[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2337-2340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-526]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1274a

[EOIR No. 166I; AG Order No. 3031-2009]
RIN 1125-AA64


Reorganization of Regulations on Control of Employment of Aliens

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

ACTION: Interim rule with request for comments.

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SUMMARY: The Homeland Security Act of 2002, as amended, transferred the 
functions of the former Immigration and Naturalization Service (INS) 
from the Department of Justice to the Department of Homeland Security 
(DHS); however, it retained within the Department of Justice the 
functions of the Executive Office for Immigration Review (EOIR), a 
separate agency within the Department of Justice. Because the existing 
regulations often intermingled the responsibilities of the former INS 
and EOIR, this transfer required a reorganization of title 8 of the 
Code of Federal Regulations (CFR) in February 2003, including the 
establishment of a new chapter V in 8 CFR pertaining to EOIR. As part 
of this reorganization, a number of regulations pertaining to the 
responsibilities of DHS intentionally were duplicated in the new 
chapter V because of shared responsibilities. The Department of Justice 
now has determined that most of the duplicated regulations in part 
1274a pertain to functions that are DHS's responsibility and do not 
need to be reproduced in EOIR's regulations in chapter V. This interim 
rule, therefore, deletes unnecessary regulations in part 1274a and 
makes appropriate reference to the applicable DHS regulations.

DATES: Effective Date: This rule is effective January 15, 2009.
    Comments: Comments on this rule must be received by March 16, 2009.

ADDRESSES: Comments may be mailed to John N. Blum, Acting General 
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2600, Falls Church, Virginia 22041. To ensure proper handling, 
please reference EOIR Docket No. 166I on your correspondence. You may 
submit comments electronically or view an electronic version of this 
interim rule at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: John N. Blum, Acting General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, Virginia 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:

I. Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personal identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You also must 
locate all the personal identifying information you do not want posted 
online in the first paragraph of your comment and identify what 
information you want redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. To inspect the 
agency's public docket file in person, you must make an appointment 
with agency counsel. Please see the ``For Further Information Contact'' 
paragraph below for agency counsel's contact information.

II. Background

    The Homeland Security Act of 2002, as amended (HSA), transferred 
the functions of the former Immigration and Naturalization Service (INS 
or the Service) to the Department of Homeland Security (DHS). Public 
Law 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 
2002), as amended. The HSA, however, retained the functions of the 
Executive Office for Immigration Review (EOIR) within the Department of 
Justice, under the direction of the Attorney General. 6 U.S.C. 521; 8 
U.S.C. 1103(g); see generally Matter of D-J-, 23 I&N Dec. 572 (A.G. 
2003).
    EOIR was created by the Attorney General in 1983 to combine the 
functions performed by INS special inquiry officers (now immigration 
judges) and the Board of Immigration Appeals (Board) into a single 
administrative agency within the Department of Justice, separate from 
the former INS. 48 FR 8038 (Feb. 25, 1983). This administrative 
structure separated the administrative adjudication functions from the 
enforcement and service functions of the former INS, both for 
administrative efficiency and to foster independent judgment in 
adjudication. The Office of the Chief Administrative Hearing Officer 
(OCAHO) and its administrative law judges (ALJs) were added to EOIR in 
1987, following enactment of section 274A of the Immigration and 
Nationality Act (INA), 8 U.S.C. 1324a. See 52 FR 44971 (Nov. 24, 1987).

[[Page 2338]]

    Because both INS and EOIR were agencies within the Department of 
Justice at that time, the regulations affecting these agencies were 
included in the same chapter (chapter I). Most of the immigration 
regulations were organized by subject, which often resulted in 
provisions relating to the former INS and to EOIR being intermingled in 
the same parts and sections.

III. Rationale

    The enactment of the HSA and its transfer of functions of the 
former INS to DHS, however, required the creation of a new chapter for 
the regulations pertaining to EOIR, separate from the DHS regulations. 
Accordingly, the Attorney General published a rule transferring certain 
provisions that related to the jurisdiction and procedures of EOIR to a 
new chapter V of 8 CFR. 68 FR 9823 (Feb. 28, 2003). When the transfer 
of authority from the former INS to DHS took place in March 2003, the 
time available did not permit a thorough review of each of the 
provisions of the regulations where EOIR's and the former INS's 
responsibilities were intermingled in the same sections. As a result, 
the Department's rule duplicated in chapter V certain parts and 
sections of the regulations that related to the responsibilities of 
both the former INS and EOIR, respectively. The rule also made a number 
of technical amendments to chapters I and V to ensure that the 
authorities existing in the former INS and EOIR regulations prior to 
the transfer of functions to DHS remained in effect.
    In particular, 8 CFR part 274a (Control of Employment of Aliens) 
contained definitional, substantive, and procedural material relevant 
to both the former INS and the Special Counsel for Immigration-Related 
Unfair Employment Practices of the Department's Civil Rights Division 
under 28 CFR 0.53, as well as the predicates to civil penalty 
proceedings before OCAHO. It was for this reason and out of an 
abundance of caution that, in 2003, the Attorney General duplicated the 
existing portions of part 274a, found in chapter I of the regulations, 
into a new part 1274a, located in chapter V.
    The Department had intended to address over time the regulatory 
overlaps resulting from the 2003 rule by eliminating or substantially 
reducing any duplicative parts and sections that intermingled EOIR's 
and the former INS's authority. The expectation was that DHS would 
revise the regulations in chapter I of 8 CFR by eliminating provisions 
exclusively relating to the immigration judges', the Board's, and the 
OCAHO ALJs' respective authorities (since those provisions are properly 
codified in the regulations governing EOIR), and that the Department 
would revise the regulations pertaining to EOIR in chapter V by 
eliminating the duplicative provisions that did not relate exclusively 
to EOIR's authority.
    Based on experience acquired since the transfer of the former INS's 
substantive immigration authority to DHS, it is apparent that most of 
the duplicative provisions in part 1274a pertain to matters that are 
the responsibility of DHS. Accordingly, there is no reason or need for 
those provisions of part 274a to be reproduced in a separate part 
1274a.
    Moreover, DHS has begun to implement substantive revisions to part 
274a, making clear that the existing duplicative regulatory provisions 
in part 1274a are not only unnecessary but potentially confusing. 
Recently, after notice and public comment, DHS is revising 8 CFR 
274a.1(l) with respect to an employer's response to receiving notices 
from the Social Security Administration (SSA) indicating that certain 
employees' social security numbers as reflected in the employer's 
records do not match SSA's records. Safe-Harbor Procedures for 
Employers Who Receive a No-Match Letter, 72 FR 45611 (Aug. 15, 2007) 
(final rule); 73 FR 15944 (Mar. 26, 2008) (supplemental proposed rule). 
These regulatory revisions are within DHS' statutory authority under 
sections 103 and 274A of the INA, and are properly codified in the DHS 
regulations in 8 CFR part 274a. However, because they do not relate 
directly to EOIR's authority, these changes would not be incorporated 
into the provisions of 8 CFR part 1274a.
    In addition, the Secretary of Homeland Security and the Attorney 
General recently published final rules to implement inflation 
adjustments in the amounts of civil penalties to be imposed under 
section 274A of the INA. 73 FR 10130 (Feb. 26, 2008).
    In order to remove unnecessary redundancies, and to avoid any 
possible confusion based on changes to part 274a that are not also 
codified in part 1274a, the Department is removing all but a few 
provisions in the current part 1274a. This rule also adds a new general 
provision to section 1274a.1, noting that the substantive and 
procedural regulations relating to the implementation of the employment 
verification provisions of section 274A of the INA are contained in 8 
CFR part 274a, and that the procedures for hearings before an ALJ 
relating to civil penalties sought by DHS under section 274A are 
contained in 28 CFR part 68. This new provision also states that, to 
the extent they are relevant, the provisions of 8 CFR part 274a are 
applicable in any adjudicatory proceedings before EOIR.
    The only provisions remaining in part 1274a, therefore, are those 
that may have a direct impact on the authority of the OCAHO ALJs:
     Section 1274a.9(e) and (f) relating to the time allowed 
for seeking an ALJ hearing to challenge a DHS civil penalty and the 
consequences for failure to request an ALJ hearing; and
     Section 1274a.10 relating to the penalties to be imposed 
by an ALJ in a case arising under section 274A of the INA.
    This rule revises Sec.  1274a.9(e) and (f) to replace references to 
the former INS or the Service with references to DHS. This rule also 
slightly revises the existing language of Sec.  1274a.9(f) for clarity; 
that is, the rule now expressly states that respondents who fail to 
make a timely request for a hearing are not entitled to a hearing 
before an ALJ. The change to Sec.  1274a.10 has already been 
implemented in the rules published on February 26, 2008.

IV. Effect

    This action is not a substantive change and does not alter any 
interpretation of the provisions of the INA or affect the legal rights 
of any person. The existing regulations codified in 8 CFR part 274a are 
unaffected by this rule, and the removal of entirely duplicative 
provisions in part 1274a does not alter the legal status quo.
    The substantive and procedural regulations in part 274a and in 
other parts of the immigration regulations are within the Secretary's 
authority to promulgate and revise, pursuant to section 103 of the INA, 
except to the extent that some remaining provisions of the DHS 
regulations deal directly with the authority of EOIR adjudicators (an 
overlap that DHS and the Department are working to eliminate as 
discussed above). As noted, regulatory provisions that go to the 
powers, procedures, and authority of the immigration judges, the Board, 
or the ALJs in EOIR are within the Attorney General's exclusive 
authority. For example, regulatory provisions granting or limiting 
EOIR's jurisdiction, authorizing EOIR adjudicators to exercise specific 
authorities, or directing EOIR adjudicators to act in a certain way are 
properly within the Attorney General's authority to promulgate, rather 
than DHS's. However, Congress has vested in DHS the authority to

[[Page 2339]]

promulgate regulations interpreting and applying the provisions of the 
INA--except insofar as the INA confers authority on the President, the 
Attorney General, or the Secretary of State--and has vested in the 
Attorney General the authority to issue binding interpretations on all 
questions of law pursuant to section 103(a)(1) of the INA.
    The premise of this rule that the provisions of part 274a are 
properly applicable in adjudicatory proceedings before EOIR is not new. 
The Department previously has made clear that the Attorney General need 
not personally promulgate immigration regulations in order for those 
regulations to be applicable in proceedings before EOIR; Attorney 
General Ashcroft addressed similar issues at the time of the adoption 
of the rule to reform the Board's adjudicatory processes in 2002, 67 FR 
54878 (Aug. 26, 2002). \1\ As with any such regulation adopted by an 
administrative agency pursuant to delegated statutory authority, the 
substantive or ``legislative'' regulations adopted by DHS (or by the 
former INS) within the scope of its delegated authority under the INA 
are properly deemed to have the ``force and effect of law.'' Thus, the 
DHS legislative regulations are properly treated as part of the 
governing law, not merely as ``guidance'' or recommendations for EOIR 
adjudicators to consider.\2\
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    \1\ See 67 FR at 54884 (citations omitted):
    The immigration regulations, however, include not only those 
rules adopted personally by the Attorney General, but also 
substantive and procedural rules duly promulgated by the 
Commissioner of the Service, under an express delegation of 
rulemaking authority from Congress to the Attorney General and, in 
turn, from the Attorney General to the Commissioner. The Department 
fully recognizes and reiterates, of course, that the Board and the 
immigration judges are independent of the Service (although some 
court opinions contain language that appears to blur this key 
distinction). For this reason, the Attorney General, and not the 
Commissioner, has consistently promulgated the regulations that 
govern the organization, procedures, or powers of the Board and the 
immigration judges and the conduct of immigration proceedings. The 
authority delegated to the Commissioner to promulgate substantive or 
``legislative'' rules does properly extend, however, to the 
interpretation of the general provisions of the Act. A regulation 
adopted pursuant to delegated statutory authority and pursuant to 
applicable rulemaking requirements under the Administrative 
Procedure Act has the ``force and effect of law'' as a substantive 
or legislative rule. * * * The language of this rule makes explicit 
what was implicit in the current version of Sec.  3.1.
    A fundamental premise of the immigration enforcement process 
must be that the substantive regulations codified in title 8 of the 
Code of Federal Regulations are binding in all administrative 
settings, and this specifically includes substantive regulations 
interpreting and applying the provisions of the Act. * * * [T]he 
respondents, the immigration judges, the Service, and the public at 
large should not be left to wonder whether the regulations 
interpreting and applying the substantive provisions of the Act will 
be binding in administrative proceedings under the Act.
    Such regulations themselves, of course, are susceptible to 
interpretation and application of their regulatory language by the 
immigration judges and the Board. However, if a substantive rule 
clearly defines a statutory term, or reflects a legal interpretation 
of the statutory provisions, then the position set forth in the rule 
will govern both the actions of the Service and the adjudication of 
immigration proceedings before the immigration judges and the Board.
    \2\ To the extent that an EOIR adjudicator may believe that an 
applicable regulation may not be consistent with the statute, the 
decisions of the ALJs or the Chief Administrative Hearing Officer in 
cases arising under sections 274A and 274C of the INA are subject to 
review by the Attorney General, as are the decisions of the Board, 
see 28 CFR 68.55, 8 CFR 1003.1(h)(1), and the Attorney General can 
decide when and how to exercise his ultimate authority to determine 
all questions of law with respect to matters arising under the INA. 
See, e.g., Matter of Ponce de Leon-Ruiz, 21 I&N Dec. 154 (BIA 1996; 
A.G. 1997) (the Board adhered to the regulatory interpretation in 
its decision but referred the case to the Attorney General for 
review in light of the Board's concern that the regulatory provision 
was not consistent with the statutory language); section 103(a)(1) 
and (g)(1), 8 U.S.C. 1103(a)(1) and (g)(1).
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V. Conclusion

    In summary, this interim rule deletes certain unnecessary 
duplicative provisions in part 1274a and revises the remaining 
provisions in a way that references applicable regulations in part 
274a. The Department and DHS plan to review other duplicated provisions 
of the immigration regulations in the future to determine whether 
additional provisions in different parts of the regulations also should 
be deleted to simplify the Code of Federal Regulations.

Administrative Procedure Act

    The Department of Justice finds that good cause exists for adopting 
this rule as an interim rule with provision for post-promulgation 
public comment under 5 U.S.C. 553 because this rule only makes 
technical amendments to the organization, procedures, and practices of 
the Department of Justice to improve the organization of the Department 
regulations and reflects the transfer of functions contemplated by the 
Homeland Security Act of 2002. Similarly, because this interim rule 
makes changes in internal delegations and procedures, and is a 
recodification of existing regulations, this interim rule is not 
subject to the effective date limitation of 5 U.S.C. 553(d).

Regulatory Flexibility Act

    Because no notice of proposed rule-making is required for this rule 
under the Administrative Procedure Act (5 U.S.C. 553), the provisions 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.

Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995, Public Law 
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR 
part 1320, do not apply to this interim rule because there are no new 
or revised recordkeeping or reporting requirements.

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.

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 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.

Congressional Review Act

    This action pertains to agency organization, procedures, and 
practices and does not substantially affect the rights or obligations 
of non-agency parties and, accordingly, 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)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Executive Order 12866

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this rule is not a ``significant 
regulatory action'' under section 3(f) of Executive Order 12866, 
Regulatory Planning and Review and accordingly this rule has not been 
reviewed by the Office of Management and Budget (OMB).

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the

[[Page 2340]]

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 rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

List of Subjects in Part 1274a

    Administrative practice and procedure, Immigration.

0
Accordingly, for the foregoing reasons, part 1274a of chapter V of 
title 8 of the Code of Federal Regulations is amended as follows:

PART 1274a--CONTROL OF EMPLOYMENT OF ALIENS

0
1. The authority citation for part 1274a continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a.


0
2. Revise Sec.  1274a.1 to read as follows:


Sec.  1274a.1  Employer requirements.

    (a) Applicable regulations. The regulations of the Department of 
Homeland Security (DHS) relating to the implementation of the 
employment eligibility and verification provisions of section 274A of 
the Immigration and Nationality Act (Act) are contained in 8 CFR part 
274a.
    (b) Adjudication of civil penalty proceedings. The procedures for 
hearings before an administrative law judge relating to civil penalties 
sought by DHS under section 274A of the Act are contained in 28 CFR 
part 68. The regulations governing employment eligibility and 
verification in 8 CFR part 274a are applicable to hearings before an 
administrative law judge and, to the extent relevant, to cases before 
an immigration judge or the Board of Immigration Appeals.


Sec. Sec.  1274a.2, 1274a.3, 1274a.4, 1274a.5, 1274a.6, 1274a.7 and 
1274a.8  [Removed]

0
3. Remove sections 1274a.2 through 1274a.8.

0
4. Section 1274a.9 is amended by:
0
a. Removing and reserving paragraphs (a) through (d);
0
b. Amending paragraph (e) by removing the terms ``the INS'' and ``the 
Service'' and adding in their place the term ``DHS''; and by
0
c. Revising paragraph (f), to read as follows:


Sec.  1274a.9  Enforcement procedures.

* * * * *
    (f) Failure to file a request for a hearing. If the respondent does 
not file a request for a hearing in writing within thirty days of the 
date of service of a Notice of Intent to Fine (thirty-five days if 
served by ordinary mail), the final order issued by DHS shall not be 
subject to a hearing before an administrative law judge under 28 CFR 
part 68.

Subpart B [Removed and reserved]

0
5. Remove and reserve subpart B.

    Dated: January 7, 2009.
Michael B. Mukasey,
Attorney General.
[FR Doc. E9-526 Filed 1-14-09; 8:45 am]
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