[Federal Register Volume 71, Number 235 (Thursday, December 7, 2006)]
[Rules and Regulations]
[Pages 70855-70857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20720]



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  Federal Register / Vol. 71, No. 235 / Thursday, December 7, 2006 / 
Rules and Regulations  

[[Page 70855]]



DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1003

[EOIR Docket No. 158I; AG Order No. 2848-2006]
RIN 1125-AA57


Board of Immigration Appeals: Composition of Board and Temporary 
Board Members

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

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: This interim rule amends the Executive Office for Immigration 
Review (EOIR) regulations relating to the organization of the Board of 
Immigration Appeals (Board) by adding four Board member positions, 
thereby expanding the Board to 15 members. This rule also expands the 
list of persons eligible to serve as temporary Board members to include 
senior EOIR attorneys with at least ten years of experience in the 
field of immigration law.

DATES: Effective date: This rule is effective December 7, 2006. Written 
comments must be submitted on or before February 5, 2007.

ADDRESSES: Please submit written comments to Kevin Chapman, Acting 
General Counsel, Executive Office for Immigration Review, 5107 Leesburg 
Pike, Suite 2600, Falls Church, Virginia, 22041. To ensure proper 
handling, please reference RIN No. 1125-AA57 or EOIR docket number 158I 
on your correspondence. You may view an electronic version of this 
proposed rule at www.regulations.gov. You may also comment via the 
Internet to the Executive Office for Immigration Review (EOIR) at 
[email protected] or by using the www.regulations.gov comment form 
for this regulation. When submitting comments electronically, you must 
include RIN No. 1125-AA57 in the subject box.

FOR FURTHER INFORMATION CONTACT: Kevin Chapman, Acting General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, Virginia 22041; telephone (703) 305-0470 (not a 
toll free call).

SUPPLEMENTARY INFORMATION:

I. Number of Board Members

    On January 9, 2006, the Attorney General directed the Deputy 
Attorney General and Associate Attorney General to conduct a 
comprehensive review of the Immigration Courts and the Board of 
Immigration Appeals (Board). This review was undertaken in response to 
concerns about the quality of decisions being issued by the immigration 
judges and the Board and reports of intemperate behavior on the part of 
some immigration judges.
    On August 9, 2006, the Attorney General announced that the review 
was complete, and that he was directing that a series of measures be 
taken to improve adjudications by the immigration judges and the Board. 
One of these was a directive to the Director of the Executive Office of 
Immigration Review to increase the number of Board members from 11 to 
15. This rule carries out that directive by revising the third sentence 
of 8 CFR 1003.1(a)(1) (leaving the remainder of paragraph (a)(1) 
unchanged).
    The size of the Board was last set through rules promulgated in 
2002 to improve case management. See 67 FR 54878-01 (Aug. 26, 2002); 8 
CFR 1003.1(a), (d), (e) and (g). Those rules, among other provisions, 
expanded the use of affirmances without opinion and instituted single 
Board member review of additional cases. At that time the Department 
also determined that a reduction in the number of Board members was 
appropriate, and that the number of Board members should be set at 11. 
See 67 FR at 54893-94. The Department reached this conclusion based 
upon ``the historic capacity of appellate courts and administrative 
appellate bodies to adjudicate the law in a cohesive manner, the 
ability of individuals to reach consensus on legal issues, and the 
requirements of the existing and projected caseload.'' Id. at 54893. 
The Department specifically noted that reducing the size of the Board 
to 11 members ``should increase the coherence of Board decisions and 
facilitate the en banc process, thereby improving the value of Board 
precedents.'' Id. at 54894. The commentary concluded that the Attorney 
General would consider reevaluating the staffing requirements of the 
Board in the future in light of changing caseloads and legal 
requirements. Id. at 54893.
    The streamlining changes brought much needed efficiency to the 
review process, enabling the Board to eliminate its backlog and provide 
the parties with a final decision in a more timely fashion. The 
Attorney General has concluded, however, that some adjustments to the 
Board's streamlining practices are now appropriate in order to improve 
the quality of the Board's review of complex or problematic cases. 
Accordingly, in his August 9, 2006, directive, the Attorney General has 
instructed the Board to encourage the increased use of one-member 
written opinions to address poor or intemperate immigration judge 
decisions, allow the limited use of three-member written opinions to 
provide greater legal analysis in a small class of particularly complex 
cases, and to publish more three-member panel decisions as precedent 
decisions.\1\ The Attorney General recognizes that these changes will 
affect the workload of the Board members by resulting in more detailed 
one-member orders and more three-member orders. An increase in the 
number of Board members is therefore warranted to put the Board in the 
best position to implement these changes.
---------------------------------------------------------------------------

    \1\ The precise scope of these changes will be specified in a 
separate rulemaking.
---------------------------------------------------------------------------

    Moreover, the Board has seen its filings increase from 35,000 
appeals and motions in FY 2002 to 42,700 in FY 2005. The Attorney 
General anticipates that more immigration judges will be needed to 
handle a further increase in caseloads at the Immigration Courts, which 
will in turn result in an increase in appeals. The current caseload is 
extremely burdensome and may become overwhelming in the future for a 
Board of 11 members.
    At the same time, experience suggests that if the Board becomes too 
large, it

[[Page 70856]]

will have considerably more difficulty fulfilling its responsibility of 
providing coherent direction with respect to the immigration laws. 
Keeping in mind the goal of maintaining cohesion and the ability to 
reach consensus, but recognizing the challenges the Board faces in 
light of its current and anticipated caseload, the Attorney General has 
determined that four members should be added to the Board at this time.

II. Temporary Board Members

    The rules at 8 CFR 1003.1(a)(4) allow the Director of EOIR to 
designate immigration judges, retired Board members, retired 
immigration judges, and administrative law judges employed within, or 
retired from, EOIR to act as temporary Board members. These provisions 
offer a mechanism through which the Department can provide the Board 
temporary assistance without changing the number of Board members. This 
is an appropriate means of responding to an unanticipated increase or 
temporary surge in the number, size, or type of cases, and other short-
term circumstances that might impair the Board's ability to adjudicate 
cases in a manner that is both timely and fair. Temporary Board members 
appointed through this process do not participate in en banc Board 
proceedings, so these provisions also offer the Department a mechanism 
through which it can temporarily increase the Board's reviewing 
capacity without impairing its ability to review cases en banc as 
permanently expanding the Board beyond a certain number would be likely 
to do. The Board is presently being assisted by three immigration 
judges whom the Director has designated through this mechanism.
    This rule enhances the utility of the temporary appointment 
authority by making an additional category of people eligible to serve 
as temporary Board members. It amends 8 CFR 1003.1(a)(4) to allow the 
Director, with the approval of the Deputy Attorney General, to 
designate senior EOIR attorneys with at least ten years of experience 
in the field of immigration law to serve for up to six months in this 
capacity. Because immigration judges generally are already required to 
handle an exceptionally large caseload, designation of immigration 
judges to sit on the Board as temporary Board members is not always 
practical. In addition to taking immigration judges away from their 
dockets, their designation can result in significant agency expenses, 
including travel and housing. By contrast, many senior EOIR attorneys 
with 10 years of experience are co-located with the Board, minimizing 
expense and disruption, and allowing them to assume their new duties 
immediately upon designation. This change will accordingly expand the 
pool of available candidates to provide a modicum of additional 
flexibility in making these appointments.
    This change serves a similar function to a provision that at one 
time authorized the Chief Attorney Examiner to serve as a temporary 
Board member in exigent circumstances. Since the position of Chief 
Attorney Examiner no longer exists, that particular provision is no 
longer included in the current rules, but this rule similarly 
authorizes a senior and highly experienced EOIR attorney to serve as a 
temporary Board member. In order to allow greater flexibility, the rule 
does not specify particular titles or job descriptions. Instead, this 
rule simply authorizes the Director, with the approval of the Deputy 
Attorney General, to designate one or more senior EOIR attorneys with 
at least ten years of experience in the field of immigration law to 
serve as a temporary Board member.
    This rule also amends the current rule to state explicitly that 
temporary Board members have the authority of a permanent Board member, 
with the exception that a temporary Board member may not vote in en 
banc proceedings.
    Because this is a rule of internal agency organization, notice and 
comment are not required prior to its promulgation. The Department is 
nonetheless promulgating it as an interim rule with opportunity for 
post-promulgation comment in order to provide an opportunity for public 
comment before it issues a final rule on these matters.

Regulatory Requirements

A. Administrative Procedure Act

    Compliance with 5 U.S.C. 553 as to notice of proposed rulemaking or 
delayed effective date is unnecessary as this rule addresses only 
internal agency organization and management. Accordingly, it is not a 
``rule'' as that term is used by the Congressional Review Act (Subtitle 
E of the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA)), and the reporting requirement of 5 U.S.C. 801 does not 
apply.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) mandates that an agency 
conduct an RFA analysis when an agency is ``required by section 553 * * 
*, or any other law, to publish general notice of proposed rule making 
for any proposed rule.'' 5 U.S.C. 603(a). RFA analysis is not required 
when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 
553(b). This rule is exempt from notice and comment rulemaking. 
Therefore, no RFA analysis under 5 U.S.C. 603 is required for this 
rule.

C. 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 
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.

D. 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 Act of 1996, 5 U.S.C. 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, innovation, or on the 
ability of United States-based companies to compete with foreign-based 
companies in domestic and export markets.

E. Executive Order 12866 (Regulatory Planning and Review)

    The Department does not consider this rule to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review.

F. Executive Order 13132 (Federalism)

    This 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, this rule does not have sufficient federalism 
implications to warrant preparation of a federalism summary impact 
statement.

G. Executive Order 12988 (Civil Justice Reform)

    This rule has been prepared in accordance with the standards in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

[[Page 70857]]

H. Paperwork Reduction Act

    This rule does not create any information collection requirement.

List of Subjects in 8 CFR Part 1003

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

0
Accordingly, for the reasons stated in the preamble, chapter V of title 
8 of the Code of Federal Regulations is amended as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
1. The authority citation for part 1003 is revised to read as follows:

    Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; 
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.


0
2. Section 1003.1 is amended by revising paragraphs (a)(1) and (a)(4) 
to read as follows:


Sec.  1003.1   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. 
The Board shall consist of 15 members. 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.
* * * * *
    (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, or 
retired from, EOIR to act as temporary Board members for terms not to 
exceed six months. In addition, with the approval of the Deputy 
Attorney General, the Director may designate one or more senior EOIR 
attorneys with at least ten years of experience in the field of 
immigration law to act as temporary Board members for terms not to 
exceed six months. A temporary Board member shall have the authority of 
a Board member to adjudicate assigned cases, except that temporary 
Board members shall not have the authority to vote on any matter 
decided by the Board en banc.
* * * * *

    Dated: November 30, 2006.
Alberto R. Gonzales,
Attorney General.
 [FR Doc. E6-20720 Filed 12-6-06; 8:45 am]
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