or law graduates they supervise for purposes of representation
before the immigration court or the BIA, and instead leaves the
determination regarding the parties' manner of appearance (e.g., video
teleconference; in-person) subject to the adjudicator's discretion.
This clarification enhances flexibility for supervising attorneys or
accredited representatives of law students or law graduates while
maintaining the requirement that the supervising attorney or accredited
representative be able to participate fully and be prepared to proceed
with the case, including in-person appearance when required. See 8 CFR
1003.10(b).
Second, the final rule amends 8 CFR 1292.1(a)(2)(iii) to correct a
scrivener's error that excluded the requirement that law graduates
appear under the supervision of an EOIR-registered licensed attorney or
accredited representative. While the Department included this
requirement in the NPRM at 8 CFR 1292.1(a)(2)(ii) as applied to law
students appearing before EOIR, and indicated its clear intent that law
students and law graduates be subject to the same supervision
requirements through the paragraph regarding filings by law students
and law graduates, it inadvertently excluded the supervisors'
registration requirement in the paragraph regarding law graduates.
Because the supervisors of both law students and law graduates must be
able to proceed with the case at all times, 8 CFR 1292.1(a)(2)(iv), it
is logical that the supervisors in both circumstances must be EOIR-
registered. Indeed, the Department indicated its intent in the NPRM
that law graduates' supervisors be registered in the same manner as law
students' supervisors. See 85 FR at 78243 (``Further, this rulemaking
proposes that law graduates, currently required to have `supervision'
under the regulations, 8 CFR 1292.1(a)(2)(iii), would also need to file
through an attorney or accredited representative registered with
EOIR.'')
Third, the final rule modifies 8 CFR 1001.1(dd)(2),
1003.23(b)(1)(ii), 1003.31(g), and 1103.7(a)(3) to allow filers to
submit proof of fee payment made to DHS in the event that filers are
not provided a fee receipt within the applicable filing deadline set by
the immigration judge. This change will provide flexibility when filers
cannot meet EOIR filing deadlines through no fault of their own.
However, the rule makes clear that the filer must still submit the
actual fee receipt within a later deadline set by the immigration judge
or, if no deadline is set, within 45 days of the submission of the
underlying filing.
Fourth, the final rule modifies 8 CFR 1003.2(g)(7), 1003.3(g)(4),
and 1003.31(e) to add an additional requirement that sealed medical
records must be filed in paper and not electronically. Most commonly,
respondents are required to submit a sealed Form I-693 when applying
for adjustment of status. See 8 CFR 1245.5; U.S. Citizenship and
Immigration Services, Form I-693--Instructions for Report of Medical
Examination and Vaccination Record, available at https://www.uscis.gov/sites/default/files/document/forms/i-693instr.pdf (explaining that the
completed form will be returned if not sealed when submitted). Since
documents in sealed envelopes cannot be electronically transmitted,
respondents in these cases must submit the sealed Form I-693 medical
report in paper to ensure the integrity of the record, which the
immigration judge will open and scan into the electronic record of
proceeding. This modification will provide clarification to ensure that
the confidentiality of these medical records is maintained and that the
medical records are not erroneously opened by the parties and filed
electronically.
Fifth, the final rule modifies 8 CFR 1003.31(b) to broaden the
ability of immigration judges to accept paper filings in all cases. The
NPRM provided the BIA full discretion to accept paper filings as
necessary but limited immigration judges to situations involving (1)
rebuttal or impeachment; (2) good cause shown, provided that the filing
is otherwise admissible and the immigration judge finds that any
applicable filing deadline should be excused; or (3) when the opposing
party does not object to the paper filing. By updating this language in
the final rule, the Department recognizes that providing immigration
judges with maximum discretion to accept paper filings will help
provide the necessary

[[Page 70713]]

flexibility to receive evidence as the immigration judge deems
necessary and will provide consistency between the immigration courts
and the BIA.
Sixth, the final rule modifes 8 CFR 1001.1(dd), 1003.8(a)(3), and
1003.24(d) to update the fee waiver denial process at the BIA. The NPRM
changed the existing BIA fee waiver process so that, if the BIA denied
a fee waiver request, the BIA would hold the underlying filing in a
pending state while allowing the filer a 10-day cure period to submit
the required fee or to submit a new fee waiver request, which would
also serve to toll any applicable filing deadlines. However, after
further review, the Department has decided to modify this language to
more closely match the existing process, while retaining the filing
deadline tolling period. The final rule states that, if a fee waiver
request is denied, the BIA will reject the filing consistent with
existing practice but allow the filer 15 days to re-file the document
with the proper payment or a new fee waiver request. Any applicable
filing deadlines will be tolled during this 15-day period. The
Department believes this modification provides a more standardized
process for filings at the BIA and will prevent any issues stemming
from the BIA needing to hold any filings in a pending state while
waiting for a fee payment or new fee waiver.
Seventh, the final rule modifies 8 CFR 1003.2(g)(5), 1003.3(g)(2),
and 1003.31(b) to extend the minimum notice for planned system outages
from three to five days. As a result, any planned outages announced
with five or fewer days' notice will be treated as an unplanned outage
and filing deadlines will be extended until the first day of system
availability that is not a Saturday, Sunday, or legal holiday. For
planned outages with more than five days' notice, filers must
electronically file documents during system availability within the
applicable filing deadline or paper file documents within the
applicable filing deadline. Extending the notice period will further
ensure that filers have sufficient time to account for planned outages
when filing their documents.
Eighth, the final rule removes proposed 8 CFR 1001.1(dd)(2), which
provided a non-exhaustive list of improper filings subject to rejection
by the immigration courts and the BIA. The requirements for proper
filings are contained within various statutory and regulatory
provisions. See, e.g., INA 240(c)(4)(B), 8 U.S.C. 1229a(c)(4)(B)
(requiring compliance with application instructions); 8 CFR 1003.31
(fee requirements), 1003.32 (proof of service and document formatting
requirements), 1003.33 (document translation requirements). The
proposed language in the NPRM was non-exhaustive and risked duplication
and confusion with these and other similar provisions. Therefore, the
Department has removed the language from the final rule.
Ninth, this rule amends the provisions at 8 CFR 1003.2(g)(4),
1003.3(g)(1), and 1003.31(a) regarding parties that are either required
to or allowed to electronically file documents with EOIR. Specifically,
this rule adds a qualifier that the mandatory electronic filing
requirement for attorneys and accredited representatives applies only
in those cases in which the attorney or accredited representative has
entered an appearance on a Form EOIR-27 or a Form EOIR-28. This rule
also amends the explanation of who may permissively file documents
electronically so that it is clear that reputable individuals and
accredited officials may also do so in those cases in which they have
entered an appearance on a Form EOIR-27 or a Form EOIR-28. Finally,
this rule includes a catchall that ``other authorized individuals'' may
file documents electronically. For example, depending on sytem
development, EOIR may authorize third-party electronic filing akin to
the current availability of courier services.
Tenth, the final rule modifies 8 CFR 1003.2(g)(4), 1003.3(g)(1),
and 1003.31(a) regarding the requirement for parties who may
permsissibly and voluntarily participate in electronic filing with the
immigration courts and the BIA. Previously, the proposed rule stated
that such parties must first register with EOIR ``in conformity with 8
CFR 1292.1(f).'' That paragraph, however, only sets out registration
procedures for attorneys and accredited representatives who appear
before EOIR. Accordingly, the final rule replaces these references to 8
CFR 1292.1(f) with a general requirement that unrepresented
respondents, reputable individuals, accredited officials, and any other
authorized persons must first register with EOIR as a prerequisite to
being able to electronically file documents with the immigration courts
and the BIA. This amendment does not change the Department's
expectation, as explained in the NPRM, that the registration procedures
for these officials, once available, will mimic those that are set out
in 8 CFR 1292.1(f) and that currently apply to attorneys and accredited
representative. 85 FR at 78242 (``EOIR will adapt its current
registration system as appropriate to allow pro se respondents,
applicants, or petitioners and reputable individuals and accredited
officials to register in order to be able to utilize ECAS.'').
Lastly, the final rule includes two additional technical amendments
to correct additional outdated references to the Immigration and
Naturalization Service in 8 CFR 1214.2 and 1245.21.

IV. Regulatory Requirements

A. Regulatory Flexibility Act

The Department has reviewed this rule in accordance with the
Regulatory Flexibility Act and has determined that this rule will not
have a significant economic impact on a substantial number of small
entities. See 5 U.S.C. 605(b). This rule regulates attorneys and
accredited representatives, most of whom qualify as ``small entities''
under the Regulatory Flexibility Act. See 5 U.S.C. 601(3)-(4), (6).
However, all attorneys and accredited representatives already are
required to enroll in eRegistry in order to practice before EOIR. Thus,
they are already eligible to participate in the electronic filing
system, which is currently being made available in many locations
through a voluntary pilot program. This rule mandates electronic filing
in eligible cases. The Department anticipates that the adoption of
electronic filing will lead to substantial net cost savings for these
attorneys and accredited representatives because they will no longer be
required to bear the burdens and expenses of mailing or serving paper
copies in each of their cases for filings submitted to the immigration
court or to the BIA or for service of process on opposing counsel.
Therefore, this rule will not have an adverse economic effect on
attorneys or accredited representatives; instead the Department expects
it to result in net cost savings. A more detailed analysis of the costs
and benefits of this rule are detailed in Section IV.D of this
preamble.

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

This rule is not a major rule as defined by section 804 of the
Congressional Review Act. 5 U.S.C.

[[Page 70714]]

804(2). This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic and
export markets. The Department will report to Congress and to the
Comptroller General as required by 5 U.S.C. 801(a).

D. Executive Order 12866 and Executive Order 13563 (Regulatory Planning
and 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 effects, distributive impacts, and equity). The
Office of Information and Regulatory Affairs of the Office of
Management and Budget (``OMB'') has determined that this rule is not a
``significant regulatory action'' under section 3(f) of Executive Order
12866. It will neither result in an annual effect on the economy
greater than $100 million nor adversely affect the economy or sectors
of the economy. It does not pertain to entitlements, grants, user fees,
or loan programs, nor does it raise novel legal or policy issues. It
does not create inconsistencies or interfere with actions taken by
other agencies. Accordingly, this rule is not a significant regulatory
action subject to review by OMB pursuant to Executive Order 12866.
Executive Order 13563 directs 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. The Department certifies that this
regulation has been drafted in accordance with the principles of
Executive Order 13563.
1. ECAS-Related Costs and Savings
The Department estimates that implementation of ECAS will result in
a total savings of $68,103,621 over the first 10 years of its
implementation.\1\ Specifically, the Department estimates that
electronic filing will cost EOIR $32,897,808 over 10 years, primarily
due to increased technology costs to implement and maintain the new
technology infrastructure. These costs are outweighed, however, by the
predicted savings to the public--$101,001,429, which primarily relate
to cost savings from no longer having to file documents via mail or in
person. These costs and savings for EOIR and the public are discussed
in further detail individually below.
---------------------------------------------------------------------------

\1\ All dollar amounts cited in this discussion are calculated
to correspond with what would have been the value in December 2016
using the U.S. Bureau of Labor Statistics (BLS) Consumer Price Index
inflation calculator found at https://www.bls.gov/data/inflation_calculator.htm (last visited Mar. 1, 2021).
\2\ Savings listed are an overestimation as they include all
filings, rather than only those filings that can be done
electronically at this time (i.e., the savings include filings by
pro se respondents who cannot yet use ECAS). In addition, the
Department notes that any differences in the amount of cost and
benefits listed herein from those noted in the NPRM are the result
of changes in when the Department applied rounding in the
calculation for consistency and not due to substantive changes in
the calculations.

Table 1--Overview of Total Cost and Savings: EOIR and the Public \2\
------------------------------------------------------------------------
Entity Savings/costs
------------------------------------------------------------------------
EOIR ($32,897,808)
OCIJ............................................. 12,910,888
BIA.............................................. 2,710,950
OIT.............................................. (51,275,937)
OGC.............................................. 2,757,920
Public............................................... 101,001,429
------------------
Total............................................ 68,103,621
------------------------------------------------------------------------

Despite the financial cost to EOIR to develop and maintain the
technology for ECAS, the Department believes that electronic filings
will be a net benefit for the agency. During the electronic filing
pilot program, EOIR has already begun to realize efficiencies in case
processing. For example, in Fiscal Year (``FY'') 2019 DHS initiated
37,074 cases electronically (out of 465,790 cases initiated in the same
time period), and 161 bond proceedings were initiated electronically.
According to internal pilot metrics, charging documents filed
electronically at the pilot sites are being processed nearly 10 times
faster than charging documents filed in paper. Similarly, the time it
takes to receive and process a non-charging supporting document is
approximately 25 percent faster than processing a paper-filed
supporting document. This represents a significant savings in terms of
court staff time and in terms of the overall processing time for the
2,574 electronically filed motions that EOIR has received during the
ECAS pilot program from its inception to the end of January 2020. This
rule will only increase these time savings when all attorneys and
accredited representatives begin filing documents electronically.
a. Office of the Chief Immigration Judge
The Department estimates that implementation of the rule will
reduce the immigration courts' costs by the equivalent of approximately
$12.9 million over the first 10 years of implementation. This reduction
includes the cost of labor that will be reallocated to other tasks due
to the more efficient processing of electronic documents. Cost changes
for the courts will be realized primarily in initial case processing;
individual hearing processing; and processing and shipping costs for
changes of venue, appeals, and records retirement.
To reach its estimates, the Department determined the costs for
adjudicating a typical case after the implementation of the rule. Using
this methodology, the Department identified and analyzed three separate
scenarios: (1) Legacy paper ROPs that were started but not completed
before this rule; (2) eROPs for pro se respondents that are submitted
in paper and scanned by court staff; and (3) eROPs for represented
respondents that are completely electronic.
The Department then estimated the economic impact of the rule on
the immigration courts for each of the next 10 years by calculating the
average costs for each of the three scenarios above; multiplying each
scenario's average cost by the expected annual number of cases received
for the immigration courts and expected annual hearings for the
immigration courts in each scenario over the next decade; separately
calculating the baseline cost (i.e., the cost without mandatory
electronic filing), using existing time estimates and labor rates, for
the next 10 years; and subtracting the post-regulation cost from the
baseline cost for each of the next 10 years.
This economic impact reflects labor hours that will be saved in
terms of dollars. In actuality, labor can be reallocated to higher-
impact tasks, and more efficient labor usage could offset future hiring
and resource needs, which may lead to more quantifiable realized
savings. As shown in Table 2, the expected cost savings increase every
year. This is a result of legacy paper ROPs leaving the system as cases
are adjudicated and a higher percentage of the future pending cases
having

[[Page 70715]]

mandatory eROPs as a result of this regulation.

Table 2--Office of the Chief Immigration Judge Cost Savings
------------------------------------------------------------------------
Expected cost
Year savings
------------------------------------------------------------------------
1....................................................... $140,304
2....................................................... 526,622
3....................................................... 816,841
4....................................................... 1,115,708
5....................................................... 1,320,399
6....................................................... 1,500,104
7....................................................... 1,666,355
8....................................................... 1,816,269
9....................................................... 1,947,925
10...................................................... 2,060,361
---------------
Total............................................... 12,910,888
------------------------------------------------------------------------

Since all paper-filed documents, per this new regulation, will be
scanned and maintained in an eROP, initial case processing is estimated
to become marginally more expensive as court staff must scan the paper
documents into the eROP. However, this increase in cost will be
outweighed by the time savings, calculated in terms of the cost of
labor, for individual hearing processing and change of venue
processing, as filing becomes more expeditious for court staff in each
individual case. Additionally, annual shipping costs will be reduced,
since changes of venue, appeals, and records retirement transfers will
occur electronically instead of manually shipping the paper ROP to
another court, the BIA, or the Federal Records Center.
Cost changes have been calculated with the assumption that all
other processes remain the same. However, eROPs enable the possibility
of further cost savings through more efficient case adjudication. For
example, widely available eROPs may enable immigration judges to hear a
case via video teleconference (``VTC'') almost instantly. Under the
current paper ROP system, the ROP needs to be shipped to the
immigration judge's location before a VTC hearing can be held. In
contrast, an eROP could enable a judge to open any eROP and hear a case
immediately. This new paradigm has the potential to improve the
efficiency of workload adjudication by judges and their staff members.
EOIR may also realize savings through the reduced growth of storage
requirements at court locations. EOIR currently stores paper ROPs at
immigration courts, utilizing valuable storage space in courtrooms,
offices, and hallways. Conversion to an eROP system may ease the strain
on the system as new pending cases will have an eROP that will not
require physical storage space. With the information currently
available, storage space utilization and savings cannot be specifically
calculated. However, this regulation will likely reduce costs for the
immigration courts by allowing current space to be used for functional
purposes, rather than storage.
b. Board of Immigration Appeals
The Department also estimates that implementation of the rule will
reduce the BIA's costs by approximately $2.7 million over the first 10
years of implementation. Cost changes for the BIA will be realized in
three main process areas: Scanning pro se ROPs; receiving ROPs from the
immigration courts; and returning ROPs to the immigration courts.

Table 3--BIA Costs Savings
------------------------------------------------------------------------
Expected cost
Year savings
------------------------------------------------------------------------
1....................................................... ($23,064)
2....................................................... 176,822
3....................................................... 201,808
4....................................................... 250,818
5....................................................... 285,414
6....................................................... 314,243
7....................................................... 342,112
8....................................................... 367,098
9....................................................... 388,240
10...................................................... 407,459
---------------
Total............................................... 2,710,950
------------------------------------------------------------------------

The impacts to the BIA largely mirror the immigration courts in
that scanning paper filings into the eROP is likely to increase costs
by increasing staff workload. Further, the largest cost savings are
likely to come from reduced shipping. The BIA's process requires that
all ROPs sent to the BIA from the immigration court must be shipped
back to the court upon completion of the appeal. Shipping costs will be
eliminated for future eROPs because they will be transferred
electronically, reducing costs for the BIA.
c. Office of Information Technology
The Department estimates that the implementation of the rule will
increase EOIR's Office of Information Technology's (``OIT'') costs by a
total of approximately $51.3 million across the first 10 years of
implementation. These costs are due to the additional effort required
to develop, deploy, and maintain the electronic infrastructure that
serves as the backbone for electronic filing.
Because OIT developed the tools and processes necessary for the
implementation of mandatory electronic filing throughout EOIR, it is
the largest driver of quantifiable costs from mandatory electronic
filing implementation. The deployment and training for mandatory
electronic filing will be particularly resource-intensive for OIT, as
it will be responsible for the deployment and maintenance of the
hardware and software necessary to digitize and store documents along
with delivering training to court staff. Costs related to electronic
filing deployment are estimated to be approximately $21.7 million,
including $2.3 million in hardware purchases, $1.7 million in travel to
deliver training and install systems, and $3.4 million in external
services, software, and licensing for necessary cloud computing
services.

Table 4--OIT Electronic Filing Deployment Costs
----------------------------------------------------------------------------------------------------------------
Category Year 1 Year 2 Total
----------------------------------------------------------------------------------------------------------------
External Services (e.g., MS Azure Premier Access)............... $999,429 $999,429 $1,998,858
Software........................................................ 625,988 726,171 1,352,159
Travel.......................................................... 830,295 830,295 1,660,590
Labor/Hardware \3\.............................................. 11,316,689 5,355,028 16,671,717
Support Labor:
Program Support............................................. 1,717,020 900,298 2,617,318
Training.................................................... 754,782 431,820 1,186,602
Service Desk/Operations..................................... 482,417 482,417 964,834
Product Labor:
eROP........................................................ 2,699,130 1,322,681 4,021,811
Electronic Filing........................................... 3,741,362 1,833,416 5,574,778

[[Page 70716]]

Hardware........................................................ 1,921,978 384,396 2,306,374
-----------------------------------------------
Total....................................................... 13,772,401 7,910,923 21,683,324
----------------------------------------------------------------------------------------------------------------

Costs are estimated to be highest in the first year of the
deployment, as hardware is purchased, software systems are finalized
and implemented, and training is delivered to court staff. Costs are
estimated to decrease by over 40 percent in the second deployment year
as OIT completes training court staff and transitions to a steady state
of software and hardware maintenance. The cost reductions in the second
year of deployment will be driven by a 47 percent reduction in labor
costs and an 80 percent reduction in hardware costs.
---------------------------------------------------------------------------

\3\ Labor/Hardware represents a total of the individual
categories of support labor, product labor, and hardware.
---------------------------------------------------------------------------

Once training and deployment are complete, OIT's costs will
stabilize. While OIT will no longer incur costs related to training
court staff, OIT will be using more labor than before mandatory
electronic filing. This is due to the additional staff necessary to
provide help desk support to the courts and IT services related to the
electronic filing system. OIT will also continually accrue expenses for
cloud computing platform licensing and hardware repairs, upgrades, and
replacements required to support electronic filing. OIT estimates that
overall costs will increase by approximately 1 percent each year,
primarily driven by increases in labor costs. These ongoing expenses
will represent the new steady state for OIT. The eight years following
completion of the deployment phase are estimated to cost an additional
$29.6 million due to mandatory electronic filing.
---------------------------------------------------------------------------

\4\ Years 5 through 9 are not included in this visual, but are
factored into the totals calculations. OIT estimates that labor
costs will increase by 3 percent per year. Non-labor costs, such as
hardware, software, and external services, remain constant through
each year.

Table 5--OIT Electronic Filing Steady State Costs
----------------------------------------------------------------------------------------------------------------
Category Year 3 Year 4 (\4\) Year 10 Total
----------------------------------------------------------------------------------------------------------------
External Services (e.g., MS Azure $999,429 $999,429 ......... $999,429 $7,995,432
Premier Access).....................
Software............................. 366,521 366,521 ......... 366,521 2,932,168
Travel............................... 0 0 ......... 0 0
Labor/Hardware....................... 2,227,541 2,255,993 ......... 2,445,561 18,666,644
Support Labor:
Program Support.................. 239,564 239,564 ......... 239,564 1,916,512
Training......................... 172,728 172,728 ......... 172,728 1,381,824
Service Desk/Operations.......... 482,417 482,417 ......... 482,417 3,859,336
Products Labor:
eROP............................. 466,808 480,812 ......... 574,115 4,151,015
Electronic Filing................ 481,628 496,076 ......... 592,341 4,282,793
Electronic Filing Hardware........... 384,396 384,396 ......... 384,396 3,075,168
--------------------------------------------------------------------------
Total............................ 3,593,491 3,621,943 ......... 3,811,510 29,594,242
----------------------------------------------------------------------------------------------------------------

As mandatory filing is implemented and electronic filing
progresses, the Department anticipates that this will lead to
significant additional efficiencies in case processing. This may
include more expeditious case scheduling and adjudication, improved
data quality, increased performance monitoring and tracking, augmented
data analytics capabilities, and better alignment with information
storage best practices. There may also be further impacts to EOIR's
internal data-informed decision-making process, as the digitization of
the data may allow for increased analysis of the relationship between
various practices, procedures, and outcomes.
d. Office of the General Counsel
The Department estimates that the implementation of the rule will
increase efficiencies for the EOIR Office of the General Counsel
(``OGC'') programs. For example, digitization of files will allow for
more expeditious compliance with Freedom of Information Act (``FOIA'')
and other requests for information, reducing the time burden of such
activities on EOIR staff. Specifically, the Department estimates that
costs associated with FOIA compliance will decrease by approximately
$2.8 million across the first 10 years of implementation. These savings
will be realized through reduced shipping costs in the FOIA response
process as more ROPs are accessible electronically instead of requiring
storage retrieval and shipping.
As electronic filing becomes more widespread, the proportion of
FOIA requests that can be satisfied through electronic records searches
will proportionally increase. A higher percentage of the future pending
caseload will have mandatory eROPs as a result of this regulation,
which will cause the ratio of eROPs to paper ROPs, and thus expected
cost savings, to increase over time, as detailed in Table 6.

Table 6--OGC Cost Savings
------------------------------------------------------------------------
Expected cost
Year \5\ savings
------------------------------------------------------------------------
1....................................................... $0
2....................................................... 0
3....................................................... 60,052
4....................................................... 203,084
5....................................................... 295,661
6....................................................... 360,279
7....................................................... 404,478
8....................................................... 443,370
9....................................................... 479,318

[[Page 70717]]

10...................................................... 511,678
---------------
Total............................................... 2,757,920
------------------------------------------------------------------------

The public may also see the added qualitative benefit of more
expeditious FOIA compliance, as OGC will not have to wait for records
to be shipped between locations to satisfy FOIA requests and will
instead be able to search and access the records electronically.
---------------------------------------------------------------------------

\5\ FOIA volume is estimated at 50,000 per year, an
approximation based on EOIR's FY 2018 FOIA volume.
---------------------------------------------------------------------------

e. The Public
The benefits to the public are high as well. Parties will be able
to file documents at any time of day from any location with internet,
thereby reducing postage costs and the need to physically appear at an
immigration court during business hours. For many parties, this will be
a substantial benefit, as the nearest immigration court may be hours
away. The parties will also be able to view the eROP electronically,
providing instant access to necessary documents and eliminating the
need to appear at the immigration court to view the paper record.
Further, parties will save on paper and toner costs required to print
copies of filings, and costs associated with required process service.
The Department believes that the biggest savings to the parties
before EOIR will be from reduced costs associated with mailing or hand-
delivering filings that would have been incurred without the
implementation of electronic filing. In FY 2018, EOIR's immigration
courts received 311,761 paper filings and 2,555 electronic filings,\6\
and the BIA received 49,522 paper filings.\7\ While EOIR does not keep
data regarding what methods (e.g., Federal Express (``FedEx''), United
States Postal Service (``USPS''), hand delivery by an attorney's office
or a pro se party, or local courier) are used to file paper documents
with EOIR and to serve those filings on the opposing party, anecdotal
evidence points to filings with the immigration courts and the BIA and
service on the opposing party typically being sent using FedEx or
courier to ensure filings are timely. This is particularly true for
filings with the BIA, because the filer must ensure actual receipt by
the BIA in Falls Church, Virginia, no later than the close of business
of the clerk's office on the established deadline.
---------------------------------------------------------------------------

\6\ These numbers represent the paper and electronic filing of
initial Forms I-862, Notice to Appear, and I-863, Notice of Referral
to the Immigration Judge, by DHS at the immigration courts
nationwide for the fiscal year. EOIR does not have data regarding
the number of paper vs. electronic filings directly by respondents
in proceedings or their representatives, such as the relative number
of paper vs. electronically filed motions, applications for relief
or protection, or evidence packets. Accordingly, this analysis uses
the number of electronic and paper filings by DHS as a proxy for
those by the respondents and their representatives since EOIR does
not have similar data for that population but would expect the
percentage of paper and electronic to be the same for both.
\7\ See EOIR, Statistics Yearbook: Fiscal Year 2018, Aug. 30,
2019, available at https://www.justice.gov/eoir/file/1198896/download. As with the immigration courts, the Department uses the
number of cases filed at the BIA as a proxy for the number of
filings at the BIA because the Department does not have specific
data regarding the number of individual filings by the parties.
---------------------------------------------------------------------------

To analyze the public cost savings associated with electronic
filing, EOIR considered the average costs of sending filings through
FedEx and USPS, the hourly rates for couriers and immigration
attorneys, and the time savings from avoiding use of the immigration
courts' intra-office mailing systems. Based on these preliminary
estimates and filings from the previous year, if filers used FedEx for
one-third of filings and used USPS for two-thirds of filings,
electronic filing would have saved filers $38,780.64 in FedEx and USPS
costs in the five pilot courts in FY 2018.\8\ This is compared to a
cost of $1,958,898.28 in FedEx costs \9\ and $2,772,594.49 in USPS
filing costs \10\ (assuming one-third filings via FedEx and two-thirds
filings via USPS) in the other 55 courts. These estimates are based on
an $18.85 average FedEx filing rate ($8.57 average Express Saver cost +
$20.03 average second day cost + $27.97 overnight cost, divided by
three) and a $13.34 average USPS filing rate ($7.75 average priority
mail + $28.59 average priority mail express + $3.68 first-class parcel,
divided by three). The Department notes that this savings is likely an
underestimate due to the tendency for many filers to use next-day
service.
---------------------------------------------------------------------------

\8\ 852 filings * $18.85 average FedEx cost + 1,703 filings *
$13.34 average USPS cost.
\9\ 103,920 filings * $18.85 average FedEx cost.
\10\ 207,841 filings * $13.34 average USPS cost.
---------------------------------------------------------------------------

According to the U.S. Bureau of Labor Statistics, the mean hourly
wage for couriers, such as those individuals law firms may hire to
deliver documents to the immigration court, is $14.13. U.S. Bureau of
Labor Statistics, Occupational Employment Statistics: Occupational
Employment and Wages, May 2018: 43-5021 Couriers and Messengers,
available at https://www.bls.gov/oes/2018/may/oes435021.htm (last
visited Aug. 28, 2021).\11\ Further, if an attorney makes the trip to
the immigration court or to the BIA to handle the filing, the average
cost would be $66.54 for one hour of work.\12\ Assuming that
approximately one-quarter of paper filings are handled via a courier,
one-quarter of paper filings are handled via an attorney,\13\ and one-
half are filed using USPS or FedEx, with two-thirds of those via USPS
and one-third via FedEx, the cost savings to the public of eFiling in
the five pilot courts was approximately $70,916.15 ($8,026.96 for FedEx
\14\ + $11,361.23 for USPS \15\ + $42,502.43 for the attorneys \16\ +
$9,025.54 for the couriers \17\).
---------------------------------------------------------------------------

\11\ $14.72 in May 2018 is equivalent to $14.13 in December
2016.
\12\ U.S. Bureau of Labor Statistics, Occupational Employment
Statistics: Occupational Employment and Wages, May 2018: 23-1011
Lawyers, available at https://www.bls.gov/oes/2018/may/oes231011.htm
(last visited Mar. 1, 2021) (stating the mean hourly wage in May
2018 was $69.34). $69.34 in May 2018 is equivalent to $66.54 in
December 2016.
\13\ This calculation further assumes that the filings would
require one hour of time by the attorney or courier.
\14\ 426 filings * $18.85 average FedEx cost.
\15\ 852 filings * $13.34 average USPS cost.
\16\ 639 filings * $66.54 mean hourly attorney wage.
\17\ 639 filings * $14.13 mean hourly courier wage.
---------------------------------------------------------------------------

Overall, the Department's estimates predict an annual savings to
the public from electronic filing before the immigration courts and the
BIA of approximately $10,100,142.88 ($70,916.15/2,555 filings = $27.76;
$27.76 * (311,761 + 2,555 + 49,522 = 363,838 total filings)). Over the
course of 10 years, these savings would equal $101,001,428.80 if the
annual number of filings remains constant. The Department, however,
expects that the true savings will be higher as EOIR hires additional
immigration judges and opens additional immigration courts, expanding
the annual case processing capacity. See, e.g., EOIR, Adjudication
Statistics: New Cases and Total Completions, July 8, 2021, available at
https://www.justice.gov/eoir/page/file/1060841/download (showing that
initial case completions increased from 195,127 in FY 2018 to 276,984
in FY 2019). Further, additional savings are expected based on gas and
tolls, paper, toner, and other office supplies.

[[Page 70718]]

Table 7--Cost and Savings for Public
[FY18]
----------------------------------------------------------------------------------------------------------------
FedEx express FedEx standard
FedEx envelope rates saver FedEx 2day overnight
----------------------------------------------------------------------------------------------------------------
FedEx Local (0-150 miles).............................. $7.64 $17.83 $23.53
FedEx Regional (151-600 miles)......................... 8.16 19.34 25.80
FedEx National (601+ miles)............................ 9.90 22.92 34.57
Average Cost........................................... 8.57 20.03 27.97
Costs of \1/3\ OCIJ Paper Filings (103,920):........... 890,257.26 2,081,524.28 2,906,651.72
Total Costs of \1/3\ BIA Paper Filings (16,507):....... 141,467.85 330,641.89 457,253.13
Savings from eFilings (2,555):......................... 21,896.35 51,176.65 71,463.35
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
Priority mail Priority express First-class
USPS rates by zone \18\ \19\ \20\ parcel \21\
----------------------------------------------------------------------------------------------------------------
USPS Zone 1&2 (0-150 miles)............................ $6.95 $24.43 $3.52
USPS Zone 3 (151-300 miles)............................ 7.28 24.66 3.57
USPS Zone 4 (301-600 miles)............................ 7.42 25.50 3.62
USPS Zone 5 (601-1000 miles)........................... 7.65 28.47 3.66
USPS Zone 6 (1001-1400 miles).......................... 7.83 30.37 3.71
USPS Zone 7 (1401-1800)................................ 8.21 32.27 3.76
USPS Zone 8 (1801+).................................... 8.90 34.45 3.89
Average Cost........................................... 7.75 28.59 3.68
Costs of \2/3\ OCIJ Paper Filings (207,841):........... 1,610,765.17 5,942,164.66 764,853.65
Costs of \2/3\ BIA Paper Filings (16,507):............. 255,863.67 943,889.32 121,493.70
Savings from eFilings (2,555):......................... 19,801.25 73,047.45 9,402.40
----------------------------------------------------------------------------------------------------------------

Documents will also be served by electronic notification where
applicable, which will provide near-instantaneous service. This will
particularly benefit the parties when EOIR electronically serves orders
and decisions on parties participating in electronic filing, as the
appeal clock begins to run when the order is sent. This will allow the
parties to begin preparing for any potential appeals immediately
without having to wait for the order or decision to arrive in the mail
as is currently the practice.
---------------------------------------------------------------------------

\18\ This chart does not include the USPS rates for zone 9 as
there are no immigration court locations in the Republic of Palau,
Federated States of Micronesia, and the Republic of the Marshall
Islands. See USPS Office of Inspector General, Audit Report
Management of Postal Zones 4, Mar. 25, 2020, available at https://www.uspsoig.gov/sites/default/files/document-library-files/2020/19RG009MS000-20.pdf (last visited Aug. 26, 2021).
\19\ These rates correspond with the USPS priority mail rates
for letters, large envelopes, and parcels that do not exceed one
pound.
\20\ These rates correspond with the USPS priority mail express
rates for letters, large envelopes, and parcels that do not exceed
0.5 pound.
\21\ These rates correspond with the USPS first class package
service rates for retail parcels that do not exceed one ounce.
---------------------------------------------------------------------------

These potential benefits are reflected in the private bar's long-
standing requests for electronic filing with EOIR. See, e.g., EOIR,
EOIR/AILA Liaison Meeting, Sept. 26, 2002, available at https://www.justice.gov/eoir/eoir-aila-sep26-2002 (last updated Feb. 13, 2015)
(discussing ``e-filing initiative''). In addition, since the July 2018
launch of the electronic filing pilot program, more than 15,000
attorneys have signed up for ECAS, indicating a strong interest in
electronic filing. Moreover, at the pilot sites, approximately half of
all active attorneys and accredited representatives in those sites have
signed up for the pilot despite having no obligation to participate.
2. Costs and Savings Related to Rules Regarding Law Student and Law
Graduate Filings
This rulemaking also proposes changes to law student and law
graduate filing and accompaniment rules. First, EOIR believes that
there will be minimal, if any, costs associated with requiring the
supervisor to electronically file documents with EOIR, rather than the
law student or law graduate filing on paper. And, if there are any
associated costs, they will be outweighed by the substantial benefits
of electronic filing, including immediate access to the eROP and the
ability to file at any time of day from any location with internet
access without the cost or reliance on mail carriers.
As to the proposed accompaniment change, EOIR does not maintain
data on how many law students appear in immigration court or how many
of those appear without a supervisor present, though it understands
that in most cases, a supervisor does accompany the law student.
Moreover, regardless of EOIR's rules, in many cases a supervisor is
required to accompany the law student or graduate in order to comply
with applicable state bar rules. See, e.g., Cal. R. Ct. 9.42(d)(3)
(allowing certified California law students to appear ``on behalf of
the client in any public trial, hearing, arbitration, or proceeding, or
before any arbitrator, court, public agency, referee, magistrate,
commissioner, or hearing officer, to the extent approved by such
arbitrator, court, public agency, referee, magistrate, commissioner, or
hearing officer,'' provided that, among other requirements, the
certified law student ``[p]erforms the activity under the direct and
immediate supervision and in the personal presence of the supervising
attorney'').
EOIR recognizes that in rare cases in which a law school clinic or
similar program does not currently send a supervising attorney to every
hearing at which a law student or law graduate appears, there may be
some increased cost. EOIR expects those increased costs to be minimal,
however, due to the rarity of cases in which law students and law
graduates appear unsupervised, the availability of telephonic
appearances, and the final rule's modification to allow law students
and law graduates to appear from locations separate from their
supervisors with adjudicator permission.\22\ Further, EOIR

[[Page 70719]]

believes that the benefits of ensuring that every case has a single
licensed representative responsible for service of process and ultimate
representation in the case outweighs the potential costs associated
with the increased accompaniment requirements.\23\
---------------------------------------------------------------------------

\22\ Due to the current outbreak of COVID-19, many immigration
judges have adopted standing orders allowing practitioners to appear
by telephone without the need for filing a motion. See EOIR Policy
Manual, Part II, Ch. 14.1, available at https://www.justice.gov/eoir/eoir-policy-manual/ii/14/1 (last updated Jan. 13, 2021); EOIR,
Operational Status Map, available at https://www.justice.gov/eoir-operational-status/operational-status-map (providing standing orders
for each immigration court). Although EOIR cannot predict how long
such standing orders will remain in effect, it reiterates that
nothing in this proposed rule precludes a law school clinic from
filing a motion for a telephonic appearance in order to reduce the
need for in-person appearances.
\23\ Although most law school clinics and similar programs only
take cases at immigration courts that are located in nearby
geographic proximity, both to minimize operational and logistical
difficulties and to avoid the complications of complying with
practice rules for different state jurisdictions, EOIR also
recognizes that there may be unique situations in which a law school
clinic takes a case that requires atypical travel arrangements. In
that situation, coupled with the similarly unique situation of an
unsupervised law student appearing alone on behalf of a respondent,
EOIR acknowledges there may be an increase in cost associated with
this rule because it would require the supervisor to accompany the
student to those courts, but the benefit of the rule outweighs any
cost associated with this highly unlikely situation. In addition,
the final rule has been modified to allow law students and law
graduates to appear from locations separate from their supervisor
with the adjudicator's permission, which would diminish the
potential for the scenario described. See 8 CFR 1292.1(a)(2)(iv).
---------------------------------------------------------------------------

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, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

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

G. Paperwork Reduction Act

This rulemaking does not propose new or revisions to existing
``collection[s] of information'' as that term is defined in the
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter
35, and its implementing regulations, 5 CFR part 1320.

List of Subjects

8 CFR Part 1001

Administrative practice and procedure, Immigration.

8 CFR Part 1003

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

8 CFR Part 1103

Administrative practice and procedure, Authority delegations
(Government agencies), Reporting and recordkeeping requirements.

8 CFR Part 1208

Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.

8 CFR Part 1214

Administrative practice and procedure, Aliens.

8 CFR Part 1240

Administrative practice and procedure, Aliens.

8 CFR Part 1245

Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 1246

Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 1292

Administrative practice and procedure, Immigration, Lawyers,
Reporting and recordkeeping requirements.

Accordingly, for the reasons set forth in the preamble, the
Department amends 8 CFR parts 1001, 1003, 1103, 1208, 1214, 1240, 1245,
1246, and 1292 as follows:

PART 1001--DEFINITIONS

0
1. The authority citation for part 1001 continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107-296,
116 Stat. 2135; Title VII of Pub. L. 110-229.

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2. Amend Sec. 1001.1 by revising paragraph (s) and adding paragraphs
(cc), (dd), and (ee) to read as follows:

Sec. 1001.1 Definitions.

* * * * *
(s) The terms government counsel or DHS counsel, in the context of
proceedings in which DHS has appeared, mean any officer assigned to
represent DHS in any proceeding before an immigration judge or the
Board of Immigration Appeals.
* * * * *
(cc) The term case eligible for electronic filing means any case
that DHS seeks to bring before an immigration court after EOIR has
formally established an electronic filing system for that court, or any
case before an immigration court or the Board of Immigration Appeals
that has an electronic record of proceeding. Any reference to a record
of proceeding in this chapter shall include an electronic record of
proceeding.
(dd) The term filing means the actual receipt of a document by the
appropriate immigration court or the Board of Immigration Appeals. An
electronic filing that is accepted by the Board or an immigration court
will be deemed filed on the date it was submitted. A paper filing that
is accepted by the Board or an immigration court will be deemed filed
on the date it was received by the Board or the immigration court. A
filing that is rejected by the Board or the immigration court as an
improper filing will not be deemed filed on the date it was submitted
or received.
(ee) The term service means physically presenting, mailing, or
electronically providing a document to the appropriate party or
parties; except that an Order to Show Cause or Notice of Deportation
Hearing shall be served in person to the alien, or by certified mail to
the alien or the alien's attorney, and a Notice to Appear shall be
served to the alien in person, or if personal service is not
practicable, shall be served by regular mail to the alien or the
alien's attorney of record.

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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3. 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.

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4. Amend Sec. 1003.1 by revising paragraph (f) to read as follows:

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

* * * * *
(f) Service of Board decisions. The decision of the Board shall be
in writing. The Board shall transmit a copy to DHS and serve a copy
upon the alien or the alien's representative, as provided in part 1292
of this chapter.
* * * * *

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5. Amend Sec. 1003.2 by:

[[Page 70720]]

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a. Revising paragraph (g) introductory text, (g)(1), and (g)(2)(i)
through (iii); and
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b. Adding paragraphs (g)(4) through (9).
The revisions and additions read as follows:

Sec. 1003.2 Reopening or reconsideration before the Board of
Immigration Appeals.

* * * * *
(g) Filing procedures. This paragraph applies to the filing of
documents related to reopening and reconsideration before the Board.
(1) English language and entry of appearance. A motion and any
submission made in conjunction with a motion must be in English or
accompanied by a certified English translation. If the moving party,
other than DHS, is represented, Form EOIR-27, Notice of Entry of
Appearance as Attorney or Representative Before the Board, must be
filed with the motion.
(2) * * *
(i) A motion to reopen or motion to reconsider a decision of the
Board pertaining to proceedings before an immigration judge shall be
filed directly with the Board. Such motion must be accompanied by a
payment in a manner authorized by EOIR or fee waiver request in
satisfaction of the fee requirements of Sec. 1003.8. The record of
proceeding pertaining to such a motion shall be forwarded to the Board
upon the request or order of the Board.
(ii) A motion to reopen or a motion to reconsider a decision of the
Board pertaining to a matter initially adjudicated by an officer of DHS
shall be filed with the officer of DHS having administrative control
over the record of proceeding.
(iii) If the motion is made by DHS in proceedings in which DHS has
administrative control over the record of proceedings, the record of
proceedings in the case and the motion shall be filed directly with the
Board. If such motion is filed directly with an office of DHS, the
entire record of proceeding shall be forwarded to the Board by the DHS
officer promptly upon receipt of the briefs of the parties, or upon
expiration of the time allowed for the submission of such briefs.
* * * * *
(4) Filing parties. DHS and all attorneys and accredited
representatives of record for respondents, applicants, or petitioners
are required to electronically file all documents with the Board
through EOIR's electronic filing application in all cases eligible for
electronic filing. Although not required, unrepresented respondents,
applicants, or petitioners; reputable individuals and accredited
officials who are the representatives of record; other authorized
individuals; and practitioners filing an EOIR-60, may electronically
file documents with the Board through EOIR's electronic filing
application in cases eligible for electronic filing. An unrepresented
respondent, applicant, or petitioner; reputable individual; accredited
official; other authorized individual; or practitioner filing an EOIR-
60, who elects to use EOIR's electronic filing application shall be
required to register with EOIR as a condition of using that
application. If a party not required to file electronically opts to use
EOIR's electronic filing application for a case, the individual must
electronically file all documents with the Board for that case unless
the Board, only upon a motion filed by the individual with good cause
shown, grants leave to opt out of using the electronic filing
application. Such an indvidual who has been granted leave to opt out of
using EOIR's electronic filing application for a case may not
subsequently opt in again to use that application for the same case.
(5) Filing requirements. Parties must make the originals of all
filed documents available upon request to the Board or the opposing
party for review. If EOIR's electronic filing application is
unavailable due to an unplanned system outage on the last day for
filing in a specific case, then the filing deadline will be extended to
the first day that the electronic filing application becomes accessible
that is not a Saturday, Sunday, or legal holiday. For planned system
outages, parties must electronically file documents during system
availability within the applicable filing deadline or paper file
documents within the applicable filing deadline. EOIR will issue public
communications for planned system outages ahead of the scheduled
outage. Any planned system outage announced five or fewer business days
prior to the start of the outage will be treated as an unplanned
outage. The Board retains discretion to accept paper filings in all
cases.
(6) Classified information. Notwithstanding any other provision of
this chapter, classified information is never allowed to be
electronically filed.
(7) Sealed medical documents. Notwithstanding any other provision
of this chapter, parties are not permitted to file electronically any
sealed medical documents.
(8) Signatures. All documents filed with the Board that require a
signature must have an original, handwritten ink signature, an
encrypted digital signature, or an electronic signature. Electronic
filings submitted through EOIR's electronic filing application that
require the user's signature may have a conformed signature. This
paragraph (g)(8) is subject to the requirements of the application or
document being submitted.
(9) Service. The service of filings with the Board depends on
whether the documents are filed through EOIR's electronic filing
application or in paper.
(i) Service of electronic filings. If all parties are using EOIR's
electronic filing application in a specific case, the parties do not
need to serve a document that is filed through EOIR's electronic filing
application on the opposing party. EOIR's electronic filing application
will effectuate service by providing a notification of all
electronically filed documents on all parties by email. Upon successful
upload by one of the parties, EOIR will email a notification to the
email addresses provided in paragraph (g)(9)(ii) of this section. If
one or more parties are not filing through EOIR's electronic filing
application in a specific case, the parties must follow the service
procedures in paragraph (g)(9)(iii) of this section.
(ii) Valid email address. Use of EOIR's electronic filing
application requires a valid email address for electronic service. The
Board will use the email address provided through eRegistry for
electronic service on participating parties. Users must immediately
update their eRegistry account if their email address changes.
Representatives must additionally file a new Form EOIR-27 with the
Board if their email address changes. EOIR will consider service
completed when the electronic notification is delivered to the last
email address on file provided by the user.
(iii) Service of paper filings. If electronic filing is not being
used in a particular case, the party filing with the Board must serve a
copy of the filing on the opposing party and include a certificate of
service showing service on the opposing party with their filing. If the
moving party is not DHS, service of the motion shall be made upon the
ICE Office of the Principal Legal Advisor for the field location in
which the case was completed before the immigration judge.
* * * * *

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6. Amend Sec. 1003.3 by revising paragraphs (a)(2) and (3) and (c)(2)
and adding paragraph (g) to read as follows:

Sec. 1003.3 Notice of appeal.

(a) * * *
(2) Appeal from decision of a DHS officer. A party affected by a
decision of a DHS officer that may be appealed to the Board under this
chapter shall be

[[Page 70721]]

given notice of the opportunity to file an appeal. An appeal from a
decision of a DHS officer shall be taken by filing a Notice of Appeal
to the Board of Immigration Appeals from a Decision of a DHS Officer
(Form EOIR-29) directly with the DHS office having administrative
control over the record of proceeding within 30 days of the service of
the decision being appealed. An appeal is not properly filed until it
is received at the appropriate DHS office, together with all required
documents, and the fee provisions of Sec. 1003.8 are satisfied.
(3) General requirements for all appeals. The appeal must be
accompanied by a payment in a manner authorized by EOIR or fee waiver
request in satisfaction of the fee requirements of Sec. 1003.8. If the
respondent or applicant is represented, a Notice of Entry of Appearance
as Attorney or Representative Before the Board (Form EOIR-27) must be
filed with the Notice of Appeal. The appeal and all attachments must be
in English or accompanied by a certified English translation.
* * * * *
(c) * * *
(2) Appeal from decision of a DHS officer. Briefs in support of or
in opposition to an appeal from a decision of a DHS officer shall be
filed directly with the DHS office having administrative control over
the file. The alien and DHS shall be provided 21 days in which to file
a brief, unless a shorter period is specified by the DHS officer from
whose decision the appeal is taken, and reply briefs shall be permitted
only by leave of the Board. Upon written request of the alien, the DHS
officer from whose decision the appeal is taken or the Board may extend
the period for filing a brief for good cause shown. The Board may
authorize the filing of briefs directly with the Board. In its
discretion, the Board may consider a brief that has been filed out of
time. All briefs and other documents filed in conjunction with an
appeal, unless filed by an alien directly with a DHS office, shall
include proof of service on the opposing party.
* * * * *
(g) Filing. This paragraph applies to the filing of documents
related to appeals before the Board.
(1) Filing parties. DHS and all attorneys and accredited
representatives of record for respondents, applicants, or petitioners
are required to electronically file all documents with the Board
through EOIR's electronic filing application in all cases eligible for
electronic filing. Although not required, unrepresented respondents,
applicants, or petitioners; reputable individuals and accredited
officials, who are the representatives of record; other authorized
individuals; and practitioners filing an EOIR-60, may electronically
file documents with the Board through EOIR's electronic filing
application in cases eligible for electronic filing. An unrepresented
respondent, applicant, or petitioner; reputable individual; accredited
official; other authorized individual; or practitioner filing an EOIR-
60, who elects to use EOIR's electronic filing application shall be
required to register with EOIR as a condition of using that
application. If a party not required to file electronically opts to use
EOIR's electronic filing application for a case, the individual must
electronically file all documents with the Board for that case unless
the Board, only upon a motion filed by the individual with good cause
shown, grants leave to opt out of using the electronic filing
application. Such an individual who has been granted leave to opt out
of using EOIR's electronic filing application for a case may not
subsequently opt in to use that application for the same case.
(2) Filing requirements. Parties must make the originals of all
filed documents available upon request to the Board or to the opposing
party for review. If EOIR's electronic filing application is
unavailable due to an unplanned system outage on the last day for
filing in a specific case, then the filing deadline will be extended to
the first day that the electronic filing application becomes accessible
that is not a Saturday, Sunday, or legal holiday. For planned system
outages, parties must electronically file documents during system
availability within the applicable filing deadline or paper file
documents within the applicable filing deadline. EOIR will issue public
communications for planned system outages ahead of the scheduled
outage. Any planned system outage announced five or fewer business days
prior to the start of the outage will be treated as an unplanned
outage. The Board retains discretion to accept paper filings in all
cases.
(3) Classified information. Notwithstanding any other provision of
this chapter, classified information is never allowed to be
electronically filed.
(4) Sealed medical documents. Notwithstanding any other provision
of this chapter, parties are not permitted to file electronically any
sealed medical documents.
(5) Signatures. All documents filed with the Board that require a
signature must have an original, handwritten ink signature, an
encrypted digital signature, or an electronic signature. Electronic
filings submitted through EOIR's electronic filing application that
require the user's signature may have a conformed signature. This
paragraph is subject to the requirements of the application or document
being submitted.
(6) Service. The service of filings with the Board depends on
whether the documents are filed through EOIR's electronic filing
application or in paper.
(i) Service of electronic filings. If all parties are using EOIR's
electronic filing application in a specific case, the parties do not
need to serve a document that is filed through EOIR's electronic filing
application on the opposing party. EOIR's electronic filing application
will effectuate service by providing a notification of all
electronically filed documents on all parties by email. Upon successful
upload by one of the parties, EOIR will email a notification to the
email addresses provided in paragraph (g)(6)(ii) of this section. If
one or more parties are not filing through EOIR's electronic filing
application in a specific case, the parties must follow the service
procedures in paragraph (g)(6)(iii) of this section.
(ii) Valid email address. Use of EOIR's electronic filing
application requires a valid email address for electronic service. The
Board will use the email address provided through eRegistry for
electronic service on participating parties. Users must immediately
update their eRegistry account if their email address changes.
Representatives must additionally file a new Form EOIR-27 with the
Board if their email address changes. EOIR will consider service
completed when the electronic notification is delivered to the last
email address on file provided by the user.
(iii) Service of paper filings. If electronic filing is not being
used in a particular case, the party filing with the Board must serve a
copy of the filing on the opposing party and include a certificate of
service showing service on the opposing party with their filing.

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7. Amend Sec. 1003.8 by revising the last sentence of paragraph (a)(3)
to read as follows:

Sec. 1003.8 Fees before the Board.

(a) * * *
(3) * * * If the fee waiver request does not establish the
inability to pay the required fee, the appeal or motion will not be
deemed properly filed, provided the Board grants 15 days to re-file the
rejected document with the filing fee or new fee waiver request and

[[Page 70722]]

tolls any applicable filing deadline during the 15-day cure period.
* * * * *

Sec. 1003.13 [Amended]

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8. Amend Sec. 1003.13 by removing the definitions of ``Filing'' and
``Service''.

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9. Amend Sec. 1003.17 by revising paragraph (a) to read as follows:

Sec. 1003.17 Appearances.

(a) In any proceeding before an immigration judge in which the
alien is represented, the attorney or representative shall file a
Notice of Entry of Appearance on Form EOIR-28 with the immigration
court, and shall serve a copy of the Notice of Entry of Appearance on
DHS as required by Sec. 1003.32. The entry of appearance of an
attorney or representative in a custody or bond proceeding shall be
separate and apart from an entry of appearance in any other proceeding
before the immigration court. An attorney or representative may file a
Form EOIR-28 indicating whether the entry of appearance is for custody
or bond proceedings only, any other proceedings only, or for all
proceedings. Such Notice of Entry of Appearance must be filed and
served even if a separate Notice of Entry of Appearance(s) has
previously been filed with DHS for appearance(s) before DHS.
* * * * *

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10. Amend Sec. 1003.23 by revising paragraph (b)(1)(ii) to read as
follows:

Sec. 1003.23 Reopening or reconsideration before the immigration
court.

* * * * *
(b) * * *
(1) * * *
(ii) Filing. Motions to reopen or reconsider a decision of an
immigration judge must be filed with the immigration court having
administrative control over the Record of Proceeding. If necessary
under Sec. 1003.32, a motion to reopen or a motion to reconsider shall
include a certificate showing service on the opposing party of the
motion and all attachments. If the moving party is not DHS, service of
the motion shall be made upon the ICE Office of the Principal Legal
Advisor for the field location in which the case was completed. If the
moving party, other than DHS, is represented, a Form EOIR-28, Notice of
Appearance as Attorney or Representative Before an Immigration Judge
must be filed with the motion. For any motion requiring a fee, that
motion must be accompanied by a fee receipt, an alternate proof of
payment consistent with Sec. 1103.7(a)(3), or a fee waiver request
pursuant to Sec. 1103.7(c). If filed in paper, the motion must be
filed in duplicate with the immigration court.
* * * * *

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11. Amend Sec. 1003.24 by revising the last sentence of paragraph (d)
to read as follows:

Sec. 1003.24 Fees pertaining to matters within the jurisdiction of an
immigration judge.

* * * * *
(d) * * * If the request for a fee waiver is denied, the
application or motion will not be deemed properly filed, provided the
immigration judge grants 15 days to re-file the rejected document with
the filing fee or new fee waiver request and tolls any applicable
filing deadline during the 15-day cure period.

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12. Revise Sec. 1003.31 to read as follows:

Sec. 1003.31 Filing documents and applications.

This section applies to the filing of all documents, including
motions and applications, before the immigration courts.
(a) Filing parties. DHS and all attorneys and accredited
representatives of record for persons appearing before the immigration
courts are required to electronically file all documents, including
charging documents, with the immigration courts through EOIR's
electronic filing application in all cases eligible for electronic
filing. Although not required, unrepresented respondents or applicants;
reputable individuals and accredited officials who are representatives
of record; other authorized individuals; and practitioners filing an
EOIR-61, may electronically file documents with the immigration courts
through EOIR's electronic filing application in cases eligible for
electronic filing. An unrepresented respondent or applicant; reputable
individual; accredited official; other authorized individual; or
practitioner filing an EOIR-61, who elects to use EOIR's electronic
filing application shall be required to register with EOIR as a
condition of using that application. If a party not required to file
electronically opts to use EOIR's electronic filing application for a
case, the individual must electronically file all documents with the
immigration courts for that case unless an immigration judge, only upon
a motion filed by the individual with good cause shown, grants leave to
opt out of using the electronic filing application. Such an individual
who has been granted leave to opt out of using EOIR's electronic filing
application for a case may not subsequently opt in to use that
application for the same case.
(b) Filing requirements. If EOIR's electronic filing application is
unavailable due to an unplanned system outage on the last day for
filing in a specific case, then the filing deadline will be extended to
the first day that the electronic filing application becomes accessible
that is not a Saturday, Sunday, or legal holiday. For planned system
outages, parties must electronically file documents during system
availability within the applicable filing deadline or paper file
documents within the applicable filing deadline. EOIR will issue public
communications for planned system outages ahead of the scheduled
outage. Any planned system outage announced five or fewer business days
prior to the start of the outage will be treated as an unplanned
outage. In all other situations in cases eligible for electronic
filing, an immigration judge retains the discretion to accept paper
filings in all cases.
(c) Originals. Parties must make the originals of all filed
documents available upon request to the immigration court or the
opposing party for review.
(d) Classified information. Notwithstanding any other provision of
this chapter, classified information is never allowed to be
electronically filed.
(e) Sealed medical documents. Notwithstanding any other provision
of this chapter, parties are not permitted to file electronically any
sealed medical documents.
(f) Where to file. All documents that are to be considered in a
proceeding before an immigration judge must be filed with the
immigration court having administrative control over the Record of
Proceeding.
(g) Fees. Except as provided in Sec. 1240.11(f) of this chapter,
all documents or applications filed with the immigration courts
requiring the payment of a fee must be accompanied by a fee receipt
from DHS, alternate proof of payment consistent with Sec. 1103.7(a)(3)
of this chapter, or a fee waiver request pursuant to Sec. 1103.7(c).
Except as provided in Sec. 1003.8, any fee relating to immigration
judge proceedings shall be paid to, and accepted by, any DHS office
authorized to accept fees for other purposes pursuant to Sec.
1103.7(a).
(h) Filing deadlines. The immigration judge may set and extend time
limits for the filing of applications and related documents and
responses thereto, if any. If an application or document is not filed
within the time set by the immigration judge, the opportunity to file
that application or document shall be deemed waived.

[[Page 70723]]

(i) Filing under seal. DHS may file documents under seal by
including a cover sheet identifying the contents of the submission as
containing information which is being filed under seal. Documents filed
under seal shall only be examined by persons with authorized access to
the administrative record.
(j) Signatures. All documents filed with the immigration courts
that require a signature must have an original, handwritten ink
signature, an encrypted digital signature, or an electronic signature.
Electronic filings submitted through EOIR's electronic filing
application that require the user's signature may have a conformed
signature. This paragraph is subject to the requirements of the
application or document being submitted.

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13. Revise Sec. 1003.32 to read as follows:

Sec. 1003.32 Service and size of documents.

The service of filings with the immigration courts depends on
whether the documents are filed through EOIR's electronic filing
application or in paper.
(a) Service of electronic filings. If all parties are using EOIR's
electronic filing application in a specific case, the parties do not
need to serve a document that is filed through EOIR's electronic filing
application on the opposing party. If all parties are using EOIR's
electronic filing application in a specific case, EOIR's electronic
filing application will effectuate service by providing a notification
of all electronically filed documents on all parties. Upon successful
upload by one of the parties, EOIR will email a notification to the
email addresses provided in paragraph (b) of this section. If one or
more parties are not filing through EOIR's electronic filing
application in a specific case, the parties must follow the service
procedures in paragraph (c) of this section.
(b) Valid email address. Use of EOIR's electronic filing
application requires a valid email address for electronic service. The
immigration courts will use the email address provided through
eRegistry for electronic service on participating parties. Users must
immediately update their eRegistry account if their email address
changes. Representatives must additionally file a new Form EOIR-28 with
the immigration court if their email address changes. EOIR will
consider service completed when the electronic notification is
delivered to the last email address on file provided by the user.
(c) Service of paper filings. If electronic filing is not being
used in a particular case, the party filing with the immigration court
must serve a copy of the filing on the opposing party and include a
certificate of service showing service on the opposing party with their
filing. The immigration judge will not consider any documents or
applications that do not contain a certificate of service unless
service is made on the record during a hearing.
(d) Size and format of documents. Unless otherwise permitted by the
immigration judge, all written material presented to immigration judges
including offers of evidence, correspondence, briefs, memoranda, or
other documents must be submitted on 8\1/2\ x 11
size pages, whether filed electronically or in paper. The immigration
judge may require that exhibits and other written material presented be
indexed, paginated, and that a table of contents be provided.

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14. Amend Sec. 1003.37 by revising paragraph (a) to read as follows:

Sec. 1003.37 Decisions.

(a) A decision of the immigration judge may be rendered orally or
in writing. If the decision is oral, it shall be stated by the
immigration judge in the presence of the parties and a memorandum
summarizing the oral decision shall be served on the parties. If the
decision is in writing, it shall be served on the parties by personal
service, mail, or electronic notification.
* * * * *

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15. Amend Sec. 1003.38 by revising paragraph (b) to read as follows:

Sec. 1003.38 Appeals.

* * * * *
(b) The Notice of Appeal from a Decision of an Immigration Judge
(Form EOIR-26) shall be filed directly with the Board of Immigration
Appeals within 30 calendar days after the stating of an immigration
judge's oral decision or the mailing or electronic notification of an
immigration judge's written decision. If the final date for filing
falls on a Saturday, Sunday, or legal holiday, this appeal time shall
be extended to the next business day. A Notice of Appeal (Form EOIR-26)
may not be filed by any party who has waived appeal.
* * * * *

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16. Amend Sec. 1003.63 by revising the last sentence in paragraphs
(f)(1) and (2) to read as follows:

Sec. 1003.63 Applications.

* * * * *
(f) * * *
(1) * * * A comment or recommendation not sent to the Director
electronically must include proof of service on the applicant.
(2) * * * All responses must be filed with the Director and include
proof of service of a copy of such response on the commenting party.

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17. Amend Sec. 1003.64 by revising the last sentence in paragraph (b)
introductory text to read as follows:

Sec. 1003.64 Approval and denial of applications.

* * * * *
(b) * * * The written notice shall be served at the address
provided on the application unless the applicant subsequently provides
a change of address pursuant to Sec. 1003.66, or shall be transmitted
to the applicant electronically.
* * * * *

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18. Amend Sec. 1003.65 by revising the first sentence in paragraph
(d)(3) to read as follows:

Sec. 1003.65 Removal of a provider from the List.

* * * * *
(d) * * *
(3) * * * The provider may submit a written answer within 30 days
from the date the notice is served or is sent to the provider
electronically. * * *
* * * * *

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19. Amend Sec. 1003.106 by revising the second sentence in paragraph
(a)(2)(ii) and the seventh sentence in paragraph (b) to read as
follows:

Sec. 1003.106 Right to be heard and disposition.

(a) * * *
(2) * * *
(ii) * * * When designating the time and place of a hearing, the
adjudicating official shall provide for the service of a notice of
hearing on the practitioner or the authorized officer of the recognized
organization and the counsel for the government. * * *
* * * * *
(b) * * * The adjudicating official shall provide for service of a
written decision or memorandum summarizing an oral decision on the
practitioner or, in cases involving a recognized organization, on the
authorized officer of the organization and on the counsel for the
government. * * *
* * * * *

PART 1103--APPEALS, RECORDS, AND FEES

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20. The authority citation for part 1103 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 28
U.S.C. 509, 510.

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21. Amend Sec. 1103.7 by revising paragraph (a)(3) to read as follows:

[[Page 70724]]

Sec. 1103.7 Fees.

(a) * * *
(3) All other fees payable in connection with immigration
proceedings. Except as provided in 8 CFR 1003.8, the Executive Office
for Immigration Review does not accept the payment of any fee relating
to Executive Office for Immigration Review proceedings. Instead, such
fees, when required, shall be paid to, and accepted by, an office of
the Department of Homeland Security authorized to accept fees, as
provided in 8 CFR 103.7(a)(1). The Department of Homeland Security
shall return to the payer, at the time of payment, a receipt for any
fee paid, and shall also return to the payer any documents, submitted
with the fee, relating to any immigration proceeding. The fee receipt
and the application or motion shall then be submitted to the Executive
Office for Immigration Review. If the payer has paid any required fee
but has not received the fee receipt from the Department of Homeland
Security by the deadline set by the immigration judge, the payer must
instead provide to the immigration court a copy of proof of the payment
to the Department of Homeland Security with the filing. The payer must
then submit a copy of the fee receipt by a new deadline set by the
immigration judge. If the immigration judge does not set a deadline,
the alien must submit the fee receipt no later than 45 days after the
date of filing of the application. Remittances to the Department of
Homeland Security for applications, motions, or forms filed in
connection with immigration proceedings shall be payable subject to the
provisions of 8 CFR 103.7(a)(2).
* * * * *

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
22. The authority citation for part 1208 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Pub. L. 110-229; Pub. L. 115-218.

0
23. Amend Sec. 1208.4 by revising the fifth sentence of paragraph
(a)(2)(ii) to read as follows:

Sec. 1208.4 Filing the application.

* * * * *
(a) * * *
(2) * * *
(ii) * * * For cases before the immigration court, the application
is considered to have been filed on the date it is received by the
immigration court. * * *
* * * * *

PART 1214--REVIEW OF NONIMMIGRANT CLASSES

0
24. The authority citation for part 1214 continues to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110
Stat. 3009-708; section 141 of the Compacts of Free Association with
the Federated States of Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and
1931 note, respectively; 8 CFR part 2.

Sec. 1214.2 [Amended]

0
25. Amend Sec. 1214.2 by:
0
a. Removing the words ``Service counsel'' and adding in their place the
words ``DHS counsel'' in paragraph (a);
0
b. Removing the words ``Service custody'' and adding in their place the
words ``DHS custody'' in paragraph (a); and
0
c. Removing the words ``the Service'' and adding in their place the
word ``DHS'', wherever they appear.

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES

0
26. The authority citation for part 1240 continues to read as follows:

Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226,
1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L.
105-277 (112 Stat. 2681).

0
27. Amend Sec. 1240.2 by:
0
a. Revising the section heading;
0
b. Removing the words ``Service counsel'' and adding in their place the
words ``DHS counsel'' in paragraph (a), wherever they appear;
0
c. Removing the words ``Service attorney'' and adding in their place
the words ``DHS counsel'' in paragraph (b), wherever they appear; and
0
d. Removing the words ``the Service'' and adding in their place the
word ``DHS'', wherever they appear.
The revision reads as follows:

Sec. 1240.2 DHS Counsel.

* * * * *

Sec. 1240.10 [Amended]

0
28. Amend Sec. 1240.10 by:
0
a. Removing the words ``an Service counsel'' and adding in their place
the words ``DHS counsel'' in paragraph (d); and
0
b. Removing the words ``the Service'' and adding in their place the
word ``DHS'' in paragraphs (d) and (e).

Sec. 1240.11 [Amended]

0
29. Amend Sec. 1240.11 by:
0
a. Removing the words ``Service counsel'' and adding in their place the
words ``DHS counsel'' in paragraphs (c)(3)(iv) and (c)(4); and
0
b. Removing the words ``the Service'' and adding in their place the
word ``DHS'' in paragraph (e), wherever they appears.

Sec. 1240.13 [Amended]

0
30. Amend Sec. 1240.13 by removing the words ``Service counsel'' and
adding in their place the words ``DHS counsel'' in paragraphs (a)
through (c), wherever they appear.

Sec. 1240.26 [Amended]

0
31. Amend Sec. 1240.26 by:
0
a. Removing the words ``Service counsel'' and adding in their place the
words ``DHS counsel'' in paragraph (b)(2);
0
b. Removing the words ``the Service'' and adding in their place the
word ``DHS'' in paragraphs (a), (b)(3)(i) introductory text,
(b)(3)(i)(B), and (b)(3)(ii);
0
c. Removing the words ``The Service'' and adding in their place the
word ``DHS'' in paragraph (b)(3)(ii), wherever they appear, and in
paragraph (c)(2).

Sec. 1240.32 [Amended]

0
32. Amend Sec. 1240.32 by:
0
a. Removing the words ``Service counsel'' and adding in their place the
words ``DHS counsel'' in paragraph (c);
0
b. Removing the words ``the Service'' and adding in their place the
word ``DHS'' in paragraph (c), wherever they appear; and
0
c. Removing the words ``The Service'' and adding in their place the
word ``DHS'' in paragraph (c).

Sec. 1240.33 [Amended]

0
33. Amend Sec. 1240.33 by removing the words ``Service counsel'' and
adding in their place the words ``DHS counsel'' in paragraphs (c)(4)
and (d).

Sec. 1240.48 [Amended]

0
34. Amend Sec. 1240.48 by:
0
a. Removing the words ``the Service'' and adding in their place the
word ``DHS''; and
0
b. Removing the words ``Service counsel'' and adding in their place the
words ``DHS counsel''.

Sec. 1240.49 [Amended]

0
35. Amend Sec. 1240.49 by:
0
a. Removing the words ``Service counsel'' and adding in their place the
words ``DHS counsel'' in paragraphs (c)(4)(iv) and (c)(5); and
0
b. Removing the words ``the Service'' and adding in their place the
word ``DHS'' in paragraph (e); and

[[Page 70725]]

Sec. 1240.51 [Amended]

0
36. Amend Sec. 1240.51 by removing the words ``Service counsel'' and
adding in their place the words ``DHS counsel'' in paragraphs (a) and
(b).

0
37. Amend Sec. 1240.53 by revising paragraph (a) to read as follows:

Sec. 1240.53 Appeals.

(a) Appeal to the Board. Pursuant to 8 CFR part 1003, an appeal
shall lie from a decision of an immigration judge to the Board, except
that no appeal shall lie from an order of deportation entered in
absentia. The procedures regarding the filing of a Form EOIR-26, Notice
of Appeal, fees, and briefs are set forth in Sec. Sec. 1003.3,
1003.31, and 1003.38 of this chapter. An appeal shall be filed within
30 calendar days after the mailing or electronic notification of a
written decision, the stating of an oral decision, or the service of a
summary decision. The filing date is defined as the date of receipt of
the Notice of Appeal by the Board. The reasons for the appeal shall be
stated in the Form EOIR-26, Notice of Appeal, in accordance with the
provisions of Sec. 1003.3(b) of this chapter. Failure to do so may
constitute a ground for dismissal of the appeal by the Board pursuant
to Sec. 1003.1(d)(2) of this chapter.
* * * * *

PART 1245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE

0
38. The authority citation for part 1245 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1255; section 202, Pub.
L. 105-100, 111 Stat. 2160, 2193; section 902, Pub. L. 105-277, 112
Stat. 2681; Title VII of Pub. L. 110-229.

Sec. 1245.21 [Amended]

0
39. Amend Sec. 1245.21 by:
0
a. Removing the words ``The Service'' and adding in their place the
word ``DHS'' in paragraphs (a) introductory text, (b)(1) introductory
text, (d)(2), and (m)(2) and (4), wherever they appear;
0
b. Removing the words ``the Service'' and adding in their place the
word ``DHS'' in paragraphs (b)(1)(i), (c), (d) introductory text,
(d)(2) and (4), (h) through (l), and (m)(2) through (4), wherever they
appear;
0
c. Removing the words ``Service counsel'' and adding in their place the
words ``DHS counsel'' in paragraph (c);
0
d. Removing the words ``the Service's'' and adding in their place the
word ``DHS's'' in paragraphs (j) and (m)(2); and
0
e. Removing the words ``Service files'' and adding in their place the
words ``DHS files'' in paragraph (g)(3).

PART 1246--RECISSION OF ADJUSTMENT OF STATUS

0
40. The authority citation for part 1246 continues to read as follows:

Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259; 8 CFR part 2.

Sec. 1246.5 [Amended]

0
41. Amend Sec. 1246.5 by removing the words ``Service counsel'' and
adding in their place the words ``DHS counsel'', in paragraph (a),
wherever they appear.

PART 1292--REPRESENTATION AND APPEARANCES

0
42. The authority citation for part 1292 continues to read as follows:

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

0
43. Amend Sec. 1292.1 by revising paragraphs (a)(2)(ii) through (iv)
and adding paragraph (a)(2)(v) to read as follows:

Sec. 1292.1 Representation of others.

(a) * * *
(2) * * *
(ii) In the case of a law student, he or she has filed a statement
that he or she is participating, under the direct supervision of an
EOIR-registered licensed attorney or accredited representative, in a
legal aid program or clinic conducted by a law school or non-profit
organization, and that he or she is without direct or indirect
remuneration from the alien he or she represents;
(iii) In the case of a law graduate, he or she has filed a
statement that he or she is appearing under the supervision of an EOIR-
registered licensed attorney or accredited representative and that he
or she is appearing without direct or indirect remuneration from the
alien he or she represents;
(iv) When the law student or law graduate appears before the
immigration court or the Board of Immigration Appeals, the law student
or law graduate is supervised by an attorney or accredited
representative who must appear simultaneously at the same hearing. The
accompanying attorney or accredited representative must be authorized
to practice before EOIR and be prepared to proceed with the case at all
times; and
(v) All filings by law students and law graduates are made through
an EOIR-registered attorney or accredited representative.
* * * * *

Dated: December 4, 2021.
Lisa O. Monaco,
Deputy Attorney General.
[FR Doc. 2021-26853 Filed 12-10-21; 8:45 am]
BILLING CODE 4410-30-P

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