[Federal Register Volume 85, Number 63 (Wednesday, April 1, 2020)]
[Rules and Regulations]
[Pages 18105-18107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06846]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
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  Federal Register / Vol. 85, No. 63 / Wednesday, April 1, 2020 / Rules 
and Regulations  

[[Page 18105]]



DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1003

[Docket No. EOIR 20-0010; AG Order No. 4663-2020]
RIN 1125-AB00


Expanding the Size of the Board of Immigration Appeals

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 Department of Justice regulations 
relating to the organization of the Board of Immigration Appeals 
(``Board'') by adding two Board member positions, thereby expanding the 
Board to 23 members.

DATES: 
    Effective date: April 1, 2020.
    Comment date: Written comments must be submitted on or before May 
1, 2020. Comments postmarked on or before that date will be considered 
timely. The electronic Federal Docket Management System will accept 
comments until midnight Eastern Time on that date.

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2616, Falls Church, Virginia 22041, telephone (703) 305-0289.

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
rule. The Department also invites comments that relate to the economic, 
environmental, or federalism effects that might result from this rule. 
Comments that will provide the most assistance to the Department in 
developing these procedures will reference a specific portion of the 
rule, explain the reason for any recommended change, and include data, 
information, or authority that supports such recommended change.
    Each submitted comment should include the agency name and reference 
RIN 1125-AB00 or EOIR Docket No. 20-0010 for this rulemaking. Please 
note that all properly received comments are considered part of the 
public record and made available for public inspection at 
www.regulations.gov. Such information includes personally identifying 
information (such as name, address, etc.) voluntarily submitted by the 
commenter. The Department may withhold from public viewing information 
provided in comments that they determine may impact the privacy of an 
individual or is offensive. For additional information, please read the 
Privacy Act notice that is available via the link in the footer of 
http://www.regulations.gov.
    If you want to submit personally 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 ``PERSONALLY IDENTIFYING 
INFORMATION'' in the first paragraph of your comment and identify what 
information you want redacted. The redacted personally identifying 
information will be placed in the agency's public docket file but not 
posted online.
    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 
www.regulations.gov. The redacted confidential business information 
will not be placed in the public docket file.
    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 section above for the agency counsel's contact 
information by topic in Section III, infra.

II. Background

    The Executive Office for Immigration Review (``EOIR'') administers 
the Nation's immigration court system. Generally, cases commence before 
an immigration judge when the Department of Homeland Security (``DHS'') 
files a charging document against an alien with the immigration court. 
See 8 CFR 1003.14(a). EOIR primarily decides whether foreign-born 
individuals who are charged by 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. EOIR's Office of the Chief Immigration Judge administers these 
adjudications in immigration courts nationwide.
    Decisions of the immigration judges are subject to review by EOIR's 
appellate body, the Board of Immigration Appeals, which currently 
comprises 21 permanent 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.

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 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 EOIR's commitment to promptly decide a large 
volume of cases, as well as review a large quantity of appeals of those 
cases, this rule amends the Department's regulations relating to the 
organization of the Board by adding two Board member positions, thereby 
expanding the Board from 21 to

[[Page 18106]]

23 members.\1\ This rule revises the third sentence of 8 CFR 
1003.1(a)(1), leaving the remainder of paragraph (a)(1) unchanged.
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    \1\ The Department expanded the number of Board members from 15 
to 17 on June 3, 2015, when it published in the Federal Register an 
interim rule amending 8 CFR 1003.1. See 80 FR 31461 (June 3, 2015). 
On February 27, 2018, the Department published a final rule further 
expanding the Board from 17 to 21 members. See 83 FR 8321 (Feb. 27, 
2018).
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    Expanding the number of Board members is necessary at this time for 
two primary reasons. First, EOIR is currently managing the largest 
caseload both the immigration court system and the Board have ever 
seen. At the end of FY 2019, there were 1,047,803 cases pending at the 
immigration courts, marking an increase of 251,725 cases pending above 
those at the end of FY 2018. See Pending Cases, available at https://www.justice.gov/eoir/file/1242166/download. Similarly, the pending 
caseload at the Board essentially doubled between FY 2018 and FY 2019, 
from 35,503 to 70,183. See All Appeals Filed, Completed, and Pending, 
available at https://www.justice.gov/eoir/page/file/1199201/download. 
Furthermore, DHS filed 504,848 new cases with EOIR in FY 2019, an 
increase of nearly 200,000 new cases filed over FY 2018. See New Cases 
and Total Completions-Historical, available at https://www.justice.gov/eoir/page/file/1238746/download. Each of the three previous fiscal 
years has set a new record for new case filings by DHS, see id., 
leading to an increase in the backlog of pending cases and an increased 
need for EOIR adjudicators to handle the new influx of cases, including 
at the Board. The efficient and timely adjudication of cases is the 
highest priority for EOIR, and EOIR requires additional resources to 
handle the increased caseload. Moreover, as the caseload in the 
immigration courts increases, the Department anticipates that the 
corresponding caseload at the Board will also expand, as it did 
significantly in FY 2019.
    Second, the Department has made concerted efforts in recent years 
to hire more immigration judges, resulting in a net increase of its 
immigration judge corps of 153 between the end of FY 2016 and the end 
of FY 2019. See Immigration Judge Hiring, available at https://www.justice.gov/eoir/file/1242156/download. Moreover, the Department 
continues to advertise for and select a new class of immigration judges 
almost every quarter of the fiscal year. The Department expects that, 
as these new immigration judges enter on duty, the number of decisions 
rendered nationwide by immigration judges will increase and, in turn, 
the number of appeals filed with the Board will also increase.
    The current caseload at the Board is burdensome and may become 
overwhelming in the future for a Board of 21 members. At the same time, 
if the Board becomes too large, it may have difficulty fulfilling its 
responsibility of providing coherent direction with respect to the 
immigration laws. In particular, because the Board currently issues 
precedent decisions only with the approval of a majority of permanent 
Board members, a substantial increase in the number of Board members 
may make the process of issuing such decisions more difficult.
    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 two positions should be added to the Board at this 
time. These changes are necessary to maintain an efficient system of 
appellate adjudication in light of the increasing caseload.

IV. 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 nonetheless 
has chosen to promulgate this rule as an interim rule, providing the 
public with opportunity for post-promulgation comment before the 
Department issues a final rule on these matters.

V. Regulatory Requirements

A. Administrative Procedure Act

    Prior notice and comment is unnecessary because this 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) or 
other law. 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.

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.

[[Page 18107]]

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.

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, part 1003 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 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. In Sec.  1003.1, revise 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 23 members. * * *
* * * * *

    Dated: March 25, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-06846 Filed 3-31-20; 8:45 am]
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