[Federal Register Volume 64, Number 29 (Friday, February 12, 1999)]
[Rules and Regulations]
[Pages 7066-7083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1899]


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DEPARTMENT OF JUSTICE

28 CFR Part 68

[EOIR No. 116P; A.G. Order No. 2203-99]
RIN 1125-AA17


Rules of Practice and Procedure for Administrative Hearings 
Before Administrative Law Judges in Cases Involving Allegations of 
Unlawful Employment of Aliens, Unfair Immigration-Related Employment 
Practices, and Document Fraud

AGENCY: Office of the Chief Administrative Hearing Officer, Executive 
Office for Immigration Review, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule amends the regulations of the Office of the 
Chief Administrative Hearing Officer (OCAHO) pertaining to employer 
sanctions, unfair immigration-related employment practice cases, and 
immigration-related document fraud. The interim rule implements various 
provisions of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996 (IIRIRA) and the Debt Collection Improvement 
Act of 1996, and makes various other changes to the OCAHO's procedural 
regulations.

DATES: This interim rule is effective March 15, 1999. Written comments 
must be submitted on or before April 13, 1999.

ADDRESSES: Please submit written comments to the Chief Administrative 
Hearing Officer, Executive Office for Immigration Review, 5107 Leesburg 
Pike, Suite 2519, Falls Church, Virginia 22041. To ensure proper 
handling, please reference EOIR number 1125-AA17 on your 
correspondence. Comments are available for public inspection at the 
above address by calling (703) 305-0858 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Peggy Philbin, General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2400, Falls Church, Virginia 22041, telephone number (703) 305-0470.

SUPPLEMENTARY INFORMATION: The IIRIRA, enacted on September 30, 1996, 
amends the employer sanctions, unfair immigration-related employment 
practices and document fraud sections of the Immigration and 
Nationality Act (INA) in several ways (sections 274A, 274B and 274C of 
the INA, respectively). The Debt Collection Improvement Act of 1996, 
Pub. L. No.

[[Page 7067]]

104-134, Title III, (``Debt Collection Improvement Act''), 110 Stat. 
1321, 1321-1358 (1996), mandates that the civil penalties in each of 
these three sections of the INA be adjusted to reflect inflation. 
Finally, the OCAHO has examined its regulations and is making various 
changes perceived as necessary in light of case-by-case experiences 
since the 1991 amendments to its regulations. All of the changes to the 
OCAHO's regulations set forth herein are designed to make the 
regulations comport with one of the aforementioned statutes, clarify 
any existing ambiguity, and/or similarly contribute to the fair and 
efficient administration of sections 274A, 274B, and 274C of the INA.

Heading and Table of Contents

    The interim regulation amends the heading to Part 68, the rules of 
practice and procedure for administrative hearings before 
Administrative Law Judges in the OCAHO, to include document fraud cases 
as well as unlawful employment of aliens cases and unfair immigration-
related employment practice cases. Document fraud cases were previously 
addressed elsewhere in regulations, but the interim regulation includes 
this category of cases here because the OCAHO in fact deals with these 
cases in a similar procedural manner as it does with unlawful 
employment of aliens cases and unfair immigration-related employment 
cases.
    The interim regulation amends the Table of Contents to include new 
language in the section title for Sec. 68.33 to indicate that the 
section now discusses participation of parties. The interim regulation 
also amends the table of contents to include new sections, Secs. 68.55 
through 68.58. The new sections were added due to the reorganization of 
Sec. 68.53 Administrative and Judicial Review, which was divided into 
four sections in order to distinguish between the various procedures 
for obtaining review of an order. As a result of adding new sections, 
Sec. 68.54 Filing of the official record was renumbered and became 
Sec. 68.58.

Scope of Rules

    The interim regulation amends Sec. 68.1 to utilize the official 
title of the Federal Rules of Civil Procedure (Rules) in stating that 
the Rules may be used as a guideline in any adjudicatory proceeding 
before the OCAHO in which a situation arises that is outside the scope 
of the rules laid out in this part of the Code of Federal Regulations, 
the Administrative Procedure Act, or any other applicable statute, 
executive order, or regulation.

Definitions

    The interim regulation amends the definition of ``adjudicatory 
proceeding'' to clarify that it means an administrative proceeding 
before the OCAHO that commences with the filing of a complaint. This 
revised definition also eliminates the need for the separate definition 
of ``commencement of proceeding.''
    The interim regulation adds definitions for ``certification'' (new 
paragraph (d)) and ``certify'' (new paragraph (e)), in order to provide 
guidance for parties who must determine their obligations under the 
rules and comply with them. The interim regulation defines the former 
term essentially to mean a formal writing that has been signed by the 
person making the certification as an attestation to the truth of the 
content of the writing. Specific definitions are provided in individual 
paragraphs for the terms ``certified court reporter,'' ``certified 
mail'' and ``certified copy.'' The term ``certify'' in paragraph (e) is 
simply defined as ``the act of executing a certification.''
    The interim regulation also adds definitions for ``decision,'' 
``final agency order,'' ``final order'' and ``interlocutory order,'' 
and amends the definition of ``order'' in order to distinguish between 
the various actions that may be taken by and within the OCAHO. A 
``decision'' refers to any finding of fact or conclusion of law by an 
Administrative Law Judge (ALJ) or by the Chief Administrative Hearing 
Officer (CAHO); an ``order'' means a determination or mandate by an 
ALJ, CAHO, or the Attorney General that resolves some point or directs 
some action in the proceeding; an ``interlocutory order'' is an order 
that decides some intervening matter pertaining to the cause of action 
and is not a final decision of the whole controversy; a ``final order'' 
is an order by an ALJ that disposes of a particular proceeding or a 
distinct portion thereof, thereby concluding the jurisdiction of the 
ALJ with respect to the portion referred to in the order; and a ``final 
agency order'' is an ALJ's final order or a CAHO's order that has not 
been modified, vacated, or remanded in any way within the time period 
set forth in the regulation, or, alternatively, an order by the 
Attorney General. Finally, the definition of ``issued'' is also amended 
to clarify that it refers to the action taken when an order becomes a 
final agency order.
    The definitions for ``prohibition of indemnity bond cases,'' 
``unfair immigration related employment practice cases,'' and 
``unlawful employment cases'' are reduced to simple cross-references to 
the applicable statutes. It was determined that summarizing these 
statutory causes of action in the regulations is not essential and 
could conceivably lead to unnecessary litigation over perceived 
differences between the regulatory definition and the applicable 
statute itself. A similar approach was taken with regard to the 
definition of ``document fraud cases'' which had not previously been 
mentioned in the definitions section.
    The interim regulation also adds or amends certain other 
definitions. The definition of ``entry'' is amended to clarify that it 
applies to all orders signed under these regulations as well as to 
define the term as used in section 274B(i)(1). The definition of 
``entry'' is thus amended to clarify that an order is ``entered'' when 
it is signed by an ALJ, the CAHO, or the Attorney General. A definition 
for ``respondent'' is added to clarify that it means a party, other 
than a complainant, to an adjudicatory proceeding against whom findings 
may be made or who may be required to provide relief or to take 
remedial action. The interim regulation adds a definition for ``INA'' 
to clarify that this term in the regulations refers to the Immigration 
and Nationality Act. Finally, a definition for ``Debt Collection 
Improvement Act'' is added to clarify that references to that statute 
in the regulations refer to the Debt Collection Improvement Act of 
1996.
    The interim regulation renumbers the paragraphs of Sec. 68.2 to 
incorporate the new entries and to keep the definitions in alphabetical 
order. Thus, the changes begin with paragraph (a), Adjudicatory 
proceeding, and end with paragraph (cc), Unfair immigration-related 
employment practice cases.

Conforming Amendment

    The interim regulation amends Sec. 68.3 to add the phrase 
``representative of record'' at Sec. 68.3(a)(1) and (3) as a conforming 
amendment, in light of the new provisions in Sec. 68.33 infra outlining 
the parameters within which lay representatives are permitted to 
represent parties before the ALJs.

Service and Filing of Documents

    The interim regulation amends Sec. 68.6 to add a provision at 
Sec. 68.6(c) for the filing of certain documents by facsimile only to 
toll a time limit. A party may only file by facsimile in response to a 
time limit that is imposed by statute, regulation, or order. The signed 
originals of such documents must be forwarded concurrently with the 
transmission of the facsimile. Service of

[[Page 7068]]

the documents on the opposing party must be made by facsimile or same-
day hand delivery, or, if neither of those means is feasible, by 
overnight mail. The serving party must indicate the means of service on 
the certification of service. Also added are provisions applying the 
procedure outlined in Sec. 68.6(c) to the service and filing 
requirements pertaining to administrative review by the CAHO set forth 
at Sec. 68.54(c) and described infra.

Responsive Pleadings--Answer

    In the first sentence of Sec. 68.9(b), the phrase ``shall 
constitute a waiver'' is changed to ``may be deemed to constitute a 
waiver.'' This technical correction is necessary to comport with actual 
practice and with the last sentence of Sec. 68.9(b), which provides 
that a default judgment is not automatic, but at the discretion of the 
ALJ.

Motion to Dismiss for Failure to State a Claim Upon Which Relief 
Can be Granted

    The interim regulation amends Sec. 68.10 to clarify that the ALJ 
may dismiss a complaint for failure to state a claim upon which relief 
may be granted either upon motion by the respondent or sua sponte. 
However, in the prehearing phase of a proceeding, the ALJ shall allow 
the complainant an opportunity to be heard before sua sponte dismissing 
a complaint in its entirety for failure to state a claim on which 
relief may be granted.

Consent Findings or Dismissal

    The interim regulation amends Sec. 68.14(a)(2) to provide that the 
ALJ may require parties to file settlement agreements with the ALJ.

Technical Corrections

    The interim regulation amends Sec. 68.18 to make the following 
technical corrections at Sec. 68.18(a): (1) the word ``subsection'' is 
changed to the word ``paragraph,'' and (2) the phrase ``of this 
section'' is added to the last sentence of paragraph (a).

Depositions

    The interim regulation reorganizes Sec. 68.22 into three 
paragraphs: (a) Notice; (b) When, how, and by whom taken; and (c) 
Motion to terminate or limit examination. This reorganization should 
make it easier to locate particular information within the section.
    The interim regulation also adds a new provision to paragraph (b) 
regarding recorded depositions. This paragraph provides that an oral 
deposition may be recorded by audiotape or videotape, at the discretion 
of the ALJ. Moreover, the costs of recording the deposition must be 
paid by the party taking the deposition. Either party may arrange for a 
transcript of the deposition to be made. Also added is a thirty (30) 
day time limit for witness review of any transcript or recording and a 
provision for witness corrections.

Motion to Compel Response to Discovery; Sanctions

    The interim regulation amends Sec. 68.23 in two ways: first, it 
specifies that any motion filed with an ALJ to compel either a response 
to a request for discovery or an inspection must be accompanied by a 
certification that the movant has ``conferred or attempted to confer'' 
with the nonmovant in a good faith effort to obtain the information or 
material sought to be discovered in the absence of participation by the 
ALJ. Second, a new paragraph (d) is added: ``Evasive or incomplete 
response.'' This paragraph provides that an evasive or incomplete 
response to discovery may be treated as a failure to respond to the 
discovery request, thus permitting the party seeking discovery to seek 
an order to compel the discovery in accordance with the rest of this 
section.

Use of Depositions at Hearings

    The interim regulation amends Sec. 68.24 by adding paragraph (a)(7) 
to allow a party to offer deposition testimony in stenographic or 
nonstenographic form. The party shall be required to provide a 
transcript of the testimony offered in nonstenographic form, a 
requirement that parallels the Federal Rules of Evidence.

Participation of the Parties and Representation

    The interim regulation amends Sec. 68.33 by using ``Participation 
of the Parties'' instead of ``Appearance'' and uses ``proceeding'' 
instead of ``hearing'' to make the provision clearer. References to 
``counsel'' have been changed to reflect the fact that a representative 
in an OCAHO proceeding is not required to be an attorney. The sentence 
allowing representation at no expense to the government was moved to 
Sec. 68.33(e). The interim regulation amends Sec. 68.33 to allow a law 
student under supervision of an attorney to appear before an ALJ. In 
addition, the interim regulation establishes that upon a motion for 
substitution or withdrawal of an attorney, the ALJ shall enter a 
written order either granting or denying the motion.
    The interim regulation also outlines the parameters within which 
lay representation of parties before the ALJs is permitted. An 
individual who is neither an attorney nor a law student and who wishes 
to represent a party must file a detailed written application with the 
ALJ demonstrating that the individual possesses the knowledge and 
skills essential to rendering valuable service in the proceedings. The 
individual must file the application within ten days from the receipt 
of the Notice of Hearing and Complaint by the party on whose behalf the 
individual is filing the application, unless the ALJ extends this time 
period. The ALJ may inquire as to the qualification or ability of any 
non-attorney to act as a representative at any time, and may issue an 
order denying any individual the privilege of appearing if the ALJ 
finds that such individual meets any of the following characteristics: 
does not possess the requisite qualifications to represent others; is 
lacking in character or integrity; has engaged in unethical or improper 
professional conduct; or has engaged in an act involving moral 
turpitude. The ALJ may not deny the privilege of appearing on the basis 
of the aforementioned characteristics to any person who appears on his 
or her own behalf, or who appears on behalf of a corporation, 
partnership or association of which the person is a partner or general 
officer. Similarly, any person who represents him or herself or any 
corporation, partnership or unincorporated association of which that 
individual is a partner or general officer need not file a written 
application to appear. However, such persons must file a notice of 
appearance as set forth in Sec. 68.33(f). The interim regulation 
changes the caption and substance of Sec. 68.33(g) to reflect the fact 
that lay representatives are permitted to represent parties before the 
ALJs and that they also may withdraw from OCAHO proceedings.

Standards of Conduct

    The current OCAHO regulations require in Sec. 68.35(a) that ``[A]ll 
persons appearing before an ALJ are expected to act with integrity, and 
in an ethical manner.'' Under Sec. 68.35(b) of the current regulations, 
an ALJ may exclude from OCAHO proceedings parties, witnesses, and their 
representatives for, among other things, ``refusal to adhere to 
reasonable standards of orderly and ethical conduct [and] failure to 
act in good faith. * * *'' This interim rule does not endeavor to amend 
or amplify these general standards. However, persons seeking further 
guidance on the standards of conduct expected in OCAHO proceedings are 
encouraged to consult the Federal Bar Association

[[Page 7069]]

Standards of Civility in Professional Conduct (``FBA Standards''), as 
published in 45 The Federal Lawyer, No. 1 (Jan. 1998). Copies of the 
FBA Standards may be obtained from The Office of the Chief 
Administrative Hearing Officer, 5107 Leesburg Pike Suite 2519, Falls 
Church, Virginia 22041. A copy of the FBA Standards will also be 
attached to each notice of hearing served by OCAHO pursuant to 28 CFR 
Sec. 68.3.

Motion for Summary Decision

    The interim regulation amends Sec. 68.38(a) to clarify that a 
motion for summary decision is directed to the ``complaint,'' as 
opposed to the ``proceeding.'' Section 68.38(c) is amended to clarify 
that a summary decision shall be entered if the ALJ determines that 
there is no genuine issue as to any material fact and that a party is 
entitled to summary decision. Section 68.38(d) is also amended to 
clarify that a summary decision may be a final order and is consistent 
with the changes in the definitions in Sec. 68.2.

In Camera and Protective Orders

    Section 68.42(b) is amended by deleting ``to a respondent'' and 
inserting ``producing'' before ``party'' to take account of situations 
in which a complainant may seek material sensitive to a respondent.

Final Order of the Administrative Law Judge

    The interim regulation amends Sec. 68.52 in a number of ways. 
First, it changes the heading from Decision and order of the 
Administrative Law Judge to Final order of the Administrative Law 
Judge, and uses the term final order throughout the section. This 
change was necessary because Sec. 68.52 pertains to final orders and 
this change is consistent with the definitions provided in Sec. 68.2. 
The interim regulation also adds a provision to paragraph (a) that 
permits an ALJ to order a copy of any proposed order submitted to the 
ALJ by a party to be submitted on a 3.5'' microdisk.
    The interim regulation further amends Sec. 68.52 in several ways in 
order to comply with the Debt Collection Improvement Act and IIRIRA. 
The Debt Collection Improvement Act amends the Federal Civil Penalties 
Inflation Adjustment Act of 1990, Pub. L. No. 101-410, Sec. 5(b), 104 
Stat. 890, 28 U.S.C.A. Sec. 2461 (note), to mandate the adjustment of 
all civil monetary penalties assessed or enforced by Federal agencies 
to reflect inflation. The amounts of the adjustments are determined 
according to a formula set forth in the Federal Civil Penalties 
Inflation Adjustment Act of 1990, and incorporate a ``cost-of-living 
adjustment'' that is defined as:

the percentage (if any) for each civil monetary penalty by which--
    (1) the Consumer Price Index for the month of June of the 
calendar year preceding the adjustment, exceeds
    (2) the Consumer Price Index for the month of June of the 
calendar year in which the amount of such civil monetary penalty was 
last set or adjusted pursuant to law. Id. Sec. 5(b).

The formula multiplies the current penalty amount by the appropriate 
cost-of-living adjustment, and then rounds that number to the nearest 
multiple of $10, $100, $1,000, $5,000, $10,000 or $25,000 in accordance 
with section 5(a) of the Federal Civil Penalties Inflation Adjustment 
Act of 1990. The rounded increase is then compared to a maximum penalty 
increase cap of ten percent (10%) of the current penalty (note that 
this cap only applies to the first adjustment of any civil monetary 
penalty). If the maximum allowable increase is lower than the rounded 
increase, then the maximum increase is added onto the current penalty 
to form the adjusted penalty. If the maximum allowable increase is 
greater than the rounded increase--this generally occurs when the 
rounded increase is $0--then the rounded increase is added onto the 
current penalty to form the adjusted penalty.
    Following this formula, the OCAHO's civil monetary penalties are 
adjusted as indicated in figures 1 through 3. The Debt Collection 
Improvement Act amended the Federal Civil Penalties Inflation 
Adjustment Act of 1990 to require that ``[a]ny increase under [the] Act 
in a civil money penalty shall apply only to violations which occur 
after the date the increase takes effect.'' See 28 U.S.C. 2461 (note). 
Therefore, violations occurring prior to March 15, 1999, are subject to 
the unadjusted penalties shown in Figures 1-3 while violations 
occurring on or after March 15, 1999, are subject to the adjusted 
penalties as set out in Figures 1-3.

                                                              Figure 1.--Unlawful Employment of Aliens and Employment Verification
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Unadjusted                                               CPI factor      Raw                     Rounded        10%        Smaller      Adjusted
      Statutory and regulatory citation         penalty              Min./Max.                Year      (percent)     increase     Rounder      increase     increase     increase     penalty
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Unlawful employment of unauthorized aliens, per person, first order
                                                             Per violation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
8 USC 1324a(e)(4)(A)(i).....................         $250  Min..........................         1986        48.89         $122         $100         $100          $25          $25         $275
28 CFR 68.52(c)(1)(i)
8 USC 1324a(e)(4)(A)(i).....................        2,000  Max..........................         1986        48.89          978        1,000        1,000          200          200        2,200
28 CFR 68.52(c)(1)(i)
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                                                                        Unlawful employment of unauthorized aliens, per person, second order
                                                             Per violation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
8 USC 1324a(e)(4)(A)(ii)....................        2,000  Min..........................         1986        48.89          978        1,000        1,000          200          200        2,200
28 CFR 68.52(c)(1)(ii)
8 USC 1324a(e)(4)(A)(ii)....................        5,000  Max..........................         1986        48.89        2,444        1,000        2,000          500          500        5,500
28 CFR 68.52(c)(1)(ii)
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                                                                      Unlawful employment of unauthorized aliens, per person, subsequent order
                                                             Per violation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
8 USC 1324a(e)(4)(A)(iii)...................        3,000  Min..........................         1986        48.89        1,467        1,000        1,000          300          300        3,300
28 CFR 68.52(c)(1)(iii)
8 USC 1324a(e)(4)(A)(iii)...................       10,000  Max..........................         1986        48.89        4,889        1,000        5,000        1,000        1,000       11,000
28 CFR 68.52(c)(1)(iii)
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                                                                          Unlawful employment of unauthorized aliens, paperwork violations
                                                             Per violation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
8 USC 1324a(e)(5)...........................          100  Min..........................         1986        48.89           49           10           50           10           10          110
28 CFR 68.52(c)(5)
8 USC 1324a(e)(5)...........................       1,0000  Max..........................         1986        48.89          489          100          500          100          100        1,100
28 CFR 68.52(c)(5)
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                                                                Unlawful employment of unauthorized aliens, violation/prohibition of indemnity bonds
                                                             Per violation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
8 USC 1324a(g)(2)...........................        1,000  Max..........................         1986        48.89          489          100          500          100          100        1,100
28 CFR 68.52(c)(7)
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[[Page 7070]]


                                                                   Figure 2.--Unfair Immigration-Related Employment Practices
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Unadjusted                                               CPI factor      Raw                     Rounded        10%        Smaller      Adjusted
      Statutory and regulatory citation         penalty              Min./Max.                Year      (percent)     increase     Rounder      increase     increase     increase     Penalty
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Unfair immigration-related employment practices, per person, first order
                                                             Per violation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
8 USC 1324b(g)(2)(B)(iv)(I).................         $250  Min..........................         1990        25.47          $64         $100         $100          $25          $25         $275
28 CFR 68.52(d)(1)(viii)
8 USC 1324b(g)(2)(B)(iv)(I).................        2,000  Max..........................         1990        25.47          509        1,000  ...........          200          200        2,200
28 CFR 68.52(d)(1)(viii)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Unfair immigration-related employment practices, per person, second order
                                                             Per violation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
8 USC 1324b(g)(2)(B)(iv)(II)................        2,000  Min..........................         1990        25.47          509        1,000  ...........          200          200        2,200
28 CFR 68.52(d)(1)(ix)
8 USC 1324b(g)(2)(B)(iv)(II)................        5,000  Max..........................         1990        25.47        1,273        1,000        1,000          500          500        5,500
28 CFR 68.52(d)(1)(ix)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Unfair immigration-related employment practices, per person, subsequent order
                                                             Per violation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
8 USC 1324b(g)(2)(B)(iv)(III)...............        3,000  Min..........................         1990        25.47          764        1,000        1,000          300          300        3,300
28 CFR 68.52(d)(1)(x)
8 USC 1324b(g)(2)(B)(iv)(III)...............       10,000  Max..........................         1990        25.47        2,547        1,000        3,000        1,000        1,000       11,000
28 CFR 68.52(d)(1)(xii)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Unfair immigration-related employment practices, document abuse
                                                             Per violation
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
8 USC 1324b(g)(2)(B)(iv)(IV)................          100  Min..........................         1990        25.47           25           10           30           10           10          110
28 CFR 68.52(d)(1)(xii)
8 USC 1324b(g)(2)(B)(iv)(IV)................        1,000  Max..........................         1990        25.47          255          100          300          100          100        1,100
28 CFR 68.52(d)(1)(xii)
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                                                                             Figure 3.--Civil Penalty Document Fraud
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        CPI factor      Raw                     Rounded        10%        Smaller      Adjusted
      Statutory and regulatory citation             Unadjusted penalty        Min./Max.       Year      (Percent)     increase     Rounder      increase     increase     increase     penalty
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Document fraud, first order
                                                             Per document
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
8 USC 1324c(d)(3)(A)........................  $250.........................         Min.         1990        25.47          $64         $100         $100          $25          $25         $275
28 CFR 68.52(e)(1)(i)
8 USC1324c(d)(3)(A).........................  2,000........................         Max.         1990        25.47          509        1,000  ...........          200          200        2,200
28 CFR 68.52(e)(1)(i)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                            Document fraud, second order
                                                             Per document
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
8 USC 1324c(d)(3)(B)........................  2,000........................         Min.         1990        25.47          509        1,000  ...........          200          200        2,200
28 CFR 68.52(e)(1)(ii)
8 USC 1324c(d)(3)(B)........................  5,000........................         Max.         1990        25.47        1,273        1,000        1,000          500          500        5,500
28 CFR 68.52(e)(1)(ii)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    Following this initial adjustment, the Debt Collection Improvement 
Act requires that penalties be further adjusted at least every four 
years. The interim regulation adds new paragraphs to this section 
stating that the OCAHO's civil monetary penalties will be subject to 
inflationary adjustments at least every four years. These paragraphs 
are located at Secs. 68.52(c)(8), 68.52(d)(2) and 68.52(e)(3).
    The interim regulation also amends Sec. 68.52 in order to conform 
the section to the requirements of IIRIRA. Sections 401-05 of IIRIRA 
require the Attorney General to conduct three pilot programs concerning 
employment eligibility verification. Section 402(e)(2) of IIRIRA 
provides that upon a determination by an ALJ that a person or entity 
has violated section 274A(a)(1)(A) or (a)(2) of the INA (knowingly 
hiring, recruiting or referring for a fee, or knowingly continuing to 
employ an unauthorized alien), the ALJ's order may require the 
respondent to participate in and comply with the terms of one of these 
pilot programs. The interim regulation adds paragraph (c)(2) to this 
section in order to reflect this requirement. Former paragraphs 
(c)(1)(ii) through (c)(1)(iv) are renumbered paragraphs (c)(3) through 
(c)(5) accordingly.
    The interim regulation also adds a new paragraph (c)(6) to comport 
with section 403(a)(4)(C)(ii) of IIRIRA, which requires that, where a 
person or entity participating in one of the pilot programs has failed 
to provide notice of final nonconfirmation of employment eligibility of 
an individual to the Attorney General as required by section 
403(a)(4)(C)(i) of IIRIRA, the civil monetary penalty shall be not less 
than $500 and not more than $1,000 for each individual with respect to 
whom a violation occurred. Succeeding paragraphs are renumbered 
accordingly.
    The interim regulation adds another remedy to the list of 
requirements that may be included in an ALJ's order against a person or 
entity whom it has been determined engaged in an unfair immigration-
related employment practice. As provided in section 402(e)(2) of 
IIRIRA, the ALJ may require the person or entity to participate in and 
comply with the terms of one of the pilot programs regarding employment 
verification set forth in sections 401-05 of IIRIRA. The required 
participation would be limited to the person's or entity's hiring or 
recruitment or referral of individuals in a state covered by such a 
pilot program. This provision of the interim regulation appears as 
paragraph (d)(1)(xi).
    The heading for paragraph (c)(7) and the text for paragraph (c)(9) 
were altered to conform to the definition in Sec. 68.2 (y).
    In the renumbered paragraph (d)(1)(xii) of the interim regulation, 
an intent requirement is added to reflect an amendment to section 
274B(a)(6) of the INA made by section 421(a) of IIRIRA. A person or 
entity may only be assessed the civil monetary penalty set forth in 
this paragraph if the person or entity has requested more or different 
documents than are required under section 274A(b) or refused to honor 
documents that on their face reasonably appear to be genuine for the 
purpose or with the intent of discriminating against an individual in 
violation of 274B(a)(1). Also, in paragraph (d)(3), the provision 
stipulating the commencement of the

[[Page 7071]]

period of time for which back pay may be awarded is changed from not 
earlier than two years prior to the filing of the complaint to not 
earlier than two years prior to the ``filing of a charge with the 
Special Counsel.'' This alteration brings the regulation into 
conformance with the language in the INA.
    In paragraphs (e)(1)(i) through (e)(1)(iv), the interim regulation 
changes the language indicating how each document fraud penalty is to 
be applied in order to track the language of the INA as amended by 
section 212 of IIRIRA. Thus, the current clauses authorizing the 
assessment of the specified penalty for ``each document used, accepted 
or created and each instance of use, acceptance or creation,'' as 
prohibited by section 274C(a) of the INA, are replaced in the interim 
rule with ``each document that is the subject of a violation'' under 
section 274C(a). Paragraphs (e)(1)(iii) and (iv) address penalties for 
violations of the additional document fraud charges added to the INA by 
IIRIRA pertaining to the false making of documents or applications and 
the failure to present upon arrival at a United States port of entry a 
document relating to an alien's eligibility to enter the United States 
that had previously been presented before boarding a common carrier.
    Finally, paragraph (g) states, in accordance with sections 
274A(e)(7) and 274C(d)(4) of the INA, that if the CAHO does not modify, 
vacate, or remand the ALJ's final order and the order is not referred 
to the Attorney General for review (see discussion of Sec. 68.55 
infra), then the ALJ's order becomes the final agency order sixty (60) 
days after the date of the ALJ's order. In a case arising under section 
274B of the INA, the ALJ's order becomes the final agency order on the 
date the order is issued.

Administrative and Judicial Review

    The interim regulation makes a number of changes for purposes of 
clarification to former Sec. 68.53 of the OCAHO's regulations. For 
clarity and greater ease of reference, Sec. 68.53 was divided in order 
to address discrete topics in separate sections. Section 68.53(a)(2), 
addressing when the ALJ's order becomes a final agency order in the 
absence of review by the CAHO or the Attorney General, was relocated as 
a new Sec. 68.52(g). Section 68.53(d), addressing review of an 
interlocutory order of an ALJ in cases arising under sections 274A and 
274C of the INA, was redesignated as Sec. 68.53. Section 68.53(a)(1), 
addressing administrative review of an order of an ALJ in cases arising 
under sections 274A and 274C of the INA was redesignated as Sec. 68.54. 
Section 68.53(a)(3), addressing judicial review of a final agency order 
in cases arising under sections 274A and 274C of the INA, was 
redesignated as a new Sec. 68.56. Section 68.53(b), addressing judicial 
review of the final agency order of the ALJ in cases arising under 
section 274B of the INA, was redesignated as a new Sec. 68.57. Section 
68.54, ``Filing of the official record,'' was renumbered accordingly as 
Sec. 68.58.
    The provisions of Sec. 68.53, governing CAHO review of an 
interlocutory order of an ALJ in cases arising under sections 274A and 
274C of the INA, have been revised to allow a party to move for CAHO 
review of such an order without first seeking ALJ certification of the 
order for review. The revision requires that such a motion for CAHO 
review be made within ten (10) days of the entry of the order. In 
addition, the current five (5) day deadline for ALJ certification of an 
interlocutory order has been eliminated and replaced with a requirement 
that the ALJ state in the order itself if interlocutory review is 
appropriate. The CAHO is given ten (10) days from the date of the entry 
of the order to determine on the CAHO's own initiative to review an 
interlocutory order. The standards to be used in determining if 
interlocutory review is appropriate have been simplified by providing 
that both the ALJ and the CAHO shall use the same standards to 
determine if interlocutory review is warranted.
    The authority to stay the proceeding pending review of an 
interlocutory order, currently limited to the ALJ, has been extended to 
the CAHO as well, in keeping with the current law governing the federal 
court system, which permits the district judge or the court of appeals 
or a judge thereof to stay proceedings in district court pending an 
interlocutory appeal. See 28 U.S.C. Sec. 1292(b). The CAHO continues to 
have thirty (30) days to modify or vacate an interlocutory order; 
however, the more systematic briefing deadlines and service 
requirements of Sec. 68.54(b)-(d) infra are incorporated by reference.
    Paragraph (d) clarifies the effect of interlocutory review. An 
order by the CAHO modifying or vacating an interlocutory order shall 
also remand the case to the ALJ. Further proceedings in the case shall 
be conducted consistent with the CAHO's order. Whether or not an 
interlocutory order is reviewed by the CAHO, all parties retain the 
right to request administrative review of the final order of the ALJ 
with respect to all issues in the case.
    Although the separate step of certifying an interlocutory order for 
CAHO review has been eliminated in this interim rule as a streamlining 
measure, Sec. 68.53 still requires that the standards governing the 
appropriateness of interlocutory review must be met as a threshold 
matter before a review of the merits of any such order can take place. 
This is because, under established administrative law principles, 
interlocutory review is disfavored and should not be readily available 
to the parties as a regular means of challenging interlocutory orders 
of the ALJ during a proceeding. Interlocutory review can be not only 
disruptive of the trial proceedings but can also impose a burden on the 
reviewing authority, which would be asked to render judgment on an 
interlocutory issue without the benefit of a full record below. For 
these reasons, Sec. 68.53 is intended to make clear to the parties that 
interlocutory review is not a matter of routine and is strictly 
controlled by the ALJ and the CAHO.
    In the title for Sec. 68.54 (formerly Sec. 68.53(a)), the interim 
regulation adds the word ``Administrative'' in front of the word 
``review'' to clarify that this portion of the regulation deals with 
administrative--not judicial--review of orders entered by an ALJ in 
cases arising under sections 274A and 274C of the INA.
    Throughout Sec. 68.54 the term ``decision and order'' is changed to 
``order'' or ``final order'' in order to clarify existing ambiguity and 
conform with the definitions in Sec. 68.2.
    Paragraph 68.54(a) discusses the CAHO's discretionary authority to 
review ALJs' final orders. Paragraph (a)(1) specifies that a party may 
file with the CAHO a written request for administrative review of an 
ALJ's order within ten (10) days of the entry of the ALJ's order. 
Paragraph (a)(2) clarifies the procedure to be used when the CAHO 
decides to review an order on the CAHO's own motion. The CAHO will 
issue a notification of review containing the issues to be reviewed 
within ten (10) days of the entry of the ALJ's order.
    Paragraph (b) provides for written and oral arguments in cases in 
which administrative review has been requested or ordered. The parties 
may file briefs or other written statements within twenty-one (21) days 
of the date of entry of the ALJ's order. Paragraph (b)(2) grants the 
CAHO discretion to permit or require additional filings or to conduct 
arguments in person or telephonically. Given the thirty (30) day 
statutory time limit for CAHO review, it is anticipated that this 
discretion would be exercised sparingly.
    Experience has indicated that the time limits imposed by 
Sec. 68.54(a) and (b) for seeking review and filing briefs are

[[Page 7072]]

necessary to provide for an orderly consideration of the parties' 
submissions within the thirty (30) day review period specified in 
sections 274A(e)(7) and 274C(d)(4) of the INA.
    Similarly, in light of the thirty (30) day review period, paragraph 
(c) requires that filing or service of all requests for review, 
notifications of review, briefs or other filings relating to review by 
the CAHO be made by facsimile or same day hand delivery, or if such 
filing or service cannot be made, by overnight delivery.
    Paragraph (d)(1) adds an explicit provision for remand to clarify 
that, in addition to modification or vacation of an ALJ's order within 
thirty (30) days of the entry of such order, the CAHO also has the 
option to remand an ALJ's order back to the ALJ for further proceedings 
consistent with the CAHO's order. In addition, paragraph (d)(2) 
clarifies the procedures in the event of remand by the CAHO. Paragraph 
(d)(3) states that the CAHO has thirty (30) days from the date of his 
or her order to make any necessary technical corrections so that the 
CAHO may do so without having to issue a formal erratum order.
    Paragraph (e) states that the CAHO's order becomes the final agency 
order thirty (30) days subsequent to the date of the CAHO's 
modification or vacation, unless it is referred to the Attorney General 
for further administrative review (see discussion of Sec. 68.55 infra).
    Section 68.55 implements section 379 of IIRIRA, which provides for 
Attorney General review of ALJ or CAHO final orders in cases arising 
under section 274A or 274C of the INA. Under paragraph (a), the CAHO 
shall refer to the Attorney General for review any final order which 
the Attorney General directs the CAHO to refer to the Attorney General 
within thirty (30) days of the entry of an order modifying or vacating 
the ALJ's final order or within sixty (60) days of the entry of the 
ALJ's final order if the CAHO does not modify or vacate the ALJ's final 
order.
    Paragraph (b) provides that the CAHO will refer to the Attorney 
General for review any final order that the Commissioner of Immigration 
and Naturalization requests be referred to the Attorney General within 
thirty (30) days of the entry of an order modifying or vacating the 
ALJ's final order or within sixty (60) days of the entry of the ALJ's 
final order if the CAHO does not modify or vacate the ALJ's final 
order. Pursuant to paragraph (b)(1), the Commissioner cannot request 
referral of an ALJ's order to the Attorney General unless the 
Immigration and Naturalization Service has first sought review of that 
order by the CAHO. In addition, under paragraph (b)(2), the request 
must be in writing, must contain a succinct statement of the reasons 
the case should be reviewed by the Attorney General, and copies must be 
transmitted to all other parties to the case and to the ALJ. Under 
paragraph (b)(3), the Attorney General, in the exercise of the Attorney 
General's discretion, may accept the Commissioner's request for 
referral of the case for review by issuing a written notice of 
acceptance within sixty (60) days of the date of the request. Copies of 
such written notice shall be transmitted to all parties in the case and 
the CAHO.
    Paragraph (c) provides the procedure for Attorney General review. 
Under paragraph (c)(1), when a case is referred to the Attorney 
General, all parties must have an opportunity to respond to the 
referral and submit briefs or other written statements. Under paragraph 
(c)(2), when the Attorney General directs the CAHO to refer a final 
order to the Attorney General or when the Commissioner of Immigration 
and Naturalization requests referral of a final order to the Attorney 
General and the Attorney General accepts that referral, then the 
Attorney General shall enter an order that adopts, modifies, vacates, 
or remands the order. Any order of the Attorney General under this 
provision must be in writing and be transmitted to all parties in the 
case and to the CAHO. No specific deadline is established for the 
Attorney General's review. Under paragraph (c)(3), if the Attorney 
General remands either the CAHO's order or the ALJ's order, further 
proceedings will be conducted in accordance with the Attorney General's 
order, and administrative review of the ALJ's or CAHO's subsequent 
final order will be conducted in accordance with Secs. 68.54 and 68.55.
    Paragraph (d)(1) clarifies that if the Attorney General does issue 
an adoption, modification, or a vacation, that order becomes the final 
agency order on the date it is entered. Paragraph (d)(2) indicates that 
any final order referred to the Attorney General pursuant to 
Sec. 68.55(b) becomes the final agency order sixty (60) days subsequent 
to such referral unless the Attorney General issues a written 
notification of acceptance of the referral before the sixty (60) day 
period expires.

Miscellaneous Changes

    In Secs. 68.14, 68.27, 68.38, 68.42, 68.52, 68.53 and 68.54 all 
references to ``issue'' or ``issuance'' have been changed to ``enter'' 
or ``entry'' in order to comport with the amended definitions of 
``entry'' and ``issue'' in Sec. 68.2.

Good Cause Exception

    The decision of the Executive Office for Immigration Review to 
implement this rule as an interim rule, with provision for post-
promulgation public comment, is based upon the ``good cause'' exception 
found at 5 U.S.C. 553(d). It is necessary and proper to implement this 
interim rule promptly because, to a significant extent, the language of 
the regulation merely tracks the language of the implementing statute. 
Moreover, because this interim rule implements amendments to sections 
274A, 274B and 274C of the INA which became effective September 30, 
1996, prompt implementation is necessary to provide corresponding rules 
of practice and procedure for administrative hearings under 274A, 274B 
and 274C. Finally, these regulations do not make any substantive 
changes or take away rights which that established in the statute or 
earlier rules of practice and procedure.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 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 rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100,000,000 or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of the United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Regulatory Flexibility Act

    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule does not have a significant economic impact on a 
substantial number of small entities. No additional costs will be 
incurred as a result of this rule.

Executive Order 12866

    The Attorney General has determined that this rule is not a 
significant regulatory action under Executive Order No. 12866, and 
accordingly this rule has

[[Page 7073]]

not been reviewed by the Office of Management and Budget.

Executive Order 12612

    This rule has no Federalism implications warranting the preparation 
of a Federalism Assessment in accordance with Executive Order No. 
12612.

Executive Order 12988

    This rule complies with the applicable standards provided in 
sections 3(a) and 3(b)(2) of Executive Order No. 12988.

Public Comment

    The Executive Office for Immigration Review invites public comments 
within sixty days of the publication date of these rules. In 
particular, any suggestions for changes that might make the 
Administrative Law Judge hearing process more accessible for small 
businesses, including the possibility of streamlined procedures, would 
be appreciated.

List of Subjects in 28 CFR Part 68

    Administrative practices and procedure, Aliens, Citizenship and 
naturalization, Civil Rights, Discrimination in employment, Employment, 
Equal employment opportunity, Immigration, Nationality, Non-
discrimination.

    Accordingly, title 28, part 68 of the Code of Federal Regulations 
is amended as follows:

PART 68--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE 
HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING 
ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF ALIENS, UNFAIR IMMIGRATION-
RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD

    1. The authority citation continues to read as follows:

    Authority: 5 U.S.C. 301, 554; 8 U.S.C. 1103, 1324a, 1324b, and 
1324c.

    2. The heading of part 68 is revised to read as set forth in the 
heading above.
    3. Revise Secs. 68.1, 68.2, 68.3, 68.6, 68.7, 68.9, 68.10, 68.14, 
68.18, 68.22, 68.23, 68.24, 68.27, 68.33, 68.38, 68.42, 68.52, 68.53, 
and 68.54, and add Secs. 68.55 through 68.58 to read as follows:


Sec. 68.1  Scope of rules.

    The rules of practice in this part are applicable to adjudicatory 
proceedings before Administrative Law Judges of the Executive Office 
for Immigration Review, United States Department of Justice, with 
regard to unlawful employment cases under section 274A of the INA, 
unfair immigration-related employment practice cases under section 274B 
of the INA, and document fraud cases under section 274C of the INA. 
Such proceedings shall be conducted expeditiously, and the parties 
shall make every effort at each stage of a proceeding to avoid delay. 
To the extent that these rules may be inconsistent with a rule of 
special application as provided by statute, executive order, or 
regulation, the latter is controlling. The Federal Rules of Civil 
Procedure may be used as a general guideline in any situation not 
provided for or controlled by these rules, by the Administrative 
Procedure Act, or by any other applicable statute, executive order, or 
regulation.


Sec. 68.2  Definitions.

    For purposes of this part:
    Adjudicatory proceeding means an administrative judicial-type 
proceeding, before the Office of the Chief Administrative Hearing 
Officer, commencing with the filing of a complaint and leading to the 
formulation of a final agency order;
    Administrative Law Judge means an Administrative Law Judge 
appointed pursuant to the provisions of 5 U.S.C. 3105;
    Administrative Procedure Act means those provisions of the 
Administrative Procedure Act, as codified, which are contained in 5 
U.S.C. 551 through 559;
    Certification means a formal assertion in writing of the specified 
fact(s), signed by the person(s) making the certification and thereby 
attesting to the truth of the content of the writing, except as 
follows:
    (1) ``Certified court reporter'' means a person who has been deemed 
by an appropriate body to be qualified to transcribe or record 
testimony during formal legal proceedings,
    (2) ``Certified mail'' means a form of mail similar to registered 
mail by which sender may require return receipt from addressee, and
    (3) ``Certified copy'' means a copy of a document or record, signed 
by the officer to whose custody the original is entrusted, thereby 
attesting that the copy is a true copy;
    Certify means the act of executing a certification;
    Chief Administrative Hearing Officer or an official who has been 
designated to act as the Chief Administrative Hearing Officer, is the 
official who, under the Director, Executive Office for Immigration 
Review, generally administers the Administrative Law Judge program, 
exercises administrative supervision over Administrative Law Judges and 
others assigned to the Office of the Chief Administrative Hearing 
Officer, and who, in accordance with sections 274A(e)(7) and 274C(d)(4) 
of the INA, exercises discretionary authority to review the decisions 
and orders of Administrative Law Judges adjudicated under sections 274A 
and 274C of the INA;
    Complainant means the Immigration and Naturalization Service in 
cases arising under sections 274A and 274C of the INA. In cases arising 
under section 274B of the INA, ``complainant'' means the Special 
Counsel (as defined in this section), and also includes the person or 
entity who has filed a charge with the Special Counsel, or, in private 
actions, an individual or private organization;
    Complaint means the formal document initiating an adjudicatory 
proceeding;
    Consent order means any written document containing a specified 
remedy or other relief agreed to by all parties and entered as an order 
by the Administrative Law Judge;
    Debt Collection Improvement Act means the Debt Collection 
Improvement Act of 1996, Pub. L. 104-134, Title III, 110 Stat. 1321 
(1996);
    Decision means any findings of fact or conclusions of law by an 
Administrative Law Judge or the Chief Administrative Hearing Officer;
    Document fraud cases means cases involving allegations under 
section 274C of the INA.
    Entry means the date the Administrative Law Judge, Chief 
Administrative Hearing Officer, or the Attorney General signs the 
order; Entry as used in section 274B(i)(1) of the INA means the date 
the Administrative Law Judge signs the order;
    Final agency order is an Administrative Law Judge's final order, in 
cases arising under sections 274A and 274C of the INA, that has not 
been modified, vacated, or remanded by the Chief Administrative Hearing 
Officer pursuant to Sec. 68.54, referred to the Attorney General for 
review pursuant to Sec. 68.55(a), or accepted by the Attorney General 
for review pursuant to Sec. 68.55(b)(3). Alternatively, if the Chief 
Administrative Hearing Officer modifies or vacates the final order 
pursuant to Sec. 68.54, the modification or vacation becomes the final 
agency order if it has not been referred to the Attorney General for 
review pursuant to Sec. 68.55(a) or accepted by the Attorney General 
for review pursuant to Sec. 68.55(b)(3). If the Attorney General enters 
an order that modifies or vacates either the Chief Administrative 
Hearing Officer's or the Administrative Law Judge's order, the Attorney 
General's

[[Page 7074]]

order is the final agency order. In cases arising under section 274B of 
the INA, an Administrative Law Judge's final order is also the final 
agency order;
    Final order is an order by an Administrative Law Judge that 
disposes of a particular proceeding or a distinct portion of a 
proceeding, thereby concluding the jurisdiction of the Administrative 
Law Judge over that proceeding or portion thereof;
    Hearing means that part of a proceeding that involves the 
submission of evidence, either by oral presentation or written 
submission;
    Interlocutory order means an order that decides some point or 
matter, but is not a final order or a final decision of the whole 
controversy; it decides some intervening matter pertaining to the cause 
of action and requires further steps to be taken in order for the 
Administrative Law Judge to adjudicate the cause on the full merits;
    INA means the Immigration and Nationality Act of 1952, ch. 477, 
Pub. L. 82-414, 66 Stat. 163, as amended;
    Issued as used in section 274A(e)(8) and section 274C(d)(5) of the 
INA means the date on which an Administrative Law Judge's final order, 
the Chief Administrative Hearing Officer's order, or an adoption, 
modification, or vacation by the Attorney General becomes a final 
agency order;
    Motion means an oral or written request, made by a person or a 
party, for some action by an Administrative Law Judge;
    Order means a determination or mandate by an Administrative Law 
Judge, the Chief Administrative Hearing Officer, or the Attorney 
General that resolves some point or directs some action in the 
proceeding;
    Ordinary mail refers to the mail service provided by the United 
States Postal Service using only standard postage fees, exclusive of 
special systems, electronic transfers, and other means that have the 
effect of providing expedited service;
    Party includes all persons or entities named or admitted as a 
complainant, respondent, or intervenor in a proceeding; or any person 
filing a charge with the Special Counsel under section 274B of the INA, 
resulting in the filing of a complaint, concerning an unfair 
immigration-related employment practice;
    Pleading means the complaint, motions, the answer thereto, any 
supplement or amendment thereto, and reply that may be permitted to any 
answer, supplement, or amendment submitted to the Administrative Law 
Judge or, when no judge is assigned, the Chief Administrative Hearing 
Officer;
    Prohibition of indemnity bond cases means cases involving 
allegations under section 274A(g) of the INA;
    Respondent means a party to an adjudicatory proceeding, other than 
a complainant, against whom findings may be made or who may be required 
to provide relief or take remedial action;
    Special Counsel means the Special Counsel for Unfair Immigration-
Related Employment Practices appointed by the President under section 
274B of the INA, or his or her designee or in the case of a vacancy in 
the Office of Special Counsel, the officer or employee designated by 
the President who shall act as Special Counsel during such vacancy;
    Unfair immigration-related employment practice cases means cases 
involving allegations under section 274B of the INA.
    Unlawful employment cases means cases involving allegations under 
section 274A of the INA, other than prohibition of indemnity bond 
cases;


Sec. 68.3  Service of complaint, notice of hearing, written orders, and 
decisions.

    (a) Service of complaint, notice of hearing, written orders, and 
decisions shall be made by the Office of the Chief Administrative 
Hearing Officer or the Administrative Law Judge to whom the case is 
assigned either:
    (1) By delivering a copy to the individual party, partner of a 
party, officer of a corporate party, registered agent for service of 
process of a corporate party, or attorney or representative of record 
of a party;
    (2) By leaving a copy at the principal office, place of business, 
or residence of a party; or
    (3) By mailing to the last known address of such individual, 
partner, officer, or attorney or representative of record.
    (b) Service of complaint and notice of hearing is complete upon 
receipt by addressee.
    (c) In circumstances where the Office of the Chief Administrative 
Hearing Officer or the Administrative Law Judge encounters difficulty 
with perfecting service, the Chief Administrative Hearing Officer or 
the Administrative Law Judge may direct that a party execute service of 
process.
* * * * *


Sec. 68.6  Service and filing of documents.

    (a) Generally. An original and four copies of the complaint shall 
be filed with the Chief Administrative Hearing Officer. An original and 
two copies of all other pleadings, including any attachments, shall be 
filed with the Chief Administrative Hearing Officer by the parties 
presenting the pleadings until an Administrative Law Judge is assigned 
to a case. Thereafter, all pleadings shall be delivered or mailed for 
filing to the Administrative Law Judge assigned to the case, and shall 
be accompanied by a certification indicating service to all parties of 
record. When a party is represented by an attorney, service shall be 
made upon the attorney. Except as required by Sec. 68.54(c) and 
paragraph (c) of this section, service of any document upon any party 
may be made by personal delivery or by mailing a copy to the last known 
address. The person serving the document shall certify to the manner 
and date of service.
    (b) Discovery. The parties shall not file requests for discovery, 
answers, or responses thereto with the Administrative Law Judge. The 
Administrative Law Judge may, however, upon motion of a party or on his 
or her own initiative, order that such requests for discovery, answers, 
or responses thereto be filed.
    (c) Where a time limit is imposed by statute, regulation, or order. 
Pleadings and briefs may be filed by facsimile with either an 
Administrative Law Judge or, in the case of a complaint, with the Chief 
Administrative Hearing Officer, only to toll the running of a time 
limit. All original signed pleadings and other documents must be 
forwarded concurrently with the transmission of the facsimile. Any 
party filing documents by facsimile must include in the certification 
of service a certification that service on the opposing party has also 
been made by facsimile or by same-day hand delivery, or, if service by 
facsimile or same-day hand delivery cannot be made, a certification 
that the document has been served instead by overnight delivery 
service. In the case of requests for administrative review, briefs or 
other filings relating to review by the Chief Administrative Hearing 
Officer, filing, or service shall be made using the procedure set forth 
in this paragraph pursuant to Sec. 68.54(c).


Sec. 68.7  Form of pleadings.

    (a) Every pleading shall contain a caption setting forth the 
statutory provision under which the proceeding is instituted, the title 
of the proceeding, the docket number assigned by the Office of the 
Chief Administrative Hearing Officer, the names of all parties (or, 
after the complaint, at least the first party named as a complainant or 
respondent), and a designation of the type of pleading (e.g., 
complaint, motion to dismiss). The pleading shall be signed, dated, and 
shall contain the

[[Page 7075]]

address and telephone number of the party or person representing the 
party. The pleading shall be on standard size (8\1/2\ x 11) paper and 
should also be typewritten when possible.
    (b) A complaint filed pursuant to section 274A, 274B, or 274C of 
the INA shall contain the following:
    (1) A clear and concise statement of facts, upon which an assertion 
of jurisdiction is predicated;
    (2) The names and addresses of the respondents, agents, and/or 
their representatives who have been alleged to have committed the 
violation;
    (3) The alleged violations of law, with a clear and concise 
statement of facts for each violation alleged to have occurred; and,
    (4) A short statement containing the remedies and/or sanctions 
sought to be imposed against the respondent.
    (5) The complaint must be accompanied by a statement identifying 
the party or parties to be served by the Office of the Chief 
Administrative Hearing Officer with notice of the complaint pursuant to 
Sec. 68.3.
    (c) Complaints filed pursuant to sections 274A and 274C of the INA 
shall be signed by an attorney and shall be accompanied by a copy of 
the Notice of Intent to Fine and Request for Hearing. Complaints filed 
pursuant to section 274B of the INA shall be accompanied by a copy of 
the charge, previously filed with the Special Counsel pursuant to 
section 274B(b)(1), and a copy of the Special Counsel's letter of 
determination regarding the charges.
    (d) Illegible documents, whether handwritten, typewritten, 
photocopied, or otherwise, will not be accepted. Papers may be 
reproduced by any duplicating process, provided that all copies are 
clear and legible.
    (e) All documents presented by a party in a proceeding must be in 
the English language or, if in a foreign language, accompanied by a 
certified translation.
* * * * *


Sec. 68.9  Responsive pleadings--answer.

    (a) Time for answer. Within thirty (30) days after the service of a 
complaint, each respondent shall file an answer.
    (b) Default. Failure of the respondent to file an answer within the 
time provided may be deemed to constitute a waiver of his or her right 
to appear and contest the allegations of the complaint. The 
Administrative Law Judge may enter a judgment by default.
    (c) Answer. Any respondent contesting any material fact alleged in 
a complaint, or contending that the amount of a proposed penalty or 
award is excessive or inappropriate, or contending that he or she is 
entitled to judgment as a matter of law, shall file an answer in 
writing. The answer shall include:
    (1) A statement that the respondent admits, denies, or does not 
have and is unable to obtain sufficient information to admit or deny 
each allegation; a statement of lack of information shall have the 
effect of a denial (any allegation not expressly denied shall be deemed 
to be admitted); and
    (2) A statement of the facts supporting each affirmative defense.
    (d) Reply. Complainants may file a reply responding to each 
affirmative defense asserted.
    (e) Amendments and supplemental pleadings. If a determination of a 
controversy on the merits will be facilitated thereby, the 
Administrative Law Judge may, upon such conditions as are necessary to 
avoid prejudicing the public interest and the rights of the parties, 
allow appropriate amendments to complaints and other pleadings at any 
time prior to the issuance of the Administrative Law Judge's final 
order based on the complaint. When issues not raised by the pleadings 
are reasonably within the scope of the original complaint and are tried 
by express or implied consent of the parties, they shall be treated in 
all respects as if they had been raised in the pleadings, and such 
amendments may be made as necessary to make the pleading conform to the 
evidence. The Administrative Law Judge may, upon reasonable notice and 
such terms as are just, permit supplemental pleadings setting forth 
transactions, occurrences, or events that have occurred or new law 
promulgated since the date of the pleadings and which are relevant to 
any of the issues involved.


Sec. 68.10  Motion to dismiss for failure to state a claim upon which 
relief can be granted.

    (a) The respondent, without waiving the right to offer evidence in 
the event that the motion is not granted, may move for a dismissal of 
the complaint on the ground that the complainant has failed to state a 
claim upon which relief can be granted. The filing of a motion to 
dismiss does not affect the time period for filing an answer.
    (b) The Administrative Law Judge may dismiss the complaint, based 
on a motion by the respondent or without a motion from the respondent, 
if the Administrative Law Judge determines that the complainant has 
failed to state a claim upon which relief can be granted. However, in 
the prehearing phase of an adjudicatory proceeding brought under this 
part, the Administrative Law Judge shall not dismiss a complaint in its 
entirety for failure to state a claim upon which relief may be granted, 
upon his or her own motion, without affording the complainant an 
opportunity to show cause why the complaint should not be dismissed.
* * * * *


Sec. 68.14  Consent findings or dismissal.

    (a) Submission. Where the parties or their authorized 
representatives or their counsel have entered into a settlement 
agreement, they shall:
    (1) Submit to the presiding Administrative Law Judge:
    (i) The agreement containing consent findings; and
    (ii) A proposed decision and order; or
    (2) Notify the Administrative Law Judge that the parties have 
reached a full settlement and have agreed to dismissal of the action. 
Dismissal of the action shall be subject to the approval of the 
Administrative Law Judge, who may require the filing of the settlement 
agreement.
    (b) Content. Any agreement containing consent findings and a 
proposed decision and order disposing of a proceeding or any part 
thereof shall also provide:
    (1) That the decision and order based on consent findings shall 
have the same force and effect as a decision and order made after full 
hearing;
    (2) That the entire record on which any decision and order may be 
based shall consist solely of the complaint, notice of hearing, and any 
other such pleadings and documents as the Administrative Law Judge 
shall specify;
    (3) A waiver of any further procedural steps before the 
Administrative Law Judge; and
    (4) A waiver of any right to challenge or contest the validity of 
the decision and order entered into in accordance with the agreement.
    (c) Disposition. In the event an agreement containing consent 
findings and an interim decision and order is submitted, the 
Administrative Law Judge, within thirty (30) days or as soon as 
practicable thereafter, may, if satisfied with its timeliness, form, 
and substance, accept such agreement by entering a decision and order 
based upon the agreed findings. In his or her discretion, the 
Administrative Law Judge may conduct a hearing to determine the 
fairness of the agreement, consent findings, and proposed decision and 
order.
* * * * *

[[Page 7076]]

Sec. 68.18  Discovery--general provisions.

    (a) General. Parties may obtain discovery by one or more of the 
following methods: depositions upon oral examination or written 
questions; written interrogatories; production of documents or things, 
or permission to enter upon land or other property, for inspection and 
other purposes; physical and mental examinations; and requests for 
admissions. The frequency or extent of these methods may be limited by 
the Administrative Law Judge upon his or her own initiative or pursuant 
to a motion under paragraph (c) of this section.
    (b) Scope of discovery. Unless otherwise limited by order of the 
Administrative Law Judge in accordance with the rules in this part, the 
parties may obtain discovery regarding any matter, not privileged, 
which is relevant to the subject matter involved in the proceeding, 
including the existence, description, nature, custody, condition, and 
location of any books, documents, or other tangible things, and the 
identity and location of persons having knowledge of any discoverable 
matter.
    (c) Protective orders. Upon motion by a party or the person from 
whom discovery is sought, and for good cause shown, the Administrative 
Law Judge may make any order that justice requires to protect a party 
or person from annoyance, harassment, embarrassment, oppression, or 
undue burden or expense, including one or more of the following:
    (1) The discovery not be had;
    (2) The discovery may be had only on specified terms and 
conditions, including a designation of the time, amount, duration, or 
place;
    (3) The discovery may be had only by a method of discovery other 
than that selected by the party seeking discovery; or
    (4) Certain matters not relevant may not be inquired into, or that 
the scope of discovery be limited to certain matters.
    (d) Supplementation of responses. A party who has responded to a 
request for discovery with a response that was complete when made is 
under no duty to supplement his or her response to include information 
thereafter acquired, except as follows:
    (1) A party is under a duty to supplement timely his or her 
response with respect to any question directly addressed to:
    (i) The identity and location of persons having knowledge of 
discoverable matters; and
    (ii) The identity of each person expected to be called as an expert 
witness at the hearing, the subject matter on which he or she is 
expected to testify, and the substance of his or her testimony.
    (2) A party is under a duty to amend timely a prior response if he 
or she later obtains information upon the basis of which:
    (i) He or she knows the response was incorrect when made; or
    (ii) He or she knows that the response, though correct when made, 
is no longer true and the circumstances are such that a failure to 
amend the response is in substance a knowing concealment.
    (3) A duty to supplement responses may be imposed by order of the 
Administrative Law Judge upon motion of a party or agreement of the 
parties.
* * * * *


Sec. 68.22  Depositions.

    (a) Notice. Any party desiring to take the deposition of a witness 
shall give notice in writing to the witness and other parties of the 
time and place of the deposition, and the name and address of each 
witness. If documents are requested, the notice shall include a written 
request for the production of documents. Not less than ten (10) days 
written notice shall be given when the deposition is to be taken within 
the continental United States, and not less then twenty (20) days 
written notice shall be given when the deposition is to be taken 
elsewhere, unless otherwise permitted by the Administrative Law Judge 
or agreed to by the parties.
    (b) When, how, and by whom taken. The following procedures shall 
apply to depositions:
    (1) Depositions may be taken by oral examination or upon written 
interrogatories before any person having power to administer oaths. The 
party taking a deposition upon oral examination shall state in the 
notice the method by which the testimony shall be recorded. Unless the 
Administrative Law Judge orders otherwise, it may be recorded by sound, 
sound-and-visual, or stenographic means, and the party taking the 
deposition shall bear the cost of the recording. Any party may arrange 
for a transcription to be made from the recording of a deposition taken 
by non-stenographic means.
    (2) Each witness testifying upon deposition shall testify under 
oath and any other party shall have the right to cross-examine. The 
questions asked and the answers thereto, together with all objections 
made, shall be recorded as provided by paragraph (b)(1) of this 
section. The person administering the oath shall certify in writing 
that the transcript or recording is a true record of the testimony 
given by the witness. The witness shall review the transcript or 
recording within thirty (30) days of notification that it is available 
and subscribe in writing to the deposition, indicating in writing any 
changes in form or substance, unless such review is waived by the 
witness and the parties by stipulation.
    (c) Motion to terminate or limit examination. During the taking of 
a deposition, a party or deponent may request suspension of the 
deposition on grounds of bad faith in the conduct of the examination, 
oppression of a deponent or party, or improper questions asked. The 
deposition will then be adjourned. However, the objecting party or 
deponent must immediately move the Administrative Law Judge for a 
ruling on his or her objections to the deposition conduct or 
proceedings.


Sec. 68.23  Motion to compel response to discovery; sanctions.

    (a) If a deponent fails to answer a question asked, or a party upon 
whom a discovery request is made pursuant to Secs. 68.18 through 68.22 
fails to respond adequately or objects to the request or to any part 
thereof, or fails to permit inspection as requested, the discovering 
party may move the Administrative Law Judge for an order compelling a 
response or inspection in accordance with the request. A party who has 
taken a deposition or has requested admissions or has served 
interrogatories may move to determine the sufficiency of the answers or 
objections thereto. Unless the objecting party sustains his or her 
burden of showing that the objection is justified, the Administrative 
Law Judge may order that an answer be served. If the Administrative Law 
Judge determines that an answer does not comply with the requirements 
of the rules in this part, he or she may order either that the matter 
is admitted or that an amended answer be served.
    (b) The motion shall set forth and include:
    (1) The nature of the questions or request;
    (2) The response or objections of the party upon whom the request 
was served;
    (3) Arguments in support of the motion; and
    (4) A certification that the movant has in good faith conferred or 
attempted to confer with the person or party failing to make the 
discovery in an effort to secure information or material without action 
by the Administrative Law Judge.
    (c) If a party, an officer or an agent of a party, or a witness, 
fails to comply with an order, including, but not limited to, an order 
for the taking of a deposition, the production of

[[Page 7077]]

documents, the answering of interrogatories, a response to a request 
for admissions, or any other order of the Administrative Law Judge, the 
Administrative Law Judge may, for the purposes of permitting resolution 
of the relevant issues and disposition of the proceeding and to avoid 
unnecessary delay, take the following actions:
    (1) Infer and conclude that the admission, testimony, documents, or 
other evidence would have been adverse to the non-complying party;
    (2) Rule that for the purposes of the proceeding the matter or 
matters concerning which the order was issued be taken as established 
adversely to the non-complying party;
    (3) Rule that the non-complying party may not introduce into 
evidence or otherwise rely upon testimony by such party, officer, or 
agent, or the documents or other evidence, in support of or in 
opposition to any claim or defense;
    (4) Rule that the non-complying party may not be heard to object to 
introduction and use of secondary evidence to show what the withheld 
admission, testimony, documents, or other evidence would have shown;
    (5) Rule that a pleading, or part of a pleading, or a motion or 
other submission by the non-complying party, concerning which the order 
was issued, be stricken, or that a decision of the proceeding be 
rendered against the non-complying party, or both;
    (6) In the case of failure to comply with a subpoena, the 
Administrative Law Judge may also take the action provided in 
Sec. 68.25(e); and
    (7) In ruling on a motion made pursuant to this section, the 
Administrative Law Judge may make and enter a protective order such as 
he or she is authorized to enter on a motion made pursuant to 
Sec. 68.42.
    (d) Evasive or incomplete response. For the purposes of this 
section, an evasive or incomplete response to discovery may be treated 
as a failure to respond.


Sec. 68.24  Use of depositions at hearings.

    (a) Generally. At the hearing, any part or all of a deposition, so 
far as admissible, may be used against any party who was present or 
represented at the taking of the deposition or who had due notice 
thereof, in accordance with any one of the following provisions:
    (1) Any deposition may be used by any party for the purpose of 
contradicting or impeaching the testimony of the deponent as a witness;
    (2) The deposition of an expert witness may be used by any party 
for any purpose, unless the Administrative Law Judge rules that such 
use would be unfair or a violation of due process;
    (3) The deposition of a party or of anyone who at the time of 
taking the deposition was an officer, director, or duly authorized 
agent of a public or private corporation, partnership, or association 
which is a party, may be used by any other party for any purpose;
    (4) The deposition of a witness, whether or not a party, may be 
used by any party for any purpose if the Administrative Law Judge 
finds:
    (i) That the witness is dead;
    (ii) That the witness is out of the United States or more than 100 
miles from the place of hearing unless it appears that the absence of 
the witness was procured by the party offering the deposition;
    (iii) That the witness is unable to attend to testify because of 
age, sickness, infirmity, or imprisonment;
    (iv) That the party offering the deposition has been unable to 
procure the attendance of the witness by subpoena; or
    (v) Upon application and notice, that such exceptional 
circumstances exist to make it desirable, in the interest of justice, 
and with due regard to the importance of presenting the testimony of 
witnesses orally in open hearing, to allow the deposition to be used;
    (5) If only part of a deposition is offered in evidence by a party, 
any other party may require him or her to introduce all of it which is 
relevant to the part introduced, and any party may introduce any other 
parts; and
    (6) Substitution of parties does not affect the right to use 
depositions previously taken; and, when a proceeding in any hearing has 
been dismissed and another proceeding involving the parties or their 
representatives or successors in interest has been brought (or 
commenced), all depositions lawfully taken and duly filed in the former 
proceeding may be used in the latter if originally taken therefor.
    (7) A party offering deposition testimony may offer it in 
stenographic or nonstenographic form, but if in nonstenographic form, 
the party shall also be responsible for providing a transcript of the 
portions so offered.
    (b) Objections to admissibility. Except as provided in this 
paragraph, objections may be made at the hearing to receiving in 
evidence any deposition or part thereof for any reason that would 
require the exclusion of the evidence if the witness were then present 
and testifying.
    (1) Objections to the competency of a witness or to the competency, 
relevancy, or materiality of testimony are not waived by failure to 
make them before or during the taking of the deposition, unless the 
ground of the objection is one that might have been obviated or removed 
if presented at that time.
    (2) Errors and irregularities occurring at the oral examination in 
the manner of taking the deposition, in the form of the questions or 
answers, in the oath or affirmation, or in the conduct of parties and 
errors of any kind which might be obviated, removed, or cured if 
promptly presented, are waived unless reasonable objection thereto is 
made at the taking of the deposition.
* * * * *


Sec. 68.27  Continuances.

    (a) When granted. Continuances shall only be granted in cases where 
the requester has a prior judicial commitment or can demonstrate undue 
hardship, or a showing of other good cause.
    (b) Time limit for requesting. Except for good cause arising 
thereafter, requests for continuances must be filed not later than 
fourteen (14) days prior to the date of the scheduled proceeding.
    (c) How filed. Motions for continuances shall be in writing, unless 
made during the prehearing conference or the hearing. Copies shall be 
served on all parties. Any motions for continuances filed fewer than 
fourteen (14) days before the date of the scheduled proceeding shall, 
in addition to the written request, be telephonically communicated to 
the Administrative Law Judge or a member of the Judge's staff and to 
all other parties.
    (d) Ruling. Time permitting, the Administrative Law Judge shall 
enter a written order in advance of the scheduled proceeding date that 
either grants or denies the request. Otherwise, the ruling shall be 
made orally by telephonic communication to the party requesting the 
continuance, who shall be responsible for telephonically notifying all 
other parties. Oral orders shall be confirmed in writing by the 
Administrative Law Judge.
* * * * *


Sec. 68.33  Participation of parties and representation.

    (a) Participation of parties. Any party shall have the right to 
appear in a proceeding and may examine and cross-examine witnesses and 
introduce into the record documentary or other relevant evidence, 
except that the participation of any intervenor shall be limited to the 
extent prescribed by the Administrative Law Judge.
    (b) Person compelled to testify. Any person compelled to testify in 
a

[[Page 7078]]

proceeding in response to a subpoena may be accompanied, represented, 
and advised by an individual meeting the requirements of paragraph (c) 
of this section.
    (c) Representation for respondents. Persons who may appear before 
the Administrative Law Judges on behalf of respondents include:
    (1) An attorney at law who is admitted to practice before the 
federal courts or before the highest court of any state, the District 
of Columbia, or any territory or commonwealth of the United States, may 
practice before the Administrative Law Judges. An attorney's own 
representation that the attorney is in good standing before any of such 
courts shall be sufficient proof thereof, unless otherwise ordered by 
the Administrative Law Judge.
    (2) A law student, enrolled in an accredited law school, may 
practice before an Administrative Law Judge. The law student must seek 
advance approval by filing a statement with the Administrative Law 
Judge proving current participation in a legal assistance program or 
clinic conducted by the law school. Practice before the Administrative 
Law Judge shall be under direct supervision of a faculty member or an 
attorney. An appearance by a law student shall be without direct or 
indirect remuneration. The Administrative Law Judge may determine the 
amount of supervision required of the supervising faculty member or 
attorney.
    (3) An individual who is neither an attorney nor a law student may 
be allowed to provide representation to a party upon a written order 
from the Administrative Law Judge assigned to the case granting 
approval of the representation. The individual must file a written 
application with the Administrative Law Judge demonstrating that the 
individual possesses the knowledge of administrative procedures, 
technical expertise, or other qualifications necessary to render 
valuable service in the proceedings and is otherwise competent to 
advise and assist in the presentation of matters in the proceedings.
    (i) Application. A written application by an individual who is 
neither an attorney nor a law student for admission to represent a 
party in proceedings shall be submitted to the Administrative Law Judge 
within ten (10) days from the receipt of the Notice of Hearing and 
complaint by the party on whose behalf the individual wishes to file 
the application. This period of time for filing the application may be 
extended upon approval of the Administrative Law Judge. The application 
shall set forth in detail the requesting individual's qualifications to 
represent the party.
    (ii) Inquiry on qualifications or ability. The Administrative Law 
Judge may, at any time, inquire as to the qualifications or ability of 
any non-attorney to render assistance in proceedings before the 
Administrative Law Judge.
    (iii) Denial of authority to appear. Except as provided in 
paragraph (c)(3)(iv) of this section, the Administrative Law Judge may 
enter an order denying the privilege of appearing to any individual 
whom the Judge does not possess the requisite qualifications to 
represent others; is lacking in character or integrity; has engaged in 
unethical or improper professional conduct; or has engaged in an act 
involving moral turpitude.
    (iv) Exception. Any individual may represent him or herself or any 
corporation, partnership or unincorporated association of which that 
individual is a partner or general officer in proceedings before the 
Administrative Law Judge without prior approval of the Administrative 
Law Judge and without filing the written application required by this 
paragraph. Such individuals must, however, file a notice of appearance 
in the manner set forth in paragraph (e) of this section.
    (d) Representation for the Department of Justice. The Department of 
Justice may be represented by the appropriate counsel in these 
proceedings.
    (e) Proof of authority. Any individual acting in a representative 
capacity in any adjudicative proceeding may be required by the 
Administrative Law Judge to show his or her authority to act in such 
capacity. Representation of a respondent shall be at no expense to the 
Government.
    (f) Notice of appearance. Except for a government attorney filing a 
complaint pursuant to section 274A, 274B, or 274C of the INA, each 
attorney shall file a notice of appearance. Such notice shall indicate 
the name of the case or controversy, the case number if assigned, and 
the party on whose behalf the appearance is made. The notice of 
appearance shall be signed by the attorney, and shall be accompanied by 
a certification indicating that such notice was served on all parties 
of record. A request for a hearing signed by an attorney and filed with 
the Immigration and Naturalization Service pursuant to section 
274A(e)(3)(A) or 274C(d)(2)(A) of the INA, and containing the same 
information as required by this section, shall be considered a notice 
of appearance on behalf of the respondent for whom the request was 
made.
    (g) Withdrawal or substitution of a representative. Withdrawal or 
substitution of an attorney or representative may be permitted by the 
Administrative Law Judge upon written motion. The Administrative Law 
Judge shall enter an order granting or denying such motion for 
withdrawal or substitution.
* * * * *


Sec. 68.38  Motion for summary decision.

    (a) A complainant, not fewer than thirty (30) days after receipt by 
respondent of the complaint, may move with or without supporting 
affidavits for summary decision on all or any part of the complaint. 
Motions by any party for summary decision on all or any part of the 
complaint will not be entertained within the twenty (20) days prior to 
any hearing, unless the Administrative Law Judge decides otherwise. Any 
other party, within ten (10) days after service of a motion for summary 
decision, may respond to the motion by serving supporting or opposing 
papers with affidavits, if appropriate, or countermove for summary 
decision. The Administrative Law Judge may set the matter for argument 
and/or call for submission of briefs.
    (b) Any affidavits submitted with the motion shall set forth such 
facts as would be admissible in evidence in a proceeding subject to 5 
U.S.C. 556 and 557 and shall show affirmatively that the affiant is 
competent to testify to the matters stated therein. When a motion for 
summary decision is made and supported as provided in this section, a 
party opposing the motion may not rest upon the mere allegations or 
denials of such pleading. Such response must set forth specific facts 
showing that there is a genuine issue of fact for the hearing.
    (c) The Administrative Law Judge shall enter a summary decision for 
either party if the pleadings, affidavits, material obtained by 
discovery or otherwise, or matters officially noticed show that there 
is no genuine issue as to any material fact and that a party is 
entitled to summary decision.
    (d) Form of summary decisions. Any final order entered as a summary 
decision shall conform to the requirements for all final orders. A 
final order made under this section shall include a statement of:
    (1) Findings of fact and conclusions of law, and the reasons 
therefor, on all issues presented; and
    (2) Any terms and conditions of the final order.
    (e) Hearings on issue of fact. Where a genuine question of material 
fact is

[[Page 7079]]

raised, the Administrative Law Judge shall set the case for an 
evidentiary hearing.
* * * * *


Sec. 68.42  In camera and protective orders.

    (a) Privileged communications. Upon application of any person, the 
Administrative Law Judge may limit discovery or introduction of 
evidence or enter such protective or other orders as in the Judge's 
judgment may be consistent with the objective of protecting privileged 
communications and of protecting data and other material the disclosure 
of which would unreasonably prejudice a party, witness, or third party.
    (b) Classified or sensitive matter. (1) Without limiting the 
discretion of the Administrative Law Judge to give effect to any other 
applicable privilege, it shall be proper for the Administrative Law 
Judge to limit discovery or introduction of evidence or to enter such 
protective or other orders as in the Judge's judgment may be consistent 
with the objective of preventing undue disclosure of classified or 
sensitive matter. When the Administrative Law Judge determines that 
information in documents containing sensitive matter should be made 
available the Judge may direct the producing party to prepare an 
unclassified or nonsensitive summary or extract of the original. The 
summary or extract may be admitted as evidence in the record.
    (2) If the Administrative Law Judge determines that this procedure 
is inadequate and that classified or otherwise sensitive matter must 
form part of the record in order to avoid prejudice to any party, the 
Judge may so advise the parties and provide an opportunity for 
arrangements to permit a party or a representative to have access to 
such matter. Such arrangements may include obtaining security 
clearances or giving counsel for a party access to sensitive 
information and documents subject to assurances against further 
disclosure.
* * * * *


Sec. 68.52  Final order of the Administrative Law Judge.

    (a) Proposed final order. (1) Within twenty (20) days of filing of 
the transcript of the testimony, or within such additional time as the 
Administrative Law Judge may allow, the Administrative Law Judge may 
require the parties to file proposed findings of fact, conclusions of 
law, and orders, together with supporting briefs expressing the reasons 
for such proposals. Such proposals and briefs shall be served on all 
parties and shall refer to all portions of the record and to all 
authorities relied upon in support of each proposal.
    (2) The Administrative Law Judge may, by order, require that when a 
proposed order is filed for the Administrative Law Judge's 
consideration, the filing party shall submit to the Administrative Law 
Judge a copy of the proposed order on a 3.5'' microdisk.
    (b) Entry of final order. Unless an extension of time is given by 
the Chief Administrative Hearing Officer for good cause, the 
Administrative Law Judge shall enter the final order within sixty (60) 
days after receipt of the hearing transcript or of post-hearing briefs, 
proposed findings of fact, and conclusions of law, if any, by the 
Administrative Law Judge. The final order entered by the Administrative 
Law Judge shall be based upon the whole record. It shall be supported 
by reliable and probative evidence. The standard of proof shall be by a 
preponderance of the evidence.
    (c) Contents of final order with respect to unlawful employment of 
unauthorized aliens.
    (1) If, upon the preponderance of the evidence, the Administrative 
Law Judge determines that a person or entity named in the complaint has 
violated section 274A(a)(1)(A) or (a)(2) of the INA, the final order 
shall require the person or entity to cease and desist from such 
violations and to pay a civil penalty in an amount of:
    (i) Not less than $250 and not more than $2,000 for each 
unauthorized alien with respect to whom there was a violation of either 
such paragraph occurring before March 15, 1999; not less than $275 and 
not more than $2,200 for each unauthorized alien with respect to whom 
there was a violation of either such paragraph occurring on or after 
March 15, 1999;
    (ii) In the case or a person or entity previously subject to one 
final order under this paragraph (c)(1), not less than $2,000 and not 
more than $5,000 for each unauthorized alien with respect to whom there 
was a violation of either such paragraph occurring before March 15, 
1999, and not less than $2,200 and not more than $5,500 for each 
unauthorized alien with respect to whom there was a violation of either 
such paragraph occurring on or after March 15, 1999; or
    (iii) In the case of a person or entity previously subject to more 
than one final order under paragraph (c)(1) of this section, not less 
than $3,000 and not more than $10,000 for each unauthorized alien with 
respect to whom there was a violation of each such paragraph occurring 
before March 15, 1999, and not less than $3,300 and not more than 
$11,000 for each unauthorized alien with respect to whom there was a 
violation of each such paragraph occurring on or after March 15, 1999.
    (2) The final order may also require the respondent to participate 
in, and comply with the terms of, one of the pilot programs set forth 
in Pub. L. 104-208, Div. C, sections 401-05, 110 Stat. 3009, 3009-655 
to 3009-665 (1996) (codified at 8 U.S.C. 1324a (note)), with respect to 
the respondent's hiring or recruitment or referral of individuals in a 
state (as defined in section 101(a)(36) of the INA) covered by such a 
program.
    (3) The final order may also require the respondent to comply with 
the requirements of section 274A(b) of the INA with respect to 
individuals hired (or recruited or referred for employment for a fee) 
during a period of up to three years; and to take such other remedial 
action as is appropriate.
    (4) In the case of a person or entity composed of distinct, 
physically separate subdivisions, each of which provides separately for 
the hiring, recruiting, or referring for employment, without reference 
to the practices of, and under the control of, or common control with, 
another subdivision, each such subdivision shall be considered a 
separate person or entity.
    (5) If, upon a preponderance of the evidence, the Administrative 
Law Judge determines that a person or entity named in the complaint has 
violated section 274A(a)(1)(B) of the INA, except as set forth in 
paragraph (c)(6) of this section, the final order under this paragraph 
shall require the person or entity to pay a civil penalty in an amount 
of not less than $100 and not more than $1,000 for each individual with 
respect to whom such violation occurred before March 15, 1999, and not 
less than $110 and not more than $1,100 for each individual with 
respect to whom such violation occurred on or after March 15, 1999,. In 
determining the amount of the penalty, due consideration shall be given 
to the size of the business of the employer being charged, the good 
faith of the employer, the seriousness of the violation, whether or not 
the individual was an unauthorized alien, and the history of previous 
violations.
    (6) With respect to a violation of section 274A(a)(1)(B) of the INA 
where a person or entity participating in a pilot program has failed to 
provide notice of final nonconfirmation of employment eligibility of an 
individual to the Attorney General as required by Pub. L. 104-208, Div. 
C, section 403(a)(4)(C),

[[Page 7080]]

110 Stat. 3009, 3009-661 (1996) (codified at 8 U.S.C. 1324a (note)), 
the final order under this paragraph shall require the person or entity 
to pay a civil penalty in an amount of not less than $500 and not more 
than $1,000 for each individual with respect to whom such violation 
occurred.
    (7) Prohibition of indemnity bond cases. If, upon the preponderance 
of the evidence, the Administrative Law Judge determines that a person 
or entity has violated section 274A(g)(1) of the INA, the final order 
shall require the person or entity to pay a civil penalty of $1,000 for 
each individual with respect to whom such violation occurred before 
March 15, 1999, and $1,100 for each individual with respect to whom 
such violation occurred on or after March 15, 1999, and require the 
return of any amounts received in such violation to the individual or, 
if the individual cannot be located, to the general fund of the 
Treasury.
    (8) Adjustment of penalties for inflation. The civil penalties 
cited in paragraph (c) of this section shall be subject to adjustments 
for inflation at least every four years in accordance with the Debt 
Collection Improvement Act.
    (9) Attorney's fees. A prevailing respondent may receive, pursuant 
to 5 U.S.C. 504, an award of attorney's fees in unlawful employment and 
prohibition of indemnity bond cases. Any application for attorney's 
fees shall be accompanied by an itemized statement from the attorney or 
representative, stating the actual time expended and the rate at which 
fees and other expenses were computed. An award of attorney's fees will 
not be made if the Administrative Law Judge determines that the 
complainant's position was substantially justified or special 
circumstances make the award unjust.
    (d) Contents of final order with respect to unfair immigration-
related employment practice cases.
    (1) If, upon the preponderance of the evidence, the Administrative 
Law Judge determines that any person or entity named in the complaint 
has engaged in or is engaging in an unfair immigration-related 
employment practice, the final order shall include a requirement that 
the person or entity cease and desist from such practice. The final 
order may also require the person or entity:
    (i) To comply with the requirements of section 274A(b) of the INA 
with respect to individuals hired (or recruited or referred for 
employment for a fee) during a period of up to three years;
    (ii) To retain for a period of up to three years, and only for 
purposes consistent with section 274A(b)(5) of the INA, the name and 
address of each individual who applies, in person or in writing, for 
hiring for an existing position, or for recruiting or referring for a 
fee, for employment in the United States;
    (iii) To hire individuals directly and adversely affected, with or 
without back pay;
    (iv) To post notices to employees about their rights under section 
274B and employers' obligations under section 274A;
    (v) To educate all personnel involved in hiring and in complying 
with section 274A or 274B about the requirements of 274A or 274B;
    (vi) To order, in an appropriate case, the removal of a false 
performance review or false warning from an employee's personnel file;
    (vii) To order, in an appropriate case, the lifting of any 
restrictions on an employee's assignments, work shifts, or movements;
    (viii) Except as provided in paragraph (d)(1)(xii) of this section, 
to pay a civil penalty of not less than $250 and not more than $2,000 
for each individual discriminated against before March 15, 1999, and 
not less than $275 and not more than $2,200 for each individual 
discriminated against on or after March 15, 1999;
    (ix) Except as provided in paragraph (d)(1)(xii) of this section, 
in the case of a person or entity previously subject to a single final 
order under section 274B(g)(2) of the INA, to pay a civil penalty of 
not less than $2,000 and not more than $5,000 for each individual 
discriminated against before March 15, 1999, and not less than $2,200 
and not more than $5,500 for each individual discriminated against on 
or after March 15, 1999;
    (x) Except as provided in paragraph (d)(1)(xii) of this section, in 
the case of a person or entity previously subject to more than one 
final order under section 274B(g)(2) of the INA, to pay a civil penalty 
of not less than $3,000 and not more than $10,000 for each individual 
discriminated against before March 15, 1999, and not less than $3,300 
and not more than $11,000 for each individual discriminated against on 
or after March 15, 1999;
    (xi) To participate in, and comply with the terms of, one of the 
pilot programs set forth in Pub. L. 104-208, Div. C, sections 401-05, 
110 Stat. 3009, 3009-655 to 3009-665 (1996) (codified at 8 U.S.C. 1324a 
(note)), with respect to the respondent's hiring or recruitment or 
referral of individuals in a state (as defined in section 101(a)(36) of 
the INA) covered by such a program; and
    (xii) In the case of an unfair immigration-related employment 
practice where a person or entity, for the purpose or with the intent 
of discriminating against an individual in violation of section 
274B(a), requests more or different documents than are required under 
section 274A(b) or refuses to honor documents that on their face 
reasonably appear to be genuine, to pay a civil penalty of not less 
than $100 and not more than $1,000 for each individual discriminated 
against before March 15, 1999, and not less than $110 and not more than 
$1,100 for each individual discriminated against on or after March 15, 
1999, or to order any of the remedies listed as paragraphs (d)(1)(i) 
through (d)(1)(vii) of this section.
    (2) The civil penalties cited in paragraph (d) of this section 
shall be subject to adjustments for inflation at least every four years 
in accordance with the Debt Collection Improvement Act.
    (3) Back pay liability shall not accrue from a date more than two 
years prior to the date of the filing of a charge with the Special 
Counsel. In no event shall back pay accrue from before November 6, 
1986. Interim earnings or amounts earnable with reasonable diligence by 
the individual or individuals discriminated against shall operate to 
reduce the back pay otherwise allowable. No order shall require the 
hiring of an individual as an employee, or the payment to an individual 
of any back pay, if the individual was refused employment for any 
reason other than discrimination on account of national origin or 
citizenship status unless it is determined that an unfair immigration-
related employment practice exists under section 274B(a)(5) of the INA.
    (4) In applying paragraph (d) of this section in the case of a 
person or entity composed of distinct, physically separate 
subdivisions, each of which provides separately for the hiring, 
recruiting, or referring for employment, without reference to the 
practices of, and not under the control of or common control with 
another subdivision, each such subdivision shall be considered a 
separate person or entity.
    (5) If, upon the preponderance of the evidence, the Administrative 
Law Judge determines that a person or entity named in the complaint has 
not engaged in and is not engaging in an unfair immigration-related 
employment practice, then the final order shall dismiss the complaint.
    (6) Attorney's fees. The Administrative Law Judge in his or her

[[Page 7081]]

discretion may allow a prevailing party, other than the United States, 
a reasonable attorney's fee if the losing party's argument is without 
reasonable foundation in law and fact. Any application for attorney's 
fees shall be accompanied by an itemized statement from the attorney or 
representative stating the actual time expended and the rate at which 
fees and other expenses were computed.
    (e) Contents of final order with respect to document fraud cases. 
(1) If, upon the preponderance of the evidence, the Administrative Law 
Judge determines that a person or entity has violated section 274C of 
the INA, the final order shall include a requirement that the 
respondent cease and desist from such violations and pay a civil money 
penalty in an amount of:
    (i) Not less than $250 and not more than $2,000 for each document 
that is the subject of a violation under section 274C(a)(1) through (6) 
of the INA before March 15, 1999, and not less than $275 and not more 
than $2,200 for each document that is the subject of a violation under 
section 274C(a)(1) through (6) of the INA on or after March 15, 1999; 
or,
    (ii) In the case of a respondent previously subject to one or more 
final orders under section 274C(d)(3) of the INA, not less than $2,000 
and not more than $5,000 for each document that is the subject of a 
violation under section 274C(a)(1) through (6) of the INA before March 
15, 1999, and not less than $2,200 and not more than $5,500 for each 
document that is the subject of a violation under section 274C(a) (1) 
through (6) of the INA on or after March 15, 1999.
    (2) In the case of a person or entity composed of distinct, 
physically separate subdivisions, each of which provides separately for 
the hiring, recruiting, or referring for employment, without reference 
to the practices of, and under the control of, or common control with, 
another subdivision, each such subdivision shall be considered a 
separate person or entity.
    (3) Adjustment of penalties for inflation. The civil penalties 
cited in paragraph (e) of this section shall be subject to adjustments 
for inflation at least every four years in accordance with the Debt 
Collection Improvement Act.
    (4) Attorney's fees. A prevailing respondent may receive, pursuant 
to 5 U.S.C. 504, an award of attorney's fees in document fraud cases. 
Any application for attorney's fees shall be accompanied by an itemized 
statement from the attorney or representative, stating the actual time 
expended and the rate at which fees and other expenses were computed. 
An award of attorney's fees shall not be made if the Administrative Law 
Judge determines that the complainant's position was substantially 
justified or special circumstances make the award unjust.
    (f) Corrections to orders. An Administrative Law Judge may, in the 
interest of justice, correct any clerical mistakes or typographical 
errors contained in a final order entered in a case arising under 
section 274A or 274C of the INA at any time within thirty (30) days 
after the entry of the final order. Changes other than clerical 
mistakes or typographical errors will be considered in cases arising 
under sections 274A and 274C of the INA by filing a request for review 
to the Chief Administrative Hearing Officer by a party under 
Sec. 68.54, or the Chief Administrative Hearing Officer may exercise 
discretionary review to make such changes pursuant to Sec. 68.54. In 
cases arising under section 274B of the INA, an Administrative Law 
Judge may correct any substantive, clerical, or typographical errors or 
mistakes in a final order at any time within sixty (60) days after the 
entry of the final order.
    (g) Final agency order. In a case arising under section 274A or 
274C of the INA, the Administrative Law Judge's order becomes the final 
agency order sixty (60) days after the date of the Administrative Law 
Judge's order, unless the Chief Administrative Hearing Officer 
modifies, vacates, or remands the Administrative Law Judge's final 
order pursuant to Sec. 68.54, or unless the order is referred to the 
Attorney General pursuant to Sec. 68.55. In a case arising under 
section 274B of the INA, the Administrative Law Judge's order becomes 
the final agency order on the date the order is issued.


Sec. 68.53  Review of an interlocutory order of an Administrative Law 
Judge in cases arising under section 274A or 274C.

    (a) Authority. In a case arising under section 274A or 274C of the 
Immigration and Nationality Act, the Chief Administrative Hearing 
Officer may, within thirty (30) days of the date of an Administrative 
Law Judge's interlocutory order, issue an order that modifies or 
vacates the interlocutory order. The Chief Administrative Hearing 
Officer may review an Administrative Law Judge's interlocutory order 
if:
    (1) An Administrative Law Judge, when issuing an interlocutory 
order, states in writing that the Judge believes:
    (i) That the order concerns an important question of law on which 
there is a substantial difference of opinion; and
    (ii) That an immediate appeal will advance the ultimate termination 
of the proceeding or that subsequent review will be an inadequate 
remedy; or
    (2) Within ten (10) days of the date of the entry of an 
interlocutory order a party requests by motion that the Chief 
Administrative Hearing Officer review the interlocutory order. This 
motion shall contain a clear statement of why interlocutory review is 
appropriate under the standards set out in paragraph (a)(1) of this 
section; or
    (3) Within ten (10) days of the entry of the interlocutory order, 
the Chief Administrative Hearing Officer, upon the Officer's own 
initiative, determines that such order is appropriate for interlocutory 
review pursuant to the standards set out in paragraph (a)(1) and issues 
a notification of review. This notification shall state the issues to 
be reviewed.
    (b) Stay of proceedings. Review of an Administrative Law Judge's 
interlocutory order will not stay the proceeding unless the 
Administrative Law Judge or the Chief Administrative Hearing Officer 
determines that the circumstances require a postponement.
    (c) Review by Chief Administrative Hearing Officer. Review by the 
Chief Administrative Hearing Officer of an interlocutory order shall be 
conducted in the same manner as is provided for review of final orders 
in Sec. 68.54(b) through (d). An interlocutory order, or an order 
modifying, vacating, or remanding an interlocutory order, shall not be 
considered a final agency order. If the Chief Administrative Hearing 
Officer does not modify, vacate, or remand an interlocutory order 
reviewed pursuant to paragraph (a) within thirty (30) days of the date 
that the order is entered, the Administrative Law Judge's interlocutory 
order is deemed adopted.
    (d) Effect of interlocutory review. (1) An order by the Chief 
Administrative Hearing Officer modifying or vacating an interlocutory 
order shall also remand the case to the Administrative Law Judge. 
Further proceedings in the case shall be conducted consistent with the 
Chief Administrative Hearing Officer's order.
    (2) Whether or not an interlocutory order is reviewed by the Chief 
Administrative Hearing Officer, all parties retain the right to request 
administrative review of the final order of the Administrative Law 
Judge pursuant to Sec. 68.54 with respect to all issues in the case.

[[Page 7082]]

Sec. 68.54  Administrative review of a final order of an Administrative 
Law Judge in cases arising under section 274A or 274C.

    (a) Authority of the Chief Administrative Hearing Officer. In a 
case arising under section 274A or 274C of the INA, the Chief 
Administrative Hearing Officer has discretionary authority, pursuant to 
sections 274A(e)(7) and 274C(d)(4) of the INA and 5 U.S.C. 557, to 
review any final order of an Administrative Law Judge in accordance 
with the provisions of this section.
    (1) A party may file with the Chief Administrative Hearing Officer 
a written request for administrative review within ten (10) days of the 
date of entry of the Administrative Law Judge's final order, stating 
the reasons for or basis upon which it seeks review.
    (2) The Chief Administrative Hearing Officer may review an 
Administrative Law Judge's final order on his or her own initiative by 
issuing a notification of administrative review within ten (10) days of 
the date of entry of the Administrative Law Judge's order. This 
notification shall state the issues to be reviewed.
    (b) Written and oral arguments. (1) In any case in which 
administrative review has been requested or ordered pursuant to 
paragraph (a) of this section, the parties may file briefs or other 
written statements within twenty-one (21) days of the date of entry of 
the Administrative Law Judge's order.
    (2) At the request of a party, or on the Officer's own initiative, 
the Chief Administrative Hearing Officer may, at the Officer's 
discretion, permit or require additional filings or may conduct oral 
argument in person or telephonically.
    (c) Filing and service of documents relating to administrative 
review. All requests for administrative review, briefs, and other 
filings relating to review by the Chief Administrative Hearing Officer 
shall be filed and served by facsimile or same-day hand delivery, or if 
such filing or service cannot be made, by overnight delivery, as 
provided in Sec. 68.6(c). A notification of administrative review by 
the Chief Administrative Hearing Officer shall also be served by 
facsimile or same-day hand delivery, or if such service cannot be made, 
by overnight delivery service.
    (d) Review by the Chief Administrative Hearing Officer. (1) On or 
before thirty (30) days subsequent to the date of entry of the 
Administrative Law Judge's final order, but not before the time for 
filing briefs has expired, the Chief Administrative Hearing Officer may 
enter an order that modifies or vacates the Administrative Law Judge's 
order, or remands the case to the Administrative Law Judge for further 
proceedings consistent with the Chief Administrative Hearing Officer's 
order. However, the Chief Administrative Hearing Officer is not 
obligated to enter an order unless the Administrative Law Judge's order 
is modified, vacated or remanded.
    (2) If the Chief Administrative Hearing Officer enters an order 
that remands the case to the Administrative Law Judge, the 
Administrative Law Judge will conduct further proceedings consistent 
with the Chief Administrative Hearing Officer's order. Any 
administrative review of the Administrative Law Judge's subsequent 
order shall be conducted in accordance with this section.
    (3) The Chief Administrative Hearing Officer may make technical 
corrections to the Officer's order up to and including thirty (30) days 
subsequent to the issuance of that order.
    (e) Final agency order. If the Chief Administrative Hearing Officer 
enters a final order that modifies or vacates the Administrative Law 
Judge's final order, and the Chief Administrative Hearing Officer's 
order is not referred to the Attorney General pursuant to Sec. 68.55, 
the Chief Administrative Hearing Officer's order becomes the final 
agency order thirty (30) days subsequent to the date of the 
modification or vacation.


Sec. 68.55  Referral of cases arising under sections 274A or 274C to 
the Attorney General for review.

    (a) Referral of cases by direction of the Attorney General. Within 
thirty (30) days of the entry of a final order by the Chief 
Administrative Hearing Officer modifying or vacating an Administrative 
Law Judge's final order, or within sixty (60) days of the entry of an 
Administrative Law Judge's final order, if the Chief Administrative 
Hearing Officer does not modify or vacate the Administrative Law 
Judge's final order, the Chief Administrative Hearing Officer shall 
promptly refer to the Attorney General for review any final order in 
cases arising under section 274A or 274C of the INA if the Attorney 
General so directs the Chief Administrative Hearing Officer. When a 
final order is referred to the Attorney General in accordance with this 
paragraph, the Chief Administrative Hearing Officer shall give the 
Administrative Law Judge and all parties a copy of the referral.
    (b) Request by Commissioner of Immigration and Naturalization for 
review by the Attorney General. The Chief Administrative Hearing 
Officer shall promptly refer to the Attorney General for review any 
final order in cases arising under sections 274A or 274C of the INA at 
the request of the Commissioner of Immigration and Naturalization 
within thirty (30) days of the entry of a final order modifying or 
vacating the Administrative Law Judge's final order or within sixty 
(60) days of the entry of an Administrative Law Judge's final order, if 
the Chief Administrative Hearing Officer does not modify or vacate the 
Administrative Law Judge's final order.
    (1) The Immigration and Naturalization Service must first seek 
review of an Administrative Law Judge's final order by the Chief 
Administrative Hearing Officer, in accordance with Sec. 68.54 before 
the Commissioner of Immigration and Naturalization may request that an 
Administrative Law Judge's final order be referred to the Attorney 
General for review.
    (2) To request referral of a final order to the Attorney General, 
the Commissioner of Immigration and Naturalization must submit a 
written request to the Chief Administrative Hearing Officer and 
transmit copies of the request to all other parties to the case and to 
the Administrative Law Judge at the time the request is made. The 
written statement shall contain a succinct statement of the reasons the 
case should be reviewed by the Attorney General and the grounds for 
appeal.
    (3) The Attorney General, in the exercise of the Attorney General's 
discretion, may accept the Commissioner's request for referral of the 
case for review by issuing a written notice of acceptance within sixty 
(60) days of the date of the request. Copies of such written notice 
shall be transmitted to all parties in the case and to the Chief 
Administrative Hearing Officer.
    (c) Review by the Attorney General. When a final order of an 
Administrative Law Judge or the Chief Administrative Hearing Officer is 
referred to the Attorney General pursuant to paragraph (a) of this 
section, or a referral is accepted in accordance with paragraph (b)(3) 
of this section, the Attorney General shall review the final order 
pursuant to section 274A(e)(7) or 274C(d)(4) of the INA and 5 U.S.C. 
557. No specific time limit is established for the Attorney General's 
review.
    (1) All parties shall be given the opportunity to submit briefs or 
other written statements pursuant to a schedule established by the 
Chief Administrative Hearing Officer or the Attorney General.
    (2) The Attorney General shall enter an order that adopts, 
modifies, vacates, or remands the final order under review.

[[Page 7083]]

The Attorney General's order shall be stated in writing and shall be 
transmitted to all parties in the case and to the Chief Administrative 
Hearing Officer.
    (3) If the Attorney General remands the case for further 
administrative proceedings, the Chief Administrative Hearing Officer or 
the Administrative Law Judge shall conduct further proceedings 
consistent with the Attorney General's order. Any subsequent final 
order of the Administrative Law Judge or the Chief Administrative 
Hearing Officer shall be subject to administrative review in accordance 
with Sec. 68.54 and this section.
    (d) Final agency order. (1) The Attorney General's order pursuant 
to paragraph (c) of this section (other than a remand as provided in 
paragraph (c)(3)) shall become the final agency order on the date of 
the Attorney General's order.
    (2) If the Attorney General declines the Commissioner's request for 
referral of a case pursuant to paragraph (b) of this section, or does 
not issue a written notice of acceptance within sixty (60) days of the 
date of the Commissioner's request, then the final order of the 
Administrative Law Judge or the Chief Administrative Hearing Officer 
that was the subject of a referral pursuant to paragraph (b) shall 
become the final agency order on the day after that sixty (60) day 
period has expired.


Sec. 68.56  Judicial review of a final agency order in cases arising 
under section 274A or 274C.

    A person or entity adversely affected by a final agency order may 
file, within forty-five (45) days after the date of the final agency 
order, a petition in the United States Court of Appeals for the 
appropriate circuit for review of the final agency order. Failure to 
request review by the Chief Administrative Hearing Officer of a final 
order by an Administrative Law Judge shall not prevent a party from 
seeking judicial review.


Sec. 68.57  Judicial review of the final agency order of an 
Administrative Law Judge in cases arising under section 274B.

    Any person aggrieved by a final agency order issued under 
Sec. 68.52(d) may, within sixty (60) days after entry of the order, 
seek review of the final agency order in the United States Court of 
Appeals for the circuit in which the violation is alleged to have 
occurred or in which the employer resides or transacts business. If a 
final agency order issued under Sec. 68.52(d) is not appealed, the 
Special Counsel (or, if the Special Counsel fails to act, the person 
filing the charge, other than the Immigration and Naturalization 
Service officer) may file a petition in the United States District 
Court for the district in which the violation that is the subject of 
the final agency order is alleged to have occurred, or in which the 
respondent resides or transacts business, requesting that the order be 
enforced.


Sec. 68.58  Filing of the official record.

    Upon timely receipt of notification that an appeal has been taken, 
a certified copy of the record will be filed promptly with the 
appropriate United States Court.

    Dated: January 8, 1999.
Janet Reno,
Attorney General.
[FR Doc. 99-1899 Filed 2-11-99; 8:45 am]
BILLING CODE 4410-30-P