Expanding the Size of the Board of Immigration Appeals
| Published date | 02 April 2024 |
| Record Number | 2024-06929 |
| Citation | 89 FR 22630 |
| Court | Executive Office For Immigration Review |
| Section | Rules and Regulations |
Federal Register, Volume 89 Issue 64 (Tuesday, April 2, 2024)
[Federal Register Volume 89, Number 64 (Tuesday, April 2, 2024)]
[Rules and Regulations]
[Pages 22630-22636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06929]
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DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1003
[EOIR Docket No. EOIR 20-0010; A.G. Order No. 5912-2024]
RIN 1125-AB00
Expanding the Size of the Board of Immigration Appeals
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Final rule.
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SUMMARY: On April 1, 2020, the Department of Justice (``the
Department'' or ``DOJ'') published an interim final rule (``IFR'') with
request for comments that amended its regulations relating to the
organization of the Board of Immigration Appeals (``Board'') by adding
two Board member positions, thereby expanding the Board to 23 members.
This final rule responds to comments received and adds five additional
Board member positions, thereby expanding the Board to 28 members. The
final rule also clarifies that temporary Board members serve renewable
terms of up to six months and that temporary Board members are
appointed by the Attorney General.
DATES: This rule is effective on April 2, 2024.
FOR FURTHER INFORMATION CONTACT: Raechel Horowitz, Chief, Immigration
Law Division, Office of Policy, Executive Office for Immigration
Review, 5107 Leesburg Pike, Falls Church, VA 22041, telephone (703)
305-0289.
SUPPLEMENTARY INFORMATION:
I. Summary of This Rulemaking
A. Background and Purpose of the Interim Final Rule (``IFR'')
The Executive Office for Immigration Review (``EOIR'') administers
the immigration court system of the United States. In most instances, a
case begins before an immigration judge after the Department of
Homeland Security (``DHS'') files a charging document with the
immigration court. See 8 CFR 1003.14(a). A charging document generally
charges a foreign-born individual with being subject to removal from
the United States under the Immigration and Nationality Act (``INA'' or
``the Act''). Subsequently, the immigration judge determines whether
the individual is deportable or inadmissible and thereby subject to
removal, and, if they are deportable or inadmissible, whether they
merit either immigration relief or protection from removal. EOIR's
Office of the Chief Immigration Judge administers these adjudications
through the nationwide immigration court system.
Immigration judges' decisions are generally subject to review by
the Board, which is EOIR's appellate body and the highest
administrative tribunal for interpreting and applying U.S. immigration
law. See 8 CFR 1003.1(b). Board decisions are subject to review by the
Attorney General. See 8 CFR 1003.1(g), (h). Decisions by both the Board
and the Attorney General may be subject to further judicial review. See
INA 242, 8 U.S.C. 1252. The Board's adjudicators are known as Board
members or appellate immigration judges. The number of Board members is
set by regulation at 8 CFR 1003.1(a)(1). The Board issues both
precedent and non-precedent decisions, and a decision may be designated
as a precedent by a majority vote of permanent Board members. See 8 CFR
1003.1(g)(3).
The 2020 IFR noted that, at the time of its promulgation, EOIR's
caseload was at its highest ever, and that EOIR had been hiring a
significant number of immigration judges as a result. See Expanding the
Size of the Board of Immigration Appeals, 85 FR 18105, 18106 (Apr. 1,
2020) (providing statistics for the pending caseloads at the
immigration courts and the Board).
[[Page 22631]]
The IFR stated that it was necessary at that time to increase the size
of the Board in light of these factors. The IFR acknowledged that
increasing the size of the Board had the potential to decrease cohesion
and lessen the Board's ability to issue precedent decisions. Given
these countervailing considerations, the IFR increased the size of the
Board by two members, from 21 to 23 members.
B. Provisions of the IFR
The IFR amended 8 CFR part 1003 by revising 8 CFR 1003.1(a)(1) to
increase the number of Board members from 21 to 23. The rule revised
the third sentence of 8 CFR 1003.1(a)(1) to read as follows: ``The
Board shall consist of 23 members.'' The IFR did not make any other
changes to the remainder of paragraph (a)(1) or to any other regulatory
provision.
C. The Final Rule
This final rule revises the regulations in four ways, the first
pertaining to the number of Board members and the remaining three to
the appointment of temporary Board members.
With respect to the first revision, EOIR's caseload has continued
to rise in the approximately four years since the IFR was promulgated.
The agency is currently facing the largest caseload in its history
before both the immigration courts and the Board. At the end of fiscal
year 2023, there were over 2.4 million cases pending before the courts
and over 113,000 appeals pending before the Board.\1\ In order to meet
the increased immigration court caseload, the Department has
prioritized immigration judge hiring, and the immigration judge corps
has expanded significantly in recent years (with the number of
immigration judges increasing from 442 at the end of fiscal year 2019
to 734 at the end of fiscal year 2023).\2\ Immigration judges are
collectively completing more cases than ever before, including more
than 523,000 case completions in fiscal year 2023.\3\
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\1\ See EOIR Adjudication Statistics: Pending Cases, New Cases,
and Total Completions (Oct. 12, 2023), https://www.justice.gov/media/1174681/dl?inline; EOIR Adjudication Statistics: All Appeals
Filed, Completed, and Pending (Oct. 12, 2023), https://www.justice.gov/media/1174881/dl?inline.
\2\ See EOIR Adjudication Statistics: Immigration Judge (IJ)
Hiring (Oct. 2023), https://www.justice.gov/media/1174816/dl?inline.
\3\ See EOIR Adjudication Statistics: Pending Cases, New Cases,
and Total Completions (Oct. 12, 2023), https://www.justice.gov/media/1174681/dl?inline.
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The IFR observed that, ``if the Board becomes too large, it may
have difficulty fulfilling its responsibility of providing coherent
direction with respect to the immigration laws,'' noting that ``a
substantial increase in the number of Board members may make the
process of issuing [precedent] decisions more difficult.'' 85 FR 18106.
The Department continues to recognize the importance of this
consideration but believes that significant recent increases to the
immigration courts' caseload--which has more than doubled since the end
of fiscal year 2019--warrant a corresponding expansion of the Board by
five members, from 23 to 28 members. The final rule revises 8 CFR
1003.1(a)(1) to do so.
With respect to the other revisions, 8 CFR 1003.1(a)(4) provides
that the EOIR Director may designate individuals who meet certain
qualifications ``to act as temporary Board members for terms not to
exceed six months.'' These temporary Board members ``shall have the
authority of'' permanent members ``to adjudicate assigned cases'' but
may not vote on any matter decided by the Board en banc or participate
in Board votes on whether to designate a decision as precedent. 8 CFR
1003.1(a)(4), (g)(3). The designation of temporary Board members
provides ``an appropriate means of responding to an unanticipated
increase or temporary surge in the number, size, or type of cases, and
other short-term circumstances that might impair the Board's ability to
adjudicate cases in a manner that is timely and fair.'' Board of
Immigration Appeals: Composition of Board and Temporary Board Members,
71 FR 70855, 70856 (Dec. 7, 2006).
The EOIR Director has had the authority by regulation to designate
temporary Board members since 1988. See Board of Immigration Appeals;
Designation of Judges, 53 FR 15659, 15659-60 (May 3, 1988). Initially,
the regulations permitted the EOIR Director to designate temporary
Board members ``for whatever time the Director deems necessary.'' Id.
at 15660. In 1998, the regulations were revised to specify that the
Director had the authority to designate temporary Board members ``for
terms not to exceed six months.'' See Board of Immigration Appeals: En
Banc Procedures, 63 FR 31889, 31890 (June 11, 1998). The regulations
have since been revised to expand the categories of individuals
eligible to serve as temporary Board members,\4\ but the reference to
temporary Board members serving ``terms not to exceed six months'' has
remained unchanged.
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\4\ See Board of Immigration Appeals: Procedural Reforms to
Improve Case Management, 67 FR 54878, 54902 (Aug. 26, 2002); 71 FR
at 70857.
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Notably, since 1998, eligible individuals have regularly been
designated and then re-designated as temporary Board members for
consecutive ``terms'' of six months or less. EOIR invests substantial
resources in training temporary Board members. It is therefore
important they be able to serve consecutive terms. Given this history,
the absence of any regulatory limit on a temporary Board member's total
length of service, and the long-existing regulatory authority for
temporary Board members to serve ``terms'' in the plural, EOIR codifies
in this rule its longstanding interpretation that its governing
regulations (1) restrict the length of a single term but not the total
time that a temporary Board member may serve, and (2) authorize the
designation of temporary Board members for additional six-month terms.
Taking this longstanding practice into account, this final rule amends
8 CFR 1003.1(a)(4) in the interest of clarity to explicitly state that
temporary Board members' six-month terms are ``renewable.'' \5\
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\5\ The regulations also contain a separate provision allowing
the EOIR Director, with the approval of the Attorney General, to
designate individuals who meet certain qualifications to serve as
temporary immigration judges for ``renewable terms not to exceed six
months.'' See 8 CFR 1003.10(e)(1)(i), (ii).
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This final rule also amends 8 CFR 1003.1(a)(4) to more clearly
reflect how temporary Board members are appointed. Generally, the EOIR
Director has been responsible for selecting qualified individuals to
serve as temporary Board members, with the approval of the Deputy
Attorney General where required. However, those individuals have been
appointed and reappointed to temporary Board member positions by the
Attorney General. See Carreon v. Garland, 71 F.4th 247, 253-54 (5th
Cir. 2023) (stating that ``the Attorney General has authority to renew
the terms of temporary BIA members,'' and that ``documentation
substantiates the Government's assertion that the temporary BIA members
were reappointed by the Attorney General, not the Director''); Brito v.
Garland, 40 F.4th 548, 553 (7th Cir. 2022) (stating that ``after the
two temporary Board members' six-month terms had expired, the Attorney
General reappointed both members to an additional term of six
months''). In the interest of more precisely describing this process,
this final rule amends 8 CFR 1003.1(a)(4) to state that the Attorney
General ``appoint[s]'' temporary Board members ``upon the
recommendation of the Director.''
Finally, this final rule amends 8 CFR 1003.1(a)(4) to more
accurately
[[Page 22632]]
characterize the nature of temporary Board members' roles. Though 8 CFR
1003.1(a)(4) currently states that individuals who have been selected
``act'' as temporary Board members, it is more accurate to state that
such individuals ``serve'' as temporary Board members. They are
appointed to positions on the Board and are not considered ``acting''
Board members who merely perform the functions and duties of the
position. Accordingly, this final rule amends 8 CFR 1003.1(a)(4) to
state that individuals who have been selected ``serve,'' instead of
``act,'' as temporary Board members.
D. Provisions of the Final Rule
The final rule revises the third sentence of 8 CFR 1003.1(a)(1) to
read: ``The Board shall consist of 28 members.'' The final rule further
revises the first and second sentences of 8 CFR 1003.1(a)(4) to state
that temporary Board members are ``appoint[ed]'' by the Attorney
General ``upon the recommendation of the Director,'' and that they
subsequently may ``serve'' for ``renewable terms.''
II. Public Comments on the IFR
The IFR was exempt from the usual requirements of prior notice and
comment and a 30-day delay in effective date because it is a rule of
management or personnel as well as a rule of agency organization,
procedure, or practice. See 5 U.S.C. 553(a)(2), (b)(A), (d). The
Department nonetheless chose to promulgate the rule as an IFR in order
to provide the public with an opportunity for post-promulgation
comment.
A. Summary of Public Comments
The IFR's comment period closed on May 1, 2020, with 11 comments
received.\6\ Individual commenters submitted nine comments, and
organizations submitted two comments. Three comments expressed overall
support for expanding the Board, although two of those comments
concurrently opposed other facets of the IFR or the immigration system
as a whole.
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\6\ The Department reviewed all 11 comments submitted in
response to the rule; however, the Department did not post four of
the comments to regulations.gov for public inspection. Of these
comments, three were unrelated to the rulemaking, involving
questions about personal immigration matters or concerns about the
previous administration's social media activity, and one included
only the word ``test.'' Accordingly, the Department posted seven
comments.
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B. Comments Expressing Support for the IFR
Comment: Three commenters generally supported the 2020 IFR's
expansion of the Board. Commenters noted that expanding the Board was a
``positive step'' toward more timely review of appeals and addressing
the growing caseload. In addition, two of those commenters suggested
adding even more Board positions due to the size of the pending
caseload and its anticipated future growth.
Response: The Department appreciates the commenters' support for
the rule. In the 2020 IFR, the Department assessed that expanding the
Board to 23 members was warranted. 85 FR at 18106. In light of further
growth to EOIR's caseload, the Department has now determined that it is
appropriate to expand the Board by five additional members, for a total
of 28 members, and the Department is doing so in this final rule.\7\
The Department believes that adding five additional members strikes the
proper balance between addressing EOIR's growing caseload and
maintaining cohesion amongst Board members. This further expansion is
in line with the suggestions of two of the commenters referenced above.
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\7\ In addition, the Department notes that this is the third
time in recent years that it has engaged in rulemaking to expand the
size of the Board. See Expanding the Size of the Board of
Immigration Appeals, 83 FR 8321 (Feb. 27, 2018); 2020 IFR, 85 FR
18105. Should the Department determine in the future that additional
Board members would help EOIR achieve its mission, the Department
may engage in further rulemaking at that time.
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C. Comments Expressing Opposition to the IFR
1. Contradicts Prior Rulemakings
Comment: Some commenters expressed opposition to the 2020 IFR
because they disagreed with the Department's determination that 23
Board members were necessary. One organization commented that the
Department failed to address why the ``optimum'' size of the Board
changed from 21 members (as provided by a 2018 final rule that expanded
the Board from 17 to 21 members) to 23 members (as provided by the 2020
IFR). The organization also urged the Department to ``fully explain why
the additional two Board members are necessary.'' The organization
stated that the Department used the ``exact same language'' in both the
2020 IFR and the 2018 final rule. Compare 83 FR at 8322 (``Keeping in
mind the goal of maintaining cohesion and the ability to reach
consensus, but recognizing the challenges the Board faces in light of
its current and anticipated increased caseload . . . .''), with 85 FR
at 18106 (same).
Relatedly, another organization commented that the 2018 final rule
and the 2020 IFR together increased the Board's size by six members--a
26 percent increase. This organization argued that such an increase
contradicted the reasoning in both the 2018 final rule and the 2020 IFR
that the Board must maintain ``coherent direction'' and
``administrability'' in issuing precedent decisions. See 85 FR 18106;
83 FR 8322.
Another organization opposed the 2020 IFR's reasoning for adding
more Board members, alleging that it was inconsistent with
justifications in a 2002 rulemaking that implemented procedural reforms
for the Board. The commenter pointed to statements the Department made
at the time that the addition of new Board members had not reduced the
backlog of cases and that ``the problem [was] rooted in the structure
and procedures of the Board.'' Board of Immigration Appeals: Procedural
Reforms to Improve Case Management, 67 FR 7309, 7310 (Feb. 19, 2002)
(proposed rule); see also Board of Immigration Appeals: Procedural
Reforms to Improve Case Management, 67 FR 54878, 54894 (Aug. 26, 2002)
(final rule) (``The continued expansion of the Board has not
effectively reduced the existing case backlog. The one element that has
begun to help reduce the backlog--streamlining--is being expanded
through this rule.'').
This organization alleged that the 2020 IFR directly contradicted
this reasoning by adding more Board members as a way to address the
current and anticipated pending caseload, while failing to consider or
offer analysis of streamlining methods. The organization was concerned
that the 2020 IFR represented a departure from the uniformity
principles that had prompted the 2002 reforms to Board procedures and
would lead to delays in adjudicating immigration cases.
Other commenters more generally stated that additional Board
members would not resolve the Board's backlog, identifying the roots of
the problem as related to immigration policy and increased immigration
enforcement efforts over the course of several presidential
administrations without the necessary infrastructure to support such
efforts.
Response: The Department does not believe that any elements of the
2020 IFR or the present final rule conflict with prior rules regarding
the number of Board members.
First, the Department did not imply in the 2018 final rule that the
Board's
[[Page 22633]]
optimum size would always be 21 members, nor did it imply in the 2020
IFR that the Board's optimum size would always be 23 members. Instead,
as the Department recognized in both the 2018 final rule and the 2020
IFR, the appropriate number of Board members may fluctuate over time
based upon changing factors. For example, the Department stated in the
2018 final rule that it had recently hired new immigration judges and
that it ``expect[ed] that, as these additional immigration judges enter
on duty, the number of decisions rendered by the immigration judges
nationwide will increase, and the number of appeals filed with the
Board will increase as a result.'' 83 FR 8321-22. The 2020 IFR also
referenced the recent hiring of additional immigration judges and
similarly predicted that these hirings would result in increased
appeals, see 85 FR 18106. The present final rule is likewise premised
in part on recent increases in cases and the hiring of additional
immigration judges.
Second, the 2020 IFR weighed the benefit of additional members
against potential challenges achieving cohesion and consensus as the
Board grows. See 85 FR 18106. In deciding to expand the Board again
through the present final rule, the Department has similarly balanced
the benefits of expansion against its costs. The Department's ultimate
weighing of the relevant costs and benefits will predictably change
over time in response to changed circumstances. But because the
Department considered in the 2020 IFR the importance of Board cohesion
as part of its overall determination of the appropriate number of Board
members, and has again considered the importance of cohesion in this
final rule while reaching a different ultimate conclusion about the
number of Board members necessary at this time, neither the 2020 IFR
nor the present final rule contradicts the Department's prior
statements on the importance of Board cohesion and similar
considerations.\8\
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\8\ Further, the Department notes that the Attorney General may
issue precedent opinions where necessary. 8 CFR 1003.1(h). Notably,
the Attorney General may direct the Board to refer cases to himself,
or the Chairman or a majority of the Board may refer cases to the
Attorney General. 8 CFR 1003.1(h)(1)(i)-(ii). The availability of
Attorney General review further mitigates concerns over a heightened
risk of lack of consensus amongst a greater number of Board members,
especially when that risk is weighed against the need to increase
the capacity to adjudicate cases before the Board.
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The Department also disagrees with any contention that the 2020 IFR
conflicted, or that the present final rule conflicts, with the
Department's 2002 statements identifying procedural reforms, as opposed
to additional Board members, as the solution for tackling the Board's
pending caseload. At that time, the Department implemented numerous
procedural changes designed to increase the Board's adjudicatory
efficiency, including the establishment of a case screening system and
allowances for single-member Board decisions in certain circumstances.
See 8 CFR 1003.1(e); see also 67 FR 54880-81. In addition, the
Department determined that it would reduce the size of the Board to 11
members 180 days after enacting that rule. 67 FR 54893. The Department
noted that the decision to reduce the Board to 11 members was intended
to respond to ``resource needs, capacities and resources of the Board''
at that time, and further recognized that the determination about the
appropriate number of Board members could change ``in light of changing
caseloads and legal requirements following implementation'' of the 2002
rule. Id. While the Department determined at that time that the
procedures implemented by the rule would adequately address the Board's
backlog, even after ultimately reducing the size of the Board to 11
members, the Department made clear that it would ``continuously
review'' the rule's efficacy in achieving the Department's goals. Id.
at 54881.
Despite the prior expansions and procedural reforms, the Board's
caseload has continued to increase, and the issues the Board faced in
2002 differ from those the Board faced when the 2020 IFR was
promulgated and continues to face today.\9\ The Department's response
to circumstances on the ground in 2020 and again today, as the Board's
caseload continues to increase despite the reforms implemented in 2002,
is not in conflict with the 2002 rulemaking, which in any event
expressly recognized that the Board's staffing may be adjusted
depending upon changing needs.\10\
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\9\ Compare 67 FR 54878 (57,597 pending appeals on September 30,
2001), with EOIR Adjudication Statistics: All Appeals Filed,
Completed, and Pending, https://www.justice.gov/media/1174881/dl?inline (Oct. 12, 2023) (over 72,000 pending appeals at the end of
fiscal year 2019, and over 113,000 pending appeals at the end of
fiscal year 2023).
\10\ To the extent that the 2020 IFR and this final rule could
be characterized as a change in position from the 2002 rulemaking,
the Supreme Court has made clear that an agency may change its
position, so long as it provides a reasoned explanation for the
change and demonstrates that there are ``good reasons'' for the new
policy. FCC v. Fox Television Stations, 556 U.S. 502, 515-16 (2009).
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Finally, comments attempting to tie the Board's backlog to
longstanding concerns about immigration policy and enforcement are
outside the scope of this rulemaking. The 2020 IFR amended the
regulations to expand the Board from 21 to 23 members, and this final
rule now further expands the Board to 28 members. The Department's
purpose in expanding the Board has been and is to ensure that the Board
can fairly and expeditiously adjudicate cases given its increasing
caseload, bearing in mind the need to maintain the Board's cohesion.
Neither the 2020 IFR nor this rulemaking have purported to resolve the
backlog in its entirety, and general issues involving immigration
policy and enforcement are outside the scope of this limited
rulemaking. Accordingly, the Department declines to respond to the
generalized policy and enforcement concerns referenced above.
2. Policy Concerns
Comment: One organization opposed the 2020 IFR in part on the
grounds that the Board's backlog is most efficiently reduced not by
adding Board members but rather by hiring more attorneys, paralegals,
and administrative staff. This organization cited the Department's cost
analysis of Board adjudications in another rulemaking, which the
organization characterized as demonstrating that Board members have the
highest salary but contribute the least amount of substantive work in
adjudications. See Fee Review, 85 FR 11866, 11873 (Feb. 28, 2020)
(proposed rule). The organization noted that increasing the number of
attorneys, paralegals, and administrative staff would have an
additional benefit because such positions would ``not have to be
weighed against the goals of maintaining cohesion and the ability to
reach consensus'' (internal quotations omitted).
Response: The Department disagrees that the Board's increasing
caseload can be addressed exclusively by hiring staff members. Although
attorneys, paralegals, and administrative staff play a critical role at
the Board, only Board members may actually decide appeals. That said,
the Department will, on an ongoing basis, evaluate the need for
additional attorneys, paralegals, and administrative staff to support
the new Board members so as to ensure that the Board's adjudicatory
capacity is not limited by insufficient Board personnel.
Comment: Commenters expressed opposition to the 2020 IFR based on
assertions that the Department and EOIR have engaged in irregular
hiring practices. Commenters objected to the appointment of specific
Board members in 2019, based upon their backgrounds and alleged
ideology. Commenters also raised concerns that some Board members have
served simultaneously as
[[Page 22634]]
both immigration judges and Board members, and also that some Board
members have not been required to physically report to EOIR's
headquarters in Falls Church, Virginia.
One organization urged the Department to commit to a transparent
hiring process that ``does not favor specific ideological
perspectives.''
Response: As an initial matter, the Department notes that specific
hiring practices for the Board, including the procedures for selecting
future Board members and the criteria for considering applicants, are
outside the scope of the 2020 IFR, which relates only to the
Department's determination regarding the total number of authorized
Board member positions. For the same reasons, concerns regarding the
work location of certain Board members, EOIR's management of Board
members' caseloads, and similar administrative issues also fall outside
the scope of this rulemaking.
Nevertheless, the Department emphasizes that Board members, as is
the case with all EOIR employees, are selected on their own merit
following a thorough hiring process. EOIR ``welcome[s] applicants from
the many communities, identities, races, ethnicities, backgrounds,
abilities, religions, and cultures of the United States who share
[DOJ's and EOIR's] commitment to public service.'' See Department of
Justice, job posting for Appellate Immigration Judge (Board Member),
https://www.justice.gov/legal-careers/job/appellate-immigration-judge-3
(last updated June 2023). These commenters have offered no basis to
conclude that the Department's process for hiring Board members will
inhibit the effective functioning of the Board as expanded by this
rulemaking.
Comment: One organization expressed opposition to the 2020 IFR
based on an alleged lack of transparency, pointing to a lawsuit that
advanced concerns with how EOIR responded to a Freedom of Information
Act (``FOIA'') request that pertained to the hiring of Board members.
Response: The Department declines to respond in a public rulemaking
to the commenter's remarks about pending litigation. Nevertheless, EOIR
processes and responds to all FOIA requests in accordance with the
relevant laws and regulations. FOIA requests may be submitted through
the Public Access Link at https://foia.eoir.justice.gov/app/Home.aspx,
or mailed to:
Office of the General Counsel Attn: FOIA Service Center, Executive
Office for Immigration Review, 5107 Leesburg Pike, Suite 2150, Falls
Church, VA 22041
Comment: Commenters raised concerns pertaining to the substance of
some Board decisions and to some Board members' alleged ideology. One
organization argued that the 2020 IFR furthered efforts to ``shift the
ideology'' of the Board by adding members who would be ``ideologically
aligned'' with ``prioritizing speed over due process, and prioritizing
deportation over fairly adjudicated cases.'' The organization asserted
that the Board's role had evolved into narrowing eligibility for
``virtually every form of relief.''
One commenter expressed concerns about eroding the ``core ideal of
inclusion for all,'' while another alleged that the Department had
improperly influenced immigration judge decisions by pressuring judges
to favor one party in proceedings over another.
One commenter argued that an independent commission should be
responsible for appointing Board members with the intention that the
commission would preclude appointment of ``partisan judges'' to the
Board.
Response: The primary purpose of this rulemaking is to expand the
Board given its increased caseload. Concerns about the substance of
recent Board decisions or hypothetical future Board decisions, or about
the alleged ideology of Board members, are outside the scope of this
rulemaking.
Nevertheless, the Department disagrees with the above comments and
declines to implement the suggestion to form an independent commission
to appoint Board members. The 2020 IFR was not, and the present final
rule is not, politically motivated, and commenters' assertions that
Board members act in a political capacity are unsubstantiated. Members
of the Board are not political appointees but rather are hired as
career civil servants who are unaffiliated with a particular
administration. The hiring of Board members may not be, and is not,
based on a candidate's personal political affiliation. See 5 U.S.C.
2302(b)(1)(E) (prohibiting discrimination against federal employees or
applicants for federal employment on the basis of political
affiliation). In deciding cases, Board members exercise independent
judgment and discretion in accordance with the regulations. 8 CFR
1003.1(d)(1)(i)-(ii). The Board is required to adjudicate all cases
before it fairly and expeditiously. See 8 CFR 1003.1(d)(1). The
Department and EOIR do not pressure Board members to do otherwise or to
issue decisions that contravene the statutes, regulations, and caselaw
that govern the Board's adjudications.
3. Suggestions
Comment: One commenter suggested that the Department add four Board
member positions instead of two positions. The commenter explained that
adding four positions would increase efficiency such that cases could
be more quickly decided. Citing the costs of immigration detention, the
commenter explained that reducing the time to issue decisions would
save the government money by reducing the amount of time noncitizens in
removal proceedings spend in detention. Further, the commenter
explained that the difficulty of reaching a consensus would not
significantly change by adding four members instead of two.
Response: The Department appreciates the commenter's suggestion. As
explained above, the present final rule expands the Board by five
additional members, for a total of 28 members. EOIR's caseload has
risen since the 2020 IFR was promulgated, and the Department believes
expanding the Board to 28 members appropriately balances the need for
efficient adjudications against the need to maintain cohesion and
protect the Board's ability to reach consensus. The Department may, if
warranted by changing circumstances, engage in future rulemaking to
further alter the size of the Board.
Comment: Several commenters provided suggestions regarding the
Board's case processing, management, and organization. These
suggestions, and the Department's responses, are as follows:
Suggestion: The Board should ``hear arguments on cases to
gain a deeper understanding of the government's position and
importantly the immigrant's position.'' Response: The decision whether
to hear an oral argument in a case is made at the discretion of a
three-member panel or the en banc Board. See 8 CFR 1003.1(e)(7).
Suggestion: The Board should move from a paper system to
an electronic, online system, which the commenter suggested would
improve the efficiency of adjudications and increase confidentiality of
files. Response: The Board is transitioning from a paper filing system
to an electronic filing system. See EOIR Electronic Case Access and
Filing, 86 FR 70708 (Dec. 13, 2021).
Suggestion: The Board should raise filing fees in order to
hire more temporary Board members, if necessary, and staff. Response:
EOIR is not a fee-funded agency, and monies collected in filing fees
are not applied to EOIR
[[Page 22635]]
staffing. Therefore, raising the Board's filing fees would not increase
the Board's ability to hire temporary Board members and other
personnel.
Suggestion: The Department should ``consider auditing and
revitalizing the streamlining reforms to better scale its caseload
management up (or down) in response to the surge crises that are
intrinsic to modern migration flows.'' Response: As noted above, the
Board's current caseload is significantly larger than when the
regulatory ``streamlining'' procedural provisions were promulgated in
2002.\11\ Though those provisions remain in the regulations, the
Department believes that an effective way to manage the current
increase in caseload is to increase the size of the Board.
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\11\ Compare 67 FR 54878 (57,597 pending appeals on September
30, 2001), with EOIR Adjudication Statistics: All Appeals Filed,
Completed, and Pending (Oct. 12, 2023), https://www.justice.gov/media/1174881/dl?inline (over 72,000 pending appeals at the end of
fiscal year 2019, and over 113,000 pending appeals at the end of
fiscal year 2023).
---------------------------------------------------------------------------
Suggestion: The Department should use temporary Board
members to a greater extent at the initial screening review to
``divert[ ] more appeals to single member review for affirmance without
opinion.'' Response: Temporary Board members can be, and are, assigned
to the Board's screening panel. Decisions whether particular cases meet
the requirements for affirmances without opinion are made by Board
members, including temporary Board members, on a case-by-case basis.
See 8 CFR 1003.1(e)(4).
Suggestion: The Board should improve its management of
certain types of cases at the initial screening review, including
appeals of asylum decisions based on mixed claims of law and fact
regarding country conditions and appeals of denials of discretionary
waivers of removability. Response: As noted elsewhere, the Board's
caseload has grown significantly in recent years. While the Board
sometimes modifies its procedures for screening cases, the Department
believes that no such procedural changes would be sufficient to address
the Board's current increased caseload, and that increasing the size of
the Board is necessary at this time.
Suggestion: The Board should increase the rate of summary
dismissals on frivolity grounds. Response: Summary dismissals of
appeals are governed by 8 CFR 1003.1(d)(2), and a case must meet
certain requirements in order for a summary dismissal to be
appropriate. Determinations whether to summarily dismiss cases are made
by Board members on a case-by-case basis.
Suggestion: The Department should hire more immigration
judges and add more immigration courts across the country rather than
focus its efforts on the Board. Response: As noted above, EOIR has
already expanded the immigration judge corps significantly in recent
years.\12\
---------------------------------------------------------------------------
\12\ See EOIR Adjudication Statistics: Immigration Judge (IJ)
Hiring (Oct. 2023), https://www.justice.gov/media/1174816/dl?inline.
---------------------------------------------------------------------------
Suggestion: The Department should change policies
pertaining to the beginning phases of the immigration adjudication
process, not to the final step, so that there are fewer immigration
cases to begin with. Response: Decisions whether to place foreign-born
individuals in immigration court proceedings are made by DHS, and not
by the Department, and therefore are outside the scope of this
rulemaking.
4. Miscellaneous Concerns
Comment: One commenter raised concerns about the number of Board
members on each panel if the Board has a total of 23 members. The
commenter explained that, with 23 members, the Board would consist of
seven panels of three members and one panel of two members; the
commenter was concerned that splits would inevitably result from the
two-member panel. The commenter stated that 8 CFR 1003.1, establishing
the current system of seven panels of three members, controlled and
allowed the Board to properly function.
Response: The commenter misinterprets 8 CFR 1003.1(a)(3), which
governs the division of the Board into panels. This provision
principally gives the Chairman the authority to ``divide the Board into
three-member panels'' and to ``assign any number of Board members'' to
the Board's ``screening panel,'' which, under the Board's case
management system, is responsible for the initial evaluation of cases.
8 CFR 1003.1(a)(3), (e). The three-member panels referenced in 8 CFR
1003.1(a)(3) are composed of different combinations of Board members.
In other words, the same three Board members need not be permanently
assigned only to one panel. Regardless of the size of the Board,
neither 8 CFR 1003.1(a)(3) nor any other regulatory provision permits
cases to be decided by two-member panels, and this rulemaking has not
resulted, and will not result, in any such adjudications.
Comment: One commenter alleged that the Department did not address
whether it ``believe[d] that this consistent increase of cases will
cease after the number of [Board] members is increased.'' The commenter
remarked that it seemed likely that the Department would have to add
more Board members in the future.
Response: There are many variables that affect the Board's
caseload, and the Department cannot project the Board's future caseload
with certainty. This final rule increases the Board's size from 23 to
28 members. Going forward, the Department may, if warranted, alter the
size of the Board via additional rulemakings.
Comment: One commenter suggested that further data would be helpful
to know whether a larger number of Board members would, in fact, make
it more difficult to reach consensus when issuing precedent decisions.
The commenter provided the following examples that would be helpful for
such an inquiry: the number of decisions that fail to receive a
necessary majority of votes to become precedent and the percentage of
approval by which recent precedent decisions have passed.
Response: The Department appreciates the comment regarding
acquiring data to determine whether increasing the Board's size affects
its ability to reach consensus; the Department may consider this
suggestion for future rulemakings. At this time, however, no such data
is available.
Comment: Another commenter criticized the immigration system as a
whole, stating that it constitutes a ``web of bureaucracy'' developed
over the past century.
Response: The commenter's concern with the immigration system as a
whole is outside the scope of this rulemaking. As a result, the
Department declines to respond.
IV. Regulatory Requirements
A. Administrative Procedure Act
Notice and comment is unnecessary because this is a rule of
management or personnel as well as a rule of agency organization,
procedure, or practice. See 5 U.S.C. 553(a)(2), (b)(A). For the same
reasons, this rule is not subject to a 30-day delay in effective date.
See 5 U.S.C. 553(a)(2), (d).
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (``RFA''), ``[w]henever an
agency is required by section 553 of [the Administrative Procedure
Act], or any other law, to publish general notice of proposed
rulemaking for any proposed rule, . . . the agency shall prepare and
make available for public comment an initial regulatory flexibility
analysis.'' 5 U.S.C. 603(a); see also 5 U.S.C. 604(a). Such analysis is
not required when a rule is exempt from notice-and-
[[Page 22636]]
comment rulemaking under 5 U.S.C. 553(b) or other law. Because this is
a rule of internal agency organization and therefore is exempt from
notice-and-comment rulemaking, no RFA analysis under 5 U.S.C. 603 or
604 is required.
C. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
D. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14094 (Modernizing
Regulatory Review)
This rule is limited to agency organization, management, or
personnel matters and is therefore not subject to review by the Office
of Management and Budget pursuant to section 3(d)(3) of Executive Order
12866, Regulatory Planning and Review. Nevertheless, the Department
certifies that this regulation has been drafted in accordance with the
principles of Executive Order 12866, section 1(b), Executive Order
13563, and Executive Order 14094. Executive Orders 12866, 13563, and
14094 direct agencies to assess the 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). Executive Order 13563 emphasizes the
importance of quantifying both costs and benefits, reducing costs,
harmonizing rules, and promoting flexibility. The benefits of this rule
include providing the Department with an appropriate means of
responding to the increased number of appeals to the Board. The public
will benefit from the expansion of the number of Board members because
such expansion will help EOIR adjudicate cases in a fair, efficient,
and timely manner. Overall, the benefits provided by the Board's
expansion outweigh the costs of employing additional federal employees.
E. Executive Order 13132--Federalism
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, this rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
F. Executive Order 12988--Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
The provisions of the Paperwork Reduction Act of 1995, Public Law
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR
part 1320, do not apply to this final rule because there are no new or
revised recordkeeping or reporting requirements.
H. Congressional Review Act
This is not a major rule as defined by 5 U.S.C. 804(2). This action
pertains to agency organization, management, and personnel and,
accordingly, is not a ``rule'' as that term is used in 5 U.S.C. 804(3).
Therefore, the reports to Congress and the Government Accountability
Office specified by 5 U.S.C. 801 are not required.
List of Subjects in 8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
services, Organization and functions (Government agencies).
Accordingly, for the reasons stated in the preamble, part 1003 of
title 8 of the Code of Federal Regulations is 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. In Sec. 1003.1:
0
a. Revise the third sentence of paragraph (a)(1) and the first and
second sentences of paragraph (a)(4) to read as follows:
Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.
(a)(1) * * * The Board shall consist of 28 members. * * *
* * * * *
(a)(4) * * * Upon the recommendation of the Director, the Attorney
General may in his discretion appoint immigration judges, retired Board
members, retired immigration judges, and administrative law judges
employed within, or retired from, EOIR to serve as temporary Board
members for renewable terms not to exceed six months. In addition, upon
the recommendation of the Director and with the approval of the Deputy
Attorney General, the Attorney General may in his discretion appoint
one or more senior EOIR attorneys with at least ten years of experience
in the field of immigration law to serve as temporary Board members for
renewable terms not to exceed six months.
* * * * *
Dated: March 27, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-06929 Filed 4-1-24; 8:45 am]
BILLING CODE 4410-30-P
