[Federal Register Volume 83, Number 39 (Tuesday, February 27, 2018)]
[Rules and Regulations]
[Pages 8321-8323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03980]



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 Rules and Regulations
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  Federal Register / Vol. 83, No. 39 / Tuesday, February 27, 2018 / 
Rules and Regulations  

[[Page 8321]]



DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1003

[Docket No. EOIR 183; A.G. Order No. 4119-2018]
RIN 1125-AA79


Expanding the Size of the Board of Immigration Appeals

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

ACTION: Final rule.

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SUMMARY: This final rule amends the Executive Office for Immigration 
Review (EOIR) regulations relating to the organization of the Board of 
Immigration Appeals (Board) by adding four additional Board member 
positions, thereby expanding the Board to 21 members.

DATES: This rule is effective February 27, 2018.

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Acting Chief of the 
Immigration Law Division, Office of Policy, Executive Office for 
Immigration Review, 5107 Leesburg Pike, Suite 1902, Falls Church, VA 
20530, telephone (703) 305-0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Current Interim Rule

    On June 3, 2015, the Department of Justice (Department) published 
an interim rule amending 8 CFR 1003.1 to increase the Board of 
Immigration Appeals (Board) from 15 to 17 members, with a request for 
comments. 80 FR 31461 (June 3, 2015). As explained in the interim rule, 
expanding the number of Board members is necessary to accomplish EOIR's 
commitment to promptly provide Board appellate review of timely filed 
immigration case appeals. The interim rule provided two primary reasons 
for increasing the number of Board members from 15 to 17. First, EOIR 
was managing the largest caseload the immigration court system had ever 
seen. Second, the Department was in the process of hiring a substantial 
number of additional immigration judges, which the Department expected 
would increase the number of appeals filed with the Board.
    The Department provided an opportunity for post-promulgation 
comment even though this was a rule of internal agency organization and 
therefore notice-and-comment rulemaking was not required. The 
Department received two comments by the deadline of August 3, 2015. For 
the reasons set forth below, the Department is finalizing the interim 
rule amending 8 CFR part 1003, and adding four additional Board members 
for a total of 21 Board members.

II. Background

    EOIR administers the Nation's immigration court system. Generally, 
cases commence before an immigration judge when the Department of 
Homeland Security (DHS) files with the immigration court a charging 
document against an alien. See 8 CFR 1003.14(a). EOIR primarily decides 
whether foreign nationals whom DHS charges with violating immigration 
law pursuant to the Immigration and Nationality Act are removable as 
charged and, if so, whether they should be ordered removed from the 
United States, or should be granted protection or relief from removal 
and be permitted to remain in the United States. EOIR's Office of the 
Chief Immigration Judge administers the adjudications of the 
immigration judges nationwide.
    Decisions of the immigration judges are subject to review by EOIR's 
appellate body, the Board, which is currently composed of 17 Board 
members. The Board is the highest administrative tribunal for 
interpreting and applying U.S. immigration law. 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 in the United States Courts of Appeals.

III. Expansion of Number of Board Members

    EOIR's mission is to adjudicate immigration cases by fairly, 
expeditiously, and uniformly interpreting and administering the 
Nation's immigration laws. This task includes the initial adjudication 
of aliens' cases in immigration courts nationwide, as well as appellate 
review by the Board when appeals are timely filed. In order to more 
efficiently accomplish the agency's commitment to promptly decide an 
increasing volume of cases, as well as to review appeals in those 
cases, this rule serves to finalize the interim rule, with the addition 
of four additional Board members.\1\ This rule adopts a revision to the 
third sentence of 8 CFR 1003.1(a)(1). The remainder of paragraph (a)(1) 
is unchanged.
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    \1\ The Department previously expanded the number of Board 
members--from 11 to 15 members--on December 7, 2006, when it 
published in the Federal Register an interim rule amending 8 CFR 
1003.1. 71 FR 70855 (Dec. 7, 2006). On June 16, 2008, the Department 
published a final rule adopting, without change, that interim rule. 
73 FR 33875 (June 16, 2008).
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    Expanding the number of Board members was necessary when the 
interim rule was published in 2015 because EOIR was experiencing an 
increased caseload. Since the interim rule's publication, EOIR's 
caseload has continued to grow; EOIR is currently managing the largest 
caseload the immigration court system has ever seen. At the end of FY 
2016, there were 518,545 total cases pending before the immigration 
courts, marking an increase of 58,988 cases pending above those at the 
end of FY 2015. See 2016 EOIR Statistics Yearbook W1.\2\ As of January 
1, 2018, there were 667,292 total cases pending before the immigration 
courts. This total increase included an increase in the number of 
pending cases of detained aliens. EOIR's highest priority is the 
efficient and timely adjudication of detained alien cases, and EOIR 
requires additional resources to handle the increased caseload.
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    \2\ EOIR's FY 2016 Statistics Yearbook, prepared by EOIR's 
Office of Planning, Analysis, and Statistics, is available at 
https://www.justice.gov/eoir/page/file/fysb16/download.
---------------------------------------------------------------------------

    The Department is taking steps to address the unprecedented pending 
caseload. The Department hired 64 additional immigration judges in FY 
2017 and continues to hire new immigration judges. The Department 
expects that, as these additional immigration judges enter on duty, the 
number of decisions rendered by the immigration judges nationwide will

[[Page 8322]]

increase, and the number of appeals filed with the Board will increase 
as a result. The Department is also taking a number of management steps 
to more efficiently address the pending caseload, which EOIR expects 
will result in an increase in immigration judge decisions and, in turn, 
an increase in the flow of appeals to the Board.\3\
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    \3\ Statement of James McHenry, Acting Director, Executive 
Office for Immigration Review, United States Department of Justice, 
Before the Subcommittee on Immigration and Border Security, 
Committee on the Judiciary, United States House of Representatives, 
November 1, 2017.
---------------------------------------------------------------------------

    Since January 2017, the Board has experienced a steady increase in 
appeals. For example, the number of appeals increased throughout FY 
2017, from 2,618 in October 2016 to 3,035 in September 2017. This 
caseload is burdensome and, given current trends, may become 
overwhelming were the Board to maintain 17 members.
    The interim rule modified the number of Board members to 17, and 
requested post-promulgation comment on the proposal to increase the 
number of Board members in light of the increased caseload. 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 increased caseload, the Department has 
determined that four additional members should be added to the Board. 
The Department acknowledges the potential impact of the expansion to 21 
members upon the Board's ability to provide coherent direction and to 
issue precedential decisions, which require approval of a majority of 
the Board, and will continue to consider means to improve the Board's 
operations over time. But the interim rule's logic--balancing 
efficiency with administrability--supports increasing the size of the 
Board in the final rule to 21. These changes will help support an 
efficient system of appellate adjudication in light of the increasing 
caseload.

IV. Public Comments

    The interim rule was 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 is a rule of management or 
personnel and relates to a matter of agency organization, procedure, or 
practice. See 5 U.S.C. 553(a), (b), (d). Nonetheless, when promulgating 
the interim rule, the Department provided an opportunity for post-
promulgation comment. The Department received two comments by the 
deadline, only one of which was responsive to the rule. The commenter 
stated that ``[e]xpanding the Board of Immigration Appeals (BIA) to 17 
members from 15 members is . . . a necessary action as the pending 
times for appeals has substantially increased as the docket of EOIR has 
expanded.''
    In response, the Department appreciates this expression of support. 
EOIR has steadily hired new immigration judges, and continues to hire 
new immigration judges, to adjudicate EOIR's historically large 
caseload. As the number of immigration judges increases, so does the 
number of decisions rendered by immigration judges. In turn, the number 
of appeals filed with the Board also increases. Increasing the number 
of Board members will assist EOIR in accomplishing its mission of 
adjudicating appeals in a timely manner.

V. Regulatory Requirements

A. Administrative Procedure Act

    As this rule is the finalization of an interim final rule, further 
request for comment is not required. Alternately, comment is 
unnecessary because this final rule is a rule of management or 
personnel as well as a rule of agency organization, procedure, or 
practice. See 5 U.S.C. 553(a)(2), (b)(A). For the same reasons, this 
rule is not subject to a 30-day delay in effective date. See 5 U.S.C. 
553(a)(2), (d).

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), ``[w]henever an agency 
is required by section 553 of [the Administrative Procedure Act], 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.'' 5 U.S.C. 
603(a); see 5 U.S.C. 604(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 or 604 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. Executive Orders 12866 (Regulatory Planning and Review), 13563 
(Improving Regulation and Regulatory Review), and 13771 (Reducing 
Regulation and Controlling Regulatory Costs)

    This rule is limited to agency organization, management, or 
personnel matters and is therefore not subject to review by the Office 
of Management and Budget pursuant to section 3(d)(3) of Executive Order 
12866, Regulatory Planning and Review. 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 rule include providing the Department 
with an appropriate means of responding to the increased number of 
appeals to the Board. The public will benefit from the expansion of the 
number of Board members because such expansion will help EOIR better 
accomplish its mission of adjudicating cases in an efficient and timely 
manner. Overall, the benefits provided by the Board's expansion 
outweigh the costs of employing additional federal employees. Finally, 
because this rule is one of internal organization, management, or 
personnel, it is not subject to the requirements of Executive Order 
13771.

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 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 the preparation of a federalism summary impact 
statement.

F. Executive Order 12988--Civil Justice Reform

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

[[Page 8323]]

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 final rule because there are no new or 
revised recordkeeping or reporting requirements.

H. Congressional Review Act

    This is not a major rule as defined by 5 U.S.C. 804(2). This action 
pertains to agency organization, management, and personnel and, 
accordingly, is not a ``rule'' as that term is used in 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 interim 
rule amending 8 CFR part 1003, which was published at 80 FR 31461 on 
June 3, 2015, is adopted as a final rule, with the following change:

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. Amend Sec.  1003.1 by revising the third sentence of paragraph 
(a)(1) to read as follows:


Sec.  1003.1  Organization, jurisdiction, and powers of the Board of 
Immigration Appeals.

    (a)(1) * * * The Board shall consist of 21 members. * * *
* * * * *

    Dated: February 20, 2018.
Jefferson B. Sessions III,
Attorney General.
[FR Doc. 2018-03980 Filed 2-26-18; 8:45 am]
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