[Federal Register Volume 67, Number 33 (Tuesday, February 19, 2002)]
[Proposed Rules]
[Pages 7309-7318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3801]


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DEPARTMENT OF JUSTICE

8 CFR Parts 3 and 280

[AG Order No. 2559-2002]
RIN 1125-AA36; EOIR 131P


Board of Immigration Appeals: Procedural Reforms To Improve Case 
Management

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

ACTION: Proposed rule.

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SUMMARY: This proposed rule will revise the structure and procedures of 
the Board of Immigration Appeals, provide for an enhanced case 
management procedure, and expand the number of cases referred to a 
single Board member for disposition. These procedures are intended to 
reduce delays in the review process, enable the Board to keep up with 
its caseload and reduce the existing backlog of cases, and allow the 
Board to focus more attention on those

[[Page 7310]]

cases presenting significant issues for resolution by a three-member 
panel. After a transition period to implement the new procedures in 
order to reduce the Board's backlog of pending cases, the size of the 
Board will be reduced to eleven.

DATES: Written comments must be submitted on or before March 21, 2002.

ADDRESSES: Please submit written comments to Charles K. Adkins-Blanch, 
General Counsel, Executive Office for Immigration Review, Suite 2400, 
5107 Leesburg Pike, Falls Church, VA 22041; telephone (703) 305-0470.

FOR FURTHER INFORMATION CONTACT: Charles K. Adkins-Blanch, (703) 305-
0470.

SUPPLEMENTARY INFORMATION: This proposed rule will reform the structure 
and procedures of the Board of Immigration Appeals. Under the new case 
management procedures, all cases appealed to the Board will be examined 
by a Board member assigned to the screening panel. Most cases will be 
resolved through summary decisions issued by a single Board member. The 
assigned Board member on the screening panel will also identify those 
cases that warrant review by a three-member panel. The Board will no 
longer revisit factual determinations of immigration judges on a de 
novo basis, but will be able to remand cases for further factfinding 
where necessary. In addition, the rule will set specific time limits 
for the disposition of cases. The Board's current jurisdiction over 
appeals from decisions by the Immigration and Naturalization Service 
(INS) imposing various kinds of administrative fines (see 8 CFR 280) 
will be transferred to the Office of the Chief Administrative Hearing 
Officer (OCAHO). After a transition period of operation under the new 
procedures to eliminate the current backlog of cases, the Board will be 
reduced in size to eleven members from its present size of 19 members 
plus four vacancies.

Background

    In 1983, the Attorney General created the Executive Office for 
Immigration Review (EOIR). This reorganization consolidated the 
Department's immigration review programs by placing the immigration 
judges (formerly known as special inquiry officers within INS) and the 
Board of Immigration Appeals into EOIR, a Department component 
independent from INS. The Board has broad jurisdiction over appeals 
from decisions of the immigration judges in exclusion, deportation, and 
removal proceedings, custody appeals, asylum cases, and other specific 
matters, and it also has authority to review certain final decisions by 
INS district directors and other officials. See 8 CFR part 3, subpart 
A. Decisions by the Board are subject to review by the Attorney General 
as provided in 8 CFR 3.1(h).
    In 1987, the Attorney General also placed in EOIR the Office of the 
Chief Administrative Hearing Officer (OCAHO), in order to house similar 
quasi-judicial administrative adjudications within a single 
Departmental organization. OCAHO currently adjudicates certain civil 
penalty proceedings under sections 274A, 274B, and 274C of the 
Immigration and Nationality Act (Act), relating to violations of the 
employment verification requirements, immigration-related 
discrimination claims, and civil document fraud cases, respectively. 
See 28 CFR 68.

Description of the proposed rule

    This reform initiative is intended to accomplish four important 
objectives in the disposition of immigration case appeals: (1) 
Eliminating the current backlog of cases pending before the Board; (2) 
Eliminating unwarranted delays in the adjudication of administrative 
appeals; (3) Utilizing the resources of the Board more efficiently; and 
(4) Allowing more resources to be allocated to the resolution of those 
cases that present difficult or controversial legal questions--cases 
that are most appropriate for searching appellate review.
    Under its current structure and procedures, the Board has been 
unable to adjudicate incoming cases quickly enough to eliminate the 
unacceptable backlog that has existed for several years. Numerous cases 
have languished before the Board for more than two years, some for more 
than five years, frustrating efforts to achieve timely resolution of 
immigration disputes.
    Since 1995, the problem of the mounting backlog of cases has been 
addressed by incremental increases in the size of the Board. However, 
in retrospect, it is now clear that the addition of new Board members 
has not appreciably reduced the backlog of cases. The problem is not 
one of personnel. Rather, the problem is rooted in the structure and 
procedures of the Board, which make it nearly impossible for Board 
members to accomplish their mission. The devotion of the Board's time 
and resources to cases that present no colorable grounds for appeal has 
made it extremely difficult to address in a timely manner those cases 
that most need the Board's review.
    The one change in the Board's procedures that has produced positive 
results in recent years is the streamlining initiative, which allows 
for summary decisions by a single Board member in several categories of 
appeals. See 64 FR 56135 (Oct. 18, 1999). The Board's existing 
streamlining process is currently codified at 8 CFR 3.1(a)(7), and 
would be recodified in this proposed rule at Sec. 3.1(e)(4). The 
streamlining project has successfully expedited such appeals, and the 
project was recently assessed favorably by an external auditor. The 
proposed rule builds upon the success of the streamlining model, 
expanding the single-member resolution of appeals more broadly for 
appeals that present no difficult or controversial legal questions. The 
authority of individual Board members to resolve such cases in 
expedited fashion is a critical component of the two-phase structure of 
Board consideration of cases, summarized below.
    The proposed rule contains amendments to 8 CFR part 3, subpart A, 
which combine to substantially alter the structure, procedures, and 
charge of the Board. These changes may be summarized as follows.
    Many of the key features of the proposed rule are codified in the 
new provisions of Sec. 3.1(e), which directs the Chairman to establish 
a case management system with specific new standards for the efficient 
and expeditious resolution of all appeals coming before the Board.
    Under Sec. 3.1(e)(1), all appeals will be sent initially to a 
screening panel of the Board, through which individual Board members 
will decide the majority of cases. The initial determination is whether 
the case is appropriate for disposition on the merits. The Board's 
existing regulations at Sec. 3.1(d)(2) already provide for summary 
dismissal of appeals for lack of jurisdiction or other specified 
procedural defaults. That authority is retained in this rule and, as 
discussed below, this rule also restores a pre-existing ground for 
summary dismissal of appeals that are filed for an improper purpose or 
that lack an arguable basis in fact or in law. Section 3.1(e)(2) of the 
proposed rule reflects the authority currently codified in 
Sec. 3.1(a)(1) for a single Board member to make various procedural 
dispositions of cases.
    The Board's case management system will arrange for prompt 
completion of the record on appeal, including simultaneous briefing by 
the parties, as discussed further below. With each such appeal, as 
provided in Sec. 3.1(e)(3) of the proposed rule, a single Board member 
assigned to the screening panel will decide every case, unless the 
Board

[[Page 7311]]

member determines that the case is appropriate for review by a three-
member panel under the standards of this rule. A single Board member 
may summarily affirm without opinion under Sec. 3.1(e)(4), which is 
very similar to the authority under the Board's existing streamlining 
regulation. However, the current streamlining process is limited to 
summary affirmances without opinion; under the existing rules any final 
decision on the merits that may require a written order to explain the 
Board's reasoning in affirming, reversing, modifying, or remanding a 
decision under review must be made by a three-member panel, regardless 
of whether the issues themselves are substantial. Accordingly, 
Sec. 3.1(e)(5) would expand the existing streamlining authority to 
authorize a single Board member to issue a brief order affirming, 
reversing, modifying, or remanding a decision under review in those 
cases that do not meet the standards warranting review by a three-
member panel. The choice between summary affirmance without opinion and 
the issuance of a brief order explaining the Board's disposition of the 
case on the merits would be made on a case-by-case basis after review 
by the individual Board members to which the cases are assigned.
    As the proposed rule stipulates in Sec. 3.1(e)(6), five categories 
of cases will qualify for review by a three-member panel. To qualify, a 
case must present one of the following: (1) The need to settle 
inconsistencies between the rulings of different immigration judges; 
(2) the need to establish a precedent to clarify ambiguous laws, 
regulations, or procedures; (3) the need to correct a decision by an 
immigration judge or by the INS that is plainly not in conformity with 
the law or with applicable precedents; (4) the need to resolve a case 
or controversy of major national import; or (5) the need to correct a 
clearly erroneous factual determination by an immigration judge. The 
efficient disposition by single Board members of cases that do not 
present such circumstances will allow the three-member panels to focus 
their attention and resources on those cases that warrant greater 
appellate scrutiny.
    To facilitate the screening process, this rule amends Sec. 3.3(b) 
to provide that an appellant who asserts that an appeal warrants review 
by a three-member panel must identify in the Notice of Appeal the 
specific factual or legal basis for that contention. Since the usual 
rule under Sec. 3.1(e)(3) is that all appeals will be assigned to a 
single Board member for review except as provided in Sec. 3.1(e)(6), 
the decision in each case whether to assign an appeal to a three-member 
panel will be made, after consideration of the case, under the 
standards of this rule according to the judgment of the single Board 
member on the screening panel to whom the appeal is assigned.
    The existing provisions of 8 CFR 3.2(b)(3) already bar a motion for 
reconsideration based solely on the ground that a case should not have 
been affirmed without opinion by a single Board member or by a panel. 
This rule adds an additional sentence to Sec. 3.2(i) (Ruling on motion) 
to provide that any motion for reconsideration or reopening of a 
decision issued by a single Board member will be referred to the 
screening panel for disposition by a single Board member, unless the 
screening panel member determines, in the exercise of judgment, that 
the motion for reconsideration or reopening is appropriate for 
assignment to a three-member panel under the standards of 
Sec. 3.1(e)(6).
    Section 3.1(e)(7) reflects the current authority of the Board to 
grant or deny requests for oral argument, but it also makes clear that 
no oral argument will be available in any case assigned to a single 
Board member for disposition.
    In Sec. 3.1(e)(8), as well as Secs. 3.3 and 3.5, the proposed rule 
establishes a series of time limits to expedite the handling of cases 
by the Board. As proposed in Sec. 3.3(a), a party appealing a decision 
of an immigration judge or a decision of the Service will have 30 days 
in which the party may file a notice of appeal. For cases requiring the 
transcription of the immigration judge's oral opinion, the immigration 
judge must complete his or her review of the transcript within 14 days 
after completion, as provided in Sec. 3.5(a), with limited exceptions. 
After the transcripts are made available to the parties, the parties 
must simultaneously brief the case within a 21-day period, with reply 
briefs allowed only by leave of the Board.
    After the briefs are submitted, the screening panel of the Board 
will have 90 days in which a single Board member must either decide the 
case or designate the case for review by a three-member panel. Once a 
case is selected for panel review, the panel considering the case must 
render its decision and opinion within 180 days. In any case, 
Sec. 3.1(e) directs the Board to assign priority to deciding cases or 
custody appeals involving detained aliens.
    If the Board member who is the author of an opinion for the panel 
majority is unable to complete the opinion within the 180-day period, 
Sec. 3.1(e)(8)(ii) of the proposed rule allows the Board member to 
request an extension of up to 60 days from the Chairman. In order to 
prevent the delay of the issuance of Board decisions due to uncompleted 
dissenting or concurring opinions, the proposed rule also requires any 
dissenting or concurring member of a panel whose separate opinion is 
not finished at the conclusion of the 180-day period to request an 
extension of up to 60 days from the Chairman.
    If, at the end of the 60-day period, the opinion of the panel 
majority is still not completed, the Chairman must either decide the 
case himself and render an opinion within 14 days or refer the case to 
the Attorney General for a decision. If a dissenting or concurring 
panel member fails to complete his opinion by the end of the extension 
period, the decision of the majority will be rendered without his 
dissent or concurrence attached.
    In rare circumstances, when the outcome of a case before the Board 
may be substantially affected by pending or anticipated litigation 
before the United States Supreme Court or a United States Court of 
Appeals, the Chairman may hold the case or group of cases until such 
decision is rendered, temporarily suspending the time limits described 
above, as provided in Sec. 3.1(e)(8)(iii).
    The proposed rule at Sec. 3.1(e)(8)(iv) also directs the Chairman 
to notify the Director of EOIR and the Attorney General if any Board 
member repeatedly fails to meet the assigned deadlines for the 
disposition of appeals, and to prepare an annual review concerning the 
timeliness of dispositions by each Board member. Although EOIR has not 
conducted annual performance reviews for Board members in the recent 
past--in general, as a reflection of the decisional independence of the 
Board as to the substantive disposition of appeals--it is appropriate 
for EOIR to begin to track the timeliness of dispositions of cases 
under the new case management procedures that incorporate specific 
performance measures. As this language suggests, the provisions of 
paragraph (e)(8) establishing time limits for the adjudication of 
appeals reflect a management directive in favor of timely dispositions, 
but do not affect the validity of any decision issued by the Board nor 
create any justiciable right or remedy.
    The proposed rule also adds a new Sec. 3.1(d)(3) to eliminate the 
Board's de novo review of factual issues. Under the proposed rule, the 
Board must accept the factual findings of the immigration judges, 
disturbing them only if they are ``clearly erroneous.'' This provision 
also generally prohibits the introduction and

[[Page 7312]]

consideration of new evidence in proceedings before the Board, except 
for taking administrative notice of current events or the contents of 
official documents such as country condition reports prepared by the 
Department of State. Where it is established that an appeal cannot be 
properly resolved without further findings of fact, the Board will 
remand the proceeding to the immigration judge or, where appropriate, 
the INS.
    By deleting the existing Sec. 3.1(b)(4), the proposed rule 
eliminates the Board's jurisdiction over appeals of INS decisions 
imposing various kinds of administrative fines under part 280 and 
transfers that review authority to the Chief Administrative Hearing 
Officer. Although the various administrative fine cases administered 
under part 280 (for example, a $3,300 fine against an air carrier under 
section 273 of the Act for transporting to the United States an alien 
lacking a proper passport or visa) are different than the civil penalty 
actions currently adjudicated within OCAHO (which are handled by 
administrative law judges rather than immigration judges), the 
appellate reviewing role by the Chief Administrative Hearing Officer 
would nevertheless be much the same since each of the cases involves 
only the imposition of a specific administrative fine or civil penalty. 
Accordingly, the proposed rule adds a new provision, 8 CFR 280.61, for 
review of administrative fines imposed by the Service under part 280. 
This provision is modeled on the existing provisions for review by the 
Chief Administrative Hearing Officer of civil money penalties under 28 
CFR 68.54, and the Board's existing procedures in Sec. 3.1, 3.3, and 
3.5 for the consideration of appeals. Consistent with the time limits 
for a single Board member to review cases under the proposed rule, the 
Chief Administrative Hearing Officer will be allowed 90 days to decide 
the appeal after the completion of the record on appeal. After transfer 
of appellate jurisdiction from the Board to the Chief Administrative 
Hearing Officer, the existing precedent decisions issued by the Board 
in administrative fine cases would continue to be binding except as 
specifically modified or overruled in new precedent decisions by the 
Chief Administrative Hearing Officer or by the Attorney General. 
Decisions of the Chief Administrative Hearing Officer in administrative 
fine cases under part 280 will be subject to review by the Attorney 
General under the same procedures as for the Board.
    The proposed rule reflects the Attorney General's direction that, 
once this rule is adopted in final form, the Board will immediately 
implement the procedural and structural changes described above with 
respect to all appeals pending before the Board at the time this rule 
takes effect. During a transition period of 180 days, the Members of 
the Board are directed to apply these procedures to render opinions 
expeditiously and particularly to dispose of the oldest cases, so as to 
reduce the number of pending cases before the Board by the end of the 
transition period so that no case remains pending more than ten months 
after the record on appeal was completed. The Chairman may allocate 
Board members to the screening panel and to three-member panels as may 
be deemed appropriate to accomplish this objective.
    In amendments to Sec. 3.1(a)(1), the proposed rule stipulates that, 
after the transition period of 180 days has elapsed, the final 
structural reform of the Board will occur. The number of Board members 
will be reduced to eleven, with the Attorney General designating the 
membership of the Board. The Chairman will continue to have the 
authority to allocate Board members to a screening panel and to three-
member panels as may be deemed appropriate for the efficient 
adjudication of appeals.
    In addition to the foregoing changes, the Department is making 
other modifications to the Board's rules in relation to two other 
recent rulemaking actions.
    First, as noted above, the rule will restore as a ground for 
summary dismissal the fact that an appeal that is filed for an improper 
purpose, such as delay, or that lack an arguable basis in fact or in 
law. That provision, previously codified at Sec. 3.1(d)(1-a)(i)(D) of 
the Board's rules, and now to be reinstated as Sec. 3.1(d)(2)(i)(D), 
had been promulgated in response to the statutory directive, first 
enacted in the Immigration Act of 1990, requiring the Attorney General 
to specify the circumstances under which an administrative appeal will 
be considered frivolous and will be summarily dismissed. See section 
240(f) of the Act (8 U.S.C. 1229a(f)); former section 242B(d) of the 
Act (8 U.S.C. 1252b(d) (as in effect prior to April 1, 1997). However, 
at the time the streamlining initiative was adopted in 1999, EOIR 
deleted this provision from the Board's rules, citing (1) the fact that 
this summary dismissal authority was ``virtually never used by the 
Board,'' and (2) a concern that retaining this authority might lead to 
confusion with the new process for summary affirmance without opinion. 
See 64 FR 56135, 56137 (Oct. 18, 1999).
    On reflection, the Department believes that this paragraph (D) 
should be retained, in view of the statutory direction for the Attorney 
General to define cases that are to be summarily dismissed as 
frivolous. Summary dismissal of appeals that are determined to be 
frivolous is distinct from a summary affirmance without opinion. The 
Board's streamlining process is a very effective and valuable process, 
but it is not a substitute for dealing with appeals that are filed for 
an improper purpose or that patently lack any factual or legal basis. 
Simply affirming ``paragraph (D)'' appeals on the merits, without 
making any effort to identify the frivolous nature of particular 
appeals, would do little or nothing to deter particular attorneys or 
representatives from filing future appeals for an improper purpose in 
other cases. This is particularly true if a primary purpose of the 
appeal was to gain some additional time through delay--because it would 
have succeeded in that regard. Although the Board would make a 
determination that an appeal was frivolous only after completion of its 
review, each such frivolous appeal requires the preparation of 
transcripts, opportunity for briefing, review by a Board attorney and a 
Board member, etc. Even if only a small percentage of the 28,000 
appeals filed each year with the Board may be found to be ``frivolous'' 
within the meaning of paragraph (D), that still amounts to a 
significant number of cases imposing a substantial aggregate burden on 
the Board--a burden that the Board should not be expected to bear, 
given its very large caseload. The Board's screening panel will be 
expected to implement this process as part of the case management 
screening of cases.
    The EOIR disciplinary rules do specify similar grounds for the 
imposition of disciplinary sanctions on an attorney or representative. 
See 8 CFR Sec. 3.102(j)(2001), previously codified at 
Sec. 292.3(a)(15). This existing sanction has apparently not been 
actively enforced through the disciplinary process. One likely reason 
for this is that there is no ready mechanism in place for the Board to 
identify such frivolous appeals. If the Board begins to identify 
certain appeals as frivolous under the standards of paragraph (D), then 
the EOIR disciplinary counsel would be able to develop a factual record 
of such findings in order to support appropriate disciplinary action 
against attorneys or

[[Page 7313]]

representatives who may be identified as repeat offenders.\1\
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    \1\ The Board's existing rules already contemplate this kind of 
reporting process with respect to other kinds of appeals that are 
summarily dismissed because the Board lacks jurisdiction or some 
other procedural default; Sec. 3.1(d)(2)(iii) provides that the 
filing of an appeal that is summarily dismissed under 
Sec. 3.1(d)(2)(i) ``may constitute frivolous behavior under 
Sec. 3.102(j).'' However, since former ``paragraph (D)'' has been 
deleted from the summary dismissal grounds in Sec. 3.1(d)(2)(i), 
there is no similar process for identifying appeals that were filed 
for an improper purpose and tying that result specifically to the 
disciplinary rules.
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    Second, the Department notes that former Attorney General Reno had 
published a proposed rule to clarify and strengthen the management 
authority of the Director of EOIR, the Chairman of the Board, and the 
Chief Immigration Judge with respect to the efficient disposition of 
cases pending before the Board and the immigration judges. See 65 FR 
81434 (Dec. 26, 2000). Among other things, that earlier proposed rule 
enumerated specific authorities of the Chairman and defined more 
clearly the role of the Board and the standards governing its 
proceedings. That proposed rule has not been finalized and remains 
pending; its provisions were also organized differently than the 
present proposal. However, because the present proposed rule in some 
respects overlaps with or complements the previously published 
proposal, the present proposed rule incorporates some of the provisions 
that had previously been proposed (certain provisions in 
Sec. 3.1(a)(1), (a)(2), (a)(3), and (a)(11) of the December 2000 
proposal) into Sec. 3.1(a)(2) and (d)(1) of this rule. As reorganized, 
the provisions of Sec. 3.1(a) focus principally on organizational and 
procedural matters, and the powers of the Board are set forth in 
Sec. 3.1(d).
    Finally, the proposed rule adds a sentence in Sec. 3.1(a)(5) to the 
Board's rule on rehearing en banc, taken from Federal Rule of Appellate 
Procedure 35(a) with respect to rehearing en banc in the courts of 
appeals, providing that rehearing en banc is disfavored and shall 
ordinarily be ordered only for questions of exceptional importance or 
to secure or maintain the uniformity of the Board's decisions. In 
addition, the proposed rule eliminates the provision of the existing 
regulations, in Sec. 3.1(a)(4)(ii), for the use of a limited en banc 
panel nine members. That provision was added at a time when the Board's 
membership was rapidly expanding. It was rarely used in practice and, 
in any event, it no longer serves any purpose in view of the decision 
to reduce the size of the Board to eleven members.
    In summary, the proposed rule will restructure the Board to better 
accomplish its missions of reviewing immigration appeals in a timely 
and impartial manner, and providing guidance to immigration judges, the 
INS, and the public on the proper interpretation and administration of 
the Immigration and Nationality Act and related regulations. The 
proposed rule will allow the Board to decide simple cases in an 
expeditious manner, saving time and resources for those cases that most 
require searching review. The result will be a more efficient body that 
applies appropriate standards of appellate review to better serve the 
Department of Justice, the immigrant community, and the country.

Regulatory Flexibility Act

    The Attorney General, in accordance with 5 U.S.C. 605(b), has 
reviewed this proposed rule and, by approving it, certifies that it 
will affect only Departmental employees, and aliens or their 
representatives who appear in proceedings before the Board of 
Immigration Appeals. Therefore, this proposed rule will not have a 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

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

Executive Order 12866

    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this proposed rule is a ``significant 
regulatory action'' under section 3(f) of Executive Order 12866, 
Regulatory Planning and Review. Accordingly, this rule has been 
submitted to the Office of Management and Budget for review.

Executive Order 13132

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, the Department of Justice has determined that 
this rule does not have sufficient federalism implications to warrant a 
federalism summary impact statement.

Executive Order 12988

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

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Charles K. Adkins-Blanch, 
General Counsel, Executive Office for Immigration Review, Suite 2400, 
5107 Leesburg Pike, Falls Church, VA 22041; telephone (703) 305-0470.

List of Subjects

8 CFR Part 3

    Aliens, Immigration.

8 CFR 280

    Aliens, Fines and penalties.

    Accordingly, for the reasons set forth in the preamble, part 3 and 
part 280 of chapter I of title 8 of the Code of Federal Regulations are 
proposed to be amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

    1. The authority citation for 8 CFR part 3 continues to read as 
follows:

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

    2. Amend Sec. 3.1 by:
    a. Revising the heading;
    b. Revising paragraphs (a)(1) through (6) and paragraph (b) 
introductory text;
    c. Removing and reserving paragraph (b)(4);
    d. Revising paragraphs (d)(1), (d)(2)(i) introductory text, 
(d)(2)(ii), (d)(2)(iii), and (d)(3);

[[Page 7314]]

    e. Redesignating paragraphs (d)(2)(i)(D) through (G) as paragraphs 
(d)(2)(i)(E) through (H), respectively, and adding a new paragraph 
(d)(2)(i)(D);
    f. Revising paragraph (d)(4) and adding paragraph (d)(5); and
    g. Revising paragraphs (e) and (g), to read as follows:

Subpart A--Board of Immigration Appeals


Sec. 3.1  Organization, jurisdiction, and powers of the Board of 
Immigration Appeals.

    (a)(1) Organization. There shall be in the Department of Justice a 
Board of Immigration Appeals, subject to the general supervision of the 
Director, Executive Office for Immigration Review (EOIR). The Board 
members shall be attorneys appointed by the Attorney General to act as 
the Attorney General's delegates in the cases that come before them. 
Within six months of the implementation of the case management 
screening system as provided in paragraph (e) of this section, or such 
other time as may be specified by the Attorney General, the Board shall 
be reduced to eleven members as designated by the Attorney General. A 
vacancy, or the absence or unavailability of a Board member, shall not 
impair the right of the remaining members to exercise all the powers of 
the Board.
    (2) Chairman. The Attorney General shall designate one of the Board 
members to serve as Chairman. The Attorney General may designate a Vice 
Chairman to assist the Chairman in the performance of his duties and to 
exercise all of the powers and duties of the Chairman in the absence or 
unavailability of the Chairman.
    (i) The Chairman, subject to the supervision of the Director, shall 
direct, supervise, and establish internal operating procedures and 
policies of the Board. The Chairman shall have authority to:
    (A) Issue operational instructions and policy, including procedural 
instructions regarding the implementation of new statutory or 
regulatory authorities;
    (B) Provide for appropriate training of Board members and staff on 
the conduct of their powers and duties;
    (C) Direct the conduct of all employees assigned to the Board to 
ensure the efficient disposition of all pending cases, including the 
power, in his discretion, to set priorities or time frames for the 
resolution of cases; to direct that the adjudication of certain cases 
be deferred, to regulate the assignment of Board members to cases, and 
otherwise to manage the docket of matters to be decided by the Board;
    (D) Evaluate the performance of the Board by making appropriate 
reports and inspections, and take corrective action where needed;
    (E) Adjudicate cases as a Board member; and
    (F) Exercise such other authorities as the Director may provide.
    (ii) The Chairman shall have no authority to direct the result of 
an adjudication assigned to another Board member or to a panel; 
provided, however, that nothing in this section shall be construed to 
limit the management authority of the Chairman under paragraph 
(a)(2)(i) of this section.
    (3) Panels. The Chairman shall divide the Board into three-member 
panels and designate a presiding member of each panel if the Chairman 
or Vice Chairman is not assigned to the panel. The Chairman may from 
time to time make changes in the composition of such panels and of 
presiding members. Each three-member panel shall be empowered to decide 
cases by majority vote, and a majority of the Board members assigned to 
the panel shall constitute a quorum for such panel. In addition, the 
Chairman shall assign any number of Board members, as needed, to serve 
on the screening panel to implement the case management process as 
provided in paragraph (e) of this section.
    (4) Temporary Board members. The Director may in his discretion 
designate immigration judges, retired Board members, retired 
immigration judges, and administrative law judges employed within EOIR 
to act as temporary, additional Board members for terms not to exceed 
six months. A temporary Board member assigned to a case may continue to 
participate in the case to its normal conclusion, but shall have no 
role in the actions of the Board en banc.
    (5) En banc process. A majority of the permanent Board members 
shall constitute a quorum for purposes of convening the Board en banc. 
The Board may on its own motion by a majority vote of the permanent 
Board members, or by direction of the Chairman, consider any case en 
banc, or reconsider as the Board en banc any case that has been 
considered or decided by a three-member panel. En banc proceedings are 
not favored, and shall ordinarily be ordered only where necessary to 
address an issue of exceptional importance or to secure or maintain 
consistency of the Board's decisions.
    (6) Board staff. There shall also be attached to the Board such 
number of attorneys and other employees as the Deputy Attorney General, 
upon recommendation of the Director, shall from time to time direct.
* * * * *
    (b) Appellate jurisdiction. Appeals may be filed with the Board of 
Immigration Appeals from the following:
* * * * *
    (d) Powers of the Board--(1) Generally. The Board shall function as 
an appellate body charged with the review of those administrative 
adjudications under the Act that the Attorney General may by regulation 
assign to it. The Board shall resolve the questions before it in a 
manner that is timely, impartial, and consistent with the Act and 
regulations. In addition, the Board, through precedent decisions, shall 
provide clear and uniform guidance to the Service, the immigration 
judges, and the general public on the proper interpretation and 
administration of the Act and its implementing regulations.
    (i) The Board shall be governed by the provisions and limitations 
prescribed by applicable law, regulations, and procedures, and by 
decisions of the Attorney General (through review of a decision of the 
Board, by written order, or by determination and ruling pursuant to 
section 103 of the Act).
    (ii) Subject to these governing standards, Board members shall 
exercise their independent judgment and discretion in considering and 
determining the cases coming before the Board, and a panel or Board 
member to whom a case is assigned may take any action consistent with 
their authorities under the Act and the regulations as is appropriate 
and necessary for the disposition of the case.
    (2) Summary dismissal of appeals--(i) Standards. A single Board 
member shall summarily dismiss any appeal or portion of any appeal in 
any case in which:
* * * * *
    (D) The Board is satisfied, from a review of the record, that the 
appeal is filed for an improper purpose, such as to cause unnecessary 
delay, or that the appeal lacks an arguable basis in fact or in law 
unless the Board determines that it is supported by a good faith 
argument for extension, modification, or reversal of existing law;
* * * * *
    (ii) Action by the Board. The Board's case management screening 
plan shall promptly identify cases that are subject to summary 
dismissal pursuant to this paragraph. Except as provided in this part 
for review by the Board en banc or by the Attorney General, or for 
consideration of motions to reconsider

[[Page 7315]]

or reopen, an order dismissing any appeal pursuant to this paragraph 
(d)(2) shall constitute the final decision of the Board.
    (iii) Disciplinary consequences. The filing by an attorney or 
representative accredited under Sec. 292.2(d) of this chapter of an 
appeal that is summarily dismissed under paragraph (d)(2)(i) of this 
section may constitute frivolous behavior under Sec. 3.102(j). Summary 
dismissal of an appeal under paragraph (d)(2)(i) of this section does 
not limit the other grounds and procedures for disciplinary action 
against attorneys or representatives.
    (3) Review of factual issues. The Board will not engage in de novo 
review but will accept the determination of factual issues by an 
immigration judge, including findings as to the credibility of 
testimony, unless the determination is clearly erroneous. Except for 
taking administrative notice of commonly known facts such as current 
events or the contents of official documents, the Board will not engage 
in factfinding in the course of deciding appeals. A party asserting 
that the Board cannot properly resolve an appeal without further 
factfinding must file a motion for remand. If further factfinding is 
needed in a particular case, the Board may remand the proceeding to the 
immigration judge or, as appropriate, to the Service. This paragraph 
does not preclude the Board from reviewing mixed questions of law and 
fact, including, without limitation, whether an alien has established a 
well-founded fear of persecution or has demonstrated extreme hardship, 
based on the findings of fact made by the immigration judge.
    (4) Rules of practice. The Board shall have authority, with the 
approval of the Director, EOIR, to prescribe procedures governing 
proceedings before it.
    (5) Discipline of attorneys and representatives. The Board shall 
determine whether any organization or individual desiring to represent 
aliens in immigration proceedings meets the requirements as set forth 
in Sec. 292.2 of this chapter. It shall also determine whether any 
organization desiring representation is of a kind described in 
Sec. 1.1(j) of this chapter, and shall regulate the conduct of 
attorneys, representatives of organizations, and others who appear in a 
representative capacity before the Board or the Service or any 
immigration judge.
    (e) Case management system. The Chairman shall establish a case 
management system to screen all appeals and to manage the Board's 
caseload. Unless a case meets the standards for assignment to a three-
member panel under paragraph (e)(6) of this section, all appeals shall 
be assigned to a single Board member for disposition. The Chairman, 
under the supervision of the Director, shall be responsible for the 
success of the case management system. The Chairman shall designate, 
from time to time, a screening panel comprising a sufficient number of 
Board members who are authorized, acting alone, to screen cases and to 
adjudicate appeals as provided in this paragraph.
    (1) Initial screening. All cases shall be referred to the screening 
panel for review by a single Board member. Appeals subject to summary 
dismissal as provided in paragraph (d)(2) of this section shall be 
promptly dismissed.
    (2) Miscellaneous dispositions. A single Board member may grant an 
unopposed motion or a motion to withdraw an appeal pending before the 
Board. In addition, a single Board member may adjudicate a Service 
motion to remand any appeal before the Board where the Service requests 
that the matter be remanded for further consideration of the 
appellant's arguments or evidence raised on appeal; a case where remand 
is required because of a defective or missing transcript; and other 
procedural or ministerial issues as provided by the case management 
plan.
    (3) Merits review. In any case that has not been summarily 
dismissed, the screening panel shall arrange for the prompt completion 
of the record of proceedings and transcript, and shall issue a schedule 
for simultaneous briefing. The Board member who initially reviewed the 
appeal (or another Board member assigned under the case management 
system) shall determine the appeal on the merits as provided in 
paragraph (e)(4) or (e)(5) of this section, unless the Board member 
determines that the case is appropriate for review and decision by a 
three-member panel under the standards of paragraph (e)(6) of this 
section.
    (4) Affirmance without opinion. (i) The Board member to whom a case 
is assigned shall affirm the decision of the Service or the immigration 
judge, without opinion, if the Board member determines that the result 
reached in the decision under review was correct; that any errors in 
the decision under review were harmless or nonmaterial; and that
    (A) The issues on appeal are squarely controlled by existing Board 
or federal court precedent and do not involve the application of 
precedent to a novel factual situation; or
    (B) The factual and legal issues raised on appeal are not so 
substantial that the case warrants the issuance of a written opinion in 
the case.
    (ii) If the Board member determines that the decision should be 
affirmed without opinion, the Board shall issue an order that reads as 
follows: ``The Board affirms, without opinion, the result of the 
decision below. The decision below is, therefore, the final agency 
determination. See 8 CFR 3.1(e)(4).'' An order affirming without 
opinion, issued under authority of this provision, shall not include 
further explanation or reasoning. Such an order approves the result 
reached in the decision below; it does not necessarily imply approval 
of all of the reasoning of that decision, but does signify the Board's 
conclusion that any errors in the decision of the immigration judge or 
the Service were harmless or nonmaterial.
    (5) Other decisions on the merits by single Board member. If the 
Board member to whom an appeal is assigned determines, upon 
consideration of the merits, that the decision is not appropriate for 
affirmance without opinion, the Board member shall issue a brief order 
affirming, reversing, modifying, or remanding the decision under 
review, unless the Board member designates the case for decision by a 
three-member panel under paragraph (e)(6) of this section under the 
standards of the case management plan. Except as provided in this part 
for review by the Attorney General, or for consideration of motions to 
reconsider or reopen, a decision issued by a single Board member shall 
constitute the final decision of the Board. A motion to reconsider or 
to reopen a decision that was rendered by a single Board member may be 
adjudicated by that Board member unless the case is reassigned to a 
three-member panel as provided under the standards of the case 
management plan.
    (6) Panel decisions. Cases shall be assigned for review by a three-
member panel only if the case presents one of these circumstances:
    (i) The need to settle inconsistencies between the rulings of 
different immigration judges;
    (ii) The need to establish a precedent to clarify ambiguous laws, 
regulations, or procedures;
    (iii) The need to correct a decision by an immigration judge or the 
Service that is plainly not in conformity with the law or with 
applicable precedents;
    (iv) The need to resolve a case or controversy of major national 
import; or
    (v) The need to correct a clearly erroneous factual determination 
by an immigration judge.
    (7) Oral argument. When an appeal has been taken, request for oral 
argument if desired shall be included in the Notice of Appeal. A three-
member

[[Page 7316]]

panel or the Board en banc may hear oral argument, as a matter of 
discretion, at such date and time as is established under the Board's 
case management plan. The Service may be represented before the Board 
by an officer of the Service designated by the Service. No oral 
argument will be allowed in a case that is assigned for disposition by 
a single Board member.
    (8) Timeliness. As provided under the case management system, the 
Board shall promptly enter orders of summary dismissal, denials of 
review as a matter of discretion, or other miscellaneous dispositions, 
in appropriate cases. In other cases, after completion of the record on 
appeal, including any briefs, motions, or other submissions on appeal, 
the Board member or panel to which the case is assigned shall issue a 
decision on the merits as soon as practicable, with a priority for 
cases or custody appeals involving detained aliens.
    (i) Except in exigent circumstances as determined by the Chairman, 
the Board shall dispose of all appeals assigned to a single Board 
member within 90 days of completion of the record on appeal, or within 
180 days after an appeal is assigned to a three-member panel (including 
any additional opinion by a member of the panel).
    (ii) In exigent circumstances, the Chairman may grant an extension 
in particular cases of up to 60 days as a matter of discretion. Except 
as provided in paragraph (e)(8)(iii) of this section, in those cases 
where the panel is unable to issue a decision within the established 
time limits, as extended, the Chairman shall either assign the case to 
himself or herself for final decision within 14 days or shall refer the 
case to the Attorney General for decision. If a dissenting or 
concurring panel member fails to complete his or her opinion by the end 
of the extension period, the decision of the majority will be issued 
without the separate opinion.
    (iii) In rare circumstances, when an impending decision by the 
United States Supreme Court or a United States Court of Appeals may 
substantially determine the outcome of a case or group of cases pending 
before the Board, the Chairman may hold the case or cases until such 
decision is rendered, temporarily suspending the time limits described 
in this paragraph (e)(8).
    (iv) The Chairman shall notify the Director of EOIR and the 
Attorney General if a Board member consistently fails to meet the 
assigned deadlines for the disposition of appeals, or otherwise fails 
to adhere to the standards of the case management system. The Chairman 
shall also prepare a report assessing the timeliness of the disposition 
of cases by each Board member on an annual basis.
    (v) The provisions of this paragraph (e)(8) establishing time 
limits for the adjudication of appeals reflect a management directive 
in favor of timely dispositions, but do not affect the validity of any 
decision issued by the Board nor create any justiciable right or 
remedy.
* * * * *
    (g) Decisions of the Board as precedents. Except as they may be 
modified or overruled by the Board or the Attorney General, decisions 
of the Board shall be binding on all officers and employees of the 
Service or immigration judges in the administration of the Act. By 
majority vote of the permanent Board members, selected decisions of the 
Board rendered by a three-member panel or by the Board en banc may be 
designated to serve as precedents in all proceedings involving the same 
issue or issues.
* * * * *
    3. In Sec. 3.2, paragraph (i) is amended by adding after the first 
sentence a new sentence, to read as follows:


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

* * * * *
    (i) * * * Any motion for reconsideration or reopening of a decision 
issued by a single Board member will be referred to the screening panel 
for disposition by a single Board member, unless the screening panel 
member determines, in the exercise of judgment, that the motion for 
reconsideration or reopening should be assigned to a three-member panel 
under the standards of Sec. 3.1(e)(6). * * *
* * * * *
    4. In Sec. 3.3, paragraphs (a) and (c) are revised, and paragraph 
(b) is amended by adding a new sentence at the end thereof, to read as 
follows:


Sec. 3.3  Notice of appeal.

    (a) Filing--(1) Appeal from decision of an immigration judge. A 
party affected by a decision of an immigration judge which may be 
appealed to the Board under this chapter shall be given notice of the 
opportunity for filing an appeal. An appeal from a decision of an 
immigration judge shall be taken by filing a Notice of Appeal to the 
Board of Immigration Appeals of Decision of Immigration Judge (Form 
EOIR-26) directly with the Board, within 30 days of the decision being 
appealed. The appealing parties are only those parties who are covered 
by the decision of an immigration judge and who are specifically named 
on the Notice of Appeal. The appeal must reflect proof of service of a 
copy of the appeal and all attachments on the opposing party. An appeal 
is not properly filed unless it is received at the Board, along with 
all required documents, fees or fee waiver requests, and proof of 
service, within the time specified in the governing sections of this 
chapter. A Notice of Appeal may not be filed by any party who has 
waived appeal pursuant to Sec. 3.39.
    (2) Appeal from decision of a Service officer. A party affected by 
a decision of a Service officer which may be appealed to the Board 
under this chapter shall be given notice of the opportunity to file an 
appeal. An appeal from a decision of a Service officer shall be taken 
by filing a Notice of Appeal to the Board of Immigration Appeals of 
Decision of District Director (Form EOIR-29) directly with the office 
of the Service having administrative control over the record of 
proceeding within 30 days of the service of the decision being 
appealed. An appeal is not properly filed until it is received at the 
appropriate office of the Service, together with all required 
documents, and the fee provisions of Sec. 3.8 are satisfied.
    (3) General requirements for all appeals. The appeal must be 
accompanied by a check, money order, or fee waiver request in 
satisfaction of the fee requirements of Sec. 3.8. If the respondent/
applicant is represented, a Notice of Entry of Appearance as Attorney 
or Representative Before the Board (Form EOIR-27) must be filed with 
the Notice of Appeal. The appeal and all attachments must be in English 
or accompanied by a certified English translation.
    (b) * * * An appellant who asserts that the appeal may warrant 
review by a three-member panel under the standards of Sec. 3.1(e)(6) 
must identify in the Notice of Appeal the specific factual or legal 
basis for that contention.
* * * * *
    (c) Briefs--(1) Appeal from decision of an immigration judge. 
Briefs in support of or in opposition to an appeal from a decision of 
an immigration judge shall be filed directly with the Board. In those 
cases that are transcribed, the briefing schedule shall be set by the 
Board after the transcript is available. All parties shall be provided 
21 days in which to file simultaneous briefs, unless a shorter period 
is specified by the Board, and reply briefs shall be permitted only by 
leave of the Board. The Board, upon written motion, may extend the 
period for filing a brief or a reply brief for up to 90 days for good 
cause shown. In its discretion, the Board may consider a

[[Page 7317]]

brief that has been filed out of time. All briefs, filings, and motions 
filed in conjunction with an appeal shall include proof of service on 
the opposing party.
    (2) Appeal from decision of a Service officer. Briefs in support of 
or in opposition to an appeal from a decision of a Service officer 
shall be filed directly with the office of the Service having 
administrative control over the file. The alien and the Service shall 
be provided 21 days in which to file a brief, unless a shorter period 
is specified by the Service officer from whose decision the appeal is 
taken, and reply briefs shall be permitted only by leave of the Board. 
Upon written request of the alien, the Service officer from whose 
decision the appeal is taken or the Board may extend the period for 
filing a brief for good cause shown. The Board may authorize the filing 
of briefs directly with the Board. In its discretion, the Board may 
consider a brief that has been filed out of time. All briefs and other 
documents filed in conjunction with an appeal, unless filed by an alien 
directly with a Service office, shall include proof of service on the 
opposing party.
* * * * *
    5. In Sec. 3.5, paragraph (a) is revised to read as follows:


Sec. 3.5  Forwarding of record on appeal.

    (a) Appeal from decision of an immigration judge. If an appeal is 
taken from a decision of an immigration judge, the record of proceeding 
shall be forwarded to the Board upon the request or the order of the 
Board. Where transcription of an oral decision is required, the 
immigration judge shall review and approve the transcript within 14 
days of receipt, or within 7 days after the immigration judge returns 
to his or her duty station if the immigration judge was on leave or 
detailed to another location.
* * * * *

PART 280--IMPOSITION AND COLLECTION OF FINES

    6. The authority citation for part 280 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281, 
1283, 1284, 1285, 1286, 1322, 1323, and 1330; 66 Stat. 173, 195, 
197, 201, 203, 212, 219, 221-223, 226, 227, 230; Pub. L. 101-410, 
104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

    7. Section 280.61 is added to read as follows:


Sec. 280.61  Administrative review of decisions of the Service imposing 
an administrative fine or penalty.

    (a) Jurisdiction. The Chief Administrative Hearing Officer has 
jurisdiction to consider an appeal from a decision by the Service 
involving administrative fines and penalties, including mitigation 
thereof, under this part.
    (b) Appeal. A party affected by a decision who is entitled to 
appeal from a decision of a Service officer under this part shall be 
given notice of his or her right to appeal. An appeal from a decision 
of a Service officer shall be taken by filing a Notice of Appeal 
directly with the office of the Service having administrative control 
over the record of proceeding within 21 days of the issuance of the 
Service's decision. The Notice of Appeal shall state the reasons for or 
basis upon which the party seeks review. The statement must 
specifically identify the findings of fact, the conclusions of law, or 
both, that are being challenged. If a question of law is presented, 
supporting authority must be cited. If the dispute is over the findings 
of fact, the specific facts contested must be identified. The appeal 
and all attachments must be in English or accompanied by a certified 
English translation.
    (c) Written and oral arguments. (1) The parties may file 
simultaneous briefs or other written statements within 21 days of the 
filing of the Notice of Appeal.
    (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.
    (d) Completion of the record on appeal. The Service officer shall 
forward the record on appeal to the Chief Administrative Hearing 
Officer promptly upon receipt of the briefs of the parties, or upon 
expiration of the time allowed for the submission of such briefs. 
However, a Service officer need not forward such an appeal to the 
Board, but may reopen and reconsider any decision made by the officer 
if the new decision will grant the relief that has been requested in 
the appeal. The new decision must be served on the appealing party 
within 45 days of receipt of any briefs or upon expiration of the time 
allowed for the submission of any briefs. If the new decision is not 
served within these time limits or the appealing party does not agree 
that the new decision disposes of the matter, the record of proceeding 
shall be immediately forwarded to the Chief Administrative Hearing 
Officer.
    (e) Review by the Chief Administrative Hearing Officer. Within 90 
days after receiving the record on appeal, the Chief Administrative 
Hearing Officer shall enter an order that affirms, modifies, or vacates 
the Service's decision, or remands the case to the Service officer for 
further proceedings consistent with the Chief Administrative Hearing 
Officer's order. The order shall be in writing and shall be served on 
the parties. 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.
    (f) Remand. Where it is established that an appeal cannot be 
properly resolved without further findings of fact, the Chief 
Administrative Hearing Officer will remand the proceeding to the 
Service. Except for taking administrative notice of commonly known 
facts such as agency documents or current events, the Chief 
Administrative Hearing Officer will not engage in factfinding in the 
course of deciding appeals. If the Chief Administrative Hearing Officer 
remands the case to the Service, any administrative review of the 
Service's subsequent decision shall be conducted in accordance with 
this section.
    (g) Governing standards. (1) The Chief Administrative Hearing 
Officer shall be governed by the provisions and limitations prescribed 
by applicable law, regulations and procedures, and by decisions of the 
Attorney General (through review of a decision of the Chief 
Administrative Hearing Officer, by written order, or by determination 
and ruling pursuant to section 103 of the Act). The existing precedent 
decisions issued by the Board of Immigration Appeals in administrative 
fine cases continue to be binding except as specifically modified or 
overruled in new precedent decisions by the Chief Administrative 
Hearing Officer or by the Attorney General.
    (2) Except as they may be modified or overruled by the Chief 
Administrative Hearing Officer or the Attorney General, final orders of 
the Chief Administrative Hearing Officer shall be binding on all 
officers and employees of the Service in the administration of fines 
and penalties under this part.
    (h) Final agency order. A final order that affirms, modifies or 
vacates the Service's decision becomes the final agency order 30 days 
after it is issued, unless the Chief Administrative Hearing Officer's 
order is referred to the Attorney General pursuant to paragraph (i) of 
this section.

[[Page 7318]]

    (i) Referral of cases to the Attorney General. (1) The Chief 
Administrative Hearing Officer shall refer to the Attorney General for 
review of his decision all cases that:
    (i) The Attorney General directs the Chief Administrative Hearing 
Officer to refer to him;
    (ii) The Chief Administrative Hearing Officer believes should be 
referred to the Attorney General for review; or
    (iii) The Commissioner requests be referred to the Attorney General 
for review.
    (2) In any case in which the Attorney General reviews the decision 
of the Chief Administrative Hearing Officer, the decision of the 
Attorney General shall be stated in writing and shall be transmitted to 
the Chief Administrative Hearing Officer for transmittal and service as 
provided in paragraph (e) of this section.

    Dated: February 11, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-3801 Filed 2-15-02; 8:45 am]
BILLING CODE 4410-30-P