[Federal Register Volume 63, Number 177 (Monday, September 14, 1998)]
[Proposed Rules]
[Pages 49043-49046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24571]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 3

[EOIR No. 122P; AG Order No. 2177-98]
RIN 1125-AA22


Board of Immigration Appeals: Streamlining

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

ACTION: Proposed rule.

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

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

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

FOR FURTHER INFORMATION CONTACT: Margaret Philbin, (703) 305-0470.
SUPPLEMENTARY INFORMATION: The mission of the Board of Immigration 
Appeals is to provide fair and timely immigration adjudications and 
authoritative guidance and uniformity in the interpretation of the 
immigration laws. The rapidly growing number of appeals being filed 
with the Board has severely challenged the Board's ability to 
accomplish its mission and requires that new case management techniques 
be established and employed.
    In 1984, the Board received fewer than 3,000 cases. In 1994, it 
received more than 14,000 cases. In 1997, in excess of 25,000 new 
appeals were filed. There is no reason to believe that the number of 
appeals filed is likely to decrease in the foreseeable future, 
especially as the number of Immigration Judges continues to increase.
    At the same time that the number of appeals filed has increased, 
the need for the Board to provide guidance and uniformity to the 
Immigration Judges, the Immigration and Naturalization Service, 
affected individuals, the immigration bar, and the general public has 
grown. The Board now reviews the decisions of over 200 Immigration 
Judges, whereas there were 69 Judges in 1990 and 86 Judges in 1994. The 
frequent and significant changes in the complex immigration laws over 
the last several years, including a major overhaul of those laws in 
September 1996, also highlight the continued need for the Board's 
authoritative guidance in the immigration area, as does the fact that 
the recent legislation drastically reduced the alien's right to 
judicial review.
    The Attorney General has made efforts to aid the Board in handling 
its

[[Page 49044]]

burgeoning caseload by increasing its size from 5 to 12 members in 1995 
and by recently authorizing the addition of three additional permanent 
Board Members, bringing the total to 15 Board Members. Significant 
staff increases have accompanied the expansion of the Board.
    To meet its overriding objective of providing fairness in 
adjudicating appeals, the Board must achieve four goals. It must: (1) 
Provide authoritative guidance and uniformity through high quality 
appellate decisions; (2) decide all incoming cases in a timely and fair 
manner; (3) assure the correctness of the results in individual cases; 
and (4) eliminate the backlog of cases.
    To accomplish these goals under current conditions, the Board must 
limit its three-Member panel, quasi-judicial decision-making process to 
those cases where there is a realistic chance that review by a three-
Member panel will change the result below. Accordingly, the proposed 
rule would add a new provision, 8 CFR 3.1(a)(5), giving the Board 
authority; by action of a single permanent Board Member, to affirm the 
result below without an opinion where: (1) The result reached in the 
decision under review was correct; (2) any errors in the decision under 
review were harmless or nonmaterial; and (3) either (a) the issue on 
appeal is squarely controlled by existing Board of federal court 
precedent and does not involve the application of such precedent to a 
novel fact situation; or (b) the factual and legal questions raised on 
appeal are so insubstantial that three-Member review is not warranted.
    An affirmance without opinion would be issued only if no legal or 
factual basis for reversal of the decision below is apparent. If an 
appellant makes a substantial argument for reversal, the case would not 
be appropriate for affirmance without opinion. At the same time, an 
affirmance without opinion would relate only to the result below; it 
would not necessarily imply that the Board approved or adopted all the 
reasoning of the decision below, or that there were no harmless or 
nonmaterial errors in the decision below. The decision below would be 
the final administrative decision for judicial review purposes.
    If the single permanent Board Member finds the case appropriate for 
affirmance without opinion, that Board Member will sign a simple order 
to that effect, without additional explanation or reasoning. If the 
Board finds affirmance without opinion inappropriate, the case will be 
assigned to a three-Member panel for review and decision. Thus, an 
affirmance without opinion is a determination that the result reached 
below is correct and that the case does not warrant three-Member 
review. The three-Member panel also will have authority to affirm 
without opinion, where it determines such disposition is appropriate. 
This new procedure will enable the Board Members to concentrate their 
time and efforts on those cases in which there is a chance that the 
result below was incorrect, as well as on cases involving new or 
significant legal issues.
    Proposed 8 CFR 3.1(a)(5) would also give the Chairman authority to 
designate certain categories of cases as suitable for affirmance 
without opinion by a single permanent Board Member or by a three-Member 
panel. These categories may include, but are not limited to, the 
following: (1) Cases challenging findings of fact where the findings 
below are not against the weight of the evidence; (2) cases controlled 
by precedents of the Board, the controlling United States Court of 
Appeals, or the United States Supreme Court where there is no basis for 
overruling or distinguishing the precedent; (3) cases seeking 
discretionary relief for which the appellant clearly appears to be 
statutorily ineligible; (4) cases challenging discretionary decisions 
where it does not appear that the decision-maker has applied the wrong 
criteria or deviated from precedents of the Board or the controlling 
law from the United States Court of Appeals or the United States 
Supreme Court; and (5) cases challenging only procedural rulings or 
deficiencies that do not appear to be material to the outcome of the 
case.
    The rules also authorizes the Chairman to designate, and change as 
the Chairman deems appropriate, who from among the permanent Board 
Members is authorized to affirm cases without opinion.
    The proposed rule also amends the regulation regarding motions to 
reconsider to state that a motion to reconsider based solely on the 
argument that the case should have been heard by a three-Member panel, 
or otherwise should not have been summarily affirmed without a full 
opinion, is barred. This is set forth at 8 CFR 3.2(b)(3). Otherwise, 
the standard motions to reconsider and/or reopen would be allowed, but 
would be subject to all the regular requirements and restrictions 
regarding motions, including the time and number limitations.
    In addition to providing for a new procedure for affirmance without 
opinion by a single Board Member, the proposed rule also provides that 
a single Board Member or the Chief Attorney Examiner may adjudicate 
certain motions or other procedural or ministerial appeals. Presently, 
the regulations allow a single Board Member or the Chief Attorney 
Examiner to adjudicate unopposed motions or motions to withdraw an 
appeal. See 8 CFR 3.1(a). The proposed rule designates additional 
categories of cases as suitable for disposition by a single Board 
Member or the Chief Attorney Examiner. Unlike the procedure described 
above for single Board Member affirmance without opinion, these 
dispositions will not generally be affirming a result below. Rather, in 
these cases, a single fact easily identified in the record of 
proceedings dictates the result directly through a statute, a 
regulation, or a controlling precedent, with little or no discretion 
required. Dispositions under this procedure are separate and distinct 
from affirmances without opinions.
    Under the proposed rule, the additional instances in which a single 
Board Member or the Chief Attorney Examiner may adjudicate a matter 
under section 3.1(a)(1) are: (1) a Service motion to remand an appeal 
from the denial of a visa petition where the Regional service Center 
Director requests that the matter be remanded to the Service for 
further consideration of the appellant's arguments or evidence raised 
on appeal; (2) a case in which remand is required because of a 
defective or missing transcript; and (3) other procedural or 
ministerial adjudications as provided by the Chairman (for example, to 
dismiss an appeal as moot where the alien has since become a lawful 
permanent resident).
    The proposed rule also amends the regulation regarding summary 
dismissals of appeals, presently set forth at 8 CFR 3.1(d)(1-a). The 
revised rule, redesignated as section 3.1(d)(2), adds to the existing 
rule other types of cases appropriate for summary dismissal, specifies 
that a single Board Member or Chief Attorney Examiner has the authority 
to dispose of such cases, and authorizes the Chairman to designate who 
from among the Board Members and Chief Attorney Examiner may exercise 
this authority Summary dismissal is also a procedure separate and 
distinct from affirmance without opinion.
    In addition to the existing grounds for summary dismissal, this 
rule adds dismissals for lack of jurisdiction including (1) cases in 
which the appeal or motion does not fall within the Board's 
jurisdiction; (2) cases in which jurisdiction over a motion lies with 
the

[[Page 49045]]

Immigration Judge rather than with the Board; (3) untimely appeals and 
motions; and (4) cases in which it is clear that the right of appeal 
was affirmatively waived.
    The complexity of the language of this streamlining rule clearly 
indicates the need for a complete reorganization of Part 3 of 8 CFR. 
The Executive Office for Immigration Review is presently working on 
such a reorganization. This proposed rule is being published in advance 
of that reorganization because of the urgent need to implement the 
streamlining procedures without delay.

Regulatory Flexibility Act

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

Executive Order 12866

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

Executive Order 12612

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 12612, the Department of Justice has determined that 
this rule does not have sufficient federalism implications to warrant 
the preparation of Federalism Assessment.

Executive Order 12988

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

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

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

List of Subjects in 8 CFR Part 3

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

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

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

    Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1324b, 
1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 
CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100.

    2. Section 3.1 is amended by:
    a. Adding two sentences at the end of paragraph (a)(1);
    b. Adding a new paragraph (a)(7);
    c. Redesignating paragraphs (d)(1-a), (2), and (3) as paragraphs 
(d)(2), (3), and (4), respectively;
    d. Removing the word ``or'' at the end of newly designated 
paragraph (d)(2)(i)(E);
    e. Further redesignating paragraph (d)(2)(i)(F) as paragraph 
(d)(2)(i)(H);
    f. Adding new paragraphs (d)(2)(i)(F) and (G);
    g. Redesignating paragraph (d)(2)(ii) as paragraph (d)(2)(iii); and 
by
    h. Adding a new paragraph (d)(2)(ii), to read as follows:


Sec. 3.1  General authorities.

    (a)(1) Organization. * * * In addition, a single Board Member or 
the Chief Attorney Examiner may exercise such authority in the 
following instances: a Service motion to remand an appeal from the 
denial of a visa petition where the Regional Service Center Director 
requests that the matter be remanded to the Service for further 
consideration of the appellant's arguments or evidence raised on 
appeal; a case where remand is required because of a defective or 
missing transcript; and other procedural or ministerial adjudications 
as provided by the Chairman. A motion to reconsider or to reopen a 
decision that was rendered by a single Board Member or the Chief 
Attorney Examiner may be adjudicated by that Board Member or by the 
Chief Attorney Examiner.
* * * * *
    (5) Affirmance without opinion. (i) A single permanent Board Member 
may affirm, without opinion, any decision in which the Board Member 
concludes that there is no legal or factual basis for reversal of the 
decision by the Service or the Immigration Judge. The Chairman may 
designate, from time to time, the Board Members who are authorized to 
exercise the authority to affirm cases without opinion. The Chairman 
may designate certain categories of cases as suitable for review 
pursuant to this paragraph.
    (ii) The single Board Member to whom a case is assigned may affirm 
the decision of the Service or the Immigration Judge, without opinion, 
if the Board Member determines that the result reached in the decision 
under review was correct; and any errors in the decision under review 
were harmless or nonmaterial; and
    (A) The issue on appeal is squarely controlled by existing Board or 
federal court precedent and does not involve the application of such 
precedent to a novel fact situation; or
    (B) The factual and legal questions raised on appeal are so 
insubstantial that three-Member review is not warranted.
    (iii) If the Board Member determines that the decision should be 
affirmed without opinion, the Board shall issue an order that states, 
``The Board affirms, without opinion, the result of the decision below. 
The decision below is, therefore, the final agency determination.'' An 
order affirming without opinion shall not include further explanation 
or reasoning. An order affirming without opinion approves the result 
reached in the decision below; it does not necessarily imply approval 
of all of the reasoning of that decision, but does signify the Board's 
conclusion that the errors alleged to have been made below, if any, 
were harmless or nonmaterial.
    (iv) If the Board Member determines that the decision is not 
appropriate for

[[Page 49046]]

affirmance without opinion, the case will be assigned to a three-Member 
panel for review and decision. The panel to which the case is assigned 
also has the authority to determine that a case should be affirmed 
without opinion.
* * * * *
    (d) Powers of the Board--(1) * * *
    (2) Summary dismissal of appeals. (i) Standards. * * *
    (F) The appeal does not fall within the Board's jurisdiction, or 
lies with the Immigration Judge rather than the Board;
    (G) The appeal is untimely, or it is clear on the record that the 
right of appeal was affirmatively waived; or
    (H) * * *
    (ii) Action by the Board. The Chairman may provide for the exercise 
of the appropriate authority of the Board to dismiss an appeal pursuant 
to paragraph (d)(2) of this section by a three-Member panel, or by a 
single Board Member or the Chief Attorney Examiner. The Chairman may 
determine who from among the Board Members or the Chief Attorney 
Examiner is authorized to exercise the authority under this paragraph 
and the designation may be changed by the Chairman as he deems 
appropriate. Except as provided in this part for review by the Board en 
banc or by the Attorney General, or for consideration of motions to 
reconsider or reopen, an order dismissing any appeal pursuant to 
paragraph (d)(2) shall constitute the final decision of the Board. If 
the single Board Member or the Chief Attorney Examiner to whom the case 
is assigned determines that the case is not appropriate for summary 
dismissal, the case will be assigned for review and decision pursuant 
to paragraph (a) of this section.
* * * * *
    3. Section 3.2 is amended by adding a new paragraph (b)(3) to read 
as follows:


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

* * * * *
    (b) * * *
    (3) A motion to reconsider based solely on the argument that the 
case should not have been affirmed without opinion by a single Board 
Member, or by a three-Member panel, is barred.
* * * * *
    Dated: September 8, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-24571 Filed 9-11-98; 8:45 am]
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