Organization of the Executive Office for Immigration Review
| Published date | 26 August 2019 |
| Citation | 84 FR 44537 |
| Record Number | 2019-18196 |
| Section | Rules and Regulations |
| Court | Executive Office For Immigration Review |
Federal Register, Volume 84 Issue 165 (Monday, August 26, 2019)
[Federal Register Volume 84, Number 165 (Monday, August 26, 2019)]
[Rules and Regulations]
[Pages 44537-44543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18196]
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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. 84, No. 165 / Monday, August 26, 2019 / Rules
and Regulations
[[Page 44537]]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
28 CFR Part 0
8 CFR Parts 1001, 1003, and 1292
[EOIR Docket No. 18-0502; A.G. Order No. 4515-2019]
RIN 1125-AA85
Organization of the Executive Office for Immigration Review
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Interim rule; request for comment.
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SUMMARY: This interim rule amends the regulations related to the
internal organization of the Executive Office for Immigration Review
(``EOIR''). This interim rule reflects changes related to the
establishment of an Office of Policy within EOIR in 2017, and makes
related clarifications or changes to the organizational role of EOIR's
Office of the General Counsel (``OGC'') and Office of Legal Access
Programs (``OLAP''). This interim rule further updates the Department
of Justice (``Department'') organizational regulations to synchronize
them with EOIR's regulations, makes nomenclature changes to the titles
of the members of the Board of Immigration Appeals (``BIA'' or
``Board''), and provides for a further delegation of authority from the
Attorney General to the EOIR Director (``Director'') regarding the
efficient disposition of appeals. This interim rule also clarifies the
Director's authority to adjudicate cases following changes to EOIR's
Recognition and Accreditation Program (``R&A Program'') in 2017.
DATES: This rule is effective August 26, 2019.
Written or electronic comments must be submitted on or before
October 25, 2019. Written comments postmarked on or before that date
will be considered timely. The electronic Federal Docket Management
System will accept comments until midnight eastern standard time at the
end of that day.
ADDRESSES: Please submit written comments to Lauren Alder Reid,
Assistant Director, Office of Policy, Executive Office for Immigration
Review, 5107 Leesburg Pike, Suite 2616, Falls Church, VA 22041, Contact
Telephone Number (703) 305-0289 (not a toll-free call). To ensure
proper handling, please reference RIN No. 1125-AA85 or EOIR Docket No.
18-0502 on your correspondence. You may submit comments electronically
or view an electronic version of this interim rule at
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director,
Office of Policy, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2616, Falls Church, VA 22041, Contact Telephone
Number (703) 305-0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Background
EOIR is a component of the Department with the primary mission of
adjudicating immigration cases by fairly, expeditiously, and uniformly
interpreting and administering the Nation's immigration laws, primarily
pursuant to the Immigration and Nationality Act (``INA''). Under
delegated authority from the Attorney General, EOIR conducts
immigration court proceedings, appellate reviews, and administrative
hearings. The Director exercises delegated authority from the Attorney
General in managing the operations of EOIR. See 8 CFR 1003.0(a), (b).
In 2007, the Department finalized regulations delegating certain
authorities from the Attorney General to the Director regarding the
management of EOIR in an effort to improve ``the workings of the
immigration hearing process before the immigration judges and the
Board.'' 72 FR 53673, 53673 (Sept. 20, 2007).
Prior to 2017, EOIR contained eight components on its official
organization chart approved by the Attorney General. Three of the
listed components are adjudicatory: The Office of the Chief Immigration
Judge, which is responsible for managing the immigration courts where
immigration judges adjudicate individual cases; the BIA, which
primarily conducts appellate reviews of immigration judge decisions;
and the Office of the Chief Administrative Hearing Officer (``OCAHO''),
which adjudicates immigration-related employment cases, discrimination
cases, and document fraud cases pursuant to 8 U.S.C. 1324a, 1324b, and
1324c. Three of the listed components are non-adjudicatory: OGC; the
Office of Administration; and the Office of Information Technology. The
remaining two components are the Office of the Director and the Office
of the Deputy Director.
EOIR also contains four offices or divisions that are located
within the Office of the Director and, thus, do not appear on its
official organization chart approved by the Attorney General. See
https://www.justice.gov/eoir/eoir-organization-chart/chart. One of
those offices is OLAP, which administers legal orientation programs for
aliens in immigration proceedings and for custodians of unaccompanied
alien children and helps administer the National Qualified
Representative Program as part of EOIR's Nationwide Policy regarding
procedural protections for detained aliens who may have competency
issues in immigration proceedings.\1\ OLAP, formerly known as the Legal
Orientation and Pro Bono Program, was established in 2000 as part of
the Office of the Director. In 2002, it was moved from the Office of
the Director to OGC, and, in 2009, it was moved from OGC to the BIA. In
2011, it was moved back to the Office of the Director. As of 2017, OLAP
also administers EOIR's R&A Program, which authorizes representatives
of non-profit religious, charitable, social service, or similar
organizations to represent persons in immigration proceedings before
EOIR and in cases with the Department of Homeland Security (``DHS'').
See 81 FR 92346 (Dec. 19, 2016). Prior to 2017, the R&A Program was
administered by the BIA.
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\1\ The other three offices are the Office of the Ombuds, the
Equal Employment Opportunity Office, and the Planning, Analysis, and
Statistics Division, which exercise responsibilities applicable to
all components currently listed on EOIR's organizational chart.
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Apart from EOIR's specific regulations in 8 CFR chapter V, the
Department maintains organizational regulations for EOIR in 28 CFR part
0, subpart U. Over
[[Page 44538]]
the years, however, those regulations have not been updated to maintain
consistency with EOIR's specific regulations in title 8.
Regarding the BIA, the Attorney General has delegated authority to
the BIA to adjudicate specified categories of appeals, primarily from
immigration judge decisions in removal proceedings. 8 CFR 1003.1(b).\2\
In both substance and practice, Board members function as appellate
immigration judges. In 2000, the Department acknowledged the role of
Board members as appellate immigration judges, though it declined to
change their titles in 2007 due to possible confusion among the public.
See 65 FR 81434 (Dec. 26, 2000); 72 FR at 53673-74.
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\2\ The BIA also hears appeals from decisions by immigration
judges in custody proceedings, among other matters, and from
decisions by DHS adjudicators involving certain visa petitions and
civil fine matters.
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The Attorney General has also required the BIA Chairman to
establish a case management system to ensure the efficient adjudication
of appeals. 8 CFR 1003.1(e). With limited exceptions, appeals assigned
to a single Board member shall be adjudicated within 90 days of the
completion of the record, and appeals assigned to a three-member panel
shall be completed within 180 days after assignment. 8 CFR
1003.1(e)(8)(i). Appeals that are not completed within the relevant
time limits and that are not subject to an exception shall be assigned
by the Chairman to either himself or a Vice Chairman for final decision
within 14 days, or the Chairman shall refer them to the Attorney
General. 8 CFR 1003.1(e)(8)(ii).
The Director has no authority to adjudicate specific cases under
the INA or to direct the adjudication of specific cases under the INA.
8 CFR 1003.0(c). In 2017, however, the Director was given authority
under 8 CFR 1292.18 to adjudicate requests for review of three types of
reconsideration decisions related to EOIR's R&A Program, but 8 CFR
1003.0(c) was not updated to reflect this authority.
II. Summary of Regulatory Changes
In a 2017 reorganization, the Attorney General approved the
addition of the Office of Policy within EOIR. The Department of Justice
is now amending EOIR's regulations to reflect the establishment of this
new component.
This interim rule with request for comment (``interim rule'' or
``rule'') outlines the functions and roles of the Office of Policy,
similar to how the functions of other EOIR components are outlined in
the regulations. This rule also delineates and clarifies the functions
of the Office of Policy and OGC within EOIR. Finally, because EOIR has
determined that there is no need for OLAP to remain in the Office of
the Director, this rule transfers OLAP's responsibilities to a division
in the Office of Policy and removes references in the regulations to
OLAP and the OLAP Director, effectively moving OLAP to the Office of
Policy.
In addition, this rule updates the Department's general
organizational regulations in 28 CFR part 0, subpart U, to be
consistent with EOIR's current organizational structure outlined in 8
CFR part 1003, changes the titles of members of the BIA to better
reflect the nature of their adjudicatory responsibilities, and
delegates authority from the Attorney General to the Director in
situations in which appeals pending before the BIA have not been timely
resolved in order to allow more practical flexibility in efficiently
deciding appeals. This rule also resolves tension between the
limitation in 8 CFR 1003.0(c) on the Director's authority to adjudicate
or to direct the adjudication of specific cases under the INA, and 8
CFR 1292.18 regarding the Director's authority to adjudicate requests
for review arising under the regulations in the context of the R&A
Program, along with any similar tension that would otherwise arise
regarding the Director's new authority to adjudicate appeals that have
not been timely resolved by the BIA.
III. Analysis of Interim Rule
A. Office of Policy and Office of the General Counsel
The Office of Policy was established in 2017 to assist in
effectuating authorities given to the Director in 8 CFR 1003.0(b)(1),
including the authority to, inter alia, issue operational instructions
and policy, administratively coordinate with other agencies, and
provide for training to promote quality and consistency in
adjudications. The Office of Policy both improves efficiency by
reducing redundant activities performed by multiple components and
ensures consistency and coordination of legal and policy activities
across multiple components within EOIR. To that end, this rule
delineates the various functions that the Office of Policy performs.
In delineating the functions performed by the Office of Policy,
this rule also distinguishes those functions from activities performed
by OGC, thereby clarifying the scope of OGC's authority. Currently, OGC
oversees multiple EOIR programs, including those related to employee
discipline, ethics, anti-fraud efforts, practitioner discipline,
privacy, Freedom of Information Act requests, litigation support, and
regulatory development and review. As these programs have expanded
commensurate with the national salience of immigration issues in recent
years, this change has challenged OGC's ability to devote sufficient
resources to all of the programs within its purview. Moreover, some of
the programs currently under OGC, such as regulatory development and
review, involve a substantial policy role. Consequently, the rule
transfers some of OGC's current programs to the Office of Policy to
ensure sufficient resources for those programs and to more
appropriately align those programs with their policymaking character.
The General Counsel, under the supervision of the Director, serves
as the chief legal counsel of EOIR, including to the Chairman of the
BIA, the Chief Immigration Judge, and the Chief Administrative Hearing
Officer on matters of immigration law. 8 CFR 1003.0(e). The current
regulation does not exclude advising on issues related to the general
adjudication of immigration cases, although it does provide that the
General Counsel shall not supervise legal activities related to
specific adjudications. See id. This delineation of the General
Counsel's responsibilities has created confusion as many activities
that OGC currently performs--ranging from advice on the discipline of
immigration judges to advice regarding litigation positions to advice
on policy--may relate directly or indirectly to the adjudication of
specific cases, creating tension with the existing regulation. For
example, as the chief legal counsel for EOIR, including its
adjudicatory components, the General Counsel may take a position on
immigration law through the complaint process involving an
adjudicator's decision that is arguably neither the best nor only view
of the law, leaving EOIR's adjudicators uncertain as to whose view to
follow in order to adjudicate cases without risk of potential
discipline or corrective action. Accordingly, the rule explains that
the General Counsel, subject to the supervision of the Director,
remains the chief legal counsel and supervisor of legal activities
related to specific categories of issues, but expressly provides that
the General Counsel does not have authority to influence the
adjudication of specific cases under the INA, including as an advisor
on disciplinary matters related to the adjudication of cases under the
[[Page 44539]]
INA. It also explains that the General Counsel may continue to advise
on matters of immigration law, provided that the advice does not direct
or influence specific adjudications under the Act.
B. Office of Legal Access Programs
On October 1, 2015, as part of revisions to its R&A Program, EOIR
issued a proposed rule to formalize the structure of OLAP under the
supervision of the Director. See 80 FR 59514 (Oct. 1, 2015). That rule
was finalized on December 19, 2016, and went into effect on January 18,
2017. See 81 FR 92346. Although OLAP was established in EOIR's
regulations in 8 CFR 1003.0(f), it was not established in the
Department of Justice's organizational regulations for EOIR in 28 CFR
part 0, subpart U. Additionally, although it was identified in the
regulations, it did not appear on any official EOIR organizational
chart approved by the Attorney General. See https://www.justice.gov/eoir/eoir-organization-chart/chart. OLAP has been transferred multiple
times among different EOIR components since 2000, and no justification
was provided in either the proposed rule or the final rule regarding
why OLAP should be codified as an entity within EOIR reporting directly
to the Director. Overall, its structural position within EOIR is
anomalous.
The interim rule transfers OLAP's responsibilities to a division in
the Office of Policy and removes references in the regulations to OLAP
and the OLAP Director, effectively moving OLAP to the Office of Policy.
EOIR has determined that there is no organizational justification for
OLAP to remain in the Office of the Director. Instead, OLAP and its
functions most appropriately belong in the Office of Policy, which can
help coordinate OLAP's work across adjudicatory components. Further,
locating OLAP within EOIR's principal policy component is consistent
with OLAP's role in effectuating EOIR's Nationwide Policy regarding
procedural protections for detained aliens who may be deemed
incompetent. This move ensures an appropriate chain of command and
better management of OLAP's programs, provides for better coordination
of OLAP's functions within the broader scope of EOIR's adjudicatory
operations, and allows for greater flexibility in the future regarding
OLAP's mission, which has expanded significantly in recent years. This
rule is not intended to change--and does not have the effect of
changing--any of OLAP's current functions.
C. The Department's Organizational Regulations
Apart from EOIR's specific regulations in 8 CFR chapter V, the
Department of Justice maintains organizational regulations for EOIR in
28 CFR part 0, subpart U. Over the years, those regulations have not
been updated to maintain consistency with EOIR's specific regulations
in title 8, leading to some inconsistencies. For example, the
Department's organizational regulations differ from EOIR's regulation
as to the composition of the Board. Compare 8 CFR 1003.1(a)(1), (2),
with 28 CFR 0.116. Moreover, the Department's regulation for OCAHO has
not been updated to reflect OCAHO's jurisdiction over cases arising
under 8 U.S.C. 1324c. Compare 28 CFR 68.1, with 28 CFR 0.118. Further,
although EOIR's regulations provide for the delegation of authority
from the Director to the General Counsel or any other EOIR employee,
the Department's regulations do not mention the General Counsel or
other EOIR employees at all. Compare 8 CFR 1003.0(b)(2), (e), with 28
CFR 0.115(b).
This rule eliminates the inconsistencies between the EOIR-related
regulations in title 8 and title 28, reduces the likelihood of future
inconsistencies by accounting for the possibility of future changes in
title 8, updates outdated regulatory citations,\3\ and harmonizes the
two sets of regulations related to EOIR's structure, including by
adding references to both OGC and the new Office of Policy in title 28.
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\3\ On November 25, 2002, the President signed into law the
Homeland Security Act of 2002 (``HSA''), creating the new DHS and
transferring the functions of the former Immigration and
Naturalization Service (``INS'') to DHS. Public Law 107-296, tit.
IV, subtitles D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002)
(effective March 1, 2003). Under the HAS, the Attorney General
retained the functions of EOIR in the Department. HSA sec. 1101, 6
U.S.C. 521; INA sec. 103(g), 8 U.S.C. 1103(g). In order to implement
the transfer of the functions of the former INS (now within DHS),
the Attorney General reorganized title 8 of the Code of Federal
Regulations and divided the regulations into chapters, so that
chapter I contains regulations relating to the functions of the
former INS and chapter V contains regulations relating to the
functions of EOIR. See 68 FR 9824 (Feb. 28, 2003); see also 68 FR
10349 (March 5, 2003). The regulations governing proceedings before
EOIR are now contained in 8 CFR chapter V, beginning with part 1001.
Accordingly, outdated references in title 28, CFR, to pre-
reorganizational regulations are corrected with this rule.
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D. The Board of Immigration Appeals
This rule provides that members of the Board shall also be known as
``Appellate Immigration Judges'' in order to more accurately reflect
their adjudicatory functions. The Department has previously considered
changing the title of Board members to ``Appellate Immigration Judges''
by regulation, but elected not to because of possible confusion by the
public with federal appellate judges appointed under Article III of the
Constitution. See 65 FR at 81434; 72 FR at 53673-74. The Department has
now determined, however, that it is appropriate to incorporate this
title to better reflect the role of Board members in adjudicating cases
that come before them as designated by the Attorney General. The
importance of more accurately representing the role of Board members
outweighs any potential confusion, which the Department does not
anticipate to be significant given the public salience of immigration-
related adjudication in recent years.
Additionally, this rule reflects a further delegation of authority
from the Attorney General regarding the efficient disposition of BIA
cases on appeal. The BIA Chairman has established a case management
system to ensure the efficient adjudication of appeals. See 8 CFR
1003.1(e). With limited exceptions, appeals assigned to a single Board
member shall be adjudicated within 90 days of the completion of the
record, and appeals assigned to a three-member panel shall be completed
within 180 days after assignment. 8 CFR 1003.1(e)(8)(i). For appeals
that are not completed within the relevant time limits and that are not
subject to an exception, the Chairman shall assign them to either
himself or a Vice Chairman for completion within 14 days, or the
Chairman shall refer them to the Attorney General. 8 CFR
1003.1(e)(8)(ii). Due to his numerous other responsibilities and
obligations, the Attorney General is not in a position to adjudicate
any BIA appeal simply because it has exceeded its time limit for
adjudication. Further, it is operationally anomalous for the Chairman,
who is under the supervision of the Director, to be able to directly
refer a case to the Attorney General based solely on a workload
management issue, rather than on the underlying merits of the case. As
the supervisor of the Chairman and already possessing the authority to
ensure that adjudications are conducted in a timely manner, see 8 CFR
1003.0(b)(1)(ii), the Director is in a better position to address cases
that cannot be completed in a timely fashion by the BIA. The Director
is also in a direct position to implement changes to ensure that
untimely adjudications remain relatively rare. Accordingly, this rule
delegates authority from the Attorney General to the Director to
adjudicate BIA cases that
[[Page 44540]]
have otherwise not been adjudicated in a timely manner under the
regulations, based on a referral from the Chairman. The rule retains
the ability of EOIR to refer such cases to the Attorney General, but
only through the Director, consistent with standard management
principles of the elevation of workload and performance issues.
E. The EOIR Director
In 2017, responsibility for the R&A Program within EOIR was
transferred from the BIA to OLAP. See 81 FR 92346. Following that
transfer, the OLAP Director adjudicates initial applications for
recognition or accreditation, adjudicates requests for renewal of
recognition or accreditation, makes determinations on administrative
termination of recognition or accreditation, and adjudicates requests
for reconsideration of any of these decisions. 8 CFR 1292.13, 1292.16,
1292.17. The Director adjudicates requests to review the
reconsideration decisions of the OLAP Director. 8 CFR 1292.18.
The Director's authority to adjudicate requests to review certain
reconsideration decisions of the OLAP Director under 8 CFR 1292.18 is
in tension with the current language of 8 CFR 1003.0(c), which
otherwise precludes the Director from adjudicating cases arising under
the INA or regulations. The tension between these two regulations was
an oversight in the transfer of the R&A Program. Consequently, this
rule revises 8 CFR 1003.0(c) to clarify that the Director continues to
be precluded from adjudicating cases or directing the results of
certain adjudications, unless authorized to do so by another regulation
or otherwise designated or delegated authority by the Attorney General
to do so. The revision does not alter the Director's existing authority
under 8 CFR 1292.18, and will simultaneously avoid any similar tension
that would otherwise arise regarding the Director's new authority to
adjudicate appeals that have not been timely resolved by the BIA.\4\
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\4\ This rule also corrects a regulatory oversight by
reiterating that the Director may provide for appropriate
administrative coordination with the Department of Health and Human
Services (``HHS'') in addition to the other entities listed in 8 CFR
1003.0(b)(1)(iii). Such coordination is already provided for by
statute, 8 U.S.C. 1232, and the exclusion of HHS from this list was
inadvertent.
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IV. Public Comments
The interim rule is an internal delegation of authority and
assignment of responsibility, along with a change in nomenclature, and
is thus a rule of management or personnel; it further relates to a
matter of agency organization, procedure, or practice. See 5 U.S.C.
553(a)(2), (b)(A). Accordingly, the interim rule is exempt from the
usual requirements of prior notice and comment and a 30-day delay in
effective date. An internal delegation of administrative authority does
not adversely affect members of the public and involves an agency
management decision that is exempt from the notice-and-comment
rulemaking procedures of the Administrative Procedure Act (``APA'').
See United States v. Saunders, 951 F.2d 1065, 1068 (9th Cir. 1991)
(delegations of authority have ``no legal impact on, or significance
for, the general public,'' and ``simply effect[] a shifting of
responsibilities wholly internal to the Treasury Department'');
Lonsdale v. United States, 919 F.2d 1440, 1446 (10th Cir. 1990) (``APA
does not require publication of [rules] which internally delegate
authority to enforce the Internal Revenue laws''); United States v.
Goodman, 605 F.2d 870, 887-88 (5th Cir. 1979) (unpublished delegation
of authority from Attorney General to Acting Administrator of the Drug
Enforcement Agency did not violate APA); Hogg v. United States, 428
F.2d 274, 280 (6th Cir. 1970) (where taxpayer would not be adversely
affected by the internal delegations of authority from the Attorney
General, APA does not require publication).
The Department is nonetheless promulgating 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.
Written comments must be received on or before October 25, 2019.
V. Regulatory Requirements
A. Administrative Procedure Act
As noted in section IV of this preamble, this interim rule is a
rule of management or personnel as well as a rule of agency
organization, procedure, or practice, and is exempt from the
requirements for notice-and-comment rulemaking and a 30-day delay in
effective date. See 5 U.S.C. 553(a)(2), (b)(A).
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (``RFA''), ``[w]henever an
agency is required by section 553 of [the APA], 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-comment rulemaking under 5 U.S.C. 553(b). 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 for this rule.
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. Further, because this rule is one of internal organization,
management, or personnel, it is not subject to the requirements of
Executive Orders 13563 or 13771.
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, 44 U.S.C.
chapter 35, and its implementing regulations, 5 CFR part 1320, do not
apply to this rule because there are no new or revised recordkeeping or
reporting requirements.
[[Page 44541]]
H. Congressional Review Act
This is not a major rule as defined by 5 U.S.C. 804(2). This action
pertains to agency management or personnel and is a rule of agency
organization that does not substantially affect the rights or
obligations of non-agency parties. Accordingly, it 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
8 CFR Part 1001
Administrative practice and procedure, Immigration.
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
services, Organization and functions (Government agencies).
8 CFR Part 1292
Administrative practice and procedure, Immigration, Lawyers,
Reporting and recordkeeping requirements.
28 CFR Part 0
Authority delegations (Government agencies), Government employees,
Organization and functions (Government agencies), Privacy, Reporting
and recordkeeping requirements, Whistleblowing.
Accordingly, for the reasons set forth in the preamble, the
Attorney General is amending parts 1001, 1003, and 1292 of title 8 of
the Code of Federal Regulations and part 0 of title 28 of the Code of
Federal Regulations as follows:
Title 8 of the Code of Federal Regulations
PART 1001--DEFINITIONS
0
1. The authority citation for part 1001 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107-296,
116 Stat. 2135; Title VII of Pub. L. 110-229.
Sec. 1001.1 [Amended]
0
2. Section 1001.1 is amended by removing and reserving paragraphs (x)
and (y).
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
3. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
0
4. Section 1003.0 is amended by:
0
a. Revising paragraphs (a), (b)(1) introductory text, (b)(1)(iii),
(b)(2), and (c);
0
b. Revising the first sentence of paragraph (d);
0
c. Removing paragraph (f);
0
d. Redesignating paragraph (e) as paragraph (f);
0
e. Adding a new paragraph (e); and
0
f. Revising newly redesignated paragraphs (f) introductory text and
(f)(1).
The revisions and addition read as follows:
Sec. 1003.0 Executive Office for Immigration Review.
(a) Organization. Within the Department of Justice, there shall be
an Executive Office for Immigration Review (EOIR), headed by a Director
who is appointed by the Attorney General. The Director shall be
assisted by a Deputy Director and the heads of EOIR's other components,
who shall report to the Director and Deputy Director. EOIR shall
include the Board of Immigration Appeals, the Office of the Chief
Immigration Judge, the Office of the Chief Administrative Hearing
Officer, the Office of Policy, the Office of the General Counsel, and
such other components and staff as the Attorney General or the Director
may provide.
(b) * * *
(1) In general. The Director shall manage EOIR and its employees
and shall be responsible for the direction and supervision of each EOIR
component in the execution of its respective duties pursuant to the Act
and the provisions of this chapter. Unless otherwise provided by the
Attorney General, the Director shall report to the Deputy Attorney
General and the Attorney General. The Director shall have the authority
to:
* * * * *
(iii) Provide for appropriate administrative coordination with the
other components of the Department of Justice, with the Department of
Homeland Security, with the Department of Health and Human Services,
and with the Department of State;
* * * * *
(2) Delegations. The Director may delegate the authority given to
him by this part or otherwise by the Attorney General to the Deputy
Director, the Chairman of the Board of Immigration Appeals, the Chief
Immigration Judge, the Chief Administrative Hearing Officer, the
Assistant Director for Policy, the General Counsel, or any other EOIR
employee.
(c) Limit on the authority of the Director. Except as provided by
statute, regulation, or delegation of authority from the Attorney
General, or when acting as a designee of the Attorney General, the
Director shall have no authority to adjudicate cases arising under the
Act or regulations or to direct the result of an adjudication assigned
to the Board, an immigration judge, the Chief Administrative Hearing
Officer, or an Administrative Law Judge. Nothing in this part, however,
shall be construed to limit the authority of the Director under
paragraphs (a) or (b) of this section.
(d) Deputy Director. The Deputy Director shall advise and assist
the Director in the supervision and management of EOIR and the
formulation of policy and guidelines. * * *
(e) Office of Policy. Within EOIR, there shall be an Office of
Policy consisting of an Assistant Director for Policy and other such
staff as the Director deems necessary. Subject to the supervision of
the Director, the Office of Policy shall provide assistance to the
Director and heads of the other components within EOIR.
(1) In general. In coordination with the Director and subject to
the Director's supervision, the Assistant Director for Policy shall
supervise all policy activities of EOIR. Subject to the supervision of
the Director and in coordination with other components as appropriate,
the Assistant Director for Policy shall also oversee EOIR's regulatory
development and implementation process, shall supervise and coordinate
EOIR's internal development, dissemination, and implementation of
policy guidance, shall supervise and administer EOIR's pro bono and
legal orientation program activities, shall supervise the provision of
legal and policy training to all components within EOIR on all relevant
matters under its supervision, and shall perform other such duties or
exercise other such authorities as the Director may provide.
(2) Limit on the Authority of the Assistant Director for Policy.
The Assistant Director for Policy shall have no authority to adjudicate
cases arising under the Act or regulations, except under paragraph
(e)(3) of this section, and shall not direct the result of an
adjudication assigned to the Board, an
[[Page 44542]]
immigration judge, the Chief Administrative Hearing Officer, or an
Administrative Law Judge; provided, however, that nothing in this part
shall be construed to limit the authority of the Assistant Director for
Policy under paragraph (e)(1) of this section.
(3) Recognition and accreditation. The Assistant Director for
Policy, in consultation with the Director, shall maintain a division
within the Office of Policy to develop and administer a program to
recognize organizations and accredit representatives to provide
representation before the Immigration Courts, the Board, and DHS, or
DHS alone. The Assistant Director for Policy shall determine whether an
organization and its representatives meet the eligibility requirements
for recognition and accreditation in accordance with this chapter. The
Assistant Director for Policy shall also have the authority to
administratively terminate the recognition of an organization and the
accreditation of a representative and to maintain the roster of
recognized organizations and their accredited representatives. The
Assistant Director for Policy, in consultation with the Director, may
also delegate authority established in 8 CFR 1292.6 and 8 CFR 1292.11
through 1292.20 within the Office of Policy.
(f) General Counsel. Subject to the supervision of the Director,
the General Counsel shall serve as the chief legal counsel of EOIR on
matters of ethics, records management, release of information pursuant
to the Freedom of Information Act, employee performance and discipline
(except in matters related to the discipline of adjudicators for
decisions made in the adjudication of cases under the Act),
practitioner discipline, and other related areas not inconsistent with
the law. Subject to the supervision of the Director, the General
Counsel shall supervise all legal activities and provide legal advice
and assistance to the Director, Deputy Director, and other component
heads in accordance with this section. In consultation with other EOIR
components as appropriate, the General Counsel may also advise the
Director or Deputy Director on other legal matters, including matters
related to immigration law or policy and related to adjudicator
discipline, provided that the General Counsel shall have no authority,
directly or indirectly, to direct or influence the adjudication of any
cases under the Act.
(1) Professional standards. The General Counsel shall administer
programs to protect the integrity of legal representation in
immigration proceedings before EOIR, including administering the
disciplinary program for practitioners and recognized organizations
under subpart G of this part.
* * * * *
0
5. Section 1003.1 is amended by adding a sentence to the end of
paragraphs (a)(1), (a)(2) introductory text, and (a)(4) and revising
paragraph (e)(8)(ii) to read as follows:
Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.
(a)(1) * * * The Board members shall also be known as Appellate
Immigration Judges.
(2) * * * The Chairman of the Board of Immigration Appeals shall
also be known as the Chief Appellate Immigration Judge, and a Vice
Chairman of the Board of Immigration Appeals shall also be known as a
Deputy Chief Appellate Immigration Judge.
* * * * *
(4) * * * Temporary Board members shall also be known as temporary
Appellate Immigration Judges.
* * * * *
(e) * * *
(8) * * *
(ii) In exigent circumstances, the Chairman may grant an extension
in particular cases of up to 60 days as a matter of discretion. Except
as provided in paragraph (e)(8)(iii) or (iv) of this section, in those
cases where the panel is unable to issue a decision within the
established time limits, as extended, the Chairman shall either assign
the case to himself or a Vice Chairman for final decision within 14
days or shall refer the case to the Director for decision. If a
dissenting or concurring panel member fails to complete his or her
opinion by the end of the extension period, the decision of the
majority will be issued without the separate opinion. For a case
referred to the Director under this paragraph, the Director shall
exercise delegated authority from the Attorney General identical to
that of the Board as described in this section, including the authority
to issue a precedent decision and the authority to refer the case to
the Attorney General for review, either on his own or at the direction
of the Attorney General.
* * * * *
Sec. 1003.108 [Amended]
0
6. Section 1003.108 is amended in paragraphs (a)(3) and (b) by removing
the phrase ``OLAP Director'' and adding in its place ``Assistant
Director for Policy (or the Assistant Director for Policy's
delegate)''.
PART 1292--REPRESENTATION AND APPEARANCES
0
7. The authority citation for part 1292 continues to read as follows:
Authority: 8 U.S.C. 1103, 1362.
Sec. Sec. 1292.6, 1292.11, 1292.12, 1292.13, 1292.14, 1292.15,
1292.16, 1292.17, 1292.18, 1292.19, 1292.20 [Amended]
0
8. Sections 1292.6, 1292.11, 1292.12, 1292.13, 1292.14, 1292.15,
1292.16, 1292.17, 1292.18, 1292.19, and 1292.20 are each amended by
removing the words ``OLAP Director'' each place that they appear and
adding in their place the words ``Assistant Director for Policy (or the
Assistant Director for Policy's delegate)''.
Sec. Sec. 1292.11, 1292.12, 1292.13, 1292.15, 1292.16,
1292.17 [Amended]
0
9. Sections 1292.11, 1292.12, 1292.13, 1292.15, 1292.16, and 1292.17
are each amended by removing the words ``OLAP Director's'' each place
that they appear and adding in their place the words ``Assistant
Director for Policy's (or the Assistant Director for Policy's
delegate's)''.
Sec. Sec. 1292.13, 1292.14, 1292.15, 1292.16, 1292.17, 1292.18
[Amended]
0
10. Sections 1292.13, 1292.14, 1292.15, 1292.16, 1292.17, and 1292.18
are each amended by removing the term ``OLAP'' each place that it
appears and adding in its place the words ``the Office of Policy''.
Title 28 of the Code of Federal Regulations
PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE
0
11. The authority citation for part 0 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
0
12. Sections 0.115 through 0.118 are revised to read as follows:
Sec.
* * * * *
0.115 General functions.
0.116 Board of Immigration Appeals.
0.117 Office of the Chief Immigration Judge.
0.118 Office of the Chief Administrative Hearing Officer.
* * * * *
Sec. 0.115 General functions.
(a) The Executive Office for Immigration Review shall be headed by
a Director who is appointed by the Attorney General. The Director shall
be assisted by a Deputy Director and the heads of EOIR's other
components, who shall report to the Director and Deputy Director. EOIR
shall include the Board
[[Page 44543]]
of Immigration Appeals, the Office of the Chief Immigration Judge, the
Office of the Chief Administrative Hearing Officer, the Office of
Policy, the Office of the General Counsel, and such other components
and staff as the Attorney General or the Director may provide.
(b) The Director may redelegate the authority delegated to him by
the Attorney General, subject to the provisions of 8 CFR 1003.0, to the
Deputy Director, the Chairman of the Board of Immigration Appeals, the
Chief Immigration Judge, the Chief Administrative Hearing Officer, the
Assistant Director for Policy, the General Counsel, or any other EOIR
employee.
Sec. 0.116 Board of Immigration Appeals.
The membership of the Board of Immigration Appeals shall be
established in accordance with 8 CFR 1003.1. The Chairman of the Board
of Immigration Appeals, who shall also be known as the Chief Appellate
Immigration Judge, shall be responsible for providing supervision and
establishing internal operating procedures of the Board in the exercise
of its authorities and responsibilities as delineated in 8 CFR 1003.1
through 1003.8.
Sec. 0.117 Office of the Chief Immigration Judge.
The Chief Immigration Judge shall provide general supervision to
the immigration judges in performance of their duties in accordance
with the Immigration and Nationality Act and 8 CFR 1003.9.
Sec. 0.118 Office of the Chief Administrative Hearing Officer.
The Chief Administrative Hearing Officer shall provide general
supervision to the Administrative Law Judges in performance of their
duties in accordance with 8 U.S.C. 1324a, 1324b, and 1324c, and carry
out any other responsibilities as provided by law, including the
authority to review decisions as provided in 28 CFR part 68.
Dated: August 19, 2019.
William P. Barr,
Attorney General.
[FR Doc. 2019-18196 Filed 8-23-19; 8:45 am]
BILLING CODE 4410-30-P
