[Federal Register Volume 79, Number 133 (Friday, July 11, 2014)]
[Rules and Regulations]
[Pages 39953-39956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16279]



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  Federal Register / Vol. 79, No. 133 / Friday, July 11, 2014 / Rules 
and Regulations  

[[Page 39953]]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1003

[EOIR Docket No. 177; AG Order No. 3447-2014]
RIN 1125-AA77


Designation of Temporary Immigration Judges

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

ACTION: Interim rule with request for comments.

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SUMMARY: This rule amends the Executive Office for Immigration Review 
(EOIR) regulations relating to the organization of the Office of the 
Chief Immigration Judge (OCIJ) to allow the Director of EOIR to 
designate or select, with the approval of the Attorney General, 
temporary immigration judges.

DATES: Effective Date: This rule is effective July 11, 2014. Written 
comments must be submitted on or before September 9, 2014. Comments 
received by mail will be considered timely if they are postmarked on or 
before that date. The electronic Federal Docket Management System 
(FDMS) will accept comments until midnight eastern time at the end of 
that day.

ADDRESSES: Please submit written comments to Jeff Rosenblum, General 
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2600, Falls Church, Virginia 20530. To ensure proper handling, 
please reference RIN No. 1125-AA77 or EOIR docket No. 177 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: Jeff Rosenblum, General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, Virginia 20530; telephone (703) 305-0470 (not a 
toll-free call).

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 
www.regulations.gov. Such information includes personally identifiable 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personally identifiable 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 ``PERSONALLY 
IDENTIFIABLE INFORMATION'' in the first paragraph of your comment. You 
must also locate all the personally identifiable 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 must also 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.
    Personally identifiable information identified and located as set 
forth above will be placed in the agency's public docket file, but not 
posted online. Confidential business information identified and located 
as set forth above will not be placed in the public docket file. If you 
wish to inspect the agency's public docket file in person by 
appointment, please see the ``For Further Information Contact'' 
paragraph.

II. Background

    The Executive Office for Immigration Review (EOIR) administers the 
nation's immigration court system. EOIR primarily decides whether 
foreign-born individuals who are charged by the Department of Homeland 
Security (DHS) with violating immigration law pursuant to the 
Immigration and Nationality Act (INA) should be ordered removed from 
the United States, or should be granted relief or protection from 
removal and be permitted to remain in the United States.\1\ EOIR is 
also responsible for conducting other immigration-related 
adjudications, including hearings regarding custody or bond 
determinations made by DHS.
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    \1\ Generally, cases commence before an immigration judge when 
DHS files a charging document against an alien with the immigration 
court. See 8 CFR 1003.14(a).
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    To make these critical determinations, EOIR's Office of the Chief 
Immigration Judge (OCIJ) has approximately 250 immigration judges who 
conduct administrative court proceedings, in 59 immigration courts 
nationwide. EOIR's appellate component, the Board of Immigration 
Appeals (Board), primarily decides appeals of immigration judge 
decisions. The Board is the highest administrative tribunal for 
interpreting and applying U.S. immigration law. EOIR is a component of 
the Department of Justice (DOJ or Department).
    The immigration judges are attorneys appointed by the Attorney 
General as administrative judges qualified to conduct the cases 
assigned to them. They are subject to the supervision of the Attorney 
General in performing their prescribed duties, but, subject to the 
applicable governing standards, exercise independent judgment and 
discretion in considering and determining the cases before them. See 
INA sec. 101(b)(4) (8 U.S.C. 1101(b)(4)); 8 CFR 1003.10(b), (d). 
Decisions of the immigration judges are subject to review by the Board 
pursuant to 8 CFR 1003.1(a)(1) and (d)(1); in turn, the Board's 
decisions can be reviewed by the Attorney General, as provided in 8 CFR 
1003.1(g) and (h). Decisions of the Board and the Attorney General are 
subject to judicial review.

III. Proposal for Designation of Temporary Immigration Judges

    EOIR's mission is to adjudicate immigration cases by fairly, 
expeditiously, and uniformly interpreting and administering the 
Nation's immigration laws. In order to more efficiently accomplish the 
agency's commitment to promptly

[[Page 39954]]

decide the large volume of immigration cases, this rule amends the 
agency's regulations relating to the organization of OCIJ to allow the 
Director of EOIR to designate or select, with the approval of the 
Attorney General, one or more temporary immigration judges.
    EOIR is currently managing the largest caseload the immigration 
court system has ever seen. Due to attrition in the immigration judge 
corps and continuing budgetary restrictions, the Department believes 
that the designation of temporary immigration judges will provide an 
appropriate means of flexibility in responding to the increased 
challenges facing the immigration courts.
    An issue of continuing concern to the Department is EOIR's pending 
caseload in the immigration courts. At the end of FY 2013, there were 
350,330 cases pending at the immigration courts, marking an increase of 
22,901 cases pending above those at the end of FY 2012. See 2013 EOIR 
Stat. Y.B. W1.\2\ Of those, 38 percent were received prior to FY 2012. 
Id. As DHS continues its obligation to enforce the immigration laws of 
the United States, EOIR anticipates that its caseload will continue to 
increase, especially as DHS continues to use new technologies to 
increase efficiencies in the identification, apprehension, detention, 
and removal of aliens.
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    \2\ EOIR's FY2013 Statistical Year Book, prepared by EOIR's 
Office of Planning and Technology, is available at http://www.justice.gov/eoir/statspub/fy13syb.pdf.
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    Even without a continually increasing caseload, the dockets 
currently handled by the immigration judge corps are substantial. At 
the end of FY 2013, 350,330 pending cases were being handled by 
approximately 250 immigration judges, averaging 1,401 matters per 
immigration judge.\3\ By comparison, a recent study indicated that 
judges for the Board of Veterans' Appeals hear approximately 700 cases 
each year per judge and Social Security Administration administrative 
law judges decide approximately 500 cases each year per judge.\4\ There 
is a particular need to assist EOIR's larger courts, namely New York, 
NY; Los Angeles, CA; San Antonio, TX; San Francisco, CA; Pearsall, TX, 
which received 43 percent of all asylum applications (15,661) filed 
with the immigration courts in FY 2013. See 2013 EOIR Stat. Y.B. J3. 
EOIR must be poised to handle not only its routine workload, but also 
emergency or special situations, such as a sudden influx of asylum 
seekers.
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    \3\ This average does not take into account attrition in the 
immigration judge corps during FY 2013 or the difference in docket 
size geographically or by docket type (i.e., detained, non-detained, 
juvenile, and institutional hearing program).
    \4\ See American Bar Association Commission on Immigration, 
Reforming the Immigration System: Proposals to Promote Independence, 
Fairness, Efficiency, and Professionalism in Adjudication, at 2-37 
(February 2010).
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    In response to increases in immigration court workload and DOJ 
priorities, EOIR undertook a major initiative that resulted in the 
hiring of more than 50 new immigration judges during FY 2010 and 
through the second quarter of FY 2011. However, as of June 2014, 
attrition and budgetary restrictions resulted in a net increase of only 
13 immigration judges since FY 2009. The Department believes that the 
designation of temporary immigration judges will provide an appropriate 
means of responding to the increasing pending caseload in the 
immigration courts. While the designation of temporary immigration 
judges is not a substitute for the ongoing need to hire additional 
permanent immigration judges, designation of temporary immigration 
judges should improve EOIR's ability to adjudicate cases in a timely 
manner.
    OCIJ provides overall program direction, articulates policies and 
procedures, and establishes priorities for the immigration courts. The 
Chief Immigration Judge will continue to monitor caseload volume, 
trends, and geographic concentration and will adjust resources 
accordingly. Where appropriate, temporary immigration judges could be 
assigned to a discrete category of cases, such as motions and bond 
proceedings, freeing up permanent immigration judge time to adjudicate 
more complicated removal cases and increase the number of matters EOIR 
could bring to a final disposition. From FY 2009 to FY 2013, 
approximately 70 percent of the cases before the immigration courts 
were completed without the alien applying for relief from removal. 
Bond-related matters, however, have increased by 12 percent from FY 
2009 (51,584) to FY 2013 (57,699), along with a 104 percent increase in 
motions for change of venue and a 161 percent increase in case 
transfers over the same period. See 2013 EOIR Stat. Y.B. 11, A7.
    However, to ensure the flexibility necessary to address record 
caseloads and to handle exigent circumstances, this rule would not 
limit the assignment of temporary immigration judges in the type of 
cases they may adjudicate, except as otherwise provided by the Chief 
Immigration Judge, per the authority granted in 8 CFR 1003.9 and in 
this interim rule. As discussed below, the Chief Immigration Judge will 
be responsible for ensuring that each temporary immigration judge has 
the necessary training, experience, and skills to properly adjudicate 
the matters assigned.
    This rule amends EOIR's regulations at 8 CFR 1003.10 by adding a 
new paragraph (e). The amendments will allow the Director of EOIR to 
designate or select, with the approval of the Attorney General, former 
Board members, former immigration judges, administrative law judges 
employed within or retired from EOIR, and administrative law judges 
from other Executive Branch agencies to act as temporary immigration 
judges for renewable six-month terms. Administrative law judges from 
other agencies must have the consent of their agencies to be designated 
as temporary immigration judges. In addition, the Director of EOIR will 
be able to designate, with the approval of the Attorney General, 
attorneys who have at least 10 years of legal experience in the field 
of immigration law and are currently employed by the Department of 
Justice to act as temporary immigration judges for renewable six-month 
terms. The 10 years of experience must be gained after admission to the 
bar and may be gained through employment by the federal, state, or 
local government, the private sector, universities, non-governmental 
organizations, or a combination of such experience. In order to allow 
greater flexibility, the rule does not specify particular titles or job 
descriptions for Department attorneys with 10 years of immigration law 
experience. Accordingly, attorneys at the Department with 10 years of 
immigration law experience may qualify for designation as temporary 
immigration judges.
    In evaluating candidates for designation as a temporary immigration 
judge, EOIR anticipates that it will generally employ the same 
selection criteria and process it applies with respect to the hiring of 
permanent immigration judges. Characteristics that would qualify a 
candidate for designation as a temporary immigration judge include the 
ability to demonstrate the appropriate temperament to serve as a judge; 
knowledge of immigration laws and procedures; substantial litigation 
experience, preferably in a high-volume context; experience handling 
complex legal issues; experience conducting administrative hearings; 
and knowledge of practices and procedures. Designation of such 
individuals will help ensure efficiency in the adjudication of removal 
cases and preserve the integrity of the overall process, without 
sacrificing

[[Page 39955]]

fairness and due process. As is the case for all immigration judges, 
EOIR provides a process for the filing and consideration of complaints.

IV. Training for Temporary Immigration Judges

    Among EOIR's 2008-2013 strategic goals and objectives was the goal 
to provide for a workforce that is skilled, diverse, and committed to 
excellence, and that exhibits the highest standards of integrity. It is 
important that those who appear before EOIR's tribunals have trust in 
the agency and in the work that it does. EOIR is committed to providing 
training to new and experienced immigration judges, including temporary 
immigration judges.
    EOIR will provide the training necessary for temporary immigration 
judges to perform the assigned duties. The Chief Immigration Judge may 
choose to specify particular types of matters for which each temporary 
immigration judge will be assigned, consistent with the individual's 
training and experience. Each judge will be supervised by the Assistant 
Chief Immigration Judge assigned to the local immigration court where 
the temporary immigration judge will be assigned. The Assistant Chief 
Immigration Judge will be available as an additional source of 
assistance and guidance, and will be responsible for conducting 
periodic reviews of the temporary immigration judge's performance and 
reporting his or her findings to the Chief Immigration Judge.
    EOIR also ensures that immigration judges receive continuing 
education. For instance, in addition to new immigration judge training, 
EOIR held mandatory Immigration Judge Legal Training Conferences in 
2009 and 2010 and Immigration Judge Legal Training Programs in 2011, 
2012, and 2013. This training covered many substantive immigration 
legal issues, including those relating to asylum, criminal matters, 
bond, adjustment of status, and a variety of other topics. The training 
also provided information on subjects ranging from immigration cases 
involving unaccompanied alien children and respondents with mental 
competency issues to immigration fraud and courtroom management. 
Immigration Judge Legal Training Programs were recorded and will be 
available to temporary immigration judges.
    OCIJ maintains an Immigration Judge Benchbook. The Benchbook 
includes scripts, introductory guides, checklists, worksheets, and 
sample orders as well as links to a number of immigration-related legal 
resources. OCIJ also maintains an Immigration Court Practice Manual, a 
comprehensive guide that sets forth uniform procedures, 
recommendations, and requirements for practice before the immigration 
courts. Additional resources for immigration judges are available 
through EOIR's virtual law library, which includes BIA decisions, 
circuit court decisions, regulations, and country-specific information.
    Given the many training options and resources available to 
immigration judges, EOIR will provide training as necessary for the 
performance of each temporary immigration judge's assigned duties.

V. Public Comments

    This rule is exempt from the usual requirements of prior notice and 
comment and a 30-day delay in effective date because, as an internal 
delegation of authority, it relates to a matter of agency organization, 
procedure, or practice. See 5 U.S.C. 553(b). The Department is 
nonetheless promulgating this rule as an interim rule with opportunity 
for post-promulgation comment. This will provide the public with an 
opportunity for comment before the Department issues a final rule on 
these matters.

VI. Regulatory Requirements

A. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), ``[w]henever an agency 
is required by section 553 of [the RFA], or any other law, to publish 
general notice of proposed rulemaking for any proposed rule . . . the 
agency shall prepare and make available for public comment an initial 
regulatory flexibility analysis.'' 8 U.S.C. 603(a). Such analysis is 
not required when a rule is exempt from notice and comment rulemaking 
under 5 U.S.C. 553(b). Because this is a rule of internal agency 
organization and therefore is exempt from notice and comment 
rulemaking, no RFA analysis under 5 U.S.C. 603 is required for this 
rule.

B. 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.

C. 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 (SBREFA), 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 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

D. Executive Order 12866 and Executive Order 13563 (Regulatory Planning 
and Review)

    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 the Office of Management and Budget 
has concurred in this determination. Nevertheless, the Department 
certifies that this regulation has been drafted in accordance with the 
principles of Executive Order 12866, section 1(b), and Executive Order 
13563. Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits, including consideration of potential economic, 
environmental, public health, and safety effects, distributive impacts, 
and equity. The benefits of this interim rule include providing the 
Department with an appropriate means of responding to current and 
future increases or surges in the number, size, or type of immigration 
court matters. The public will benefit from the designation of 
temporary immigration judges because such designations will help EOIR 
better accomplish its mission of adjudicating cases in a timely manner. 
Temporary immigration judges will receive appropriate training and 
supervision for this role. This rule will not have a substantial 
economic impact on Department functions to the extent that individuals 
who may act as temporary immigration judges are already employed by the 
Department. The Department does not foresee any burdens to the public 
or the Department.

E. 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

[[Page 39956]]

distribution of power and responsibilities among the various levels of 
government. Therefore, in accordance with section 6 of Executive Order 
13132, the Department has determined that this rule does not have 
sufficient federalism implications to warrant preparation of a 
federalism summary impact statement.

F. 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.

G. 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.

H. Congressional Review Act

    This action pertains to agency management and personnel and, 
accordingly, is not a ``rule'' as that term is used by the 
Congressional Review Act (CRA) (Subtitle E of the Small Business 
Regulatory Enforcement Fairness Act (SBREFA)), 5 U.S.C. 804(3). 
Therefore, the reports to Congress and the Government Accountability 
Office specified by 5 U.S.C. 801 are not required.

List of Subjects in 8 CFR Part 1003

    Administrative practice and procedure, Aliens, Immigration, Legal 
services, Organization and functions (Government agencies).
    Accordingly, for the reasons stated in the preamble, the Attorney 
General amends part 1003 of chapter V of title 8 of the Code of Federal 
Regulations as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
1. The authority citation for part 1003 continues 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. Revise Sec.  1003.10 by adding a new paragraph (e), to read as 
follows:


Sec.  1003.10  Immigration judges.

* * * * *
    (e) Temporary immigration judges. (1) Designation. The Director is 
authorized to designate or select temporary immigration judges as 
provided in this paragraph (e).
    (i) The Director may designate or select, with the approval of the 
Attorney General, former Board members, former immigration judges, 
administrative law judges employed within or retired from EOIR, and 
administrative law judges from other Executive Branch agencies to serve 
as temporary immigration judges for renewable terms not to exceed six 
months. Administrative law judges from other Executive Branch agencies 
must have the consent of their agencies to be designated as temporary 
immigration judges.
    (ii) In addition, the Director may designate, with the approval of 
the Attorney General, Department of Justice attorneys with at least 10 
years of legal experience in the field of immigration law to serve as 
temporary immigration judges for renewable terms not to exceed six 
months.
    (2) Authority. A temporary immigration judge shall have the 
authority of an immigration judge to adjudicate assigned cases and 
administer immigration court matters, as provided in the immigration 
laws and regulations, subject to paragraph (e)(3) of this section.
    (3) Assignment of temporary immigration judges. The Chief 
Immigration Judge is responsible for the overall oversight and 
management of the utilization of temporary immigration judges and for 
evaluating the results of the process. The Chief Immigration Judge 
shall ensure that each temporary immigration judge has received a 
suitable level of training to enable the temporary immigration judge to 
carry out the duties assigned.

    Dated: July 8, 2014.
James M. Cole,
Deputy Attorney General.
[FR Doc. 2014-16279 Filed 7-10-14; 8:45 am]
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