[Federal Register Volume 59, Number 92 (Friday, May 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11313]


[[Page Unknown]]

[Federal Register: May 13, 1994]


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DEPARTMENT OF JUSTICE
8 CFR Part 3

[Order No. 1872-94]

 

Executive Office for Immigration Review: Appeal Procedure

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: This proposed rule establishes an alternative procedure for 
filing proof of fee payment for appeals of Immigration Judge decisions 
to the Board of Immigration Appeals (Board). It provides added 
flexibility in the appeal filing procedure by permitting a respondent/
applicant to certify that a fee was forwarded to the Immigration and 
Naturalization Service (Service). It further allows thirty (30) days 
from the date of filing the appeal for the respondent/applicant to 
submit a fee receipt. It also provides that failure to present proof of 
payment of fee will cause the appeal to be deemed improperly filed.

DATES: Written comments must be received on or before July 12, 1994.

ADDRESSES: Please submit written comments in triplicate to Gerald S. 
Hurwitz, Counsel to the Director, Executive Office for Immigration 
Review, suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041.

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, Telephone: (703) 305-0470.

SUPPLEMENTARY INFORMATION: This proposed rule provides a flexible 
alternative to the existing procedure of filing appeals of Immigration 
Judge decisions before the Board of Immigration Appeals. The current 
procedure mandates that a timely filed notice of appeal include a copy 
of a fee receipt or a fee waiver application. The proposed alternative 
procedure would allow the filing of an appeal of the Immigration 
Judge's decision to the Board with a certification stating that the fee 
has been forwarded to the Service. A sample certification follows the 
proposed rule. The respondent/applicant would then have thirty (30) 
days from the date of filing the notice of appeal to obtain and file a 
copy of the fee receipt. This alternate procedure may be particularly 
useful when the respondent/applicant is located a great distance from a 
Service office or is in a custodial setting. This alternate procedure 
provides additional flexibility for such a person by creating a thirty 
(30) day window of time, in which he or she may submit proof of payment 
of the appropriate fee for an appeal. It also preserves the current 
appeal filing deadline and fee filing procedures.

    This rule does not have a significant adverse economic impact on a 
substantial number of small entities. 5 U.S.C. 605(b).
    This rule was not reviewed by the Office of Management and Budget 
pursuant to Executive Order No. 12866. Nor does this rule have 
Federalism implications warranting the preparation of a Federalism 
Assessment in accordance with Executive Order No. 12612. The rule meets 
the applicable standards provided in section 2(a) and 2(b)(2) of 
Executive Order No. 12778, Civil Justice Reform. If adopted, this 
proposed rule will not: (1) Preempt any state or local laws, 
regulations or policies; (2) have any retroactive effect or require 
administrative proceedings before parties may file suit challenging the 
provisions of this rule.

List of Subjects in 8 CFR Part 3

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

    Accordingly, it is proposed that chapter I of title 8 of the Code 
of Federal Regulations be amended as follows:

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.


Sec. 3.31  [Amended]

    2. Section 3.31 is amended by adding the phrase ``Except as 
provided by 8 CFR 3.38,'' at the beginning of paragraph (b), and 
revising the word ``All'' to read ``all''.
    3. Section 3.38 is amended by redesignating paragraphs (c) and (d) 
as paragraphs (d) and (e) and by adding a new paragraph (c) and an 
appendix to the section to read as follows:


Sec. 3.38  Appeals.

* * * * *
    (c) A notice of appeal must be accompanied by a fee receipt from 
the Service, or by an application for a waiver of fees except that an 
appeal may be filed within applicable time limits with the appropriate 
Office of the Immigration Judge, accompanied by certification that the 
correct fee has been forwarded to a Service office authorized to accept 
fees pursuant to 8 CFR 103.7(a). The respondent/applicant must 
subsequently file the fees receipt with the appropriate Office of the 
Immigration Judge within thirty (30) days of the date of filing the 
notice of appeal. If a fee receipt is not filed within thirty (30) days 
of the date of filing the notice of appeal, the appeal will not be 
deemed properly filed and the decision of the Immigration Judge shall 
be final to the same extent as though no appeal had been taken.
* * * * *

Appendix to Sec. 3.38

Sample Certification

Certification of Fee

    I certify that pursuant to 8 CFR 3.38 I have, as of this date, 
forwarded/paid the fee required at 8 CFR 103.7 to the Immigration 
and Naturalization Service. Receipt of the payment of this fee will 
be filed with the Office of the Immigration Judge within thirty (30) 
days of the date of filing of this appeal. I further acknowledge 
that my failure to file the fee receipt within thirty (30) days will 
result in this appeal being deemed improperly filed and the decision 
of the Immigration Judge shall be final to the same extent as though 
no appeal had been taken.

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Alien's Name

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``A'' Number

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Signature of Alien and/or Counsel

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Date


    Dated: May 1, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-11313 Filed 5-12-94; 8:45 am]
BILLING CODE 4410-01-M