Expanding the Size of the Board of Immigration Appeals
| Published date | 01 April 2020 |
| Citation | 85 FR 18105 |
| Record Number | 2020-06846 |
| Section | Rules and Regulations |
| Court | Executive Office For Immigration Review |
Federal Register, Volume 85 Issue 63 (Wednesday, April 1, 2020)
[Federal Register Volume 85, Number 63 (Wednesday, April 1, 2020)]
[Rules and Regulations]
[Pages 18105-18107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06846]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 85, No. 63 / Wednesday, April 1, 2020 / Rules
and Regulations
[[Page 18105]]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1003
[Docket No. EOIR 20-0010; AG Order No. 4663-2020]
RIN 1125-AB00
Expanding the Size of the Board of Immigration Appeals
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: This rule amends the Department of Justice 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.
DATES:
Effective date: April 1, 2020.
Comment date: Written comments must be submitted on or before May
1, 2020. Comments postmarked on or before that date will be considered
timely. The electronic Federal Docket Management System will accept
comments until midnight Eastern Time on that date.
FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2616, Falls Church, Virginia 22041, telephone (703) 305-0289.
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule. The Department also invites comments that relate to the economic,
environmental, or federalism effects that might result from this rule.
Comments that will provide the most assistance to the Department in
developing these procedures will reference a specific portion of the
rule, explain the reason for any recommended change, and include data,
information, or authority that supports such recommended change.
Each submitted comment should include the agency name and reference
RIN 1125-AB00 or EOIR Docket No. 20-0010 for this rulemaking. Please
note that all properly received comments are considered part of the
public record and made available for public inspection at
www.regulations.gov. Such information includes personally identifying
information (such as name, address, etc.) voluntarily submitted by the
commenter. The Department may withhold from public viewing information
provided in comments that they determine may impact the privacy of an
individual or is offensive. For additional information, please read the
Privacy Act notice that is available via the link in the footer of
http://www.regulations.gov.
If you want to submit personally identifying information (such as
your name, address, etc.) as part of your comment but do not want it to
be posted online, you must include the phrase ``PERSONALLY IDENTIFYING
INFORMATION'' in the first paragraph of your comment and identify what
information you want redacted. The redacted personally identifying
information will be placed in the agency's public docket file but not
posted online.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
www.regulations.gov. The redacted confidential business information
will not be placed in the public docket file.
To inspect the agency's public docket file in person, you must make
an appointment with agency counsel. Please see the FOR FURTHER
INFORMATION CONTACT section above for the agency counsel's contact
information by topic in Section III, infra.
II. Background
The Executive Office for Immigration Review (``EOIR'') administers
the Nation's immigration court system. Generally, cases commence before
an immigration judge when the Department of Homeland Security (``DHS'')
files a charging document against an alien with the immigration court.
See 8 CFR 1003.14(a). EOIR primarily decides whether foreign-born
individuals who are charged by DHS with violating immigration law
pursuant to the Immigration and Nationality Act (``INA'') should be
ordered removed from the United States, or should be granted relief or
protection from removal and be permitted to remain in the United
States. EOIR's Office of the Chief Immigration Judge administers these
adjudications in immigration courts nationwide.
Decisions of the immigration judges are subject to review by EOIR's
appellate body, the Board of Immigration Appeals, which currently
comprises 21 permanent Board members. The Board is the highest
administrative tribunal for interpreting and applying U.S. immigration
law. The Board's decisions can be reviewed by the Attorney General, as
provided in 8 CFR 1003.1(g) and (h). Decisions of the Board and the
Attorney General are subject to judicial review.
III. Expansion of Number of Board Members
EOIR's mission is to adjudicate immigration cases by fairly,
expeditiously, and uniformly interpreting and administering the
Nation's immigration laws. This includes the initial adjudication of
aliens' cases in immigration courts nationwide, as well as appellate
review by the Board when appeals are timely filed. In order to more
efficiently accomplish EOIR's commitment to promptly decide a large
volume of cases, as well as review a large quantity of appeals of those
cases, this rule amends the Department's regulations relating to the
organization of the Board by adding two Board member positions, thereby
expanding the Board from 21 to
[[Page 18106]]
23 members.\1\ This rule revises the third sentence of 8 CFR
1003.1(a)(1), leaving the remainder of paragraph (a)(1) unchanged.
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\1\ The Department expanded the number of Board members from 15
to 17 on June 3, 2015, when it published in the Federal Register an
interim rule amending 8 CFR 1003.1. See 80 FR 31461 (June 3, 2015).
On February 27, 2018, the Department published a final rule further
expanding the Board from 17 to 21 members. See 83 FR 8321 (Feb. 27,
2018).
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Expanding the number of Board members is necessary at this time for
two primary reasons. First, EOIR is currently managing the largest
caseload both the immigration court system and the Board have ever
seen. At the end of FY 2019, there were 1,047,803 cases pending at the
immigration courts, marking an increase of 251,725 cases pending above
those at the end of FY 2018. See Pending Cases, available at https://www.justice.gov/eoir/file/1242166/download. Similarly, the pending
caseload at the Board essentially doubled between FY 2018 and FY 2019,
from 35,503 to 70,183. See All Appeals Filed, Completed, and Pending,
available at https://www.justice.gov/eoir/page/file/1199201/download.
Furthermore, DHS filed 504,848 new cases with EOIR in FY 2019, an
increase of nearly 200,000 new cases filed over FY 2018. See New Cases
and Total Completions-Historical, available at https://www.justice.gov/eoir/page/file/1238746/download. Each of the three previous fiscal
years has set a new record for new case filings by DHS, see id.,
leading to an increase in the backlog of pending cases and an increased
need for EOIR adjudicators to handle the new influx of cases, including
at the Board. The efficient and timely adjudication of cases is the
highest priority for EOIR, and EOIR requires additional resources to
handle the increased caseload. Moreover, as the caseload in the
immigration courts increases, the Department anticipates that the
corresponding caseload at the Board will also expand, as it did
significantly in FY 2019.
Second, the Department has made concerted efforts in recent years
to hire more immigration judges, resulting in a net increase of its
immigration judge corps of 153 between the end of FY 2016 and the end
of FY 2019. See Immigration Judge Hiring, available at https://www.justice.gov/eoir/file/1242156/download. Moreover, the Department
continues to advertise for and select a new class of immigration judges
almost every quarter of the fiscal year. The Department expects that,
as these new immigration judges enter on duty, the number of decisions
rendered nationwide by immigration judges will increase and, in turn,
the number of appeals filed with the Board will also increase.
The current caseload at the Board is burdensome and may become
overwhelming in the future for a Board of 21 members. At the same time,
if the Board becomes too large, it may have difficulty fulfilling its
responsibility of providing coherent direction with respect to the
immigration laws. In particular, because the Board currently issues
precedent decisions only with the approval of a majority of permanent
Board members, a substantial increase in the number of Board members
may make the process of issuing such decisions more difficult.
Keeping in mind the goal of maintaining cohesion and the ability to
reach consensus, but recognizing the challenges the Board faces in
light of its current and anticipated increased caseload, the Department
has determined that two positions should be added to the Board at this
time. These changes are necessary to maintain an efficient system of
appellate adjudication in light of the increasing caseload.
IV. Public Comments
This rule is exempt from the usual requirements of prior notice and
comment and a 30-day delay in effective date because, as an internal
delegation of authority, it relates to a matter of agency organization,
procedure, or practice. See 5 U.S.C. 553(b). The Department nonetheless
has chosen to promulgate this rule as an interim rule, providing the
public with opportunity for post-promulgation comment before the
Department issues a final rule on these matters.
V. Regulatory Requirements
A. Administrative Procedure Act
Prior 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 5 U.S.C. 604(a). Such analysis is not required when a rule
is exempt from notice-and-comment rulemaking under 5 U.S.C. 553(b) 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 13771 (Reducing
Regulation and Controlling Regulatory Costs)
This rule is limited to agency organization, management, or
personnel matters and is therefore not subject to review by the Office
of Management and Budget pursuant to section 3(d)(3) of Executive Order
12866, Regulatory Planning and Review. Nevertheless, the Department
certifies that this regulation has been drafted in accordance with the
principles of Executive Order 12866, section 1(b), and Executive Order
13563. Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits, including consideration of potential economic,
environmental, public health, and safety effects; distributive impacts;
and equity. The benefits of this rule include providing the Department
with an appropriate means of responding to the increased number of
appeals to the Board. The public will benefit from the expansion of the
number of Board members because such expansion will help EOIR better
accomplish its mission of adjudicating cases in an efficient and timely
manner. Overall, the benefits provided by the Board's expansion
outweigh the costs of employing additional federal employees. Finally,
because this rule is one of internal organization, management, or
personnel, it is not subject to the requirements of Executive Order
13771.
[[Page 18107]]
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, revise the third sentence of paragraph (a)(1) to
read as follows:
Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.
(a)(1) * * * The Board shall consist of 23 members. * * *
* * * * *
Dated: March 25, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-06846 Filed 3-31-20; 8:45 am]
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