[Federal Register Volume 59, Number 9 (Thursday, January 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-573]


[[Page Unknown]]

[Federal Register: January 13, 1994]


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DEPARTMENT OF JUSTICE

8 CFR Parts 3, 103, 242, and 292

[AG Order No. 1835-93]

 

Executive Office for Immigration Review; Rules of Procedure 
Before Immigration Judges

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: The rules of administrative procedure that are followed in all 
matters before the Immigration Judges were published in interim form on 
April 6, 1992 at 57 FR 11568-11575. Following a period of public 
comment, the rules of procedure were amended to reflect many of the 
suggestions and comments that were received.
    Changes adopted in the final rule clarify that an exception exists 
to the standards for summary dismissal of an appeal when a ``good 
faith'' argument is made for modification, extension or reversal of the 
law. The specific language that was required for certification of 
translation of a foreign language document has been deleted from the 
final rule as too restrictive. To comply with statutory requirements 
for notice of hearings to aliens in deportation proceedings, the final 
rule amends the definition of ``service'' of a document.
    The final rule also clarifies the authority of an Immigration Judge 
to waive the appearance of minors and represented aliens at hearing, 
and further distinguishes the requirements for proceeding in absentia 
in deportation proceedings from those in exclusion hearings.
    In addition to implementing the changes outlined above, the final 
rule establishes the procedural requirements for custody hearings, pre-
hearing conferences, filing documents and applications, and public 
access to hearings. The interim rule that established disciplinary 
proceedings against attorneys for frivolous behavior has not been 
amended, and will continue in interim form until further notice, to 
allow further consideration of the comments received.

EFFECTIVE DATE: This final rule is effective January 13, 1994, except 
for Sec. 292.3, which will continue in interim form.

FOR FURTHER INFORMATION CONTACT:
Gerald S. Hurwitz, Counsel to the Director, Executive Office for 
Immigration Review, suite 2400, 5107 Leesburg Pike, Falls Church, 
Virginia 22041. (703) 305-0470.

SUPPLEMENTARY INFORMATION: The Department of Justice promulgated an 
interim rule to implement provisions in sections 504, 545 and 701 of 
the Immigration Act of 1990, Pub. L. 101-649 (``IMMACT''), and to 
address procedural and administrative matters which arise in 
immigration proceedings. The Executive Office for Immigration Review 
(``EOIR'') received 53 comments from legal aid organizations and 
attorneys nationwide. The comments concerned many of the interim rules, 
and all were carefully considered in the adoption of the final rule. 
What follows is a discussion of the issues raised in the comments, the 
agency response to the comments, and the revisions to the interim rule.

1. Promulgation of the Rule

    Several commenters objected to the promulgation of the rule in 
interim form, which provided an opportunity for public comment only 
after publication. Commenters suggested that by publishing the rule in 
interim form without opportunity for pre-publication comment, the 
agency did not comply with the Administrative Procedure Act (``APA''). 
This conclusion is incorrect. Provisions in the interim rule are 
procedural rules or interpretative rules. The APA provides that such 
rules may be issued without notice and opportunity for prior comment 
and may be effective upon publication. See 5 U.S.C. 553 (b)(A), (d). 
Moreover, the interim rule provided that two provisions which arguably 
contained ``substantive'' rules (Secs. 3.15, 3.26) would not be 
effective until more than thirty days after the end of the comment 
period specified in the interim rule, and more than sixty days after 
the publication of the interim rule. Further, the interim rule invoked 
the ``good cause'' exception to the APA's requirement that a rule be 
published thirty days before its effective date. 57 FR at 11570. 
Finally, although the final rule modifies the interim rule, it remains 
a logical outgrowth of the interim rule. Accordingly, no additional 
opportunity for comment on the final rule is required. For these 
reasons, the interim rule could be promulgated without opportunity for 
prior comment and with most of its provisions effective on the date of 
publication, and this final rule can be effective on the date of 
publication.

2. Section 3.1(d)(1-a)  Summary Dismissal of Appeals

    This rule received 33 comments. Some commenters objected to the 
provision allowing dismissal of an appeal which lacks an arguable basis 
in law or fact. Commenters suggested that this standard is too vague 
and does not provide sufficient notice to the appealing party of the 
Board of Immigration Appeals (``Board'') requirements for avoiding 
summary dismissal. The commenters argued that an appeal should not be 
dismissed if it is supported by a ``good faith argument for an 
extension, modification or reversal of existing law''. The commenters 
requested that the regulation incorporate this language so that 
attorneys ``will not be deterred from bringing appeals to improve the 
law''. This ``good faith exception'' language is found at 
Sec. 292.3(a)(15)(i) but had not been included in the provision 
concerning summary dismissal of an appeal in Sec. 3.1. The final rule 
adds this exception to Sec. 3.1. This language will clarify the 
exception to the grounds for summary dismissal, and will encourage 
effective advocacy while still maintaining high standards for appellate 
review.
    Commenters further objected to dismissal of an appeal for which no 
brief is filed, arguing that summary dismissal of an appeal without 
review of the file is particularly harmful to a pro se alien who may 
not realize the consequences of failing to file a brief. Summary 
dismissal is not mandated under the final rule, but is within the 
Board's discretion. The Board may review the record on the merits if it 
so chooses.
    In section 545(a) of IMMACT (8 U.S.C. 1252b(d)), Congress directed 
the Attorney General to create regulations that would specify 
circumstances under which an administrative appeal would be considered 
frivolous and circumstances under which an appeal could be summarily 
dismissed. The final rule clearly delineates such circumstances, and 
reflects the Congressional mandate to limit frivolous appeals in 
immigration proceedings.

3. Section 3.13  Definitions

    Eighteen identical comments were received concerning the definition 
of the word ``service''. Commenters noted that the definition of 
``service'' did not reflect the requirements of section 242B of the 
Immigration and Nationality Act as amended (``Act'') (8 U.S.C. 1252b) 
which directs that notices of deportation hearings be served in person 
or by certified mail. The commenters are correct, and the final rule is 
changed to include reference to this provision. If the document to be 
served is an Order to Show Cause (``OSC'') or a Notice of Deportation 
Hearing, such document shall be served in person or by certified mail. 
However, the definition of service found in the interim rule that 
allows for first-class mailed service will be retained for documents 
that are not subject to section 242B of the Act.

4. Section 3.14  Jurisdiction and Commencement of Proceedings

    Twenty-seven comments were received concerning this part of the 
rule. The commenters requested that the alien, as well as the 
Immigration and Naturalization Service (``INS''), have an opportunity 
to file the OSC to begin deportation proceedings. The commenters argued 
that allowing the alien to file the OSC at the location of his or her 
choice would permit the alien better access to witnesses and counsel. 
Prior to the interim rule, EOIR had allowed the alien to file a copy of 
the OSC, and the Board acknowledged that the regulation was silent 
regarding which party could file the OSC. See Matter of Sanchez, ID 
3139.
    EOIR decided to terminate its practice of accepting OSCs from 
aliens to begin deportation proceedings, because it is within the 
discretion of the party bringing the charges, i.e., INS, to choose the 
place of initial venue. It is particularly important in detained cases 
that INS have the ability to begin deportation proceedings near where 
the alien is detained. In some cases, aliens have arranged to have OSCs 
filed in cities other than where the alien was located, causing the INS 
to seek a change of venue in order to keep the alien detained. If an 
alien can demonstrate need for change of venue, he or she may request a 
change of venue from the Immigration Judge.

5. Section 3.15  Contents of the Order To Show Cause and Notification 
of Change of Address

    Twenty-six comments were received, many suggesting alternatives to 
the requirement imposed on an alien to report his or her address to 
EOIR within five days of service of the OSC or within five days after 
any change in address. Some commenters requested that the reporting 
period be lengthened and suggested extensions ranging from two weeks to 
thirty days. However, the reporting requirement as incorporated by 
Congress in section 242B of the Act used the term ``immediately''. The 
agency interpreted this term to mean a very short duration, and 
therefore set a period of five days for an alien to report any change 
of address. The five-day period meets the statutory requirement, while 
giving the public specific guidelines to follow. EOIR has created a 
standard change of address form, the EOIR-33, which will allow the 
alien to provide all the necessary information required under the rule. 
The form is designed to be folded and mailed, and is addressed to the 
Office of the Immigration Judge where the change of address should be 
filed. INS distributes the EOIR-33 with each OSC, and EOIR provides 
these forms with its Notices of Hearing. These procedures provide the 
alien with an easy and uniform method of complying with the statutory 
reporting requirement.
    Commenters also raised concerns with the language in the 
introductory phrase of Sec. 3.15(a), which stated that ``Omission of 
any of these items (listed within the body of paragraph (a) of the 
rule) shall not provide the alien with any substantive or procedural 
rights''. The commenters suggested that if any of the administrative 
information listed in Sec. 3.15(a) is missing from the OSC, the OSC 
should be considered defective and set aside. EOIR disagrees. The 
introductory phrase was added to the rule to distinguish those items in 
Sec. 3.15(a) which are necessary to EOIR in the administration of case 
processing, as distinguished from those items found in Sec. 3.15(b) 
which are required to be included on the OSC by statute in section 
242B(a)(1) of the Act (8 U.S.C. 1252b(a)(1)). EOIR requires INS to 
include certain information on the OSC before accepting the document 
for case processing. However, the alien has no statutory benefit or 
right accruing from the omission of that information. Therefore, the 
five-day reporting requirement, and the introductory phrase in 
Sec. 3.15(a) are retained in the final rule.

6. Section 3.19  Custody/Bond

    Twenty-four comments were received regarding this rule. Many 
commenters expressed concern with the requirement that an alien who has 
already had a bond redetermination must request a subsequent 
redetermination in writing. The commenters argued that this requirement 
would limit the number of bond redeterminations that an alien could 
request. The rule, however, does not limit the number of bond 
redeterminations. It does require an alien who has had a bond 
redetermination to provide a written demonstration of a material change 
in circumstances prior to another redetermination. Requiring the 
respondent to set forth a showing of material change in circumstances 
before appearing before the Immigration Judge will permit meritorious 
cases to be heard more quickly, and will discourage frivolous requests 
for multiple bond hearings. The rule has been continued in final form.

7. Section 3.20  Change of Venue

    This rule received 18 identical comments requesting that venue be 
set where the respondent resides, or where the acts which render the 
alien deportable are committed. Venue is determined by INS at the time 
the charging document is filed. When an alien has a fixed residence 
and/or can demonstrate factors that warrant a change of venue, the 
Immigration Judge has the authority to change venue to that location. 
The interim rule did remove the authority of the Immigration Judge to 
change venue on his or her own motion; venue may now be changed only 
upon motion of either party. This change is retained in the final form.

8. Section 3.21  Pre-Hearing Conferences and Statements

    Twenty-five comments were received. Many commenters objected to the 
use of pre-hearing conferences for pro se aliens, arguing that the 
process is too complex for unrepresented aliens to understand. One 
commenter praised the idea of pre-hearing conferences, and suggested 
that the process will be effective in handling complex cases. While the 
rule concerning pre-hearing conferences existed prior to the interim 
rule, the interim rule expanded the authority of the Immigration Judge 
to order the parties to file statements of fact, stipulations, lists of 
witnesses and exhibits, etc. that would assist in the processing of the 
case. The pre-hearing conference will aid in identifying issues that 
can be clarified by the parties outside the courtroom and help to 
resolve issues about which there is little or no dispute. This 
regulation encourages meetings between the parties prior to the hearing 
to refine the case for ultimate presentation to the Immigration Judge. 
Requirements of the pre-hearing conference are within the discretion of 
the Immigration Judge, who can best evaluate the circumstances of a 
particular case. The rule applies to all parties, including pro se 
aliens. The Immigration Judge is best situated to determine whether a 
pre-hearing conference is needed when a pro se alien is involved.

9. Section 3.26  In Absentia Hearings

    Twenty-two comments were received. The commenters noted that the 
language of the interim rule did not distinguish the requirements for 
an in absentia  hearing in deportation proceedings under section 242B 
of the Act from the in absentia process followed in exclusion hearings. 
Section 242B of the Act mandates an in absentia hearing in deportation 
proceedings only under certain specific conditions that require 
personal or certified mailed notice of the hearing to the alien. The 
final rule includes language that accurately reflects these statutory 
requirements in deportation proceedings.
    In addition, the rule has been amended to clarify that the 
Immigration Judge shall order the respondent deported in absentia if 
the Service meets the requirements of section 242B(c)(1) of the Act and 
establishes notice and deportability. This change follows the language 
of the statute and leaves no ambiguity that a hearing held under 
section 242B(c)(1) shall result in a deportation order if the Service 
meets its burden of establishing notice and deportability. The 
commenters noted that the regulation did not indicate that the burden 
of proof in establishing notice and deportability lay with INS; 
therefore this requirements has been expressed in the final rule.
    Further, a provision has been added to clarify the circumstances in 
which an Immigration Judge can proceed in absentia in exclusion 
proceedings. The rule has been amended to specify that notice of the 
time and place of the hearing on the charging document is sufficient 
notice to proceed in absentia in exclusion proceedings.
    Many commenters suggested that this rule eliminates an Immigration 
Judge's discretionary authority to waive the presence of minors and 
represented aliens at hearing under certain circumstances. The 
Immigration Judge continues to have discretionary authority to waive 
the presence of minors and represented aliens for good cause, as set 
forth in the interim rule under redesignated Sec. 3.25. In addition, 
Sec. 3.26 is amended to include language concerning the waiver 
authority.

10. Section 3.27  Public Access to Hearing

    Seven comments were received that raised concerns about the 
adequacy of the rule in protecting battered spouses. Commenters 
requested that certain INS forms, particularly the Waiver of Joint 
Petition (I-751) and the application for work authorization (Form I-
765) provide that the information contained on these forms be treated 
as confidential information. These forms are not EOIR forms and while 
EOIR has no jurisdiction over these forms, EOIR has forwarded the 
comments concerning this regulation to INS for its consideration.
    In all EOIR proceedings concerning an abused spouse or child, the 
proceedings and the record will be closed to the public, unless the 
affected party requests otherwise. Commenters raised a question as to 
who would prevail in the situation where a parent and child disagree as 
to whether the hearing should be open to the public. In that instance, 
the Immigration Judge is in the best position to determine the need for 
confidentiality, and the decision to open the case will rest with the 
Judge.

11. Sections 3.31 and 103.7  Filing Documents and Applications.

    Thirty-three comments were received concerning pre-paying fees to 
INS prior to filing documents with EOIR. Commenters note that some INS 
field offices are not easily accessible, or are closed at certain times 
during the workday. Many Commenters requested that EOIR reinstitute the 
practice of collecting fees on behalf of INS for the convenience of the 
parties or their attorneys. EOIR does not process fees, although in 
certain locations EOIR did collect fees on behalf of INS. INS has the 
administrative process in place to collect and process fees under 
Sec. 103.7, which system includes fiscal requirements by the Department 
of Treasury, personnel resources and equipment. A duplication of these 
resources at this time is not warranted by the demand for such services 
and the rule will not be modified.

12. Section 3.32  Service and Size of Documents

    Eighteen comments were received. Commenters suggested amending this 
rule to include reference to the requirements under section 242B of the 
Act for notices of hearing. However, these requirements have been 
included in the final version of Sec. 3.15, and therefore it would be 
redundant to incorporate the notice requirements in this section.
    In addition, some commenters suggested that all documents filed in 
an in absentia case be served on the absent party. There is no 
obligation to furnish an absent party with documents or records 
received during the proceeding, and this suggestion will not be 
adopted.

13. Section 3.33  Translation of Documents

    Three comments requested that the rule be changed to allow the 
translator to provide a generic certification of a foreign language 
document, rather than one with the specific language set forth in the 
interim regulation. The commenters noted that many documents are 
translated overseas and arrive in this county without the specific 
language of certification that was required in the interim rule. The 
underlying necessity for a translator to certify to competency and 
accuracy can be served by a generic certification. The final rule 
reflects this change.

14. Section 3.37  Decisions

    Nineteen comments were received. The commenters cited confusion 
with the use of the phrases ``minute orders'' and ``memorandum of oral 
decision''. In the supplementary information given with the publication 
of the interim rule, these two expressions were used interchangeably, 
although the language in the rule itself refers to the Immigration 
Judge's order as a ``memorandum of oral decision''. Both expressions 
refer to the same abbreviated order that the Immigration Judge issues 
at the end of the proceeding, indicating the decision of the court.
    The commenters argued that the memorandum summarizing the oral 
decision does not adequately explain the reasons for the disposition of 
the case, and should be expanded in order to form the basis of an 
appeal. However, the memorandum of oral decision is not a substitute 
for the actual reasoned decision of the Immigration Judge, which is 
provided orally at the hearing and by transcript to the alien if the 
case is ultimately appealed. The purpose of the memorandum order is to 
serve as an efficient and expeditious method of summarizing the order 
of the Immigration Judge immediately at hearing, and to provide a brief 
record of the ultimate outcome of the hearing. It was not meant to 
replace the oral decision, and expanding it to include reasonings and 
citations of law would defeat its purpose.
    In addition, a provision has been added to this section which 
indicates that a written copy of the decision will not be sent to an 
alien who has failed to provide an address. Section 242B of the Act has 
placed upon the alien the requirement that he or she must provide a 
written record of an address at which he or she may be contacted 
respecting proceedings. Section 242B(c)(2) of the Act specifies that no 
notice of hearing is required if the alien has failed to provide an 
address. It therefore follows that there is no requirement that the 
alien receive a copy of the decision, absent an address having been 
provided.
    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule does not have a significant adverse economic impact on a 
substantial number of small entities. This rule is not a major rule 
within the meaning of section 1(b) of E.O. 12291, nor does this rule 
have Federalism implications warranting the preparation of a Federalism 
Assessment in accordance with E.O. 12612. The rule meets the applicable 
standards provided in section 2(a) and 2(b)(2) of E.O. 12778.

List of Subjects

8 CFR Part 3

    Administrative practice and procedure, Immigration, Organization 
and functions (Government agencies).

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of information, Privacy, Reporting and 
recordkeeping requirements, Surety bonds.

8 CFR Part 242

    Administrative practice and procedure, Aliens.

8 CFR Part 292

    Administrative practice and procedure, Immigration, Lawyers, 
Reporting and recordkeeping requirements.

    Accordingly, the interim rule amending 8 CFR chapter I which was 
published at 57 FR 11568 on April 6, 1992, is adopted as a final rule 
with the following changes set forth below, except for Sec. 292.3, 
which shall continue in interim form:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

    Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1362; 
28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950, 3 CFR, 
1949-1953 Comp., p. 1002.

    2. Section 3.1 is amended by revising paragraph (d)(1-a) to read as 
follows:


Sec. 3.1  General authorities.

* * * * *
    (d) * * *
    (1-a) Summary dismissal of appeals. (i) Standards. The Board may 
summarily dismiss any appeal or portion of any appeal in any case in 
which:
    (A) The party concerned fails to specify the reasons for the appeal 
on Form EOIR-26 or Form EOIR-29 (Notices of Appeal) or other document 
filed therewith;
    (B) The only reason for the appeal specified by the party concerned 
involves a finding of fact or a conclusion of law that was conceded by 
that party at a prior proceeding;
    (C) The appeal is from an order that granted the party concerned 
the relief that had been requested;
    (D) The Board is satisfied, from a review of the record, that the 
appeal is filed for an improper purpose, such as to cause unnecessary 
delay, or that the appeal lacks an arguable basis in law or fact unless 
the Board determines that it is supported by a good faith argument for 
extension, modification or reversal of existing law.
    (E) The party concerned indicates on Form EOIR-26 or Form EOIR-29 
that he or she will file a brief or statement in support of the appeal 
and, thereafter, does not file such brief or statement, or reasonably 
explain his or her failure to do so, within the time set for filing; or
    (F) The appeal fails to meet essential statutory or regulatory 
requirements or is expressly excluded by statute or regulation.
    (ii) Disciplinary consequences. The filing by an attorney or 
representative accredited under Sec. 292.2(d) of this chapter of an 
appeal which is summarily dismissed under paragraph (d)(1-a)(i) of this 
section may constitute frivolous behavior under Sec. 292.3(a)(15) of 
this chapter. Summary dismissal of an appeal under paragraph (d)(1-
a)(i) of this section does not limit the other grounds and procedures 
for disciplinary action against attorneys or representatives.
* * * * *
    3. Section 3.13 is amended by revising the definition ``service'' 
to read as follows:


Sec. 3.13  Definitions.

* * * * *
    Service means physically presenting or mailing a document to the 
appropriate party or parties; however, if the document to be served is 
the Order to Show Cause or the Notice of Deportation Hearing, such 
document shall be served in person to the alien, or by certified mail 
to the alien or the alien's attorney.
    4. Sec. 3.26 is revised to read as follows:


Sec. 3.26  In absentia hearings.

    (a) In any exclusion proceeding before an Immigration Judge in 
which the applicant fails to appear, the Immigration Judge shall 
conduct an in absentia hearing if the Immigration Judge is satisfied 
that notice of the time and place of the proceeding was provided to the 
applicant on the record at a prior hearing or by written notice to the 
applicant or to the applicant's counsel of record on the charging 
document or at the most recent address in the Record of Proceeding.
    (b) In any deportation proceeding before an Immigration Judge in 
which the respondent fails to appear, the Immigration Judge shall order 
the respondent deported in absentia if: (1) The Service establishes by 
clear, unequivocal and convincing evidence that the respondent is 
deportable; and (2) the Immigration Judge is satisfied that written 
notice of the time and place of the proceedings and written notice of 
the consequences of failure to appear, as set forth in section 242B(c) 
of the Act (8 U.S.C. 1252b(c)), were provided to the respondent in 
person or were provided to the respondent or the respondent's counsel 
of record, if any, by certified mail.
    (c) Written notice to the respondent at the most recent address 
contained in the Record of Proceeding shall be considered sufficient 
for purposes of this section. If the respondent fails to provide his or 
her address as required under Sec. 3.15(c), no written notice shall be 
required for an Immigration Judge to proceed with an in absentia 
hearing. This subsection shall not apply in the event that the 
Immigration Judge waives the appearance of an alien under Sec. 3.25.
    5. Sec. 3.33 is revised to read as follows:


Sec. 3.33  Translation of documents.

    Any foreign language document offered by a party in a proceeding 
shall be accompanied by an English language translation and a 
certification signed by the translator that must be printed legibly or 
typed. Such certification must include a statement that the translator 
is competent to translate the document, and that the translation is 
true and accurate to the best of the translator's abilities.
    6. Sec. 3.37 is amended by adding paragraph (b) to read as follows:


Sec. 3.37  Decisions.

* * * * *
    (b) A written copy of the decision will not be sent to an alien who 
has failed to provide a written record of an address.

    Dated: December 29, 1993.
Janet Reno,
Attorney General.
[FR Doc. 94-573 Filed 1-12-94; 8:45 am]
BILLING CODE 1531-26-M