Organization of the Executive Office for Immigration Review

• Published date: 03 November 2020
• Citation: 85 FR 69465
• Record Number: 2020-23210
• Section: Rules and Regulations
• Court: Executive Office For Immigration Review

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.

Rules and Regulations Federal Register

69465

Vol. 85, No. 213

Tuesday, November 3, 2020

DEPARTMENT OF JUSTICE

28 CFR Part 0

Executive Office for Immigration

Review

8 CFR Parts 1001, 1003, and 1292

[EOIR Docket No. 18–0502; A.G. Order No.

4874–2020]

RIN 1125–AA85

Organization of the Executive Office

for Immigration Review

AGENCY

: Executive Office for

Immigration Review, Department of

Justice.

ACTION

: Final rule.

SUMMARY

: On August 26, 2019, the

Department of Justice (‘‘Department’’)

published an interim final rule (‘‘IFR’’)

amending the regulations related to the

internal organization of the Executive

Office for Immigration Review (‘‘EOIR’’).

The amendments reflected changes

related to the establishment of EOIR’s

Office of Policy (‘‘OP’’) in 2017, made

related clarifications or changes to the

organizational role of EOIR’s Office of

the General Counsel (‘‘OGC’’) and Office

of Legal Access Programs (‘‘OLAP’’),

updated the Department’s

organizational regulations to align them

with EOIR’s regulations, made

nomenclature changes to the titles of the

members of the Board of Immigration

Appeals (‘‘BIA’’ or ‘‘Board’’), provided

for a delegation of authority from the

Attorney General to the EOIR Director

(‘‘Director’’) related to the efficient

disposition of appeals, and clarified the

Director’s authority to adjudicate cases

following changes to EOIR’s Recognition

and Accreditation Program (‘‘R&A

Program’’) in 2017. This final rule

responds to comments received and

adopts the provisions of the IFR with

some additional amendments:

Restricting the authority of the Director

regarding the further delegation of

certain regulatory authorities, clarifying

that the Director interprets relevant

regulatory provisions when adjudicating

recognition and accreditation (‘‘R&A’’)

cases, and reiterating the independent

judgment and discretion by which the

Director will consider cases subject to

his adjudication.

DATES

: This rule is effective on

November 3, 2020.

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, telephone (703) 305–0289 (not a

toll-free call).

SUPPLEMENTARY INFORMATION

:

I. Interim Final Rule: Summary and

Authority

On August 26, 2019, the Department

published an IFR amending the

regulations related to the internal

organization of EOIR. See Organization

of the Executive Office for Immigration

Review, 84 FR 44537 (Aug. 26, 2019).

A. Summary of Regulatory Changes

The IFR revised §§ 1001.1, 1003.0,

1003.1, 1003.108, 1292.6, 1292.11,

1292.12, 1292.13, 1292.14, 1292.15,

1292.16, 1292.17, 1292.18, 1292.19, and

1292.20 in title 8 of the Code of Federal

Regulations (‘‘CFR’’), and §§ 0.115,

0.116, 0.117, and 0.118 in title 28 of the

CFR.

1. Office of Policy

First, the IFR amended titles 8 and 28

of the CFR to reflect the establishment

of EOIR’s OP, which was created in

2017 to issue operational instructions

and policy, administratively coordinate

with other agencies, and provide for

training to promote quality and

consistency in adjudications. 84 FR at

44538. Prior to the IFR, EOIR’s

regulations outlined the functions of the

majority of other EOIR components but

did not include OP. The IFR added a

new paragraph (e) to 8 CFR 1003.0 that

provides the authority and

responsibilities of OP. 84 FR at 44538,

44541; see 8 CFR 1003.0(e).

As part of the codification of OP in

EOIR’s regulations, the IFR also

delineated OGC’s authority regarding

numerous EOIR programs and

transferred some of OGC’s programs to

OP to ensure sufficient resources and to

more appropriately align certain

programs with their policymaking

character. 84 FR at 44538–39; see 8 CFR

1003.0(e), (f).

2. Office of Legal Access Programs

To ensure proper functioning and

support of EOIR’s programs, the IFR

transferred OLAP’s responsibilities from

the Office of the Director (‘‘OOD’’) to a

division in OP. 84 FR at 44539. The

Department determined that OLAP more

appropriately belongs in OP, which has

improved abilities to facilitate and

coordinate OLAP’s work across

adjudicatory components in EOIR. Id.

Accordingly, the IFR removed and

reserved paragraphs (x) and (y) in 8 CFR

1001.1, which provided definitions for

OLAP and the OLAP Director. 84 FR at

44541. The IFR also revised 8 CFR

1003.108 and 8 CFR part 1292 by

replacing the phrases ‘‘OLAP’’ and

‘‘OLAP Director’’ with ‘‘Office of

Policy’’ and ‘‘Assistant Director for

Policy (or the Assistant Director for

Policy’s delegate),’’ respectively. 84 FR

at 44542.

3. The Department’s Regulations

The IFR sought to resolve

inconsistencies between title 8 and title

28, CFR, regarding EOIR’s

organizational structure. 84 FR at

44537–38, 44539. The Department’s

general organizational regulations are

located in 28 CFR part 0, subpart U.

EOIR’s current organizational structure

is outlined in 8 CFR part 1003. Over

time, these two titles were not updated

consistently, such that 28 CFR part 0

was generally outdated. The IFR aligned

these two titles, updated regulatory

citations, and provided for the

possibility for updates to title 8, thereby

reducing the likelihood for future

inconsistencies. 84 FR at 44539; see

generally 8 CFR pt. 1003; 28 CFR pt. 0,

subpt. U.

4. Board of Immigration Appeals

The IFR offered an alternate title for

members of the BIA—in addition to

being referred to as ‘‘Board members,’’

persons occupying those positions may

also be referred to as ‘‘Appellate

Immigration Judges’’ to better reflect the

nature of their responsibilities. 84 FR at

44539; see 8 CFR 1003.1(a)(1). The

Department believes the alternate title

reflects the adjudicatory responsibilities

those positions have for cases that the

Attorney General designates to come

before them. See 84 FR at 44539; see

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The Department reviewed all 193 comments

submitted in response to the rule; however, the

Department did not post five of the comments to

https://www.regulations.gov for public inspection.

Of these comments, four were duplicates of another

comment submitted by the same commenter, and

one, which asked a specific visa-related question

and provided a copy of a personal passport page,

was unrelated to the IFR. Accordingly, the

Department posted 188 comments.

2

‘‘LOP’’ is often used as an umbrella term to

describe all of the legal access programs

administered by OP: The general LOP, the LOPC,

the LOPC National Call Center, the Immigration

Court Help Desk, and the National Qualified

Representatives Program. Unless otherwise

indicated, all references to ‘‘LOP’’ herein refer to

only the general LOP.

also Authorities Delegated to the

Director of the Executive Office for

Immigration Review, the Chairman of

the Board of Immigration Appeals, and

the Chief Immigration Judge, 65 FR

81434, 81434 (Dec. 26, 2000)

(acknowledging that the substantive and

practical functions exercised by Board

members are aptly described by the title

‘‘Appellate Immigration Judge’’).

Relatedly, the IFR clarified in 8 CFR

1003.1(a)(2) and (4) that the Chairman of

the BIA should also be known as the

Chief Appellate Immigration Judge, a

Vice Chairman of the BIA should also be

known as a Deputy Chief Appellate

Immigration Judge, and temporary

Board members should also be known

as temporary Appellate Immigration

Judges. 84 FR at 44542; see 8 CFR

1003.1(a)(2), (4).

To provide more practical flexibility

and efficiency in deciding appeals, the

IFR delegated authority from the

Attorney General to the Director to

review certain cases from the BIA that

have not been timely resolved. 84 FR at

44539–40; see 8 CFR 1003.1(e)(8)(ii).

Specifically, the IFR amended 8 CFR

1003.1(e)(8)(ii) to provide that the

Chairman shall either assign to himself

or a Vice Chairman for final decision

within 14 days any appeals that are not

completed within the designated

timelines, or he may refer such appeals

to the Director (previously, the Attorney

General) for decisions. 84 FR 44539–40.

The Attorney General is delegating this

authority to the Director because the

Director is better situated, as the

immediate supervisor of the BIA

Chairman and the person in more direct,

regular contact with the Chairman

regarding pending cases, to ensure

timely adjudication of these cases. Id.

The Attorney General’s delegation is

necessary given the other obligations on

the Attorney General’s schedule and

because the Director is better situated to

ensure that procedures or changes are

implemented so that untimely

adjudications are rare. See id.

5. Other Authorities of the EOIR

Director

The IFR sought to resolve tension

between 8 CFR 1003.0(c), limiting the

Director’s authority to adjudicate or

direct the adjudication of cases, and 8

CFR 1292.18, regarding the Director’s

authority to adjudicate requests for

review of R&A Program determinations.

84 FR at 44540. When the Director was

given authority under 8 CFR 1292.18,

the limiting regulations at 8 CFR

1003.0(c) were not updated to reflect the

change. See 84 FR at 44540; see

generally Recognition of Organizations

and Accreditation of Non-Attorney

Representatives, 81 FR 92346 (Dec. 19,

2016). The IFR resolved this tension by

updating 8 CFR 1003.0(c) to clarify that

the limitation on adjudicatory authority

is ‘‘[e]xcept as provided by statute,

regulation, or delegation of authority

from the Attorney General, or when

acting as a designee of the Attorney

General.’’ 8 CFR 1003.0(c).

B. Legal Authority for the Interim Final

Rule

The Department issued the IFR

pursuant to its authority under several

statutory provisions. Generally, 5 U.S.C.

301 provides authority to department

heads to issue regulations regarding,

among other things, the governance of

the department, employee conduct, and

the distribution and performance of its

business. More specifically, section

103(g) of the Immigration and

Nationality Act (‘‘INA’’ or ‘‘the Act’’) (8

U.S.C. 1103(g)), provides authority to

the Attorney General to establish

regulations and to ‘‘issue such

instructions, review such administrative

determinations in immigration

proceedings, delegate such authority,

and perform such other acts as the

Attorney General determines to be

necessary for carrying out [INA 103 (8

U.S.C. 1103)],’’ which includes the

immigration functions of EOIR.

The Homeland Security Act of 2002

(‘‘HSA’’), which added section 103(g) to

the INA, further affirms the authority of

the Attorney General over EOIR. See

HSA, Public Law 107–296, tit. XI, secs.

1101, 1102, 116 Stat. 2135, 2273–74.

Section 1101(a) of the HSA (6 U.S.C.

521(a)) states that ‘‘the Executive Office

for Immigration Review . . . shall be

subject to the direction and regulation of

the Attorney General under [INA

103(g)].’’

Pursuant to this overarching

regulatory authority, the Attorney

General may amend the Department’s

regulations as necessary. In accordance

with these authorities, the Attorney

General promulgated the changes in the

IFR.

II. Public Comments on the Interim

Final Rule

A. Summary of Public Comments

The comment period associated with

the IFR closed on October 25, 2019,

with 193 comments received on the

IFR.

1

Individual or anonymous

commenters submitted 118 comments,

and organizations, including non-

government organizations, legal

advocacy groups, non-profit

organizations, and religious

organizations, submitted 75 comments.

A majority of individual commenters

opposed the rule, while two supported

the rule. All organizations expressed

opposition to the rule.

Many, if not most, comments

opposing the IFR either misstate its

contents, proceed from an erroneous

legal or factual premise, or contain

internal logical inconsistencies. As the

vast majority of comments in opposition

fall within one of these three categories,

the Department offers the following

general responses to them,

supplemented by more detailed,

comment-specific responses in Part II.C

of this preamble.

Several comments misstate the

contents of the IFR. For example, many

comments oppose the IFR because it

allegedly eliminates OLAP, the Legal

Orientation Program (‘‘LOP’’), and the

Legal Orientation Program for

Custodians of Unaccompanied Alien

Children (‘‘LOPC’’), or changes the R&A

Program.

2

However, the IFR makes clear

that it does neither. See 84 FR at 44539

(‘‘This rule is not intended to change—

and does not have the effect of

changing—any of OLAP’s current

functions.’’); 8 CFR 1003.0(e)(3)

(maintaining the R&A Program).

Several comments object to the idea

that the IFR allows the Director to refer

himself any case for review from the

BIA at any time and under any

circumstance. However, the IFR makes

clear that cases would only be referred

to the Director after the existing and

longstanding regulatory deadline for

adjudication by the Board has passed,

which necessarily occurs only after

briefing has been completed, the record

is complete, and the case is ripe for

decision. 84 FR at 44539–40

(‘‘Accordingly, this rule delegates

authority from the Attorney General to

the Director to adjudicate BIA cases that

have otherwise not been adjudicated in

a timely manner under the regulations,

based on a referral from the Chairman.’’

(emphasis added)); 8 CFR 1003.1(e)(8)

(setting timeliness benchmarks for

Board adjudications which, if exceeded,

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Most, if not all, of the comments opposing the

IFR because the Director and the Assistant Director

for Policy are alleged political appointees assume

that any employee appointed to an agency position

by an agency head, such as the Attorney General,

is necessarily a political appointee. By statute,

regulation, policy, or to comply with the

Appointments Clause of the Constitution,

approximately 530 positions at EOIR currently

require appointment by the Attorney General,

including Board members, immigration judges, and

administrative law judges. The fact that the

Attorney General, who is a political appointee,

appoints an individual to a position does not

convert that position to a political position.

Moreover, even if the Director position were

filled by a political appointment, that fact alone

would not render the individual a biased

adjudicator incapable of adjudicating cases under

the regulations. Cf. Matter of L–E–A–, 27 I&N Dec.

581, 585 (A.G. 2019) (rejecting arguments that the

Attorney General is a biased adjudicator of

immigration cases in the absence of any personal

interest in the case or public statements about the

case). After all, the functions of EOIR are vested in

the Attorney General, who is a political appointee,

and the INA specifically provides that

determinations in immigration proceedings are

subject to the Attorney General’s review. 28 U.S.C.

503, 509, 510; INA 103(g) (8 U.S.C. 1103(g)).

may warrant referral of cases to the

Director for a timely adjudication).

Many comments are based on

erroneous premises. For instance, many

comments object to the IFR because the

Director or the Assistant Director for

Policy are allegedly political appointees.

A political appointee is a full-time, non-

career Presidential or Vice-Presidential

appointee, a non-career Senior

Executive Service (‘‘SES’’) (or other

similar system) appointee, or an

appointee to a position that has been

excepted from the competitive service

by reason of being of a confidential or

policy-making character (Schedule C

and other positions excepted under

comparable criteria) in an executive

agency. See, e.g., Exec. Order 13770,

sec. 2(b) (Jan. 28, 2017) (‘‘Ethics

Commitments by Executive Branch

Appointees’’); see also Edward ‘‘Ted’’

Kaufman and Michael Leavitt

Presidential Transitions Improvements

Act of 2015, Public Law 114–136, sec.

4(a)(4), (5) (2016). No employee

currently at EOIR, including the

Director or the Assistant Director for

Policy, falls within these categories.

EOIR has no Schedule C positions or

positions requiring appointment by the

President or Vice President. Both the

Director and the Assistant Director for

Policy are career appointees within the

SES. Although the Director is a general

SES position, it has traditionally been

filled only by a career appointee, and

the incumbent Director serves through a

career appointment. The Assistant

Director for Policy is a career-reserved

position in the SES and may be filled

only by a career appointee. See SES

Positions That Were Career Reserved

During CY 2018, 85 FR 9524, 9581 (Feb.

19, 2020) (listing the Assistant Director

for Policy at EOIR as a career reserved

position). In short, all of EOIR’s federal

employees, including the Director and

the Assistant Director for Policy, are

career employees chosen through merit-

based processes, and none of EOIR’s

employees are political appointees.

3

Many comments object to the IFR by

asserting that the Director is merely an

administrator with no adjudicatory role

and no subject matter expertise

regarding immigration law.

Longstanding regulations make clear,

however, that the Director must have

significant subject matter expertise in

order to issue instructions and policy,

including regarding the implementation

of new legal authorities. See 8 CFR

1003.0(b)(1)(i). The Director must also

administer an examination on

immigration law to new immigration

judges and Board members and must

provide for ‘‘comprehensive, continuing

training’’ in order to promote

adjudicative quality. 8 CFR

1003.0(b)(1)(vi), (vii). Moreover, the

Director was given explicit adjudicatory

review authority involving R&A cases in

January 2017, well before the IFR was

promulgated. See 81 FR at 92357

(‘‘Additionally, the final rule provides

that organizations whose requests for

reconsideration are denied may seek

administrative review by the Director of

EOIR. See final rule at 8 CFR 1292.18.

This provision responds to concerns

that OLAP would be the sole decision-

maker regarding recognition and

accreditation and that another entity

should be able to review OLAP’s

decisions.’’). In short, existing

regulations already require some level of

subject-matter knowledge by the

Director and provide for the Director to

have an adjudicatory role in addition to

administrative duties. Thus, the IFR

does not alter the nature of the Director

position.

In addition, and consistent with the

clarification in this final rule of the

Director’s adjudicatory role, the final

rule edits potentially confusing

regulatory language in 8 CFR 1292.6 to

make clear that the Director, when

conducting an administrative review of

R&A cases under 8 CFR 1292.18, does

interpret the regulatory provisions

governing the R&A Program, 8 CFR

1292.11 through 1292.20. See infra Part

III.

Some comments object to the IFR

because it contains an alleged

delegation of the Board’s authority to

the Director. However, the Director

directs and supervises the Board, 8 CFR

1003.0(b)(1), and the Board cannot

delegate authority upward to a manager.

Moreover, the Board’s authority comes

from the Attorney General, and it is his

authority to delegate, not the Board’s.

INA 103(g) (8 U.S.C. 1103(g)); 28 U.S.C.

509, 510. Accordingly, the IFR does not

reflect a delegation of authority from the

Board to the Director; it reflects a

delegation of authority from the

Attorney General to the Director.

In the aggregate, many of the

comments are internally inconsistent or

illogical. For example, some comments

object to the placement of OLAP under

the Office of Policy, alleging that OLAP

should not be under a political

appointee; yet, many of those comments

also allege that the Director, who

supervised OLAP for several years prior

to its transfer to the Office of Policy and

under whom OLAP would have

remained if it had not been transferred,

is a political appointee. Similarly, other

comments that allege the Director is a

political appointee also object to

delegating authority from the Attorney

General to the Director, paradoxically

preferring to retain authority in the

Attorney General, who is a political

appointee, rather than in the Director,

who is not, in fact, a political appointee.

Overall, and as discussed in more

detail below, the Department generally

declines to adopt the recommendations

of comments that misstate the IFR, that

are based on incorrect legal or factual

premises, or that are internally or

logically inconsistent.

B. Comments Expressing Support

Comment: Two commenters

expressed support for the IFR for

reasons unrelated to its substance. One

commenter indicated support for

building a border wall between the

United States and Mexico and urged

that other individuals go to Central

America to improve living conditions

there. Another commenter expressed

general opposition to immigration.

Response: Such comments are beyond

the scope of this rulemaking.

C. Comments Expressing Opposition

1. General Opposition to the IFR

Comment: The Department received

several comments expressing general

opposition to the IFR, with little to no

further explanation. One commenter

stated that such a ‘‘pivotal’’ topic

requires deep discussion.

Response: The Department is unable

to provide a more detailed response

because these comments failed to

articulate specific reasoning underlying

expressions of general opposition.

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The Department notes that OLAP was part of the

BIA for a portion of that period.

2. Office of Legal Access Programs

a. Viability of OLAP and Its

Programming

Comment: The Department received

numerous comments opposing the

transfer of OLAP and its responsibilities

to OP. Commenters stated that

transferring OLAP’s current functions to

OP and removing references to OLAP

and OLAP’s Director from the

regulations effectively eliminates OLAP.

One commenter expressed concern that

the IFR transferred OLAP’s functions to

OP without ensuring that the

Department will continue to prioritize

the programs OLAP administers. Several

commenters stated that because the IFR

eliminated OLAP and because OP

assumed OLAP’s responsibilities, many

of the programs administered by OLAP

that ensure access to counsel are at risk

of being eliminated.

Regarding specific programming, one

commenter expressed concern that

moving the R&A Program into OP would

grant authority to the Assistant Director

for Policy to make R&A Program

determinations. This commenter stated

that because the Assistant Director for

Policy could be a political appointee,

the objectivity of R&A Program

determinations could be affected.

Several organizations stated that they

were concerned the IFR will weaken or

lead to the dismantling of the LOP and

the LOPC. One commenter asserted that

if the LOPC is dissolved or mismanaged,

children in immigration proceedings

would be adversely affected because

their understanding of the legal process

would decrease. The commenter further

asserted that affected children would

lose access to justice and representation,

which would increase failures to appear

at initial court hearings.

A few commenters expressed concern

that, based on ‘‘the Office of Policy’s

recent history and relationship with

migrants,’’ moving OLAP under OP is ‘‘a

first step towards reducing access to

counsel rather than expanding it.’’ One

commenter argued that placing OLAP in

OP ‘‘creates an incentive for OLAP to

disseminate information that

discourages certain individuals, deemed

undesirable by the Executive Branch,

from pursuing their legal rights.’’

Response: The Department notes that

any implication that the IFR eliminated

OLAP or its functions is inaccurate, to

include comments that a change in

functions included a substantive change

in the management of the R&A Program

or the LOP. As the Department wrote in

the IFR, this rule ‘‘is not intended to

change—and does not have the effect of

changing—any of OLAP’s current

functions.’’ 84 FR at 44539. The

Department notes that OLAP’s current

functions continue as part of OP under

the supervision of a member of the SES.

See Office of Legal Access Programs,

EOIR, U.S. Dep’t of Justice, https://

www.justice.gov/eoir/office-of-legal-

access-programs (last updated Feb. 19,

2020).

OLAP (formerly known as the Legal

Orientation and Pro Bono Program) has

never been a separate component

formally appearing on EOIR’s official

organizational chart. Rather, since its

establishment in 2000, OLAP has

existed under multiple different

components within EOIR. See 84 FR at

44537. In 2000, OLAP existed as part of

OOD; in 2002, it moved from OOD to

OGC; in 2009, it moved from OGC to the

BIA; and in 2011, it moved from the BIA

back to OOD. See id. The IFR again

moved OLAP within EOIR’s

organizational structure—this time to

OP pursuant to the Department’s

reasoned analysis, as stated in the IFR,

that OP is better suited to support

OLAP. See 84 FR at 44539 (finding ‘‘no

organizational justification’’ for OLAP to

be part of OOD and determining that OP

would be better suited to support

OLAP’s role and most effectively ‘‘help

coordinate OLAP’s work across

adjudicatory components’’). The

Department rejects the suggestion that

OLAP’s placement under OP would

‘‘incentivize’’ OLAP to engage in any

action other than continuing its current

missions, and the IFR—by its own

terms—does nothing to change OLAP’s

functions.

Since the establishment of the R&A

Program in 1984, multiple components

have been responsible for maintaining

it. From 1984 until 2017, the BIA ran

the R&A Program.

4

See Requests for

Recognition; Accreditation of

Representatives, 49 FR 44084 (Nov. 2,

1984). In 2017, the Department

transferred the R&A Program to OLAP,

which at the time was a part of OOD.

See 81 FR at 92347. In contrast to

commenters’ concerns that the R&A

Program will be removed or limited, the

IFR plainly requires OP to ‘‘maintain a

division within the Office of Policy to

develop and administer a program to

recognize organizations and accredit

representatives to provide

representation before [EOIR or DHS].’’ 8

CFR 1003.0(e)(3).

In response to commenters’ concerns

that placing OLAP under the

supervision of OP would undermine the

objectivity of decisions regarding R&A

Program determinations, the

Department emphasizes that EOIR staff,

including the Assistant Director for

Policy, are career employees. OP is

charged with making policy

determinations as authorized by

Congress and the Attorney General in

furtherance of EOIR’s mission. The

Department has provided a more

detailed discussion of OP as a neutral

component within EOIR below. See

infra Part II.C.3.c.

In response to commenters’ concerns

that the rule might undermine EOIR’s

LOP programs, the Department notes

that the IFR did not alter any aspect of

any LOP program and is not addressed

to any particular aspect of LOP

programs. It did not alter the mission,

funding, or day-to-day operations of

LOP programs, other than to reassign

supervisory responsibilities over OLAP

from the Director to the Assistant

Director for Policy.

b. Elimination of OLAP and Effect on

Individuals and Organizations

Comment: Several commenters

indicated that moving OLAP to OP will

have an adverse effect on their

organizations’ ability to provide

competent, low-cost legal

representation, which would in turn

adversely affect individuals in

immigration proceedings. Specifically,

commenters alleged that the IFR either

threatens to restrict or completely

eliminates the R&A Program, without

which organizations would have to

reduce the services that are currently

provided. Several commenters asserted

that because the IFR dissolves OLAP,

the IFR will harm children because they

will have less meaningful access to

effective legal representation during

immigration proceedings. Commenters

stated that without the R&A Program,

thousands of low-income immigrants,

including abused women and children,

will lose access to legal advocates. One

commenter stated that because of the

possible loss in services, the rule

undermines the key goals of non-profit

immigration legal service organizations

and the services they provide to low-

income clients.

Response: As noted above, the IFR

does not alter either OLAP’s functions

or the R&A Program. Further, the

Department sees no connection between

the move of OLAP to OP and any

organization’s abilities to provide

competent, low-cost legal

representation. It is not OLAP’s mission

to provide legal representation. Rather,

one of its duties is to oversee the R&A

Program, and supervision of OLAP’s

management of that program is now a

duty of the Assistant Director of the

Office of Policy rather than of the

Director. In short, the IFR merely moved

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The Department notes that the instructions

regarding the R&A Program in OP’s regulations at

8 CFR 1003.0(e) are the same as those that were

previously set out for OLAP in 1003.0(f)(2) with

‘‘Assistant Director for Policy’’ inserted instead of

‘‘OLAP Director.’’

6

For further discussion on comments addressing

notice-and-comment procedures, see the discussion

in Part II.D.1 of this preamble.

7

For example, the Department notes that OLAP

was not memorialized in the regulations until 2017

even though it had existed since 2000 and been

transferred among components multiple times. 84

FR at 44539.

oversight of the R&A Program from one

non-adjudicatory component of EOIR

(OOD) to another (OP). Far from

eliminating the R&A Program, the IFR

clearly specified that OP will continue

to maintain the program, including a

mechanism for determining ‘‘whether

an organization and its representatives

meet the eligibility requirements for

recognition and accreditation in

accordance with this chapter.’’ 8 CFR

1003.0(e)(3).

5

Also of note, the move of OLAP into

OP, including the R&A Program, did not

affect the regulatory criteria for

recognizing an organization, 8 CFR

1292.11(a)(1)–(5), or accrediting a

representative, 8 CFR 1292.12(a)(1)–(6).

The only change was to authorize the

Assistant Director for Policy to make

such determinations based on the

regulatory criteria. While the IFR

provided the Assistant Director for

Policy with the R&A Program authority

by replacing ‘‘OLAP Director’’ with

‘‘Assistant Director for Policy,’’ the IFR

further allowed the Assistant Director

for Policy to delegate the authority to

recognize an organization or accredit a

representative. See, e.g., 8 CFR

1292.11(a) (‘‘or the Assistant Director for

Policy’s delegate’’). At this time, such

authority has been delegated to the

OLAP Director. In sum, the IFR did not

effectuate any substantive change to the

R&A Program and certainly no change

that would impact the ability of

organizations to provide competent,

low-cost legal representation.

3. Office of Policy

a. Legal Legitimacy

Comment: Numerous commenters

stated, without more, that OP lacks legal

legitimacy because it was created

without regulatory or statutory

authority. One commenter noted that

OP was not created via notice and

comment

6

and that there was not a

press release or other information about

its creation on the Department’s

website.

Response: Following a proposal by

the Director, the Attorney General

created OP in 2017 in accordance with

all relevant statutory and regulatory

authority. The Director has the authority

to ‘‘propose the establishment, transfer,

reorganization or termination of major

functions within his organizational unit

as he may deem necessary or

appropriate.’’ 28 CFR 0.190(a). The

Director proposed the creation of OP

‘‘to, inter alia, issue operational

instructions and policy,

administratively coordinate with other

agencies, and provide for training to

promote quality and consistency in

adjudications.’’ 84 FR at 44538. The

proposed EOIR reorganization received

all necessary intermediate Department

approvals. See 28 CFR 0.190(a). As the

head of the Department, 28 U.S.C. 503,

the Attorney General supervises and

directs the administration and operation

of the Department, and the Attorney

General issued a new organizational

chart for EOIR on July 26, 2017,

approving EOIR’s new organizational

structure, which included OP. See

EOIR, U.S. Dep’t of Justice, Executive

Office for Immigration Review

Organization Chart (July 26, 2017),

https://www.justice.gov/eoir/eoir-

organization-chart/chart. When OP was

created, the Department was required to

reprogram appropriated funds. In

accordance with the Consolidated

Appropriations Act, 2017, and the

Continuing Appropriations Act, 2018,

the Department notified the House and

Senate Committees on Appropriations

of the change. See Consolidated

Appropriations Act, 2017, Public Law

115–31, div. B, tit. V, sec. 505, 131 Stat.

135, 220 (2017) (‘‘None of the funds

provided under this Act . . . shall be

available for obligation or expenditure

through a reprogramming of funds that

. . . (5) reorganizes or renames offices,

programs or activities . . . unless the

House and Senate Committees on

Appropriations are notified 15 days in

advance of such reprogramming of

funds.’’); Continuing Appropriations

Act, 2018, Public Law 115–56, div. D,

secs. 101(a)(2), 103, 131 Stat. 1139,

1139, 1141 (2017) (continuing

appropriations for the Department

under the same terms as the

Consolidated Appropriation Act, 2017).

Both committees indicated a lack of

objection to the proposed reorganization

in October 2017, and EOIR began to

implement the reorganization in

November 2017. The updated EOIR

organizational chart was placed on the

EOIR homepage on December 11, 2017.

The Department was not obligated to

engage in rulemaking or a notice-and-

comment period to create OP as a new

component within EOIR. See 5 U.S.C.

553(b)(A) (providing that changes in

internal agency organization are

excepted from notice-and-comment

requirements). In accordance with

section 103(g) of the Act (8 U.S.C.

1103(g)), the Attorney General has

delegated authority to the Director to

manage the operations of EOIR. 8 CFR

1003.0(a), (b). Transferring authority

from one office to another constitutes an

internal operational change in line with

the Director’s operational management

responsibilities under 8 CFR 1003.0(a)

and (b). Moreover, the regulations are

not meant to provide a complete,

detailed description of the entirety of

EOIR’s organization, and the decision to

memorialize some organizational

changes by regulation does not mean

that all internal organizational changes

are required to be done through a

regulation.

7

b. Conflict With the Rule That

Established the R&A Program

Comment: The Department received

several comments stating that

appointing the Assistant Director for

Policy as head of OLAP and moving

OLAP into OP directly contradicts the

2016 rule regarding authorization of

representatives. See 81 FR at 92346.

These commenters also averred that the

move violated the intent and particular

requirements of the 2016 rule, without

providing specific concerns.

Response: Without further

information regarding the specific

conflicting provisions or specific

concerns, the Department is unable to

provide a more detailed response. The

Department promulgated the 2016 rule

to (1) provide requirements and

procedures for authorized

representatives to represent individuals

before EOIR and DHS, and (2) revise

EOIR’s disciplinary procedures. Id. The

Department clearly stated that the

purpose of the 2016 rule was ‘‘to

promote the effective and efficient

administration of justice before DHS

and EOIR by increasing the availability

of competent non-lawyer representation

for underserved immigrant

populations.’’ Recognition of

Organizations and Accreditation of Non-

Attorney Representatives, 80 FR 59514,

59514 (Oct. 1, 2015) (notice of proposed

rulemaking). The IFR did not conflict

with that purpose; rather, the IFR

furthered that purpose by making

organizational changes within the

agency that better facilitate efficiency

and effectiveness across OLAP

programs, including administration of

the R&A Program. See 84 FR at 44537,

44539. Just as the Department moved

the R&A Program from the BIA to OLAP

in 2017, the Department’s choice to now

place authority over the R&A Program

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with the Assistant Director for Policy

was a decision of agency management or

personnel and an organizational choice

based on EOIR’s needs.

c. Propriety of a Policy Office Within

EOIR

Comment: Some commenters opposed

the rule’s ‘‘formalization’’ of OP because

they generally opposed the existence of

a policy office in EOIR. Commenters

stated that OP ‘‘conflicts with the

fundamental mission of EOIR’’ because

its objectives and focus ‘‘are controlled

directly by the Attorney General and

EOIR Director.’’ Commenters believed

that the creation of OP would change

EOIR from an entity focused on

impartial adjudications for individual

immigration cases to, as one commenter

explained, an ‘‘extension of the

Attorney General’s and EOIR Director’s

immigration policy.’’ Overall,

commenters expressed concern that

having OP within EOIR improperly

politicizes the agency, whose mission is

to adjudicate individual cases rather

than make policy.

Response: The Department disagrees

with commenters’ statements that it is

inappropriate for EOIR to have a policy

office. EOIR’s primary mission is the

adjudication of immigration cases by

fairly, expeditiously, and uniformly

interpreting and administering the

Nation’s immigration laws, primarily

pursuant to the Act. This mission

remains unchanged by the IFR, and

EOIR continues to work towards

fulfilling this mission by increasing

efficiencies wherever possible. Creating

OP improved efficiency by reducing

redundant activities performed by

multiple components while also

ensuring consistent coordination of

regulatory and policy activities across

all components.

OP was established to assist in

effectuating the regulatory authorities

granted to the Director such as issuing

operational instructions and policy,

administratively coordinating with

other agencies, and providing for

training to promote quality and

consistency in adjudications. See 84 FR

at 44538; 8 CFR 1003.0(b)(1). Some of

these functions were previously

performed by OGC, but were transferred

to OP because of their policymaking

nature and to ensure sufficient resources

for those programs. 84 FR at 44538.

The non-adjudicatory policymaking

functions now performed by OP are not

new functions to the Department or to

EOIR. The Department first explicitly

codified the Attorney General’s

delegation of non-adjudicatory

policymaking authority with respect to

EOIR in the CFR in 2007, but such

authority has existed throughout EOIR’s

history. See Authorities Delegated to the

Director of the Executive Office for

Immigration Review, and the Chief

Immigration Judge, 72 FR 53673, 53676–

77 (Sept. 20, 2007) (revising 8 CFR

1003.0 and 8 CFR 1003.9 to include

policymaking authority). Since its

inception in 1983, EOIR has

implemented regulations, issued policy

memoranda, and more generally

engaged in policymaking in order to

achieve its mission. See, e.g., Office of

the Chief Immigration Judge, EOIR, U.S.

Dep’t of Justice, Operating Policies and

Procedures 84–1: Case Priorities and

Processing (Feb. 6, 1984), https:/

www.justice.gov/sites/default/files/eoir/

legacy/2001/09/26/84-1.pdf. EOIR is

subject to the direction and regulation of

the Attorney General, who may

establish regulations or ‘‘issue such

instructions, review such administrative

determinations in immigration

proceedings, delegate such authority,

and perform such other acts as the

Attorney General determines to be

necessary’’ for the Attorney General’s

supervision of EOIR. 8 U.S.C. 1103(g).

Moreover, as discussed in Part II.A of

this preamble, neither the Assistant

Director for Policy nor the Director are

political appointees. Instead, both

positions, as well as all other EOIR

senior leadership positions, are held by

members of the SES serving on career

appointments. The SES is composed of

members who serve in key positions,

operating and overseeing nearly every

government function. See generally

Senior Executive Service, Office of

Personnel Management, https://

www.opm.gov/policy-data-oversight/

senior-executive-service/ (last visited

June 12, 2020). That the Attorney

General continues to oversee the

functions of EOIR is also proper: A long-

held principle of administrative law is

that an agency, within its

congressionally delegated policymaking

responsibilities, may ‘‘properly rely

upon the incumbent administration’s

view of wise policy to inform its

judgments.’’ Chevron U.S.A. Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837,

865 (1984).

The Department also notes that many

other agencies include policy offices

within their organizational structure—

even when those agencies also perform

adjudicatory functions. For example, the

Social Security Administration, which

conducts administrative hearings

regarding appeals of benefits or program

eligibility, has an Office of Financial

Policy and Operations, an Office of

Disability Policy, and an Office of Data

Exchange, Policy Publications and

International Negotiations. See U.S. Soc.

Sec. Admin., Social Security

Administration Organizational Chart

(June 21, 2020), https://www.ssa.gov/

org/ssachart.pdf. Similarly, the

Department of Veterans Affairs includes

adjudicatory components and an Office

of Regulatory Policy and Management.

See U.S. Dep’t Vet. Aff., 2019

Functional Organizational Manual

Version 14–15 (Dec. 21, 2018), https://

www.va.gov/FOM-5-Final-July-2019.pdf.

In short, there is nothing anomalous or

improper about EOIR maintaining an

Office of Policy to address policy

matters outside of the adjudicatory

context.

d. Office of Policy’s Expertise

Comment: Commenters specifically

expressed opposition to the IFR’s

conferment of authority to the Assistant

Director for Policy to oversee OLAP

because commenters stated that the

Assistant Director for Policy, and by

extension OP, lacks the qualifications

and expertise necessary to run OLAP

and carry out its mission. Some

commenters were concerned that, at the

least, OLAP’s commitment to ‘‘improve

the efficiency of immigration court

hearings by increasing access to

information and raising the level of

representation for individuals appearing

before the immigration courts and BIA’’

would not remain a priority under OP’s

purview. Accordingly, commenters

stated that moving OLAP and its legal

access programs to OP was structurally

‘‘irrational.’’ Commenters stated that

OLAP contains programmatic functions,

not policy-related functions, and is thus

outside the scope of the ‘‘politicized’’

Office of Policy, which is responsible

for policy and regulations. Some

commenters suggested that the

Department should transfer OLAP back

to the Office of the Director, where it

more appropriately belongs.

Commenters specifically referenced

OLAP’s R&A Program, the National

Qualified Representative Program

(‘‘NQRP’’), and the LOP, all of which,

they write, involve administering and

managing congressionally appropriated

funds and federal grants. Commenters

stated that the Assistant Director for

Policy, and a policy office generally, has

no expertise in administering or

managing such funds and grants.

Commenters also specifically stated that

OP lacks expertise and interest in

fostering legal access and

representation, which detrimentally

impacts OLAP’s programming

(especially the R&A Program), the

organizations involved, and the

individuals served. Relatedly,

commenters stated that the Assistant

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Director for Policy lacks expertise in

adjudicating R&A Program applications.

Response: As stated in the IFR, ‘‘the

rule is not intended to change—and

does not have the effect of changing—

any of OLAP’s current functions.’’ 84 FR

at 44539. Moving OLAP to OP will

ensure better programmatic

management, provide for better

coordination among EOIR’s adjudicatory

operations, and provide increased

flexibility to fulfill OLAP’s mission. See

id. The Department is confident that OP

is equipped to provide OLAP with the

necessary resources and expertise to

accomplish those initiatives.

Additionally, as stated above, the

Assistant Director for Policy, who

oversees OP, is a career-reserved SES

position. See 85 FR at 9524. To be hired

into these positions, members of the

SES must possess the skills necessary to

oversee and manage programmatic

functions, such as those inherent to

OLAP and identified by commenters.

Moreover, when OLAP was housed in

the Office of the Director, it was also

supervised by a member of the SES

serving on a career appointment—the

Director. Thus, moving OLAP to OP

neither places it under a political

appointee nor diminishes its access to

programmatic expertise or resources,

and the Assistant Director for Policy is

fully qualified to oversee such

functions. At the same time, the Director

continues to supervise every EOIR

component, see 8 CFR 1003.0(b)(1),

including OP. As such, OLAP ultimately

remains subject to the direction of the

Director even following its placement

within OP. And, regardless of OLAP’s

ultimate placement, it remains free from

any alleged direct political interference

because all EOIR components are

headed by career SES members, not

political appointees.

Comment: One commenter explained

that moving broad, policy-oriented tasks

from OGC to OP prevents the

Department from ‘‘capitalizing on

[OGC’s] expertise[ ] and on OGC’s

extensive institutional knowledge.’’

Similarly, another commenter stated

that shifting responsibility for regulatory

matters to OP ignores OGC’s years of

substantive expertise. That commenter

also stated that the rule narrows OGC’s

role to focus almost exclusively on its

role as legal counsel to the Director to

the exclusion of its role in providing

legal interpretation on substantive

immigration policy matters.

Response: The EOIR General Counsel,

under the supervision of the Director,

serves as the chief legal counsel of EOIR

for matters of immigration law. 8 CFR

1003.0(f). Following the IFR, OGC

continues to oversee and perform many

functions within EOIR, including

employee discipline, ethics, anti-fraud

efforts, practitioner discipline, privacy,

Freedom of Information Act requests,

and litigation support. See id.; see also

Office of the General Counsel, EOIR,

U.S. Dep’t of Justice, https://

www.justice.gov/eoir/office-of-the-

general-counsel (last updated Aug. 13,

2018).

In recent years, OGC’s work in

performing these functions has grown

increasingly more complicated. For

example, in Fiscal Year 2018, EOIR

received 52,432 FOIA requests, a nearly

100 percent increase from the total

received in Fiscal Year 2014, when

26,614 were received. See U.S. Dep’t of

Justice, United States Department of

Justice Annual Freedom of Information

Act Report: Fiscal Year 2018, pt. V.A,

https://www.justice.gov/oip/page/file/

1135751/download; Dep’t of Justice,

United States Department of Justice

Annual Freedom of Information Act

Report: Fiscal Year 2014, pt. V.A,

https://www.justice.gov/sites/default/

files/oip/pages/attachments/2014/12/

24/oip-foia-fy14.pdf.

Because of this increased scope of

authority and responsibility, the

Department moved the regulatory

development and review authority from

OGC into OP to ensure that sufficient

resources are available across the offices

for all of the agency’s needs and to

increase efficiency and streamline the

policymaking process within EOIR.

Additionally, the programs that were

previously under OGC, such as

regulatory development and review,

involve a substantial policy role. To

have functions of this nature in OGC is

incongruous with OGC’s goals of

providing legal counsel to all of EOIR,

including the three adjudicatory

components. Transferring programs that

have a heavy emphasis on policymaking

from OGC into OP better permits OGC

to focus on its role as general counsel to

EOIR and better separates the division

between legal counsel and policy

choices while also increasing overall

efficiency within EOIR’s non-

adjudicatory components.

Additionally, contrary to the

commenter’s suggestion, OGC’s role has

never been to provide legal

interpretations on substantive matters of

immigration law that would otherwise

bind EOIR. To the contrary, under both

the prior and the current regulation,

OGC was excluded from supervisory

activities related to the adjudication of

cases and prohibited from influencing

the adjudication of specific cases. The

IFR simply clarified OGC’s role on this

point.

The Department further notes that

although OP is a newly formed office

within EOIR, the institutional

knowledge and records from OGC

remain within EOIR. OGC and OP have

worked closely and continue to work

closely to ensure that institutional

knowledge is properly shared and

resources remain available for all of

EOIR’s work.

4. Director’s Authority

a. Due Process

Comment: Commenters expressed

concern that the IFR undermined due

process or contributed to an appearance

of undermined due process.

Commenters expressed general

sentiment that the IFR was contrary to

the Nation’s tradition of due process,

and commenters noted specific

provisions that undermined due process

or contributed to such appearance—

namely, provisions that delegated

authority to the Director to issue

precedential decisions because such

delegation is not an appropriate

authority for the Director. See 8 CFR

1003.1(e)(8)(ii).

Response: Contrary to the

commenters’ concerns, the IFR’s

changes do not undermine due process.

The essence of due process in an

immigration proceeding is notice and an

opportunity to be heard. LaChance v.

Erickson, 522 U.S. 262, 266 (1998)

(‘‘The core of due process is the right to

notice and a meaningful opportunity to

be heard.’’). Nothing in the rule

eliminates notice of charges of

removability against an alien, 8 U.S.C.

1229(a)(1), or the opportunity for the

alien to make his or her case to an

immigration judge, 8 U.S.C. 1229a(a), or

on appeal, 8 CFR 1003.38.

Further, although due process

requires a fair tribunal, In re Murchison,

349 U.S. 133, 136 (1955), generalized,

ad hominem allegations of bias or

impropriety are insufficient to

‘‘overcome a presumption of honesty

and integrity in those serving as

adjudicators,’’ Withrow v. Larkin, 421

U.S. 35, 47 (1975). Commenters

identified no reason why it would be

inappropriate for a career SES official

with no pecuniary or personal interest

in the outcome of immigration

proceedings, such as the Director, to

adjudicate appeals in specific

circumstances, particularly since the

Director had already been delegated

adjudicatory authority through a prior

rulemaking with no noted concerns

regarding due process. See 8 CFR

1292.18; cf. Matter of L–E–A–, 27 I&N

Dec. at 581, 585 (A.G. 2019) (rejecting

arguments that the Attorney General is

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8

Numerous other agencies employ a similar

structure and grant agency heads the authority to

review administrative decisions. For example, the

Department of the Interior (‘‘DOI’’) Office of

Hearings and Appeals (‘‘OHA’’) uses three types of

review boards for various matters before the agency,

and the DOI OHA Director, as the authorized

representative of the DOI Secretary, may participate

in the consideration of appeals and sign the

resulting decisions. See 43 CFR 4.1, 4.2(b).

Similarly, the Secretary of Agriculture has

delegated authority to a Judicial Officer to act as a

final deciding officer in various adjudicatory

proceedings within the Department of Agriculture.

See 7 U.S.C. 2204–2; 7 CFR 2.35. The use of this

general structure across agencies illustrates that it

does not offend or undermine the tradition of due

process.

9

Further, even assuming that the congressional

intent regarding the scope of the Attorney General’s

authority to delegate power is unclear, the Supreme

Court has afforded Chevron deference to an

agency’s interpretation of an ambiguous statutory

provision concerning the scope of the agency’s

statutory authority if the statute does not foreclose

that interpretation. See City of Arlington, Tex. v.

FCC, 569 U.S. 290, 296–97, 307 (2013) (‘‘Where

Congress has established a clear line, the agency

cannot go beyond it; and where Congress has

established an ambiguous line, the agency can go

no further than the ambiguity will fairly allow.’’).

The INA does not foreclose the Attorney General’s

delegation of authority as articulated in the IFR; in

fact, it provides that the Attorney General shall

delegate such authority as he determines to be

necessary to carry out the immigration functions of

EOIR. INA 103(g)(2) (8 U.S.C. 1103(g)(2)).

10

The Department notes that it received no

complaints and has no record of any concerns being

raised about due process when the Director was

first delegated adjudicatory authority regarding

R&A cases in 2017.

a biased adjudicator of immigration

cases in the absence of any personal

interest in the case or public statements

about the case).

Additionally, the Department notes

that the Attorney General oversees EOIR

and has statutory authority to, among

other responsibilities, review

administrative determinations in

immigration proceedings; delegate

authority; and perform other actions

necessary to carry out the Attorney

General’s authority over EOIR. INA

103(g) (8 U.S.C. 1103(g)). Over time, the

Attorney General has promulgated

regulations pursuant to this statutory

authority that reflect the full range of his

authority and oversight in section 103(g)

of the Act (8 U.S.C. 1103(g)). Among

many examples, in 8 CFR 1003.1(h), the

Attorney General codified the authority

to review BIA decisions, and in 8 CFR

1003.0(a), the Attorney General

delegated authority to the Director to

head EOIR. Despite this delegated

authority, EOIR remains subject to the

Attorney General’s oversight, and it is

reasonable and proper that the Attorney

General continue to exercise that

oversight by way of administrative

review.

8

In accordance with 8 CFR 1003.0(a),

the Director, who is appointed by the

Attorney General, exercises delegated

authority from the Attorney General

related to oversight and supervision of

EOIR. See also INA 103(g)(1) (8 U.S.C.

1103(g)(1)); 28 CFR 0.115(a). The

Director may only act in accordance

with the statutes and regulations and

within the authority delegated to him by

the Attorney General; put differently,

the statute and regulations provide the

Attorney General with the authority to

act, and the Attorney General, in turn,

determines the extent of the Director’s

authority. The Attorney General, by

regulation, provides a list of the

Director’s authority and responsibilities

at 8 CFR 1003.0(b), which includes the

authority to ‘‘[e]xercise such other

authorities as the Attorney General may

provide.’’ 8 CFR 1003.0(b)(1)(ix). Such

delegation supersedes the restrictions

related to adjudication outlined in 8

CFR 1003.0(c) due to that paragraph’s

deference to 8 CFR 1003.0(b).

The Director’s authority provided in

the IFR to adjudicate BIA cases that

have otherwise not been timely

adjudicated constitutes ‘‘such other

authorities’’ provided to the Director by

the Attorney General, based on the

powers to delegate and conduct

administrative review under INA 103(g)

(8 U.S.C. 1103(g)). See 8 CFR 1003.0(c);

8 CFR 1003.1(e)(8)(ii). To reiterate, the

Attorney General’s authority to review

administrative determinations does not

violate due process; thus, the proper

delegation of that authority to the

Director pursuant to statute and pre-

existing regulations does not violate due

process—specifically in light of the fact

that those decisions ultimately remain

subject to the Attorney General’s review

under 8 CFR 1003.1(e)(8)(ii). To the

extent that commenters are concerned

about such an appearance, the

Department emphasizes the clear, direct

intent of Congress in statutorily

authorizing such delegations, and the

Attorney General acted within the

bounds of his statutory authority when

he issued the IFR. INA 103(g)(2) (8

U.S.C. 1103(g)(2)); see also Chevron, 467

U.S. at 842.

9

In issuing the IFR, the

Attorney General properly delegated

adjudicatory authority to the Director to

review certain administrative decisions

that are otherwise untimely. 8 CFR

1003.1(e)(8)(ii). This delegation aligns

with the Attorney General’s

longstanding authority to issue

regulations and delegate that authority,

in line with principles of due process.

10

Comment: Commenters stated that the

IFR is contrary to the immigration court

system’s traditions of the rule of law

and due process. Commenters stated

that the rule undermines the entire

immigration system by threatening

access to fair process and thus justice.

Some commenters alleged this was in

fact the purpose in issuing the IFR.

One commenter stated that the rule

fails to provide constitutional

protections that ensure due process,

specifically that individuals lack

‘‘standard procedural protections, such

as notice and an opportunity to be

heard’’ if the Director selects an

individual’s case for adjudication. The

commenter stated that, ‘‘[i]n other

words, an individual may have their

case adjudicated by the Director (or his

designee) at any stage in his or her

immigration proceeding, without any

prior notice that the Director (or his

designee) is reviewing the case and

without any opportunity to directly

address the decisionmaker (either in a

hearing or via briefing) regarding the

adjudication.’’

Another commenter specifically

opposed the rule’s delegation of

certification power to the Director,

explaining that such power exercised by

the Attorney General was already

problematic because it was ‘‘generally

driven by political decision making and

a prosecutorial agenda.’’ The commenter

stated that extending that power to the

Director only furthered the problems the

commenter sees in the Attorney

General’s certification power. Another

commenter stated that such power was

unaccountable to the legislative and

judicial branches of government, which

also undermines democratic principles.

Response: The Department disagrees

that the IFR undermined the rule of law

and due process within the immigration

court system. It does not restrict notice

and an opportunity to be heard, and it

does not threaten access to justice or fair

process.

The agency continues to fairly,

expeditiously, and uniformly interpret

and administer the Nation’s

immigration laws. See About the Office,

EOIR, U.S. Dep’t of Justice, https://

www.justice.gov/eoir/about-office (last

updated Aug. 14, 2018). Immigration

judges, Board members, the Director,

and the Attorney General continue to

exercise independent judgment and

discretion in accordance with the case

law, statutes, and regulations to decide

each case before them. See 8 CFR

1003.10(b) (immigration judges),

1003.1(d)(1) (BIA members),

1003.1(e)(8)(ii) (Director and Attorney

General), 1003.1(h) (Attorney General);

see also INA 103(g)(1) (8 U.S.C.

1103(g)(1)). Further, the IFR did not

affect the mechanisms previously

provided for review—a respondent may

still appeal a decision, in accordance

with the statutes and regulations, from

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Commenters also expressed concern over

adverse effects from delegating authority from OGC

to the Director to review cases. The Department

notes, however, that the IFR did not make any such

change. OGC has never had the authority to advise

on or supervise legal activities related to specific

adjudications, which means OGC has never had the

authority to adjudicate specific cases. The IFR

instead merely clarified OGC’s authority to reflect

its longstanding, current role in advising on specific

categories of issues but not specific adjudications.

84 FR at 44539–40; see 8 CFR 1003.0(f). Following

the IFR, OGC continues to be the chief legal counsel

of EOIR for specified matters.

12

Commenters stated that, in turn, delegating

authority to the Director undermines the

independence of career adjudicators, which may

harm children who are seeking asylum or other

humanitarian protection. However, as discussed

above, the Director occupies a career position, and

the transfer of adjudicatory authority to him in 2017

has not threatened adjudications or undermined

authority in the assessment of R&A cases.

an immigration judge to the BIA. 8 CFR

1003.38. Cases may still be referred to

the Attorney General. 8 CFR

1003.1(e)(8)(ii), (h). The IFR delegated

authority to the Director to decide

certain cases, but those decisions are

subject to review by the Attorney

General, either at the Director’s or

Attorney General’s request. 8 CFR

1003.1(e)(8)(ii). Further, decisions of the

BIA, the Director, and the Attorney

General are each subject to review by

federal courts of appeals. INA 242 (8

U.S.C. 1252).

As discussed in Part II.A of this

preamble, the Director will only

adjudicate cases on appeal that have

exceeded regulatory deadlines, which

would only occur after the record is

complete, including the submission of

briefs. Consequently, contrary to the

comments, the Director cannot merely

pick any case at all at any time for

adjudication, and the alien whose case

is referred to the Director will have

already had the opportunity to brief any

issues. The specified time period in 8

CFR 1003.1(e)(8)(ii), after which the

Director may review a case, accounts for

the timeframes in 8 CFR 1003.3(c)(1)

and 1003.38 to file the Notice of Appeal

(Form EOIR–26), briefs, and other

documents. Accordingly, the Director

would decide the case based on the

same record that would have been

before the BIA. Overall, respondents

with cases before the Director, as

provided in the IFR, retain the same

rights and remain in the same situation

as if their cases were before the BIA.

As stated in the preamble, given the

heightened number of appeals filed and

pending with the BIA and the decreased

number of completions, the IFR sought

to facilitate efficient dispositions of

cases on appeal. 84 FR at 44538; see also

EOIR, U.S. Dep’t of Justice,

Adjudication Statistics: All Appeals

Filed, Completed, and Pending (Oct. 23,

2019), https://www.justice.gov/eoir/

page/file/1199201/download. In

addition to the IFR, recent agency

initiatives demonstrate the agency’s

genuine commitment to efficiently

addressing the BIA’s pending caseload.

See EOIR, U.S. Dep’t of Justice, Policy

Memorandum 20–01: Case Processing at

the Board of Immigration Appeals (Oct.

1, 2019), https://www.justice.gov/eoir/

page/file/1206316/download

(explaining various agency initiatives,

including an improved BIA case

management system, issuance of

performance reports, and a reiteration of

EOIR’s responsibility to timely and

efficiently decide cases in serving the

national interest).

The Department declines to adopt the

specific request for ‘‘notice that the

Director (or his designee) is reviewing

the case’’ and ‘‘opportunity to directly

address the decision maker (either in a

hearing or via briefing) regarding the

adjudication.’’ EOIR does not currently

provide the identity of the specific

Board member adjudicating a case prior

to the issuance of a decision, and the

identity of the adjudicator should be

irrelevant to the outcome of the

adjudication. Thus, providing notice

that the Director will be the adjudicator

serves no legitimate adjudicatory need

to preserve due process and would

constitute a significant departure from

current practice. Further, as noted, the

record will necessarily already be

complete by the time the case is referred

to the Director, and there is no

operational or legal reason why a

respondent would need to brief the

same case twice before a decision is

issued. In all cases, including those

referred to the Director, EOIR will

continue to uphold due process.

The Department also disagrees with

the commenters’ statements that the

Attorney General’s certification powers

are politically motivated or

unaccountable to other branches of

government. First, the Attorney

General’s certification powers are

statutorily authorized. See INA 103(g)(2)

(8 U.S.C. 1103(g)(2)). Second, as the

head of the Department with

responsibilities that include oversight of

EOIR, see INA 103(g)(1) (8 U.S.C.

1103(g)(1)); 8 CFR 1003.0(a); 28 CFR

0.115, it is reasonable for the Attorney

General to be authorized to conduct

administrative review. Further, the

statute clearly provides for judicial

review in section 242 of the Act (8

U.S.C. 1252), which includes the review

of decisions by the Attorney General,

thus providing accountability. Section

242 of the Act reiterates the non-

political nature of the Attorney

General’s certification power: By

providing for judicial review, Congress

holds the agency accountable for fairly

and uniformly interpreting and

administering immigration law, in line

with EOIR’s mission. Accordingly, the

Department disagrees that the IFR’s

delegation of authority to the Director to

review certain cases further exacerbates

the alleged problem of the Attorney

General’s certification power.

Comment: Commenters expressed

concern over the IFR’s adverse effects

on judicial independence. Commenters

stated that the following provisions in

the IFR undermine or eliminate judicial

independence: Delegating authority

from the BIA

11

to the Director to review

cases, imposing allegedly arbitrary

deadlines on immigration judges to

decide cases, and creating OP to

develop agency rules and policies,

which commenters allege will

effectively decide cases. Commenters

stated that these provisions threaten the

issuance of fair, impartial

adjudications.

12

Commenters were concerned that

transferring delegated adjudicatory

power from the BIA to the Director to

review cases threatens independent

interpretation of immigration law. One

commenter explained that the IFR

effectively made the Director the chief

judge and principal counsel for the

Department. Another commenter

expressed concern that the BIA

Chairman will face pressure to refer

cases to the Director, regardless of the

reasons for delay, because the Director

maintains a supervisory role over the

Chairman and directs the Chairman’s

work. Further, commenters alleged that

the rule eliminates deliberative review

of appeals, curtailing review to a

minimum and undermining the

authority of BIA members. One of the

commenters, objecting to the IFR’s

provisions relating to the Director’s

ability to intervene when BIA decisions

exceed the permissible timeline, argued

that ‘‘decisions on complex appeals

cases should not be rushed.’’

Several commenters also stated that

the judicial independence of

immigration judges was undermined by

the Department’s imposition of

‘‘arbitrary’’ deadlines for case

processing. Those deadlines,

commenters stated, prioritize speed over

accuracy, justice, and careful

consideration. One commenter stated

that he was opposed overall to the

Department’s ‘‘attempts to weaken the

independence of the immigration

courts.’’ Another commenter referenced

‘‘the clear Congressional message’’ that

immigration judges ‘‘should not and

cannot be subservient to the interests of

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The Department reprinted the entire paragraph

1003.1(e)(8)(ii), including the BIA’s timelines,

rather than only the changed language to ensure

clarity of the amendments made in the entire

section for publication in the Federal Register and

to provide for the reader the relevant context of the

amended unit. See Document Drafting Handbook,

Office of the Federal Register, at 3–37,

www.archives.gov/federal-register/write/handbook

(last updated Aug. 9, 2019). The IFR did not change

the BIA’s timelines. Compare 8 CFR 1003.0(e)(8)(ii)

(2018), with 8 CFR 1003.0(e)(8)(ii) (Aug. 26, 2019).

an agency whose primary task is to

expeditiously remove as many aliens as

possible.’’ Another commenter opposed

the deadlines imposed on the BIA.

Commenters expressed concern over

OP’s influence on adjudicatory

decisions. Specifically, commenters

state that the office’s development of

rules, policies, guidance, and training

would undermine immigration law and

the abilities of immigration judges and

BIA members to impartially adjudicate

cases on a case-by-case basis. One

commenter equated those rules,

policies, guidance, and training to

binding executive policy, and, relatedly,

commenters stated that such provisions

effectively allowed OP to decide cases.

One commenter expressed concern that

allowing OP to effectively decide cases

erodes the separation between the

executive and judicial branches of

government.

Commenters expressed concern that

the changes to 8 CFR 1003.0(c), which

clarify that the INA, the regulations, or

the Attorney General may delegate

authority to the Director to adjudicate

cases, in conjunction with the Director’s

authority at 8 CFR 1003.0(b)(2) to

delegate authority to other EOIR

employees, ‘‘dramatically expands the

list of individuals who may adjudicate

individual immigration cases.’’

One commenter stated that the IFR

will result in arbitrary and unlawful

restrictions on the meritorious claims of

children seeking protection from harm.

One organization stated that such

restrictions would put children ‘‘at risk

of unsafe return to their home country

in violation of the [Trafficking Victims

Protection Reauthorization Act]’s

provision requiring the safe repatriation

of children.’’ Further, commenters

stated that the IFR’s delegation of

authority to the Director to intervene in

BIA matters where the timeline for

adjudication has been exceeded may

undermine the independence of career

adjudicators, thereby doing harm to the

claims of children who are seeking

asylum or other humanitarian

protection.

Response: The Department disagrees

that the IFR’s delegation of authority to

the Director to adjudicate certain BIA

cases that have exceeded the regulatory

parameter for timeliness threatens

judicial independence for several

reasons.

First, the IFR did not affect the

ultimate review scheme for EOIR

proceedings. The BIA may review

appeals of immigration judge decisions,

such as a final decision in removal

proceedings under section 240 of the

Act (8 U.S.C. 1229a) if either party files

an appeal that complies with the

requisite procedures. 8 CFR

1003.1(b)(3); see also 8 CFR 1003.3,

1003.38. The Attorney General may

review a case in accordance with 8 CFR

1003.1(h), and federal courts may

review decisions in accordance with

section 242 of the Act, 8 U.S.C. 1252.

The IFR revised this process only by

delegating the authority previously

provided to the Attorney General to the

Director to review certain cases before

the BIA that have otherwise not been

timely adjudicated, and to ensure that

such cases the Director reviews are also

subject to final review by the Attorney

General in the same manner as all other

BIA appeals. 8 CFR 1003.1(e)(8)(ii).

In addition, the new regulatory

provision specifically provides that the

Director exercises ‘‘authority . . .

identical to that of the Board as

described in this section,’’ such that the

Director must exercise the same

independent judgment required for BIA

members under 8 CFR 1003.1(d)(1)(ii).

Any decisions by the Director are also

subject to statutes, regulations, and case

law, and his decisions, like BIA

decisions, are ultimately reviewable by

the Attorney General and the federal

courts. Accordingly, the IFR does not

threaten the fairness and impartiality of

adjudications. Nevertheless, to address

these concerns, the final rule makes

changes to 8 CFR 1003.0(c) to provide

in the regulations that the Director must

exercise independent judgment and

discretion when deciding cases. See

infra Part III.

Because the IFR did not impose

deadlines on immigration judges,

comments that discussed immigration

judge deadlines are not relevant to the

rulemaking. Further, the IFR did not

affect the BIA’s timeline for deciding

cases, which remains unchanged from

the regulations pre-IFR.

13

Compare 8

CFR 1003.0(e)(8)(ii) (2018), with 8 CFR

1003.0(e)(8)(ii) (Aug. 26, 2019). The BIA

continues to exercise independent

judgment within the articulated

timelines to decide cases in accordance

with the ‘‘authorities under the Act and

the regulations as is appropriate and

necessary for the disposition of the

case.’’ 8 CFR 1003.1(d)(1)(ii). Thus, the

IFR did not eliminate, curtail, or rush

the BIA’s review and consideration of

cases, as commenters alleged.

The Department disagrees that the IFR

will pressure the BIA Chairman or Vice

Chairman to refer cases to the Director;

instead, the IFR provided the specific

circumstances in which decisions shall

be referred. See 8 CFR 1003.1(e)(8)(ii).

While the IFR provided authority to

OP regarding regulatory and policy

development in 8 CFR 1003.0(e),

regulations and agency policy do not

effectively decide cases as commenters

alleged. Immigration judges, the BIA,

the Director, and the Attorney General

continue to exercise independent

judgment to interpret and apply the

INA, regulations, and case law.

Regulations simply ‘‘implement,

interpret, or prescribe’’ the INA but do

not change the text of it. See 5 U.S.C.

551(4). Accordingly, even while

implementing regulations interpreting

the INA, OP does not decide cases or

undermine the INA through its

rulemaking authority.

The Department also notes that the

IFR did not erode the separation

between the executive and judicial

branches of government because the

judicial branch is not at issue—

immigration courts are part of the

executive branch within the

Department, specifically EOIR. See 8

CFR pt. 1003, subpts. B, C.

Regarding concerns that the

amendment to 8 CFR 1003.0(c), when

read in conjunction with the Director’s

delegation authority in 8 CFR 1003.0(b),

expands the EOIR employees authorized

to adjudicate cases, the Department

intends for only the Director, not other

EOIR employees, to have the authority

to adjudicate BIA decisions that exceed

the established timelines. Nevertheless,

the Department recognizes the potential

for confusion and unintended

consequences. Accordingly, to address

the concern, the Department is making

a change in this final rule to clarify that

the adjudicatory authority of the

Director cannot be redelegated to

another employee.

Comment: Commenters opposed the

rule’s delegation of authority to the

Director to issue precedential decisions.

Many commenters alleged that the

Director lacks expertise to issue

precedential decisions. One commenter

explained that ‘‘adjudication authority

should only ever be given to

experienced immigration legal

professionals who understand the

weight of precedent-setting decisions,

and these decisions’ impacts on

individual people’s lives.’’ Commenters

stated that the Director’s role was meant

to be one of office administration rather

than one that exercised adjudicatory

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For further discussion on comments addressing

the effect of political influence on the Director, see

the discussion in Part II.A of this preamble.

power. Further, commenters expressed

specific opposition to transferring cases

from immigration judges and the BIA,

who both possess adjudicatory

authority, to someone serving in an

office administrator role.

Commenters alleged that such

delegation vests broad, improper

adjudicatory authority in a single

individual, the Director, and described

the rule as an ‘‘extraordinary

consolidation of powers in one

individual who is not a judge and who

is supposed to serve as an office

administrator.’’ Several commenters

expressed that the ‘‘stakes were too

high’’ to give final adjudicatory power

to one person and that such authority

undermines the fairness and

impartiality that should characterize

adjudications. Commenters expressed

concern that the rule threatens the

integrity of the system, thus creating

uncertainty for respondents.

Response: As discussed earlier in this

preamble, the Director is a career

appointee within the SES, chosen

through a merit-based process, and the

position of Director requires a

significant amount of subject-matter

expertise regarding immigration laws.

The Director is charged with, inter alia,

directing and supervising each EOIR

component in the execution of its duties

under the Act, which include

adjudicating cases; evaluating the

performance of the adjudicatory

components and taking corrective action

as necessary; providing for performance

appraisals for adjudicators, including a

process for reporting adjudications that

reflect poor decisional quality;

‘‘[a]dminister[ing] an examination for

newly-appointed immigration judges

and Board members with respect to

their familiarity with key principles of

immigration law before they begin to

adjudicate matters, and evaluat[ing] the

temperament and skills of each new

immigration judge or Board member

within 2 years of appointment’’; and

‘‘[p]rovid[ing] for comprehensive,

continuing training and support for

Board members, immigration judges,

and EOIR staff in order to promote the

quality and consistency of

adjudications.’’ 8 CFR 1003.0(b)(1). Each

of these responsibilities necessarily

requires some manner of subject-matter

expertise to carry out effectively.

Moreover, since January 2017, the

Director has been responsible for

administratively reviewing certain types

of denials of reconsideration requests in

R&A cases, with no noted complaints

that such a delegation of authority is

inconsistent with the role of the

Director. As discussed in Part II.A of

this preamble, the Director’s role is not

purely administrative and contains

limited adjudicatory responsibilities

consistent with the legal and subject-

matter expertise required for the

position.

The Department also disagrees that

the IFR vested broad or improper

adjudicatory authority in one person or

that it can be characterized as an

‘‘extraordinary consolidation of power.’’

First, the IFR delegated limited

authority to the Director: ‘‘in exigent

circumstances . . . 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.’’ 8 CFR

1003.1(e)(8)(ii). The IFR replaced the

Attorney General with the Director in 8

CFR 1003.1(e)(8)(ii) and merely

delegated authority previously left with

the Attorney General to the Director,

subject to possible further review by the

Attorney General. The Director may

only adjudicate cases that have

surpassed the articulated deadlines and

that have not been assigned to the

Chairman or a Vice Chairman for final

adjudication. Clearly, the Director’s

scope of review is limited to only a

narrow subset of EOIR cases.

Second, the INA authorizes such

delegation. The propriety of the

delegation is clear in section 103(g)(2) of

the Act (8 U.S.C. 1103(g)(2)), which

provides that ‘‘the Attorney General

shall . . . delegate such authority[ ] and

perform such other acts as the Attorney

General determines to be necessary for

carrying out [INA 103 (8 U.S.C. 1103)],’’

and is discussed further throughout Part

II.C.4.a of this preamble.

Third, the Attorney General retains

authority to review the Director’s

decisions, and judicial review continues

to be available for administratively final

decisions, in accordance with the

statute. See 8 CFR 1003.1(e)(8)(ii); INA

242 (8 U.S.C. 1252). Thus, the IFR did

not vest ‘‘final’’ authority in the

Director, negating concerns that the IFR

eliminated integrity and impartiality in

the immigration system.

b. Political Concerns

Comment: Commenters expressed

concern that the Director’s decisions

may be heavily influenced by the

political climate or the ‘‘President’s

anti-immigrant agenda.’’ Commenters

expressed specific concern over the

political nature of the Director’s role

and its effect on fair adjudications.

Commenters stated that the Director is

a ‘‘political appointee who is an

administrator, not a judge.’’

14

Other

commenters opposed the rule’s

delegation because the Director would

act alone in issuing decisions, which

they stated was ‘‘problematic both for

the visual it creates of an unjust system

and for the very real possibility of a

policy maker—the Director of EOIR—

utilizing the power to adjudicate claims

to effectuate policy.’’ Another

commenter echoed this sentiment,

stating that delegating authority to an

individual reporting to a political

appointee creates the appearance of

impropriety that undermines the

immigration court system.

Response: The Department rejects the

notion, and subsequent implications,

that the Director acts in a political

capacity. As previously stated, the

Director is a career appointee of the

SES, not a political appointee. The

Department also notes that SES

positions are specifically designed to

‘‘provide for an executive system which

is guided by the public interest and free

from improper political interference.’’ 5

U.S.C. 3131(13).

Accordingly, the Director does not

encumber a political position, nor does

the Director act in a political capacity.

The Director, like members of the BIA,

exercises independent judgment and

discretion in accordance with the

statutes and regulations to decide any

case before him for decision pursuant to

8 CFR 1003.1(e)(8)(ii) due to the BIA’s

failure in that case to meet the

established timelines. See id. (‘‘[T]he

Director shall exercise delegated

authority from the Attorney General

identical to that of the Board[.]’’); cf. 8

CFR 1003.1(d)(1)(ii) (‘‘Board members

shall exercise their independent

judgment and discretion in considering

and determining the cases coming

before the Board[.]’’). EOIR’s mission

remains the same—to adjudicate cases

in a fair, expeditious, and uniform

manner. See About the Office, supra.

The Director does not act outside of that

mission or the governing statutes and

regulations of EOIR.

Further, the Director’s decisions are

subject to review by the Attorney

General, either at the Director’s or

Attorney General’s request. 8 CFR

1003.1(e)(8)(ii). The Department

disagrees with the commenter’s concern

regarding a politically appointed

Attorney General’s delegation of power

to the Director creating the appearance

of impropriety. Congress has

specifically provided the Attorney

General, a presidential appointee, with

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Other commenters averred that the delegation

of OGC’s responsibilities to the Director was

unlawful. Commenters noted that the rule delegated

decision-making authority to the Director on

various matters previously handled by OGC;

however, the commenters did not identify to which

‘‘various matters’’ they refer. Because the IFR did

not delegate any authority or decision-making role

from OGC to the Director, and did not alter the

Director’s supervisory authority over OGC, the

Department does not discuss these concerns further

in this final rule.

16

Comments in this Part are distinguishable from

comments described in Part II.D.2 of this preamble.

Those comments alleged that the rule’s arbitrary

and capricious nature violates the Administrative

Procedure Act (‘‘APA’’). These comments, however,

do not mention the APA; rather, they briefly note

that the rule ‘‘lacks any reasonable justification’’ but

do not elaborate further.

broad powers regarding the immigration

laws, and the statute explicitly allows

for the Attorney General to delegate that

power. INA 103(g)(2) (8 U.S.C.

1103(g)(2)). Concerns about this

allocation of authority are best

addressed to Congress.

5. Office of the General Counsel

Comment: The Department received

several comments opposed to the rule’s

transfer of functions from OGC. Several

commenters stated their opposition to

the limitations placed on the functions

and authority of OGC.

15

Response: The Department

appreciates the commenters’ concerns.

However, the Department believes that

the transfer of certain OGC functions to

OP was reasoned and appropriate.

As discussed above, the Director has

the authority to ‘‘propose the

establishment, transfer, reorganization

or termination of major functions within

his organizational unit as he may deem

necessary or appropriate.’’ 28 CFR

0.190(a). The Attorney General, as the

head of the Department, supervises and

directs the administration of EOIR. 28

U.S.C. 503, 509, 510.

As reflected in the IFR, the Attorney

General created OP to ‘‘improve[ ]

efficiency by reducing redundant

activities performed by multiple

components and ensure[ ] consistency

and coordination of legal and policy

activities across multiple components

within EOIR.’’ 84 FR at 44538. As a

result, the rule transferred OGC

functions that were policymaking in

nature, namely regulatory development

and review, from OGC into OP. Id.; see

8 CFR 1003.0(e)(1). It is the

Department’s judgment that including

these policymaking functions in OP,

and not in OGC or elsewhere in EOIR,

is necessary for OP to be able to meet

its mission and increase EOIR’s

efficiencies. Further, having

policymaking functions within OGC is

not fully congruent with OGC’s role of

providing legal counsel to all of EOIR,

including the three adjudicatory

components.

The IFR, however, did not otherwise

limit the function or authority of OGC,

which continues to perform a wide

range of important roles for EOIR,

including those related to employee

discipline, ethics, anti-fraud efforts,

practitioner discipline, privacy,

Freedom of Information Act requests,

records management, and litigation

support. See 8 CFR 1003.0(f); see also

Office of the General Counsel, supra.

The IFR will ensure that OGC is able to

devote sufficient resources to all of the

programs for which it is responsible,

particularly given the increased

complexity and volume of its work in

recent years. See 84 FR at 44538.

6. Policy Considerations

a. Political Motivations

Comment: Many commenters alleged

that the rule is specifically purposed to

advance a political agenda and

politicize immigration adjudications.

Commenters oppose the rule’s transfer

of cases to an alleged political appointee

and the rule’s empowerment of an

allegedly politically controlled Office of

Policy because those provisions allow

political forces to influence and govern

adjudications.

Some commenters alleged that OP

was specifically created to advance an

anti-immigrant political agenda through

regulations and guidance. Accordingly,

some commenters oppose the rule’s

moving of OLAP to OP as

counterintuitive because OLAP works to

expand legal access through the R&A

Program, NQRP, and LOP, among

others.

One commenter alleged that through

the rule, the Director is attempting to

rewrite immigration law to conform to

particular political motives. Another

commenter remarked that the

‘‘delegation of judicial power to the

unqualified Executive Director further

stands at odds with the nomenclature

change that outwardly enhances the

esteem of the BIA. . . . These

inconsistencies illustrate the arbitrary

nature of the interim changes as a

whole, and suggest ulterior motives.’’

Response: As discussed above, all

EOIR officials are career federal

employees, not political appointees

appointed for a particular presidential

administration. Both the Director and

the Assistant Director for Policy, as well

as many other EOIR leadership

positions, are members of the SES who

occupy career appointments. Career SES

officials serve as high-level managers in

the federal government and work to

further the public interest without

political motivations. See 5 U.S.C.

3131(13).

As employees of the Department,

however, all EOIR officials are subject to

the supervision of the Attorney General,

who is a political appointee of the

President. See INA 103(g) (8 U.S.C.

1103(g)); 28 U.S.C. 503; see also 8 CFR

1003.0(a) (providing that EOIR is within

the Department); 28 CFR 0.1 (same),

0.5(a) (providing that the Attorney

General shall ‘‘[s]upervise and direct the

administration and operation of the

Department of Justice’’). The

promulgation of this rule did not have

any impact on the Attorney General’s

role as the ultimate supervisor of EOIR.

Cf. Matter of Castro-Tum, 27 I&N Dec.

271, 281 (A.G. 2018) (discussing the

Attorney General’s ‘‘well-established’’

authority regarding the immigration

laws).

As stated in the IFR, OP was

established ‘‘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.’’ 84 FR at 44538.

Further, the Department chose to

locate OLAP within OP due to ‘‘OLAP’s

role in effectuating EOIR’s Nationwide

Policy regarding procedural protections

for detained aliens who may be deemed

incompetent’’ and to ‘‘ensure[ ] an

appropriate chain of command and

better management of OLAP’s programs,

provide[ ] for better coordination of

OLAP’s functions within the broader

scope of EOIR’s adjudicatory operations,

and allow[ ] for greater flexibility in the

future regarding OLAP’s mission.’’ 84

FR at 44539. The Department continues

to believe that OLAP is well-suited for

placement in OP for these same reasons.

b. Justification for the Rule

Comment: Several commenters stated

that the IFR ‘‘lacks reasonable

justification.’’

16

Commenters compared

the IFR to EOIR’s alleged ‘‘similar plan

to eliminate OLAP’s legal orientation

programs in spring of 2018’’ and averred

that both the rule and the previous plan

lacked reasonable justification.

Commenters did not provide further

discussion regarding their claim that the

rule lacks reasonable justification.

Response: The Department continues

to rely on the reasons articulated in the

IFR. See 84 FR at 44538–40. All changes

in the IFR were designed to further

EOIR’s mission.

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c. Nation’s Core Values

Comment: Commenters expressed

opposition to the IFR, alleging that it

undermines the immigration system,

which, in turn, contradicts the Nation’s

core democratic principles of fair

process, justice, access to legal

representation, and rule of law.

Commenters emphasized human dignity

and expressed concern that the IFR

adversely affects the Nation’s system of

laws and human lives. Commenters also

stated that the IFR contradicts the

nation’s Christian and immigrant

history.

Response: The Department recognizes

that the United States government

upholds certain core principles that are

fundamentally and distinctly American,

and the Department asserts that the IFR

strengthens, not weakens, the Nation’s

immigration court system, and is thus

aligned with America’s core values. The

IFR was designed to promote EOIR’s

primary mission of fairly, expeditiously,

and uniformly interpreting and

administering the Nation’s immigration

laws. For example, the IFR was

designed to promote a more efficient

disposition of cases at the

administrative appeals level. 84 FR at

44539–40. Additionally, the IFR

formalized the establishment of an

Office of Policy, which is designed to

improve efficiency by reducing

redundancy within the agency and

promoting consistent policy positions

throughout EOIR. Id. at 44538. The rule

also restructures EOIR by placing

OLAP’s duties under OP to ensure better

management and facilitation of OLAP’s

programs within the bounds of relevant

statues and regulations. Id. at 44539.

d. Efficiency Concerns

Comment: Numerous commenters

stated that permitting the Director to

adjudicate cases will not meaningfully

address concerns about timely case

adjudication. Commenters indicated

that in allowing the Director to

adjudicate pending cases before the BIA,

the IFR did not address the root cause

of the pending caseload before the BIA

or attempt to increase the BIA’s

efficiency. One commenter stated that

the Director would not have the time to

adjudicate all BIA cases pending beyond

the 90-day or 180-day adjudication

deadlines and would therefore have to

select which cases to adjudicate, thereby

allowing the Director to interfere with

the impartial BIA adjudication process.

One commenter was concerned that

delegating authority to adjudicate

immigration cases would decrease the

efficiency of the immigration system

and degrade the public trust in the

process.

Response: The Department has

already undertaken several efficiency-

focused initiatives for the BIA. See, e.g.,

Policy Memorandum 20–01: Case

Processing at the Board of Immigration

Appeals, supra (explaining various

agency initiatives, including an

improved BIA case management system,

issuance of performance reports, and a

reiteration of EOIR’s responsibility to

timely and efficiently decide cases in

serving the national interest).

Addressing the root causes of the

pending caseload is beyond the scope of

this rulemaking; the IFR did not purport

to solve every inefficiency or issue

affecting timely case adjudications

within the agency. Instead, the IFR is a

tool that addresses one inefficiency that

relates to particular case adjudications,

as outlined in 8 CFR 1003.1(e)(8)(ii), by

delegating authority to the Director to

decide such cases.

The Department notes that attorneys

and other staff at the BIA routinely

assist Board members with research and

analysis of cases pending before the

BIA. The Director’s handling of the

subset of cases defined in this rule does

not change the role of those staff to

assist in such a manner. The Director, as

the supervisor of all of EOIR, may seek

assistance from such staff as well.

Further, the Director has counsel from

whom he may seek assistance within

OOD. The Department is confident in

the abilities of the Director and the BIA

to timely adjudicate such cases in

accordance with the regulations and

statutes and, thus, disagrees with

commenters’ assertions that the Director

lacks the time or capacity to fulfill this

responsibility. This rule does not

impose a requirement that the Director

handle the cases, but provides for that

possibility when needed and when it is

reasonable and practicable for him to do

so. Further, the Department has

determined that, given 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.’’ 84 FR at 44539.

Accordingly, the Department believes

that the delegation of the Attorney

General’s authority over these cases to

the Director increases efficiency within

the agency and serves the national

interest. Cf. Jefferson B. Sessions III,

Attorney General, U.S. Dep’t of Justice,

Memorandum for the Executive Office

for Immigration Review: Renewing Our

Commitment to the Timely and Efficient

Adjudication of Immigration Cases to

Serve the National Interest (Dec. 5,

2017), https://www.justice.gov/opa/

press-release/file/1015996/download.

e. Alternative Recommendations

Comment: Commenters stated that the

IFR does not adequately address

workload concerns at the BIA or the

immigration courts. Several commenters

stated that permitting the Director to

adjudicate cases that have been pending

before the BIA for more than 90 days is

an inappropriate response to the

workload issues currently affecting the

BIA. Several commenters indicated that

immigration law requires the expertise

of an immigration judge; thus,

commenters stated that hiring more

immigration judges could address

concerns regarding case processing

times. One commenter also stated that

the Department should hire more

immigration judges rather than

undermine the authority of the current

immigration judges. Commenters

proposed alternative solutions to

address case processing times such as

initiatives to improve staff retention,

recalling senior judges or retired BIA

members for temporary assignment to

the BIA, and generally equipping the

BIA with the resources necessary to

adjudicate decisions in a timely manner.

Response: The Department

appreciates the commenters’

suggestions, though many of them—e.g.,

hiring more immigration judges,

recalling retired immigration judges or

Board members—are beyond the scope

of the IFR. The Department believes that

the IFR will contribute to a better

functioning immigration court system.

Further, the Department notes that the

IFR was just one of many affirmative

efforts to improve EOIR’s efficiencies,

including the immigration courts and

the BIA, and it was not intended to

foreclose alternative methods. For

example, the Department has prioritized

immigration judge hiring in recent

years, increasing the number of

immigration judges from 245 in 2010 to

466 through the first quarter of 2020.

See EOIR, U.S. Dep’t of Justice, EOIR

Adjudication Statistics: Immigration

Judge (IJ) Hiring (Jan. 2020), https://

www.justice.gov/eoir/page/file/1104846/

download. In 2018, the Department also

increased the number of appellate

immigration judges authorized to serve

on the BIA from 17 to 21, see Expanding

the Size of the Board of Immigration

Appeals, 83 FR 8321 (Feb. 27, 2018),

and recently increased it again to 23, see

Expanding the Size of the Board of

Immigration Appeals, 85 FR 18105 (Apr.

1, 2020). In addition, EOIR is working

towards a pilot electronic system for

filing and case management. See EOIR

Electronic Filing Pilot Program, 83 FR

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17

In fact, the commenter recommended that

immigration courts be made into Article II courts,

but the Department believes that the commenter

inadvertently meant to refer to Article I courts due

to recent discussions on the issue, and responds

accordingly. See Strengthening and Reforming

America’s Immigration Court System, Hearing

Before the H. Subcomm. on Border and Immigration

Issues of the H. Comm. on the Judiciary, 115th

Cong. (Apr. 18, 2018), https://

www.judiciary.senate.gov/meetings/strengthening-

and-reforming-americas-immigration-court-system

(exploring ways in which Congress can strengthen

and reform the immigration court system, including

the option to reform the system into Article I

courts).

18

See Part II.C.2.a of this preamble for further

discussion.

19

The Department understands these commenters

to refer to OLAP’s role in the R&A process, not

OLAP as an individual office within EOIR. The

2016 regulation did not first establish OLAP.

Instead, the 2016 regulation ‘‘formalize[d] OLAP’s

structure and function as a component of EOIR and

transfer[red] the administration of the R&A program

from the Board to OLAP.’’ 80 FR at 59516.

29575 (June 25, 2018). EOIR has taken

steps to ensure that courtrooms are not

being underutilized around the country

during business hours. EOIR, U.S. Dep’t

of Justice, Policy Memorandum 19–11:

No Dark Courtrooms (Mar. 29, 2019),

https://www.justice.gov/eoir/file/

1149286/download (intended to

memorialize policies to reduce and

minimize the impact of unused

courtrooms and docket time). As

previously explained by the Director,

‘‘[e]ach of these accomplishments is

critical to EOIR’s continued success as

it addresses the pending caseload, and

EOIR has solved some of its most

intractable problems of the past decade

regarding hiring, productivity, and

technology.’’ Unprecedented Migration

at the U.S. Southern Border: The Year

in Review: Hearing Before the S. Comm.

on Homeland Sec. & Governmental

Affs., 116th Cong. (2019) (statement of

James McHenry, Director, EOIR, U.S.

Dep’t of Justice).

Comment: One commenter

recommended that immigration courts

be made into Article I courts.

17

The

commenter did not provide further

reasoning for the recommendation.

Response: The recommendation is

both beyond the scope of this

rulemaking and the authority of the

Department of Justice.

Congress has the sole authority to

create an Article I court. Cf., e.g., 26

U.S.C. 7441 (‘‘There is hereby

established, under Article I of the

Constitution of the United States, a

court of record to be known as the

United States Tax Court.’’). Despite this

authority, Congress has provided for a

system of administrative hearings for

immigration cases, which the

Department believes should be

maintained. See INA 240 (8 U.S.C.

1229a) (laying out administrative

procedures for removal proceedings);

see also Strengthening and Reforming

America’s Immigration Court System:

Hearing Before the Subcomm. on Border

Sec. & Immigration of the S. Comm. on

the Judiciary, 115th Cong. (2018)

(written response to Questions for the

Record of James McHenry, Director,

EOIR, U.S. Dep’t of Justice) (‘‘The

financial costs and logistical hurdles to

implementing an Article I immigration

court system would be monumental and

would likely delay pending cases even

further.’’).

D. Comments Regarding Regulatory

Requirements: Administrative

Procedure Act

1. Notice-and-Comment Requirements

Comment: Many commenters raised

concerns that the IFR violated the

Administrative Procedure Act (‘‘APA’’)

by failing to provide a prior notice-and-

comment period. See 5 U.S.C. 553.

Several commenters stated that the rule

should not have been exempt from the

traditional notice-and-comment

requirement and the rule included

considerable substantive changes that

will have a fundamental impact on

EOIR’s legal access programs. In making

this argument, several commenters

argued that the placement of OLAP’s

functions under OP constituted or took

a step toward the elimination of those

program functions.

18

One commenter

indicated that the IFR’s placement of

OLAP under OP was particularly

significant because OP ‘‘is responsible

for attacks on due process for

immigrants’’ and, with such a design,

the rule constituted much more than an

agency reorganization, rather than a

mere ‘‘rule of management and

personnel’’ or agency procedure and

practice. Commenters alleged that

because OLAP’s programs impact

thousands of accredited representatives

and hundreds of non-profits who

employ them, the IFR constituted an

adverse impact on the public that

required a period of notice-and-

comment.

Some commenters argued that,

because OLAP was created in direct

response to a 2016 rule to administer

the R&A Program, the changes to OLAP

in the IFR should have been subject to

the APA’s notice-and-comment

requirements.

19

Some commenters

argued that the IFR improperly

overturned the 2016 rule, which was

properly implemented through notice

and comment.

Commenters stated that there was not

an ‘‘urgent’’ need to publish the IFR

quickly and that the IFR enacted major

changes to EOIR’s adjudicatory system,

thereby requiring EOIR to follow the

notice-and-comment process.

Many of these commenters argued

that the IFR’s provisions regarding the

delegation of authority from the

Attorney General to the Director and

from the Director to the Assistant

Director for Policy demonstrated that

the IFR made substantive changes that

went beyond just reorganization and,

thereby, required a period of notice and

comment. Several commenters stated

that the role of the Director is purely

administrative, limited by the

provisions of 8 CFR 1003.0, and that the

IFR’s provisions for the Director’s

intervention on BIA rulings when

adjudication exceeds certain timelines

amounted to significant substantive, not

merely procedural, changes mandating a

notice-and-comment period.

One commenter stated that

implementation of the IFR without the

provision of a notice-and-comment

period undermined the APA’s values,

such as accuracy, efficiency, and

acceptability.

One commenter said that the

Department’s characterization of the

IFR’s substance, which the commenter

alleged was described as ‘‘minor

administrative housekeeping,’’ was

disingenuous and a deliberate effort to

evade the APA’s notice-and-comment

requirements. Relatedly, another

commenter asserted that the

Department’s imposition of the rule,

without permitting a period for notice

and comment, was ‘‘both illegal and ill-

conceived.’’

Response: The Department disagrees

with commenters that the IFR involved

changes that required a notice-and-

comment period or a 30-day delay in the

effective date. As the Department

explained in the IFR, it was not subject

to the notice-and-comment process or a

delay in effective date because it was ‘‘a

rule of management or personnel as well

as a rule of agency organization,

procedure, or practice.’’ 84 FR at 44540;

see 5 U.S.C. 553(a)(2), (b)(A).

Contrary to commenters’ assertions

that the substantive nature of the IFR

triggered a required notice-and-

comment period (as opposed to the

procedural nature), the APA does not

condition notice-and-comment

requirements purely on whether a

rulemaking is substantive in nature.

Instead, the APA’s notice-and-comment

procedures are subject to various

enumerated exceptions. Such

exceptions include rulemaking related

to ‘‘agency management or personnel’’

and ‘‘rules of agency organization,

procedure, or practice.’’ See 5 U.S.C.

553(a)(2), (b)(A).

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20

The only change the IFR made to 8 CFR

1003.1(b)(1)(i)–(ix) was to include the Department

of Health and Human Services (‘‘HHS’’), which has

responsibility to provide care and other services for

unaccompanied alien children (‘‘UAC’’), in the list

of federal agencies with which EOIR may

administratively coordinate. 84 FR at 44540 n.4; see

8 CFR 1003.0(b)(1)(iii); cf. 45 CFR pt. 410 (HHS

regulations governing care and placement of UAC).

21

See Part II.C.4.a of this preamble for further

discussion regarding the propriety of the Attorney

General’s delegation of power to the Director to

adjudicate cases.

First, transferring OLAP and its

programs to OP is a matter of agency

management or personnel, as well as a

rule of agency organization, procedure,

or practice, such that notice-and-

comment is unnecessary. See 5 U.S.C.

553(a)(2), (b)(A). In fact, OLAP has been

moved multiple times within EOIR

throughout its history, see 84 FR at

44537, and none of those moves were

effected through notice-and-comment

rulemaking. The IFR did not eliminate

OLAP or otherwise change its programs

except the immediate supervisor who

oversees the office. See supra Part

II.C.2.a. Further, the IFR did not change

OLAP’s significant role and operations

within the agency or the necessary

oversight of its projects and programs; it

only transferred OLAP to a new

component, OP, from OOD.

In addition, the Department disagrees

that OP’s actions undermine due

process or that its creation was a

product of anything further than agency

management, personnel, and

organization. See supra Part II.C.3.c, d.

Accordingly, the public was not and

will not be adversely affected by the

IFR’s internal reorganization and

transfer of OLAP into OP and need not

be given notice and an opportunity to

comment. See 5 U.S.C. 553(a)(2), (b)(A).

The Department disagrees with

commenters’ assertions that the

provisions in the IFR that delegated

authority to the Director to review

otherwise untimely BIA decisions were

substantive changes that should have

undergone notice-and-comment

procedures. Instead, the Attorney

General’s delegation of authority to the

Director to review cases under 8 CFR

1003.1(e)(8)(ii) furthers the Director’s

ability to exercise oversight and

effective management of EOIR, and it

improves agency organization,

procedure, and practice in order to

uphold EOIR’s mission to interpret and

administer the Nation’s immigration

laws. As explained by the IFR, 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 APA. 84

FR at 44540. As such, the IFR is exempt

from the APA’s notice-and-comment

requirements, and the Department

appropriately published it as an IFR.

The general regulations that outline

the Director’s authority are contained in

8 CFR 1003.0(b) and were not

substantively affected by the IFR.

20

Specifically, the regulations provide

that the ‘‘Director shall manage EOIR

and its employees.’’ 8 CFR 1003.0(b)(1).

The enumerated list that follows in

paragraphs (b)(1)(i)–(ix) explains how

the Director may accomplish the

directive provided in paragraph (b)(1).

For example, the Director may ‘‘[i]ssue

operational instructions and policy,

including procedural instructions,’’

‘‘[d]irect the conduct of all EOIR

employees to ensure the efficient

disposition of all pending cases,’’ and

‘‘manage the docket of matters to be

decided by the Board, the immigration

judges, the Chief Administrative

Hearing Officer, or the administrative

law judges.’’ Id. 1003.1(b)(1)(i), (ii).

Given the breadth of the Director’s

responsibilities, the Attorney General

also authorized the Director to ‘‘exercise

other such authorities as the Attorney

General may provide.’’ Id.

1003.0(b)(1)(ix).

Before the IFR’s publication,

§ 1003.0(c) in turn provided that the

Director had no authority to adjudicate

cases arising under the Act or

regulations and could not direct the

result of an adjudication assigned to the

Board, an immigration judge, the Chief

Administrative Hearing Officer, or an

Administrative Law Judge, although this

prohibition was not to be construed to

limit the authority of the Director under

8 CFR 1003.0(b). 8 CFR 1003.0(c) (2018).

Accordingly, the authority conferred by

paragraph (b)(1)(ix) on the Director to

exercise other authority provided by the

Attorney General was not affected by

paragraph (c)’s limitation on the

Director’s adjudicatory authority.

21

At the same time, the INA confers

power on the Attorney General to

review administrative determinations.

INA 103(g)(2) (8 U.S.C. 1103(g)(2)). Prior

to the IFR, when a case appeal

surpassed the regulatory timeline, the

Chairman assigned the case to himself,

a Vice Chairman, or the Attorney

General. 8 CFR 1003.1(e)(8)(ii) (2018).

This procedure continues to be in place

following the IFR. However, as a matter

of agency management, as well as

organization, procedure, or practice, the

Attorney General delegated that

authority to review administrative

determinations to the Director. In his

discretion, the Attorney General

determined that the Director’s oversight

and management responsibilities,

particularly in regards to case

processing at the BIA, were best

effectuated by authorizing the Director

to adjudicate appeals when a ‘‘panel is

unable to issue a decision within the

established time limits, as extended.’’

Id. 1003.1(e)(8)(ii). Authorizing the

Director to decide otherwise untimely

cases allows him to best fulfill his

oversight and management

responsibilities of the agency, which

includes the BIA. See id. 1003.0(b).

Regarding commenters who alleged

there was not an ‘‘urgent’’ need to

publish the IFR without notice-and-

comment, the Department notes that it

did not issue the rule as an IFR based

on urgency; rather, the Department

issued the rule as an IFR because it

involved agency management or

personnel, as well as agency

organization, procedure, or practice. See

84 FR at 44540. As explained above,

such rulemakings do not require a

notice-and-comment period. 5 U.S.C.

553(a)(2), (b)(A).

Finally, the Department disagrees that

publication of the rule as an IFR

undermined values of the APA process.

Congress specifically provided

exceptions to the general notice-and-

comment procedures for matters

involving agency personnel or

management because such procedures

are unnecessary to further the APA’s

purpose. See S. Rep. No. 79–752, at 13

(1945) (explaining that the exception for

proprietary matters was ‘‘included

because the principal considerations in

most such cases relate to mechanics and

interpretations or policy, and it is

deemed wise to encourage and facilitate

the issuance of rules by dispensing with

all mandatory procedural

requirements’’).

The Department’s publication of the

rule as an IFR aligns with the Senate

Committee’s explanation of the

exception at issue—while the

Department was not required to use

notice-and-comment rulemaking

procedures, it chose, in an exercise of

discretion, to issue the rule as an IFR to

provide the public with information.

For example, the IFR provided the

public with information about OLAP’s

transfer because OLAP maintains many

public-facing programs and contracts.

Because the organizational change could

impact letterhead or signage, with

which the public interacts, the agency

sought to reduce possible confusion.

Finally, the Department notes that

although the IFR was published as an

IFR and not a proposed rule, the IFR

contained a 60-day comment period that

was not required. The Department has

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22

Following the creation of DHS in 2003 after the

passage of the HSA, EOIR’s regulations were moved

from chapter I of title 8, CFR, to chapter V. Aliens

and Nationality; Homeland Security;

Reorganization of Regulations, 68 FR 9824 (Feb. 28,

2003). Part 3 was duplicated for EOIR at part 1003.

carefully reviewed all comments

received and appreciates the public’s

responses.

2. Arbitrary and Capricious

Comment: Several commenters stated

that the rule’s publication constituted

an arbitrary and capricious attempt by

the Department to impose substantive

policy changes impacting the

immigration adjudicatory process.

Other commenters stated that the

rule’s provision allowing for the

Director’s involvement when BIA

adjudication exceeds the permissible

timeline constitutes an impermissible,

arbitrary reassignment of the BIA’s

authority to an administrator, not a

judge. One commenter argued that the

rule’s timeline permitting intervention

by the Director in BIA decisions

amounted to creation of an ‘‘arbitrary

deadline,’’ which would force judges to

place speed over justice and violate due

process requirements.

Several commenters argued that the

IFR is arbitrary and capricious because

the transfer of R&A Program oversight

from OLAP to OP amounted to

‘‘dismantling programs’’ that are

required by regulation, statute, and

court order. Some commenters observed

that the IFR’s notice did not include

sufficient information to anticipate the

practical effects of changes created by

the IFR, including possible changes to

immigrants’ access to counsel.

Response: The Department disagrees

with commenters that the IFR’s changes

to title 8 and title 28, CFR, are arbitrary

and capricious. See 5 U.S.C. 706(2)(A).

An agency’s decision is arbitrary and

capricious if the agency did not conduct

a consideration of the relevant factors

and made a clear error of judgment.

Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 416 (1971). As

evidenced in the IFR, the Department

considered the relevant factors and

concluded that the changes to EOIR’s

organization and adjudication process

were necessary to increase efficiency

and properly allocate resources. See,

e.g., 84 FR at 44538–40. As explained in

Part II.D.1 of this preamble, the IFR set

forth non-substantive changes regarding

agency management or personnel, as

well as agency organization, procedure,

or practice, and it was not subject to

notice-and-comment requirements. See

Id. at 44540; see also 5 U.S.C. 553(a)(2),

(b)(A).

Specifically, the Department does not

believe that it was arbitrary and

capricious for the Attorney General to

delegate his authority to the Director to

adjudicate appeals that have exceeded

the BIA’s adjudication times. This

delegation of authority is one of many

actions that the Department is taking to

address the pending caseload of appeals

at the Board. The Attorney General has

already codified regulations recognizing

that the Attorney General may delegate

duties to the Director in addition to

those outlined in existing regulations.

See 8 CFR 1003.0(b)(1)(ix) (providing

that the Director may exercise ‘‘other

authorities as the Attorney General may

provide’’). Here, the Attorney General

has reasonably concluded that it is

necessary and appropriate to assign

certain pending case appeals to the

Director for adjudication for the purpose

of improving efficiency in

adjudications. See 84 FR at 44539–40.

The Department disagrees that this

delegation of authority sets arbitrary

deadlines. In fact, the IFR did not affect

any BIA case-processing timelines.

Instead, the timelines provided in

EOIR’s regulations for BIA case appeal

adjudications were first established in

2002. See Board of Immigration

Appeals: Procedural Reforms To

Improve Case Management, 67 FR

54878, 54896 (Aug. 26, 2002) (codified

at 8 CFR 3.1(e)(8) (2002)).

22

As part of

this rulemaking, the Department revised

8 CFR 1003.1(e)(8)(ii), which generally

required the Chairman to re-assign

pending BIA cases that have surpassed

the imposed deadlines to himself, a

Vice-Chairman, or the Attorney General.

See 8 CFR 1003.1(e)(8)(ii) (2018). The

Department is unaware of any existing

case law finding the deadlines imposed

were arbitrary and capricious. Cf., e.g.,

Purveegiin v. Gonzales, 448 F.3d 684,

691 (3d Cir. 2006) (citing 8 CFR

1003.1(e)(8) as an example of a

regulation that was ‘‘merely an ‘internal

management directive’ ’’).

Finally, the Department disagrees that

the IFR was arbitrary and capricious

because it ‘‘dismantled’’ the R&A

Program. The IFR was ‘‘not intended to

change—and [did] not have the effect of

changing—any of OLAP’s current

functions.’’ 84 FR at 44539. Moreover,

the rule plainly required OP to

‘‘maintain a division within the Office

of Policy to develop and administer a

program to recognize organizations and

accredit representatives to provide

representation before [EOIR and/or

DHS].’’ 8 CFR 1003.0(e)(3). As explained

above, the IFR merely moved oversight

of the R&A Program from one non-

adjudicatory component of EOIR, OOD,

to another, OP. The R&A Program and

OLAP’s other programs continue to

operate under OLAP’s new leadership

structure, demonstrating the

Department’s consideration of the

practical effects of the rule, including

aliens’ access to counsel, as it relates to

this point. Further, because the rule

merely restructures EOIR, the practical

effects to individual aliens is minimal at

best.

III. Provisions of the Final Rule

The Department has considered and

responded to the comments received in

response to the IFR. In accordance with

the authorities discussed in Part I.B of

this preamble, the Department is now

issuing a final rule that adopts the

provisions of the IFR as final with some

amendments to 8 CFR 1003.0(b)(2) and

(c), regarding the Director’s adjudicatory

authority and ability to delegate that

authority, 8 CFR 1292.6, regarding the

Director’s interpretive authority in R&A

cases, and 8 CFR 1292.18(a), also

regarding the Director’s ability to

delegate his authority. Taken together,

these changes address commenters’

concerns that the IFR’s changes allowed

the Director to delegate authority to

adjudicate cases arising under the Act or

the regulations to the Assistant Director

of Policy or to any other EOIR

employee, and that the Director’s

decisions when adjudicating untimely

BIA appeals could be subject to

improper influence. The Department

did not intend for the IFR to have either

of those effects; therefore, it amends the

regulatory text in the following ways.

First, in 8 CFR 1003.0(b)(2), the final

rule designates the current text in the

paragraph, which sets out the Director’s

general delegation authority, as

paragraph 8 CFR 1003.0(b)(2)(i). It then

adds new paragraph 8 CFR

1003.0(b)(2)(ii), which provides an

exception to the Director’s delegation

authority. These changes instruct that

the Director may generally delegate

authority given to him by 8 CFR part

1003 or directly 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,’’ but that the Director may

not further delegate the case

adjudication authority provided by 8

CFR 1003.1(e)(8)(ii) (regarding the

adjudication of BIA cases that exceed

the established adjudication timelines),

8 CFR 1292.18 (regarding the Director’s

discretionary authority to review

requests for reconsideration of denials

of applications for recognition or

accreditation), or any other provision or

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direction unless expressly authorized to

do so.

The final rule adds language to 8 CFR

1003.0(c) providing guidelines that

would apply whenever the Director is

authorized by statute, regulation, or

delegation of authority from the

Attorney General or when acting as the

Attorney General’s designee. During

such adjudications, the final rule

specifically instructs the Director to

‘‘exercise independent judgment and

discretion.’’ As discussed above, the

Director is a member of the career SES,

not a political appointee, who has a

demonstrated a knowledge of

immigration law and procedure. The

final rule enhances the assurance of

independent judgment, and not political

motivation, regarding the decisions the

agency’s adjudicators make, such as

those authorized by regulation at 8 CFR

1003.1(e)(8)(ii) and 1292.18.

In addition, the final rule authorizes

the Director to ‘‘take any action

consistent with the Director’s authority

as is appropriate and necessary for the

disposition of the case.’’ For example,

under 8 CFR 1003.0(b)(1)(ii), the

Director has authority to ‘‘[d]irect the

conduct of all EOIR employees to ensure

the efficient disposition of all pending

cases.’’ The final rule makes explicit

that this and other powers of the

Director also apply whenever the

Director is authorized to adjudicate a

case.

The final rule also clarifies 8 CFR

1292.6 to state that both the Assistant

Director for Policy (or the Assistant

Director for Policy’s delegate) and the

Director are responsible for interpreting

8 CFR 1292.11 through 1292.20 when

adjudicating R&A cases. This

clarification eliminates any suggestion

that only the Assistant Director for

Policy (or the Assistant Director for

Policy’s delegate) can interpret 8 CFR

1292.11 through 1292.20, which would

be in tension with the Director’s

administrative review authority in 8

CFR 1292.18.

Finally, consistent with the

limitation, in response to a commenter’s

concern, on the Director’s ability to re-

delegate the Director’s adjudicatory

authority, the final rule makes a

conforming change to 8 CFR 1292.18 by

removing the Director’s authority to

delegate the discretionary authority to

review requests for reconsideration of

denials of applications for recognition

or accreditation to ‘‘any officer within

EOIR, except the Assistant Director for

Policy (or the Assistant Director for

Policy’s delegate).’’ This provision was

initially included in the regulations in

2016 without discussion as to the need

of the Director to be able to delegate

these cases. See 81 FR at 92356–57,

92372. The final rule, thus, ensures that

the limit on the Director’s authority to

re-delegate that position’s adjudicatory

authorities is consistent across the

regulations.

IV. Regulatory Review Requirements

A. Administrative Procedure Act

As previously explained by the

Department and discussed further in

Part II.D.1 of this preamble, the IFR was

a rule of agency management or

personnel, as well as a rule of agency

organization, procedure, or practice, and

was 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); see also 84 FR

at 44540. This rule adopts the

provisions of the IFR with changes to

provide restrictions on the authority of

the Director regarding further

delegations of certain regulatory

authorities, to clarify that the Director

shall exercise independent judgment

when considering cases subject to his

adjudication and may take any action

within his authority that is appropriate

and necessary to decide those cases, and

to clarify the authority to interpret

certain regulations. These changes are

additional matters of agency

management or personnel. Accordingly,

this final rule, too, is exempt from the

requirements of a 30-day delay in

effective date.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act

(‘‘RFA’’), ‘‘[w]henever an agency is

required by section 553 of [title 5, U.S.

Code], 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 id. 604(a). Such analysis is not

required when a rule is exempt from

notice-and-comment rulemaking under

5 U.S.C. 553. Because this rule is

exempt from notice-and-comment

rulemaking under 5 U.S.C. 553, no RFA

analysis under 5 U.S.C. 603 or 604 is

required.

C. Unfunded Mandates Reform Act of

1995

This final 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, 2 U.S.C. 1501 et seq.

D. Executive Order 12866, Executive

Order 13563, and Executive Order

13771 (Regulatory Planning and 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. 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 final 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, it is determined that 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 final 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. 3501

et seq., and its implementing regulations

in 5 CFR part 1320, do not apply to this

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 management or personnel and is

a rule of agency organization,

procedure, or practice 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.

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1

See 12 U.S.C. 5563; see also 12 CFR 1081.120(d).

The Bureau may also enter into settlements that are

filed in Federal court and must be approved by the

court. See 12 U.S.C. 5564(c). The Bureau may enter

into settlements with any ‘‘person,’’ which includes

both individuals (i.e., natural persons) and various

kinds of entities. See 12 U.S.C. 5481(19). As

discussed further below, this policy applies to

entities subject to Consent Orders, and not to

individuals. This policy therefore generally refers to

‘‘entities’’ when discussing Bureau Consent Orders.

2

See 12 U.S.C. 5565; see also Consumer Financial

Protection Bureau, Enforcement Actions, https://

www.consumerfinance.gov/policy-compliance/

enforcement/actions/.

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 interim final rule

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, published

August 26, 2019, at 84 FR 44537, is

adopted as final with the following

changes:

Title 8—Aliens and Nationality

PART 1003—EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

■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.

■2. Section 1003.0 is amended by

revising paragraphs (b)(2) and (c) to read

as follows:

§ 1003.0 Executive Office for Immigration

Review.

* * * * *

(b) * * *

(1) * * *

(2) Delegations. (i) Except as provided

in paragraph (b)(2)(ii) of this section, 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.

(ii) The Director may not delegate the

authority assigned to the Director in

§§ 1003.1(e)(8)(ii) and 1292.18 and may

not delegate any other authority to

adjudicate cases arising under the Act or

regulations unless expressly authorized

to do so.

(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. When

acting under authority described in this

paragraph (c), the Director shall exercise

independent judgment and discretion in

considering and determining the cases

and may take any action consistent with

the Director’s authority as is appropriate

and necessary for the disposition of the

case. Nothing in this part, however,

shall be construed to limit the authority

of the Director under paragraph (a) or (b)

of this section.

* * * * *

PART 1292—REPRESENTATION AND

APPEARANCES

■3. The authority citation for part 1292

continues to read as follows:

Authority: 8 U.S.C. 1103, 1362.

■4. Section 1292.6 is amended by

revising the last sentence to read as

follows:

§ 1292.6 Interpretation.

* * * Interpretations of §§ 1292.11

through 1292.20 will be made by the

Assistant Director for Policy (or the

Assistant Director for Policy’s delegate)

or the Director.

§ 1292.18 [Amended]

■5. Section 1292.18 is amended in

paragraph (a) introductory text by

removing the last sentence.

Dated: October 13, 2020.

William P. Barr,

Attorney General.

[FR Doc. 2020–23210 Filed 11–2–20; 8:45 am]

BILLING CODE 4410–30–P

BUREAU OF CONSUMER FINANCIAL

PROTECTION

12 CFR Chapter X

Statement of Policy on Applications for

Early Termination of Consent Orders

AGENCY

: Bureau of Consumer Financial

Protection.

ACTION

: Policy statement.

SUMMARY

: The Dodd-Frank Wall Street

Reform and Consumer Protection Act

(Dodd-Frank Act) provides that the

Bureau of Consumer Financial

Protection (Bureau) may enter into

administrative consent orders (Consent

Orders) where the Bureau has identified

violations of Federal consumer financial

law. The Bureau recognizes that there

may be exceptional circumstances

where it is appropriate to terminate a

Consent Order before its original

expiration date. To facilitate such early

terminations where appropriate, this

policy statement sets forth a process by

which an entity subject to a Consent

Order may apply for early termination

and articulates the standards that the

Bureau intends to use when evaluating

early termination applications.

DATES

: This policy statement is

applicable on October 8, 2020.

FOR FURTHER INFORMATION CONTACT

:

Mehul Madia, Division of Supervision,

Enforcement, and Fair Lending, at (202)

435–7104. If you require this document

in an alternative electronic format,

please contact CFPB_Accessibility@

cfpb.gov.

SUPPLEMENTARY INFORMATION

:

I. Background

Where the Bureau has found that an

entity has violated Federal consumer

financial law, the Dodd-Frank Act

provides that the Bureau may settle its

claims against that entity by entering

into an administrative Consent Order.

1

Consent Orders describe the Bureau’s

findings and conclusions concerning the

identified violations and generally

impose injunctive relief, monetary relief

such as redress and civil money

penalties, and reporting, recordkeeping,

and cooperation requirements.

2

Consent

Orders are negotiated by the Bureau and

the entity (or entities) subject to them

and generally have a five-year term,

although in some instances the Bureau

may impose a longer term when, in its

view, the circumstances warrant it.

Bureau staff monitor whether entities

subject to Consent Orders are complying

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