Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents
| Published date | 02 July 2019 |
| Citation | 84 FR 31463 |
| Record Number | 2019-13933 |
| Section | Rules and Regulations |
| Court | Executive Office For Immigration Review |
Federal Register, Volume 84 Issue 127 (Tuesday, July 2, 2019)
[Federal Register Volume 84, Number 127 (Tuesday, July 2, 2019)]
[Rules and Regulations]
[Pages 31463-31471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13933]
[[Page 31463]]
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DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003 and 1292
[EOIR Docket No. 159; AG Order No. 4478-2019]
RIN 1125-AA58
Board of Immigration Appeals: Affirmance Without Opinion,
Referral for Panel Review, and Publication of Decisions as Precedents
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice (Department) is publishing this
final rule (``final rule'' or ``rule'') to amend the regulations
regarding the administrative review procedures of the Board of
Immigration Appeals (BIA or Board). This final rule sets forth the
Department's longstanding position that the regulations providing for
an affirmance without opinion (AWO), a single-member opinion, or a
three-member panel opinion are not intended to create any substantive
right to a particular manner of review or decision. The final rule also
clarifies that the BIA is presumed to have considered all of the
parties' relevant issues and claims of error on appeal regardless of
the type of the BIA's decision, and that the parties are obligated to
raise issues and exhaust claims of error before the BIA. In addition,
the final rule codifies standards for the BIA's consideration in
evaluating whether to designate particular decisions as precedents.
Finally, the final rule provides clarity surrounding precedent
decisions in the context of decisions from the Executive Office for
Immigration Review (EOIR) regarding the recognition of organizations
and the designation of accredited representatives.
DATES: This rule is effective September 3, 2019.
FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
Office of Policy, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2616, Falls Church, Virginia 22041; telephone
(703) 305-0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
The Department published a proposed rule with request for comments
in the Federal Register in June 2008. See Board of Immigration Appeals:
Affirmance Without Opinion, Referral for Panel Review, and Publication
of Decisions as Precedents, 73 FR 34654 (June 18, 2008). At the
conclusion of the comment period on August 18, 2008, three public
interest law and advocacy groups; two law professors; a law student and
a recent law school graduate; and one non-attorney had submitted six
sets of comments. Because some comments overlapped, and because other
commenters covered multiple topics, the comments are addressed
summarily by topic in Section III, infra.
II. Introduction
A. Background
On October 18, 1999, the Department published a final rule
authorizing a single BIA member to affirm the decision of an
immigration judge by a summary written order without issuing a separate
written opinion. See Executive Office for Immigration Review; Board of
Immigration Appeals: Streamlining, 64 FR 56135 (Oct. 18, 1999). The
written order used for this purpose is commonly referred to as an
affirmance without opinion (AWO). The AWO contains only two sentences,
both prescribed by regulation, without any additional language or
explanation for the affirmance. Under the relevant regulations, the AWO
states: ``The Board affirms, without opinion, the result of the
decision below [i.e., the decision of the immigration judge or the
Department of Homeland Security (DHS) officer that was appealed to the
BIA]. The decision below is, therefore, the final agency determination.
See 8 CFR 3.1(a)(7).'' \1\ See 8 CFR 1003.1(e)(4)(ii).\2\
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\1\ The text later changed to cite to 8 CFR 3.1(e)(4). See 67 FR
at 54903.
\2\ The background discussion accompanying the proposed rule
published in the current rulemaking proceeding contains an account
of the history and use of AWOs. 73 FR at 34655-57.
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In 2002, the Department published a final rule that, while
maintaining the basic AWO process, mandated the use of an AWO in any
case that met the regulatory threshold criteria. See Board of
Immigration Appeals: Procedural Reforms To Improve Case Management, 67
FR 54878 (Aug. 26, 2002). Compare 8 CFR 3.1(a)(7)(ii) (2000) (providing
that a single BIA member ``may'' affirm without opinion), with 8 CFR
1003.1(e)(4) (2003) \3\ (providing that a single BIA member ``shall''
affirm without opinion).
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\3\ In 2003, the Attorney General redesignated the previous
regulations in 8 CFR part 3, relating to EOIR, as 8 CFR part 1003 in
connection with the abolition of the former Immigration and
Naturalization Service and the transfer of its responsibilities to
DHS. See Aliens and Nationality; Homeland Security; Reorganization
of Regulations, 68 FR 9824 (Feb. 28, 2003). Under the Homeland
Security Act, EOIR (including the BIA and the immigration judges)
remains under the authority of the Attorney General. See 6 U.S.C.
521; 8 U.S.C. 1103(g).
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Under the 2002 rule, an AWO is issued if the BIA member concludes
that ``the result reached in the decision under review was correct,''
that any errors in the decision were ``harmless or nonmaterial,'' and
that either the issues on appeal are ``squarely controlled'' by
precedent and do not present a novel factual scenario that requires a
decision to apply precedent or are not so substantial as to warrant
issuance of a written opinion by the BIA. 8 CFR 1003.1(e)(4)(i) (2003).
On January 9, 2006, Attorney General Alberto Gonzales directed a
comprehensive review of the immigration courts and the BIA. The
Department undertook the review in response to concerns about the
quality of the decisions of the immigration judges and the BIA and to
reports of intemperate behavior by some immigration judges.
The review team received comments about the BIA's streamlining
process and its reform regulations. Critics of the procedural reforms
rule speculated that the revised procedures allowed BIA members
insufficient time to review cases thoroughly and made it more difficult
for the BIA to publish adequate numbers of precedent decisions.
Supporters observed that the reforms brought much-needed efficiency to
the appellate process, which allowed the BIA to eliminate a large
backlog of cases and to adjudicate cases in a more timely manner.
On August 9, 2006, Attorney General Gonzales announced that the
review was complete and directed that EOIR implement 22 measures to
improve adjudications by the immigration judges and the BIA. This final
rule is one of several regulatory actions relating to that review.
B. The Proposed Regulatory Changes
The 2008 proposed rule stated that the Department had evaluated the
BIA's caseload and resources and found that ``the basic principles set
forth in the [2002] Board reform rule were still necessary to prevent
future backlogs and delays in adjudication.'' 73 FR at 34655. Thus, the
proposed rule did not seek comment on whether the BIA should continue
to use AWOs. Id. (stating that ``the Department is not reopening or
seeking public comment on the existing final regulations that were
adopted in 2002''). Rather, the Department
[[Page 31464]]
proposed three specific adjustments that would: (1) Encourage the
increased use of single-member written decisions instead of AWOs to
address poor or intemperate decisions of immigration judges, (2) allow
the use of three-member written decisions for the purpose of providing
greater legal analysis for particularly complex cases, and (3)
authorize three-member panels, by majority vote, to designate their
decisions as precedent decisions. Id.
C. Decisions Regarding the Recognition of Organizations and the
Accreditation of Representatives
At the time of the underlying proposed rule's publication,
responsibility for administering EOIR's recognition and accreditation
program, which recognizes organizations and authorizes accredited
representatives to represent aliens in immigration proceedings before
EOIR and in cases with DHS, lay with the BIA. Consequently, under its
general authority to issue precedent decisions, the BIA would
intermittently issue precedent decisions in cases involving recognition
and accreditation issues. See, e.g., Matter of United Farm Workers
Found., 26 I&N Dec. 454 (BIA 2014) (addressing whether a recognized
organization needs to apply for a representative's accreditation at
more than one location). In 2017, responsibility for the recognition
and accreditation program within EOIR was transferred from the BIA to
the Office of Legal Access Programs (OLAP), but the transfer did not
provide a mechanism by which EOIR could designate decisions as
precedents. See Recognition of Organizations and Accreditation of Non-
Attorney Representatives, 81 FR 92346 (Dec. 19, 2016). This rule would
correct that deficiency.
III. Intent and Nature of the Regulations
In each of the respects discussed below, the Department in this
rulemaking is revising the regulations to clarify the intent and nature
of the regulations relating to the form of BIA decisions and the scope
of the BIA's consideration of issues presented on appeal. The
Department's interpretations of the intended meaning of its regulations
are fully consistent with the Attorney General's authority to issue
regulations and clarify the intent, purpose, and nature of those
regulations. See INS v. Stanisic, 395 U.S. 62, 72 (1969) (quoting
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)) (an
administrative agency's interpretation of its own regulations is
entitled to ```controlling weight unless it is plainly erroneous or
inconsistent with the regulation'''); Matter of Armendarez-Mendez, 24
I&N Dec. 646, 653 (BIA 2008).
With regard to the provisions of the 2008 proposed rulemaking, the
Department has considered the public comments, the continuing need to
maintain AWOs as a necessary resource for BIA adjudication, and the
goal of securing finality in immigration cases as efficiently as
possible.
With respect to one proposal outlined in the proposed rule, the
Department has determined that it will not revise EOIR's regulations to
provide for publication of precedent decisions by majority vote of the
permanent Board members assigned to a three-member panel. Although the
Department recognizes that a single member or a panel of BIA members is
able to address and resolve issues in a thorough and judicious manner,
the Department also recognizes that the BIA's published decisions
representing the views of the majority of the en banc BIA are important
in ensuring accuracy, consistency, uniformity, and clarity in the BIA's
guidance and interpretation of relevant law and regulation. The current
process better provides for the consistency of BIA case law. See Matter
of Burbano, 20 I&N Dec. 872, 873-74 (BIA 1994). Apart from this
decision regarding publication by majority vote, this final rule
adopts, with changes, the regulatory amendments set forth in the
proposed rule.
Finally, the Department is including a related revision to the
regulations to clarify the intent to provide for the issuance of
precedent decisions in the context of the recognition and accreditation
program.
A. The Form of a Board Decision
The 2008 proposed rule discussed the Department's interpretation of
the BIA's regulatory structure regarding the BIA's decision to issue an
AWO or a single-member or three-member decision. 73 FR at 34656-57. The
purpose of thats discussion was to clarify that institutional concerns,
which are uniquely within the BIA's expertise, may factor into the
assessment of what form of decision to issue. The Department presented
that discussion in regards to both the proposal to allow BIA members to
exercise discretion in determining whether to issue an AWO, 73 FR at
34656, and the proposal to clarify that the regulations do not create
any substantive or procedural right to a particular form of BIA
decision, 73 FR at 34657.
Commenters raised several objections to the discussion in both
contexts. With regard to the BIA's discretion, the proposed rule stated
that:
In determining whether to exercise its discretion to issue an
AWO or a single-member opinion, the Board may consider available
resources to balance the need to complete cases efficiently while
evaluating whether there is a need to provide further guidance to
the immigration judge, the parties, and the federal courts through a
written decision addressing the issues in a case.
73 FR at 34356. The commenters who raised issues concerning this
statement argued that the BIA's caseload and resources should have no
bearing on what form of decision the BIA uses or whether to resolve an
appeal by an AWO or other type of decision. One commenter suggested
that if caseload and resources are considerations, a BIA member might
use the streamlining process to ``deny an immigrant's claim, rather
than grant relief, on the grounds that the Board member reviewing the
case simply lacked the time or inclination to spend his or her
resources writing a reasoned, public opinion for that particular
case.''
The BIA employs a staff of attorneys, paralegals, and support
personnel that prepares the cases and draft decisions for BIA member
review. In particular, under the BIA's case-processing system, a staff
attorney reviews a case and recommends issuance of a decision as an
AWO, a single-member decision, or a three-member decision. A BIA member
then decides what form of decision to issue after an independent review
of the record of proceedings and consideration of the nature of the
case, the issues and arguments presented by the parties in support of
the appeal or motion, and prior agency decisions. The BIA member also
assesses whether the regulatory criteria set forth in 8 CFR
1003.1(e)(4)(i), (e)(5), or (e)(6) require the issuance of an AWO
decision, warrant a single-member decision, or warrant referral to a
three-member panel for decision. Thus, a BIA member--in contrast to the
commenter's suggestion--does not decide whether to issue an AWO based
on whether he ``lack[s] the time or inclination to spend his or her
resources writing a reasoned, public opinion for that particular
case.''
The Department seeks to clarify that the use of an AWO does not
reflect an abbreviated review of a case, but rather reflects the use of
an abbreviated order to describe that review where the regulatory
requirements of 8 CFR 1003.1(e)(4)(i) are met. The Department also
seeks to clarify that a case before the BIA undergoes tiers of staff
screening and review with a BIA member who ultimately determines
[[Page 31465]]
what form of decision to use. Accordingly, the Department is satisfied
that each case has undergone thorough and complete review before a
determination of whether an AWO is required. This final rule retains an
AWO as a mandatory form of decision to be issued in appropriate
situations.
Taking into account caseload and resources in deciding what form of
decision the BIA chooses to issue is not new. In 1999, Attorney General
Janet Reno linked resource and caseload concerns to the form of the
BIA's dispositions when she created the first AWO and single-member
reforms and observed that three-member written opinions are time
consuming, require significant resources, and should be used
selectively. See 64 FR at 56136-38; see also Matter of Burbano, 20 I&N
Dec. at 874 (recognizing that ``summary treatment of a case does not
mean that we have conducted an abbreviated review of the record or have
failed to exercise our own discretion''). The BIA in 1998 received in
excess of 28,000 new cases, and concerns about resource management have
grown only more pronounced in the intervening years; in fiscal year
2018, for example, the BIA received more than 49,000 new cases.
Attorney General Reno also explained that, ``[e]ven in routine
cases,'' the ``process of screening, assigning, tracking, drafting,
revising, and circulating cases is extremely time consuming.'' 64 FR at
56137. In addition, she explained that ``disagreements concerning the
rationale or style of a draft decision can require significant time to
resolve.'' Id. Attorney General Reno concluded that the BIA should use
more streamlined forms of dispositions and become selective in using
three-member decisions. Id. The Department further stated in the 1999
rule that using streamlined forms of decisions would ``allow the Board
to manage its caseload in a more timely manner'' and ``maintain a
viable appellate organization that handles an extraordinarily large
caseload.'' 64 FR at 56138. Similarly, in 2002, Attorney General John
Ashcroft cited caseload and resource considerations as the
justification for expanding the streamlining procedures to promote the
issuance of AWOs and to normalize single-member decisions. See 67 FR at
54879. Although former Attorney General Reno's statements in the
proposed rule about caseload considerations, internal resources, and
layers of review pertained primarily to issuing single-member decisions
instead of three-member decisions, these considerations are also
relevant when a single BIA member assesses whether an AWO would most
efficiently use the BIA's limited resources in resolving an appeal.
The 2008 proposed rule expressed concern that some courts have
construed the regulations to permit judicial review of the BIA's
decision about what form of opinion to issue, independently of the
merits of the final agency position, and that this ``additional layer
of review in some circuits is not consistent with the [2002] rule's
goal of promoting efficiency and finality in the immigration system.''
73 FR at 34657. The proposed rule sought to address this concern by
clarifying that regulations providing for an AWO, a single-member
opinion, or a three-member panel opinion were intended to reflect an
internal agency directive created for the purpose of efficient case
management and disposition of cases pending before the BIA, and were
not to be interpreted to create any substantive or procedural rights
enforceable before any immigration judge, the BIA, or any court.
Several commenters raised issues concerning this proposed amendment.
The commenters wrote that the agency may not eliminate an alien's
``right'' to review of a BIA member's judgment to issue an AWO or other
form of BIA decision. The courts of appeals that have reviewed
challenges to the streamlining process have uniformly concluded,
however, that respondents have no constitutional or statutory right to
a particular form or manner of a BIA decision. See Zhang v. U.S. Dept.
of Justice, 362 F.3d 155, 157-58 (2d Cir. 2004); Yuk v. Ashcroft, 355
F.3d 1222, 1229-32 (10th Cir. 2004); Dia v. Ashcroft, 353 F.3d 228, 242
(3d Cir. 2003) (en banc); Denko v. INS, 351 F.3d 717, 729-30 (6th Cir.
2003); Falcon Carriche v. Ashcroft, 350 F.3d 845, 850-51 (9th Cir.
2003); Khattak v. Ashcroft, 332 F.3d 250, 252-53 (4th Cir. 2003);
Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003); Mendoza v. U.S.
Att'y Gen., 327 F.3d 1283, 1288-89 (11th Cir. 2003); Albathani v. INS,
318 F.3d 365, 376-77 (1st Cir. 2003). Thus, the Department is not
eliminating an existing substantive right, but is simply clarifying the
original intent underlying the streamlining regulation that the form of
the BIA's decision should not be reviewable.
Indeed, the 2002 final rulemaking explained that there is no
statutory right or law requiring a particular form of decision or
method of review before the BIA. 67 FR at 54883, 54888-90. Because the
BIA is established under the Attorney General's regulations, he ``is
free to tailor the scope and procedures of administrative review of
immigration matters as a matter of discretion.'' 67 FR at 54882
(citing, e.g., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519, 524-25 (1978)). The 2002 final rulemaking also quoted the Supreme
Court's admonition against review of certain agency matters, stating
that `` `administrative agencies should be free to fashion their own
rules of procedure and to pursue methods of inquiry capable of
permitting them to discharge their multitudinous duties.' '' Id.
(quoting Vermont Yankee, 435 U.S. at 524-25 (quoting FCC v. Pottsville
Broad. Co., 309 U.S. 134, 143 (1940))).
Commenters also suggested that an independent review of the
judgment of a single BIA member to issue an AWO is necessary to ensure
the adequacy of the BIA's review. One commenter claimed that ``the AWO
formula . . . affirms the result reached by the Immigration Judge but
expressly eschews reliance on the Immigration Judge's reasoning and
affords no information concerning the BIA's reasoning in affirming the
decision.'' However, the immigration judge's decision becomes the final
agency decision for the court's review and provides reasons for the
decision that can themselves be reviewed. The 2002 final rulemaking
explained that ``[t]he immigration judge's order provides the
rationale'' for an AWO, and ``[t]he Department does not believe there
is any basis for believing that providing a regurgitation of the same
facts and legal reasoning . . . will be beneficial to the respondent or
the reviewing courts in most cases.'' 67 FR at 54885-86. The 2002 final
rule expressly designated the immigration judge's decision as the one
to be reviewed, required standard language to that effect in each AWO,
and prohibited the BIA from adding any explanation or reasoning. See 8
CFR 1003.1(e)(4)(ii). This prohibition pertains to a single member's
reasons for affirming the immigration judge's decision. Thus, the
language of the AWO itself states, ``The Board affirms, without
opinion, the result of the decision below. The decision below is,
therefore, the final agency determination.'' Id. (emphasis added).
Moreover, as several courts have already recognized, the BIA's
judgment to issue an AWO is similar to the practices of several courts
of appeals to issue a summary disposition, as a matter of judicial
efficiency, in cases that are viewed as not raising novel or complex
issues, or whose issues were adequately addressed by the lower court.
See, e.g., Ngure v. Ashcroft, 367 F.3d 975, 984-85 (8th Cir. 2004);
Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 281-82 (4th Cir. 2004);
Dia, 353 F.3d at 240 n.7; Soadje v. Ashcroft, 324 F.3d 830, 832 (5th
Cir.
[[Page 31466]]
2003); see also 8th Cir. R. 47B (allowing the use of an AWO if an
opinion would have no precedential value and (1) fact-findings are not
clearly erroneous, (2) the evidence in support of a jury verdict is not
insufficient, (3) the relevant administrative order is supported by
substantial evidence on the record as a whole, or (4) no error of law
appears); 3d Cir. Internal Operating Procedures 10.6 (after affording
parties opportunity to submit argument regarding summary action, ``the
court . . . may take summary action . . . if it clearly appears that no
substantial question is presented or that subsequent precedent or a
change in circumstances warrants such action''); 4th Cir. R. 36.3
(allowing the use of summary affirmance, following oral argument, where
all judges on a panel agree that ``a case would have no precedential
value, and that summary disposition is otherwise appropriate''). It has
never been thought that the Supreme Court would review the propriety of
a court's decision to use one of these summary dispositions, as opposed
to the merits of the underlying decision, or that these sorts of
summary dispositions are improper. See Ngure, 367 F.3d at 985.
Commenters also argued that the decision to dispose of an appeal by
AWO should be reviewable as a means of resolving the ``jurisdictional
conundrum'' that arises when a court is unable to determine, by virtue
of the AWO, the extent to which the agency's decision rests upon
grounds that it may review. This objection is invalid for several
reasons.
As a preliminary matter, should a court be unable to ascertain if
it has jurisdiction, the court may remand under traditional principles
to the agency for clarification, without reviewing the decision to
issue an AWO. See SEC v. Chenery Corp., 318 U.S. 80 (1943); see also
Zhu v. Ashcroft, 382 F.3d 521 (5th Cir. 2004) (finding flawed analysis
of merits of asylum claim and remanding for clarification of whether
the BIA agreed with the immigration judge's determination that the
asylum application was untimely). If there have been new developments
between the time of the immigration judge's decision and the BIA's AWO,
and if the court is unable to determine the agency's decision on a
question reserved for appeal, the court also has authority under
Ventura principles to remand for an agency decision, again, without
resorting to independent review of the decision to issue an AWO. See
INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); Haoud v
Ashcroft, 350 F.3d 201, 208-09 (1st Cir. 2003) (remanding for an agency
decision in the first instance where there were intervening
developments after the immigration judge's decision not addressed by
his decision). Additionally, when it is possible to conclude that one
reviewable ground of the agency's decision is valid and suffices as a
basis for the immigration judge's decision, the jurisdictional
conundrum simply falls away. See, e.g., Garcia-Melendez v. Ashcroft,
351 F.3d 657, 661-62 (5th Cir. 2003) (finding that respondent applying
for cancellation of removal had not established ten years' continuous
physical presence in the United States and denying the petition on that
basis); cf. Dia, 353 F.3d at 272-73 (Stapleton, J., dissenting) (noting
that the court may remand for further explanation if the court, upon
examination of the record, is unable to sustain the decision on the
grounds stated by the immigration judge and is unable to determine the
agency's reasoning on a particular point).
Commenters also objected that the Department's intent regarding the
nature and purpose of its regulations is immaterial to whether a court
may independently review the BIA's decision to issue an AWO. Settled
case law, however, restricts judicial review of an agency's compliance
with procedural rules in instances in which the rule in question is
designed primarily to benefit the agency carrying out its functions,
rather than ``to confer important procedural benefits upon individuals
in the face of otherwise unfettered discretion.'' Am. Farm Lines v.
Black Ball Freight Serv., 397 U.S. 532, 538-39 (1970). Agencies possess
authority to create internal rules to govern their management and
performance of their duties that are not intended to also create
judicially enforceable rights. See, e.g., Sandin v. Conner, 515 U.S.
472, 481-83 (1995) (recognizing that regulations governing the
adjudication of inmate disciplinary charges may be designed primarily
to guide correctional officials in administering a prison, and not to
create judicially enforceable rights in inmates). Under such
circumstances, the agency's compliance with its processes is
traditionally not subject to review because the decision whether to
follow those processes is committed to agency discretion by law. See
Heckler v. Chaney, 470 U.S. 821, 826, 836 (1985) (FDA policy statement
that agency is ``obligated'' to investigate unapproved uses of an
approved drug when such use became ``widespread'' or ``endanger[ed] the
public health'' did not create procedural right to insist on
investigation of state's use of drugs in executing condemned
prisoners).
The foregoing discussion and the relevant text in the final
regulation seek to set forth the Department's position as it has
existed since the establishment of the streamlining process and to
clarify that the rules governing Sec. 1003.1(e)(4) through (6) are
internal agency rules designed to assist the BIA in efficiently
managing its caseload and carrying out its duties. The 2002 rule was
successful in creating procedures that increased efficiency and
promoted finality in immigration cases. The rule was not intended to
create an additional layer of judicial review or a substantive right to
review the form of the BIA's decision. The efficient and fair
adjudication of immigration appeals remains a priority of the
Department. This revision to the regulations in no way reflects a
diminished commitment to timely and fair adjudications at the
administrative appeal level.
Accordingly, this final rule does not adopt the changes to 8 CFR
1003.1(e)(4) related to the AWO process in the proposed rule and
retains the language noting that the decision to issue an AWO remains
mandatory in appropriate circumstances. It also clarifies that a
decision to issue any particular form of decision is a decision based
on an internal agency rule or directive created for the purpose of
efficient case management that does not create any substantive or
procedural rights.
B. Scope of BIA's Dispositions on Appeal
The 2008 proposed rule sought to provide regulatory authority for
the Department's longstanding position regarding the scope of a BIA
decision regardless of the form of the decision. First, the proposed
regulatory text provided that ``[a] decision by the Board . . . carries
the presumption that the Board properly and thoroughly considered all
issues, arguments, claims and record evidence raised or presented by
the parties, whether or not specifically mentioned in the decision.''
73 FR at 34663. The purpose of the proposed rule was to clarify that
``the Board need not specifically address every issue raised on appeal,
but is presumed to have considered all properly raised issues on appeal
in reaching its decision, even if that decision is an AWO or short
order that does not specifically discuss every issue the parties may
have raised on appeal.'' 73 FR at 34658 (citing, e.g., Toussaint v.
Att'y Gen., 455 F.3d 409 (3d. Cir. 2006)).
Second, the rule proposed that the BIA's decision, whether in the
form of an AWO, a single-member decision, or
[[Page 31467]]
a three-member panel decision, is based on issues and claims of error
that the parties raised on appeal and is not to be construed as waiving
a party's obligation to exhaust issues and claims before the BIA. 73 FR
at 34663. The proposed rule sought to clarify the parties' obligations
to identify issues, arguments, and claims of error on appeal in a
meaningful manner and with sufficient precision, even in instances
where the BIA, in its discretion, sua sponte considers issues not
raised on appeal. 73 FR at 34658. Third, the rule proposed to make
clear that ``the Board may address an issue that was not raised on
appeal sua sponte.'' Id.
One commenter objected to the stated formalization of a presumption
that the BIA properly and thoroughly adjudicates appeals before it,
contending that the proposed rule would impede judicial review of BIA
decisions and, in effect, would supersede the Department's commitment
to provide a reasoned agency decision adequate for judicial review. The
Department rejects this argument. The proposed presumption is simply a
particularized statement of the well-settled presumption of regularity
that attaches to agency processes. See, e.g., INS v. Miranda, 459 U.S.
14, 18 (1982) (presumption of regularity applied to agency adjudication
of application for lawful permanent resident status). Board Members,
like other government officials, ``d[o] their jobs fairly,
conscientiously and thoroughly.'' Angov v. Lynch, 788 F.3d 893, 905
(9th Cir. 2015) (applying the presumption of regularity to a Department
of State letter reflecting the overseas investigation of an asylum
claim). Moreover, the proposed rule does not supersede other
regulations that govern BIA adjudications and is not intended to impede
judicial review or supersede pertinent circuit precedent. See 8 CFR
1003.1; Matter of Olivares-Martinez, 23 I&N Dec. 148 (BIA 2001); Matter
of Anselmo, 20 I&N Dec. 25 (BIA 1989).
With regard to exhaustion, the commenter objected to the proposed
rule on the grounds that it is an improper attempt to regulate the
jurisdiction of the courts of appeals and that use of the term
``meaningful manner'' creates a more demanding standard than the
prevailing standards reflected in judicial opinions. In light of the
comment, and upon further consideration, the Department believes that
revisions are warranted to clarify the intent of the proposed rule.
As initially proposed in 2008, the rule provided that a BIA
decision ``is not to be construed as waiving a party's obligation to
exhaust administrative remedies by raising in a meaningful manner all
issues and claims of error in the first instance on appeal to the
Board.'' 73 FR at 34663. In adjudicating appeals, the BIA follows the
party presentation rule. See, e.g., Matter of M-A-S-, 24 I&N Dec. 762,
767 n.2 (BIA 2009) (noting that DHS did not advance any argument on
appeal about additional conditions on the immigration judge's voluntary
departure order) (citing Greenlaw v. United States, 554 U.S. 237
(2008)). Under this rule, it is the responsibility of each party to
advance its arguments on appeal to the BIA because adversarial
proceedings ``rely on the parties to frame the issues for decision and
assign to [the adjudicator] the role of neutral arbiter of matters the
parties present.'' Greenlaw, 554 U.S. at 243. This principle applies
throughout ``our adversary system, in both civil and criminal cases, in
the first instance and on appeal.'' Id.; see also Honcharov v. Barr,
No. 15-71554, 2019 U.S. App. LEXIS 15804, at *5-6 (9th Cir. May 29,
2019) (explaining that ``[w]aiver and forfeiture are . . . important
tools for preserving the structure of hierarchical court systems,'' and
that these principles likewise ``hold in the context of removal
proceedings in the [EOIR]''). The proposed rule sought to reaffirm the
obligation of the parties to raise any and all issues and claims before
the BIA. See 8 CFR 1003.3(b), 1003.2(b); see also 8 CFR 1003.2(c)
(requiring the parties moving to reopen proceedings to identify and
specify findings and errors and state new facts to be proved). Indeed,
when a party fails to specify the reasons for appeal, the BIA may
summarily dismiss it without further consideration of the underlying
merits of the case. 8 CFR 1003.1(d)(2)(i)(A). The requirement that the
parties allege errors, issues, arguments, or claims with particularity
aids the Board in adjudicating the cases before it. Thus, as is its
practice, the BIA may decide an appeal or motion based on a party's
failure to raise an alleged error, issue, argument, or claim before the
BIA, the immigration court, or DHS immigration officer, if such error,
issue, argument, or claim existed at the time of adjudication of the
appealed matter. See, e.g., Honcharov, 2019 U.S. App. LEXIS 15804, at
*6-7 (joining ``every other circuit to have addressed the issue'' in
concluding that ``the Board may apply a procedural default rule to
arguments raised for the first time on appeal'').
The Department seeks to clarify that the ``obligation to exhaust,''
as set forth in the proposed rule, is a separate and distinct matter
from the doctrine of ``exhaustion of administrative remedies,'' as set
forth in section 242(d)(1) of the Immigration and Naturalization Act
(the Act), which refers to the jurisdictional limits of a federal
court's review of an issue.\4\ See id. at *5 n.2 (explaining that
``[w]aiver and forfeiture in this context are related to, but distinct
from, the doctrine[ ] of exhaustion''). Nonetheless, for purposes of
clarification, the Department has removed the reference to exhaustion
of administrative remedies in this final rule. The Department also has
removed the ``meaningful manner'' language because it is not the
Department's intention to establish a novel ``meaningful manner''
standard for presenting claims before the BIA. Instead, the rule seeks
to simply reaffirm the need of the parties to raise any and all issues
to the BIA on appeal. The rule further clarifies that the BIA, in the
exercise of its discretion, may rule on an issue not raised by the
parties on appeal if the issue was addressed in the underlying
decision. However, this rule is not intended to alter the BIA's
practice of not considering evidence proffered for the first time on
appeal. See, e.g., Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988).
Finally, the Department has determined that, given the content of this
aspect of the rule, this provision is more appropriately included in a
new paragraph at Sec. 1003.1(e)(9), rather than paragraph (e)(4), as
previously proposed.
---------------------------------------------------------------------------
\4\ Language in some decisions of the courts of appeals suggests
that the BIA can waive the application of the exhaustion of remedies
requirement set forth in section 242(d)(1) of the Act. However, that
language, properly read, refers to the BIA's authority to consider
an issue that was not presented, specified, or identified by the
parties where the Board determines it is ``administratively-ripe to
warrant its appellate review,'' as distinguished from the separate
question of whether an issue has been preserved for appellate review
in the courts of appeals. Sidabutar v. Gonzales, 503 F.3d 1116,
1119-22 (10th Cir. 2007); see also Bin Lin v. Att'y Gen., 543 F.3d
114, 122-26 (3d Cir. 2008); Pasha v. Gonzales, 433 F.3d 530, 532-33
(7th Cir. 2005); Hassan v. Gonzales, 403 F.3d 429, 432-33 (6th Cir.
2005); Johnson v. Ashcroft, 378 F.3d 164, 170 (2d Cir. 2004).
---------------------------------------------------------------------------
Accordingly, this final rule, in new Sec. 1003.1(e)(9), states
that a decision by the Board under paragraph (e)(4), (5), or (6) of
that section carries the presumption that ``the Board properly and
thoroughly considered all issues, arguments, and claims raised or
presented by the parties on appeal or in a motion that were deemed
appropriate to the disposition of the appeal or motion, whether or not
specifically mentioned in the decision.'' A decision also carries the
presumption that the
[[Page 31468]]
BIA did not need to consider any issue, argument, or claim not raised
or presented by the parties on appeal or in the motion.
In addition to the issues discussed above, one commenter contended
that the provision authorizing the BIA to consider issues sua sponte
authorizes violations of the BIA's review standards and permits the BIA
to engage in fact-finding in violation of regulatory or court rules.
The commenter argued that allowing the BIA to consider issues sua
sponte would ``empower the BIA to provide the reasoning missing from an
Immigration Judge's opinion so long as the issue was somehow presented
before the Immigration Judge.''
The commenter misunderstands the purpose of the rule. This rule is
not intended to undermine the fact-finding authority or to supplement
the fact-finding of the immigration judge. Rather, this rule is
intended to allow the BIA to resolve issues, when necessary or
appropriate, to ensure proper and thorough review of the appeal or
motion before it, to provide guidance on the interpretation of the
immigration laws and regulations, or to address recurring legal,
procedural, and factual issues. Lastly, this provision permits the BIA
to address the conduct of immigration judges when appropriate and where
such issues were not raised by the parties.
Thus, the BIA must have the tools and flexibility to properly
adjudicate the appeals and motions before it. The Department agrees
with the commenter that there should be a vehicle by which parties, in
appropriate cases, may be provided an opportunity to address
dispositive issues the BIA wishes to consider sua sponte before the BIA
renders a decision. For this reason, the final rule permits the BIA to
set a supplementary briefing schedule where it chooses to consider an
issue not raised by the parties in its discretion by stating, in Sec.
1003.1(e)(9), that in any decision under paragraph (e)(5) or (6) of
that section, ``the Board may rule, in the exercise of its discretion
as provided under this part, on any issue, argument, or claim not
raised by the parties, and the Board may solicit supplemental briefing
from the parties on the issue(s) to be considered before rendering a
decision.''
C. Three-Member Panel Decisions
The 2008 proposed rule sought to improve the BIA's review of
complex and problematic cases by expanding the criteria for three-
member decisions under 8 CFR 1003.1(e)(6). The public comments that
addressed this provision supported the decision to expand the criteria.
The proposed rule added a seventh criterion that would have allowed
a BIA member, in the exercise of discretion, to refer a case to a
three-member panel when the case presents a ``complex, novel, or
unusual issue of law or fact.'' See 73 FR at 34663. Upon further
consideration, the Department is revising this criterion to state that
a BIA member may refer a case for three-member review ``to resolve a
complex, novel, unusual, or recurring issue of law or fact.'' (Emphasis
added.) Addition of the word ``recurring'' recognizes that the BIA is
in the best position to identify issues that are recurring nationwide.
Such issues may not result in inconsistent decisions among immigrations
judges or rise to the level of ``major national import,'' see 8 CFR
1003.1(e)(6)(i), (iv), yet immigration judges, attorneys, respondents,
and the federal courts still might benefit from guidance from the BIA
on how to address such recurring issues. Allowing for referral to a
three-member panel will result in enhanced review and analysis and
perhaps publication of a precedent decision to provide nationwide
guidance, if necessary.
Accordingly, the final rule adopts the proposal to expand the
criteria to allow for referral to a three-member panel. This final rule
amends 8 CFR 1003.1(e)(6) by adding a new paragraph (vii) to allow
assignment to a three-member panel for review when there is a '' need
to resolve a complex, novel, unusual, or recurring issue of law or
fact.''
D. Publication of Precedent Decisions
One comment, which was endorsed by another commenter, expressed
concern with the proposal to authorize a vote by three-member panels on
whether to issue precedent decisions. The comment stated that the
proposal is unnecessary, ripe for possible misuse, and lacking in
adequate oversight and guarantees of uniformity. The comment stated
that it would be a mistake to allow two permanent members of the BIA to
issue a precedent decision without first obtaining approval of a
majority of permanent BIA members. The comment reasoned that the
proposed regulation allows only for notice to other members of the BIA;
that there is nothing in the supplemental information to indicate that
the existing system is burdensome or unworkable; and that the change
will result in increased numbers of precedent decisions. The comment
concluded that the BIA is currently issuing an adequate number of
decisions and that the courts are demonstrating appropriate deference
to the BIA. In general, the Department agrees with these comments and
has decided not to adopt the proposal to allow the BIA to issue
precedent decisions by majority vote of permanent members of a three-
member panel.
Although the number of BIA precedent decisions has varied from year
to year, the Board has averaged nearly 29 precedent decisions each year
over the last 14 years, and it has issued fewer than 23 precedent
decisions only once, in 2005, when it issued 11. Consequently, it does
not appear that the Board's current process for precedent decisions is
unworkable or has inhibited it from providing necessary guidance
through published decisions. In short, the Department has determined
that the process currently in place for BIA's designation and
publication of precedent decisions is appropriate and adequate.
Under this process, the BIA will continue to publish its precedent
decisions as three-member panel decisions through the process of a
majority vote of permanent members of the BIA and not, as initially
proposed, by majority vote of the permanent BIA members assigned to a
three-member panel. Adopting the proposed change would be
counterproductive and inefficient, creating a greater likelihood of
inconsistency among BIA member panels involving similar cases and
issues that could be potentially selected for publication. Such
potential for greater inconsistency and lack of uniformity among the
panel decisions selected for publication would be further amplified by
a recent regulation increasing the size of the BIA from 17 to 21
members. See Expanding the Size of the Board of Immigration Appeals, 83
FR 8321 (Feb. 27, 2018). Moreover, the mechanism for resolving this
issue, considering a case en banc, does not substantively differ from
the current procedure in which Board members vote en banc to publish a
decision as precedent. Thus, the proposed change would simply add an
additional level of process in order to ultimately achieve a similar
result as the current process.
The BIA, as an appellate body and the highest administrative
tribunal interpreting immigration law, is charged with, inter alia,
providing clear and uniform guidance across the country in applying and
interpreting immigration law. Ensuring that only the majority of
permanent BIA members vote on and select cases to serve as precedent
will continue to provide an invaluable safeguard against unnecessary
and potentially conflicting outcomes in cases under the BIA's review.
Moreover,
[[Page 31469]]
the participation of all BIA members in the precedent decision
selection and voting process is essential to the efficient and
collaborative function of the BIA. This final rule therefore does not
adopt the proposal to allow the BIA to issue precedent decisions by
majority vote of permanent members of three-member panels.
The Department did not receive any comments on the criteria for
publication, in Sec. 1003.1(g)(3)(i) through (vi) of the proposed
rule, and adopts this provision with only one change. In addition to
the standard in the proposed rule for a decision that ``modifies or
clarifies a rule of law or prior precedent,'' the final rule also
includes a reference to a decision that ``distinguishes'' a rule of law
or prior precedent. This standard will allow the BIA to not only
consider whether publication of a decision that ``modifies, clarifies,
or distinguishes'' a rule of law or prior precedent is necessary to
maintain consistency and uniformity, but also to consider whether a
choice not to publish a decision that could potentially be seen as
clarifying or distinguishing a prior precedent may result in a lack of
clear guidance to immigration judges and parties as to the proper
course to follow in other cases because an unpublished decision by the
BIA is not binding in other cases.
As discussed above, the Attorney General expects that the BIA will
continue to exercise its authority to issue precedent decisions as
widely as is practicable to promote the consistency and uniformity of
adjudications and to provide authoritative nationwide guidance to the
immigration judges, the government, the respondents in immigration
proceedings, petitioners for certain alien relatives, members of the
immigration bar, and the federal courts with respect to the
interpretation of ambiguous provisions of the immigration statutes and
regulations and recurring legal, procedural, and factual issues arising
in the adjudication of cases before the immigration judges, the U.S.
Citizenship and Immigration Services, and the BIA.
E. Review of Decisions Involving Recognition and Accreditation
Although the regulations transferring responsibility for the
recognition and accreditation program clarified the new designation of
officials responsible for issuing decisions in those cases,\5\ the
prior regulatory changes did not address the precedential nature of any
such decisions going forward, leaving EOIR without any specified
authority to continue to issue precedent decisions to provide guidance
in these cases. This oversight was unintentional, and EOIR continues to
maintain that precedential guidance in recognition and accreditation
cases is important, especially now that the BIA no longer issues the
decisions in those cases. See 8 CFR 1292.18. The revisions to this part
are matters relating to agency management or personnel and impose no
burdens on the public. Further, although the Attorney General maintains
plenary authority over immigration matters handled by EOIR, the
transfer of oversight responsibility for the recognition and
accreditation program from the BIA to OLAP did not include a specific
mechanism for the referral of recognition and accreditation cases for
review by the Attorney General.
---------------------------------------------------------------------------
\5\ The OLAP Director adjudicates initial applications for
recognition or accreditation, adjudicates requests for renewal of
recognition or accreditation, and makes determinations on
administrative termination of recognition or accreditation; he also
adjudicates requests for reconsideration of any of these decisions.
8 CFR 1292.13, 1292.16, 1292.17. The EOIR Director adjudicates
requests to review the reconsideration decisions of the OLAP
Director. 8 CFR 1292.18.
---------------------------------------------------------------------------
For these reasons, the final rule corrects an oversight regarding
precedent decisions involving EOIR's recognition and accreditation
program. This correction, which is a logical outgrowth of the broader
review of the BIA's use of precedent in the 2008 proposed rulemaking,
allows for the continued publication of precedent decisions pertaining
to recognition and accreditation, even though those decisions are no
longer issued by the BIA. The final rule also corrects a related
oversight by reestablishing an explicit mechanism for decisions
involving recognition and accreditation to be referred to the Attorney
General now that they are no longer adjudicated by the BIA.
IV. Regulatory Requirements
A. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, the Attorney General
certifies that this rule will not have a significant economic impact on
a substantial number of small businesses or small governmental
entities. This rule is related to agency organization and management of
cases pending before the immigration judges and the Board. Accordingly,
the preparation of a Regulatory Flexibility Analysis is not required.
B. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
C. Congressional Review Act of 1996
This rule is not a major rule as defined by section 251 of the
Congressional Review Act, 5 U.S.C. 804. This rule will not result in an
annual effect on the economy of $100 million or more; a major increase
in costs or prices; or significant adverse effects on competition,
employment, investment, innovation, or on the ability of United States-
based enterprises to compete with foreign-based enterprises in domestic
and export markets.
D. Executive Orders 12866, 13563, and 13771 (Regulatory Review)
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety, and other advantages; distributive impacts; and
equity). Executive Order 13563 emphasizes the importance of using the
best available methods to quantify costs and benefits, reducing costs,
harmonizing rules, and promoting flexibility. Executive Order 13771
directs agencies to reduce regulation and control regulatory costs and,
for all qualifying regulations, to identify at least two existing
regulations for elimination.
This rule has been drafted in accordance with the principles of
Executive Order 12866, section 1(b), and Executive Order 13563.
Although the notice of proposed rulemaking in 2008 proposed changes to
the AWO process, the final regulation does not adopt those changes and
does not actually change any part of the AWO process nor amend the
portions of 8 CFR 1003.1(e)(4) relating to AWOs. Consequently, there is
no expected increase in the use of AWOs due to the final regulation.
Although the use of AWOs is not expected to increase as a result of
the final regulation, the Department acknowledges that the final rule
may nonetheless raise novel legal or policy issues. The Department thus
considers
[[Page 31470]]
the rule to be a ``significant regulatory action'' under section
3(f)(4) of Executive Order 12866, and the regulation has accordingly
been submitted to the Office of Management and Budget for review.
Finally, this rule is exempt from the requirements of Executive
Order 13771 because this rule concerns regulations related to agency
organization, management, or personnel. The final rule is an internal
rule of procedure that relates to the management of immigration cases
on appeal. It does not alter any substantive rights, and it conforms to
existing directives on the efficient management and disposition of
cases. Accordingly, it does not impose any additional costs on the
processing of cases on appeal.
E. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, this rule does not have sufficient federalism
implications to warrant preparation of a federalism summary impact
statement.
F. Executive Order 12988 (Civil Justice Reform)
This rule has been prepared in accordance with the standards in
sections 3(a) and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
This rule is exempt from the requirements of the Paperwork
Reduction Act because it does not create any information collection
requirements.
List of Subjects
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
services, Organization and functions (Government agencies).
8 CFR Part 1292
Administrative practice and procedure, Immigration, Lawyers,
Referrals, Precedent decisions.
Accordingly, for the reasons set forth in the preamble, 8 CFR parts
1003 and 1292 are amended as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
1. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
0
2. Section 1003.1 is amended:
0
a. In paragraph (e)(6)(iii), by removing ``the Service'' and adding in
its place ``DHS'';
0
b. In paragraph (e)(6)(v), by removing ``or'';
0
c. In paragraph (e)(6)(vi), by removing ``the Service'' and adding in
its place ``DHS'' and by removing the period at the end and adding in
its place ``; or'';
0
d. By adding paragraphs (e)(6)(vii) and (e)(9); and
0
e. By revising paragraph (g).
The additions and revision read as follows:
Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.
* * * * *
(e) * * *
(6) * * *
(vii) The need to resolve a complex, novel, unusual, or recurring
issue of law or fact.
* * * * *
(9) The provisions of paragraphs (e)(4)(i) and (e)(5) and (6) of
this section are internal agency directives for the purpose of
efficient management and disposition of cases pending before the Board
and are not intended to create any substantive or procedural rights to
a particular form of Board decision. A decision by the Board under
paragraph (e)(4), (5), or (6) of this section carries the presumption
that the Board properly and thoroughly considered all issues,
arguments, and claims raised or presented by the parties on appeal or
in a motion that were deemed appropriate to the disposition of the
appeal or motion, whether or not specifically mentioned in the
decision. A decision by the Board under paragraph (e)(4), (5), or (6)
also carries the presumption that the Board did not need to consider
any issue, argument, or claim not raised or presented by the parties on
appeal or in a motion to the Board. In any decision under paragraph
(e)(5) or (6) of this section, the Board may rule, in the exercise of
its discretion as provided under this part, on any issue, argument, or
claim not raised by the parties, and the Board may solicit supplemental
briefing from the parties on the issues to be considered before
rendering a decision.
* * * * *
(g) Decisions as precedents--(1) In general. Except as Board
decisions may be modified or overruled by the Board or the Attorney
General, decisions of the Board and decisions of the Attorney General
are binding on all officers and employees of DHS or immigration judges
in the administration of the immigration laws of the United States.
(2) Precedent decisions. Selected decisions designated by the
Board, decisions of the Attorney General, and decisions of the
Secretary of Homeland Security as provided in paragraph (h)(2)(i) of
this section will be published and serve as precedents in all
proceedings involving the same issue or issues.
(3) Designation of precedents. By majority vote of the permanent
Board members, or as directed by the Attorney General or his designee,
selected decisions of the Board issued by a three-member panel or by
the Board en banc may be designated to be published and to serve as
precedents in all proceedings involving the same issue or issues. In
determining whether to publish a precedent decision, the Board may take
into account relevant considerations, in the exercise of discretion,
including among other matters:
(i) Whether the case involves a substantial issue of first
impression;
(ii) Whether the case involves a legal, factual, procedural, or
discretionary issue that can be expected to arise frequently in
immigration cases;
(iii) Whether the issuance of a precedent decision is needed
because the decision announces a new rule of law, or modifies,
clarifies, or distinguishes a rule of law or prior precedent;
(iv) Whether the case involves a conflict in decisions by
immigration judges, the Board, or the federal courts;
(v) Whether there is a need to achieve, maintain, or restore
national uniformity of interpretation of issues under the immigration
laws or regulations; and
(vi) Whether the case warrants publication in light of other
factors that give it general public interest.
* * * * *
PART 1292--REPRESENTATION AND APPEARANCES
0
3. The authority citation for part 1292 continues to read as fol1ows:
Authority: 8 U.S.C. 1103, 1362.
0
4. In Sec. 1292.18, add paragraphs (c) and (d) to read as follows:
[[Page 31471]]
Sec. 1292.18 Administrative review of denied requests for
reconsideration.
* * * * *
(c) Referral of cases to the Attorney General. The Director will
refer to the Attorney General for review of decisions pursuant to this
section in all cases that the Attorney General directs the Director to
refer to him or that the Director believes should be referred to him.
(d) Decisions as precedents. The Director, in his discretion, may
cause reconsideration decisions by the OLAP Director pursuant to Sec.
1292.13(e), Sec. 1292.16(f), or Sec. 1292.17(d), or decisions by the
Director pursuant to this section to be published as precedents in the
same manner as decisions of the Board and the Attorney General. Such
decisions by the OLAP Director, except as overruled by the Director,
and such decisions by the Director, except as overruled by the Attorney
General, will serve as precedents in all proceedings under part 1292
involving the same issue or issues.
Dated: June 25, 2019.
William P. Barr,
Attorney General.
[FR Doc. 2019-13933 Filed 7-1-19; 8:45 am]
BILLING CODE 4410-30-P
