Executive Office for Immigration Review: Immigration Appeals Board; streamlined appellate review procedure,

[Federal Register: September 14, 1998 (Volume 63, Number 177)]

[Proposed Rules]

[Page 49043-49046]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr14se98-14]

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 3

[EOIR No. 122P; AG Order No. 2177-98]

RIN 1125-AA22

Board of Immigration Appeals: Streamlining

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

ACTION: Proposed rule.

SUMMARY: This proposed rule would establish a streamlined appellate review procedure for the Board of Immigration Appeals. The proposed rule is in response to the enormous and unprecedented increase in the number of appeals being filedwith the Board. The rule recognizes that in a significant number of the cases the Board decides, the result reached by the adjudicator below is correct and will not be changed on appeal. In these cases, a single permanent Board Member will be given authority to review the record and affirm the result reached below without issuing an opinion in the case. This procedure will promote fairness by enabling the Board to render decisions in a more timely manner, while allowing it to concentrate its resources primarily on those cases in which the decision below may be incorrect, or where a new or significant legal or procedural issue is presented. In addition, the proposed rule provides that a single Board Member or the Chief Attorney Examiner may adjudicate certain additional types of cases, motions, or other procedural or ministerial appeals, where the result is clearly dictated by the statute, regulations, or precedential decisions.

DATES: Written comments must be submitted on or before November 13, 1998.

ADDRESSES: Please submit written comments to Margaret M. Philbin, General Counsel, Executive Office for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041, (703) 305-0470.

FOR FURTHER INFORMATION CONTACT: Margaret Philbin, (703) 305-0470. SUPPLEMENTARY INFORMATION: The mission of the Board of Immigration Appeals is to provide fair and timely immigration adjudications and authoritative guidance and uniformity in the interpretation of the immigration laws. The rapidly growing number of appeals being filed with the Board has severely challenged the Board's ability to accomplish its mission and requires that new case management techniques be established and employed.

In 1984, the Board received fewer than 3,000 cases. In 1994, it received more than 14,000 cases. In 1997, in excess of 25,000 new appeals were filed. There is no reason to believe that the number of appeals filedis likely to decrease in the foreseeable future, especially as the number of Immigration Judges continues to increase.

At the same time that the number of appeals filedhas increased, the need for the Board to provide guidance and uniformity to the Immigration Judges, the Immigration and Naturalization Service, affected individuals, the immigration bar, and the general public has grown. The Board now reviews the decisions of over 200 Immigration Judges, whereas there were 69 Judges in 1990 and 86 Judges in 1994. The frequent and significant changes in the complex immigration laws over the last several years, including a major overhaul of those laws in September 1996, also highlight the continued need for the Board's authoritative guidance in the immigration area, as does the fact that the recent legislation drastically reduced the alien's right to judicial review.

The Attorney General has made efforts to aid the Board in handling its

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burgeoning caseload by increasing its size from 5 to 12 members in 1995 and by recently authorizing the addition of three additional permanent Board Members, bringing the total to 15 Board Members. Significant staff increases have accompanied the expansion of the Board.

To meet its overriding objective of providing fairness in adjudicating appeals, the Board must achieve four goals. It must: (1) Provide authoritative guidance and uniformity through high quality appellate decisions; (2) decide all incoming cases in a timely and fair manner; (3) assure the correctness of the results in individual cases; and (4) eliminate the backlog of cases.

To accomplish these goals under current conditions, the Board must limit its three-Member panel, quasi-judicial decision-making process to those cases where there is a realistic chance that review by a three- Member panel will change the result below. Accordingly, the proposed rule would add a new provision, 8 CFR 3.1(a)(5), giving the Board authority; by action of a single permanent Board Member, to affirm the result below without an opinion where: (1) The result reached in the decision under review was correct; (2) any errors in the decision under review were harmless or nonmaterial; and (3) either (a) the issue on appeal is squarely controlled by existing Board of federal court precedent and does not involve the application of such precedent to a novel fact situation; or (b) the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted.

An affirmance without opinion would be issued only if no legal or factual basis for reversal of the decision below is apparent. If an appellant makes a substantial argument for reversal, the case would not be appropriate for affirmance without opinion. At the same time, an affirmance without opinion would relate only to the result below; it would not necessarily imply that the Board approved or adopted all the reasoning of the decision below, or that there were no harmless or nonmaterial errors in the decision below. The decision below would be the final administrative decision for judicial review purposes.

If the single permanent Board Member finds the case appropriate for affirmance without opinion, that Board Member will sign a simple order to that effect, without additional explanation or reasoning. If the Board finds affirmance without opinion inappropriate, the case will be assigned to a three-Member panel for review and decision. Thus, an affirmance without opinion is a determination that the result reached below is correct and that the case does not warrant three-Member review. The three-Member panel also will have authority to affirm without opinion, where it determines such disposition is appropriate. This new procedure will enable the Board Members to concentrate their time and efforts on those cases in which there is a chance that the result below was incorrect, as well as on cases involving new or significant legal issues.

Proposed 8 CFR 3.1(a)(5) would also give the Chairman authority to designate certain categories of cases as suitable for affirmance without opinion by a single permanent Board Member or by a three-Member panel. These categories may include, but are not limited to, the following: (1) Cases challenging findings of fact where the findings below are not against the weight of the evidence; (2) cases controlled by precedents of the Board, the controlling United States Court of Appeals, or the United States Supreme Court where there is no basis for overruling or distinguishing the precedent; (3) cases seeking discretionary relief for which the appellant clearly appears to be statutorily ineligible; (4) cases challenging discretionary decisions where it does not appear that the decision-maker has applied the wrong criteria or deviated from precedents of the Board or the controlling law from the United States Court of Appeals or the United States Supreme Court; and (5) cases challenging only procedural rulings or deficiencies that do not appear to be material to the outcome of the case.

The rules also authorizes the Chairman to designate, and change as the Chairman deems appropriate, who from among the permanent Board Members is authorized to affirm cases without opinion.

The proposed rule also amends the regulation regarding motions to reconsider to state that a motion to reconsider based solely on the argument that the case should have been heard by a three-Member panel, or otherwise should not have been summarily affirmed without a full opinion, is barred. This is set forth at 8 CFR 3.2(b)(3). Otherwise, the standard motions to reconsider and/or reopen would be allowed, but would be subject to all the regular requirements and restrictions regarding motions, including the time and number limitations.

In addition to providing for a new procedure for affirmance without opinion by a single Board Member, the proposed rule also provides that a single Board Member or the Chief Attorney Examiner may adjudicate certain motions or other procedural or ministerial appeals. Presently, the regulations allow a single Board Member or the Chief Attorney Examiner to adjudicate unopposed motions or motions to withdraw an appeal. See 8 CFR 3.1(a). The proposed rule designates additional categories of cases as suitable for disposition by a single Board Member or the Chief Attorney Examiner. Unlike the procedure described above for single Board Member affirmance without opinion, these dispositions will not generally be affirming a result below. Rather, in these cases, a single fact easily identified in the record of proceedings dictates the result directly through a statute, a regulation, or a controlling precedent, with little or no discretion required. Dispositions under this procedure are separate and distinct from affirmances without opinions.

Under the proposed rule, the additional instances in which a single Board Member or the Chief Attorney Examiner may adjudicate a matter under section 3.1(a)(1) are: (1) a Service motion to remand an appeal from the denial of a visa petition where the Regional service Center Director requests that the matter be remanded to the Service for further consideration of the appellant's arguments or evidence raised on appeal; (2) a case in which remand is required because of a defective or missing transcript; and (3) other procedural or ministerial adjudications as provided by the Chairman (for example, to dismiss an appeal as moot where the alien has since become a lawful permanent resident).

The proposed rule also amends the regulation regarding summary dismissals of appeals, presently set forth at 8 CFR 3.1(d)(1-a). The revised rule, redesignated as section 3.1(d)(2), adds to the existing rule other types of cases appropriate for summary dismissal, specifies that a single Board Member or Chief Attorney Examiner has the authority to dispose of such cases, and authorizes the Chairman to designate who from among the Board Members and Chief Attorney Examiner may exercise this authority Summary dismissal is also a procedure separate and distinct from affirmance without opinion.

In addition to the existing grounds for summary dismissal, this rule adds dismissals for lack of jurisdiction including (1) cases in which the appeal or motion does not fall within the Board's jurisdiction; (2) cases in which jurisdiction over a motion lies with the

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Immigration Judge rather than with the Board; (3) untimely appeals and motions; and (4) cases in which it is clear that the right of appeal was affirmatively waived.

The complexity of the language of this streamlining rule clearly indicates the need for a complete reorganization of Part 3 of 8 CFR. The Executive Office for Immigration Review is presently working on such a reorganization. This proposed rule is being published in advance of that reorganization because of the urgent need to implement the streamlining procedures without delay.

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b), the Attorney General certifies that this proposed rule affects only individuals in immigration proceedings before the Executive Office for Immigration Review whose appeals are decided by the Board of Immigration Appeals. Therefore, this proposed rule does not have a significant economic impact on a substantial number of small entities.

Executive Order 12866

This proposed rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. This proposed rule falls within a category of actions that the Office of Management and Budget (OMB) has determined not to constitute ``significant regulatory actions'' under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and accordingly has not been submitted to OMB for review.

Executive Order 12612

This proposed 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 12612, the Department of Justice has determined that this rule does not have sufficient federalism implications to warrant the preparation of Federalism Assessment.

Executive Order 12988

The proposed rule meets the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

This proposed 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.

Small Business Regulatory Enforcement Fairness Act of 1996

This proposed rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of Untied States-based companies to compete with foreign-based companies in domestic and export markets.

List of Subjects in 8 CFR Part 3

Administrative practice and procedure, Immigration, Lawyers, Organizations and functions (Government agencies), Reporting and recordkeeping requirements.

Accordingly, part 3 of chapter 1 of title 8 of the Code of Federal Regulations is proposed to be amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

1. The authority citation for part 3 is revised to read as follows:

   Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b, 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.

2. Section 3.1 is amended by:

   1. Adding two sentences at the end of paragraph (a)(1);

   2. Adding a new paragraph (a)(7);

   3. Redesignating paragraphs (d)(1-a), (2), and (3) as paragraphs (d)(2), (3), and (4), respectively;

   4. Removing the word ``or'' at the end of newly designated paragraph (d)(2)(i)(E);

   5. Further redesignating paragraph (d)(2)(i)(F) as paragraph (d)(2)(i)(H);

   6. Adding new paragraphs (d)(2)(i)(F) and (G);

   7. Redesignating paragraph (d)(2)(ii) as paragraph (d)(2)(iii); and by

   8. Adding a new paragraph (d)(2)(ii), to read as follows:

   Sec. 3.1 General authorities.

   (a)(1) Organization. * * * In addition, a single Board Member or the Chief Attorney Examiner may exercise such authority in the following instances: a Service motion to remand an appeal from the denial of a visa petition where the Regional Service Center Director requests that the matter be remanded to the Service for further consideration of the appellant's arguments or evidence raised on appeal; a case where remand is required because of a defective or missing transcript; and other procedural or ministerial adjudications as provided by the Chairman. A motion to reconsider or to reopen a decision that was rendered by a single Board Member or the Chief Attorney Examiner may be adjudicated by that Board Member or by the Chief Attorney Examiner. * * * * *

   (5) Affirmance without opinion. (i) A single permanent Board Member may affirm, without opinion, any decision in which the Board Member concludes that there is no legal or factual basis for reversal of the decision by the Service or the Immigration Judge. The Chairman may designate, from time to time, the Board Members who are authorized to exercise the authority to affirm cases without opinion. The Chairman may designate certain categories of cases as suitable for review pursuant to this paragraph.

   (ii) The single Board Member to whom a case is assigned may affirm the decision of the Service or the Immigration Judge, without opinion, if the Board Member determines that the result reached in the decision under review was correct; and any errors in the decision under review were harmless or nonmaterial; and

   (A) The issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of such precedent to a novel fact situation; or

   (B) The factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted.

   (iii) If the Board Member determines that the decision should be affirmed without opinion, the Board shall issue an order that states, ``The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination.'' An order affirming without opinion shall not include further explanation or reasoning. An order affirming without opinion approves the result reached in the decision below; it does not necessarily imply approval of all of the reasoning of that decision, but does signify the Board's conclusion that the errors alleged to have been made below, if any, were harmless or nonmaterial.

   (iv) If the Board Member determines that the decision is not appropriate for

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   affirmance without opinion, the case will be assigned to a three-Member panel for review and decision. The panel to which the case is assigned also has the authority to determine that a case should be affirmed without opinion. * * * * *

   (d) Powers of the Board--(1) * * *

   (2) Summary dismissal of appeals. (i) Standards. * * *

   (F) The appeal does not fall within the Board's jurisdiction, or lies with the Immigration Judge rather than the Board;

   (G) The appeal is untimely, or it is clear on the record that the right of appeal was affirmatively waived; or

   (H) * * *

   (ii) Action by the Board. The Chairman may provide for the exercise of the appropriate authority of the Board to dismiss an appeal pursuant to paragraph (d)(2) of this section by a three-Member panel, or by a single Board Member or the Chief Attorney Examiner. The Chairman may determine who from among the Board Members or the Chief Attorney Examiner is authorized to exercise the authority under this paragraph and the designation may be changed by the Chairman as he deems appropriate. Except as provided in this part for review by the Board en banc or by the Attorney General, or for consideration of motions to reconsider or reopen, an order dismissing any appeal pursuant to paragraph (d)(2) shall constitute the final decision of the Board. If the single Board Member or the Chief Attorney Examiner to whom the case is assigned determines that the case is not appropriate for summary dismissal, the case will be assigned for review and decision pursuant to paragraph (a) of this section. * * * * *

3. Section 3.2 is amended by adding a new paragraph (b)(3) to read as follows:

   Sec. 3.2 Reopening or reconsideration before the Board of Immigration Appeals

   * * * * *

   (b) * * *

   (3) A motion to reconsider based solely on the argument that the case should not have been affirmed without opinion by a single Board Member, or by a three-Member panel, is barred. * * * * *

   Dated: September 8, 1998. Janet Reno, Attorney General.

   [FR Doc. 98-24571Filed9-11-98; 8:45 am]

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