[Federal Register Volume 90, Number 70 (Monday, April 14, 2025)]
[Rules and Regulations]
[Pages 15525-15528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-06294]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 90, No. 70 / Monday, April 14, 2025 / Rules
and Regulations
[[Page 15525]]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1003
[EOIR 25-AB34; AG Order No. 6224-2025]
RIN 1125-AB34
Reducing the Size of the Board of Immigration Appeals
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Interim final rule with request for comments.
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SUMMARY: This interim final rule (``IFR'') amends the Department of
Justice (``Department'') regulations relating to the organization of
the Board of Immigration Appeals (``Board'' or ``BIA'') by reducing the
Board to 15 members.
DATES:
Effective date: This IFR is effective April 14, 2025.
Comments: Written comments must be submitted on or before May 14,
2025. 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.
ADDRESSES: If you wish to provide comments regarding this rulemaking,
you must submit comments, identified by the agency name and referencing
RIN 1125-AB34 or EOIR Docket No. 25-AB34, by one of the two methods
below.
Federal eRulemaking Portal: www.regulations.gov. Follow
the website instructions for submitting comments.
Mail: Paper comments that duplicate an electronic
submission are unnecessary. If you wish to submit a paper comment in
lieu of electronic submission, please direct the mail/shipment to:
Stephanie Gorman, Acting Assistant Director, Office of Policy,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2500, Falls Church, VA 22041. To ensure proper handling, please
reference the agency name and RIN 1125-AB34 or EOIR Docket No. 25-AB34
on your correspondence. Mailed items must be postmarked or otherwise
indicate a shipping date on or before the submission deadline.
FOR FURTHER INFORMATION CONTACT: Stephanie Gorman, Acting Assistant
Director, Office of Policy, Executive Office for Immigration Review,
5107 Leesburg Pike, Suite 2500, Falls Church, VA 22041, telephone (703)
305-0289.
SUPPLEMENTARY INFORMATION:
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-AB34 or EOIR Docket No. 25-AB34 for this rulemaking. Please
note that all properly received comments are considered part of the
public record and generally may be 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 it determines 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 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 the agency. Please see the For Further Information
Contact paragraph above for agency contact information.
II. Background
The Executive Office for Immigration Review (``EOIR'') administers
the Nation's immigration court system. Generally, cases commence before
an immigration judge after the Department of Homeland Security
(``DHS'') files a charging document with the immigration court. See 8
CFR 1003.14(a). EOIR primarily decides whether aliens who are charged
by DHS with violating immigration law pursuant to the Immigration and
Nationality Act (``INA'' or ``Act''), codified at 8 U.S.C. 1101-1537,
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.
Many--but not all--decisions of the immigration judges are subject
to review by EOIR's appellate body, the Board, which at full capacity
under the current regulations comprises 28 permanent Board members. See
8 CFR 1003.1(a)(1), (b). The Board is the highest administrative
tribunal for interpreting and applying Federal immigration law.
[[Page 15526]]
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. INA 242, 8 U.S.C.
1252. The Board issues both precedent and non-precedent decisions, and
a decision may be designated as a precedent by a majority vote of
permanent Board members. See 8 CFR 1003.1(g)(3).
III. Reduction of Number of Board Members
The size of the BIA was last addressed through a rule promulgated
in April 2024. See Expanding the Size of the Board of Immigration
Appeals, 89 FR 22630 (Apr. 2, 2024). At that time, the Department
issued a final rule not only addressing comments received in response
to the Department's 2020 IFR that expanded the size of the Board from
21 to 23 members, Expanding the Size of the Board of Immigration
Appeals, 85 FR 18105 (Apr. 1, 2020), but also adding five additional
Board member positions, thereby expanding the size of the Board to 28
permanent members. 89 FR 22630.
The number of permanent Board members has fluctuated over time
based on changing circumstances. Throughout the history of the BIA, the
number of authorized Board member positions has ranged from as few as 5
members to as many as the current 28 members. See Board of Immigration
Appeals; Immigration Review Function; Editorial Amendments, 48 FR 8038,
8039 (Feb. 25, 1983). At present, the BIA has 28 authorized Board
member positions, the largest in its 85-year history. Over the past 30
years, the primary justification for increasing the number of Board
members has been the rising EOIR caseload.\1\ See Expansion of the
Board of Immigration Appeals, 60 FR 29469, 29469 (June 5, 1995); Board
Members of the Board of Immigration Appeals, 61 FR 59305, 59305 (Nov.
22, 1996); 23 Board of Immigration Appeals Members, 66 FR 47379, 47379
(Sept. 12, 2001); Board of Immigration Appeals: Composition of Board
and Temporary Board Members, 71 FR 70855, 70855-56 (Dec. 7, 2006),
finalized without change by Board of Immigration Appeals: Composition
of Board and Temporary Board Members, 73 FR 33875 (June 16, 2008);
Expanding the Size of the Board of Immigration Appeals, 80 FR 31461,
31462 (June 3, 2015); Expanding the Size of the Board of Immigration
Appeals, 83 FR 8321, 8321-22 (Feb. 27, 2018); 85 FR 18106; 89 FR 22631.
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\1\ Although most changes to the size of the Board involved
increasing the number of permanent Board members, the number of
authorized permanent Board members was reduced from 21 to 11 in
2002. Board of Immigration Appeals: Procedural Reforms to Improve
Case Management, 67 FR 54878 (Aug. 26, 2002).
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However, increasing the size of the Board has not necessarily
equated to a corresponding increase in the number of cases adjudicated
or a reduction in the pending caseload. Although many factors may have
contributed to this outcome--including organizational and
administrative challenges--the data demonstrate that increasing the
Board's size has not brought about the hoped-for increases in
productivity envisioned by prior expansions. Furthermore, increasing
the Board beyond a certain size has added structural inefficiencies
that further undermine the Board's ability to effectively adjudicate
cases.
The Department notes that several commenters on the 2020 IFR
expanding the Board raised similar concerns--i.e., that expanding the
Board's size would do little to address its pending caseload. See 89 FR
22632 (2024 final rule responding to comments on the 2020 IFR).
Although the Department further expanded the size of the Board in 2024
notwithstanding those comments, id., the Department has now
reconsidered its view and agrees with the commenters who pointed to
broader issues affecting the Board's caseload that expanding the Board
would not abate.
While the number of Board members authorized by regulation has
increased by 13 since 2015, the number of cases completed annually by
Board members has exceeded the total number completed in 2015 only
three years since then, and the current projection for Fiscal Year 2025
is that completions will be less than in Fiscal Year 2015. See EOIR
Workload and Adjudication Statistics, All Appeals Filed, Completed, and
Pending (Jan. 16, 2025), https://www.justice.gov/eoir/media/1344986/dl?inline. In short, the data available do not conclusively demonstrate
that the increased Board size will lead to increased case
adjudications.
Importantly, the expansions have also diminished the Board's
ability to meet other critical aspects of its mission. Several
commenters on the 2020 IFR expanding the Board also raised these
concerns, arguing that the expansion contradicted the Department's
stated priorities of maintaining ``administrability'' and ``coherent
direction.'' See 89 FR 22632 (2024 final rule responding to comments on
the 2020 IFR). The Department gave those concerns little weight in
2024, but it now recognizes the validity of such concerns and has given
them more weight. Accordingly, it now agrees that the Board's current
size is far too unwieldy to provide an appropriate level of
administrative oversight and coherent management. The Department has
now determined that 15 Board members, the number it had before the
start of the multiple waves of expansion over the past decade, is the
appropriate size for the Board.
The mission of EOIR is ``to adjudicate immigration cases by fairly,
expeditiously, and uniformly interpreting and administering the
Nation's immigration laws.'' EOIR, About the Office, https://www.justice.gov/eoir/about-office (last updated Jan. 22, 2025). While
the expeditious processing of cases is a cornerstone of EOIR's mission,
the Board plays an equally important role in fairly and uniformly
interpreting and administering immigration law. The Department now
realizes that the recent expansions of the Board did not appropriately
account for the impact that the size of the Board has on its ability to
meet these other important aspects of its mission.\2\ At this time, the
Department believes that the continued expansion of the Board has had
significant institutional costs, including effects on the cohesiveness
of the Board's decision-making process and the collegiality among Board
members, a loss of uniformity in its non-precedent decisions, increased
difficulty providing effective leadership, as well as an administrative
and supervisory strain on the Board's limited legal staff.
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\2\ Between 2015 and 2024, the Board added 13 permanent Board
member positions. See 80 FR 31461 (2015 IFR expanding Board from 15
to 17 members); 83 FR 8321 (2018 final rule expanding Board to 21
members); 85 FR 18105 (2020 IFR expanding Board to 23 members); 89
FR 22630 (2024 final rule expanding Board to 28 members).
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The substantial increase in the number of Board members over the
past 10 years has diminished the cohesiveness of the Board's decision-
making process, causing the process of issuing precedent decisions to
become more time-consuming and challenging. A key purpose of the Board
is to publish precedent decisions to provide clear guidance and promote
the uniform application of the immigration laws nationwide. See 8 CFR
1003.1(d)(1) (providing that ``the Board, through precedent decisions,
shall provide clear and uniform guidance to DHS, the immigration
judges, and the general public on the proper interpretation and
administration of the [INA] and its implementing regulations''). As the
number of Board members has increased, a greater number of votes has
been required to reach a majority of Board members to consider a case
en banc, as well as to designate a decision
[[Page 15527]]
as precedent. 8 CFR 1003.1(a)(5), (g)(3). The challenges presented by a
higher number of Board members are reflected in the overall decline in
the number of precedent decisions issued by the Board over the last 10
years. Even though the number of Board members has increased by 13
since 2015, the number of BIA precedent decisions issued has decreased
by half. In 2015, the Board issued 28 precedent decisions, as compared
to only 14 precedent decisions in 2024.
Furthermore, having an even number of Board members presents an
added challenge in issuing precedent decisions, which require approval
by a majority of the permanent Board members. See 8 CFR 1003.1(g)(3).
Thus, if the Board is evenly divided over whether a case should become
precedent, the decision cannot be issued as a precedent absent
direction from the Attorney General or a designee of the Attorney
General. Id. Further, given the numerous other responsibilities of the
Attorney General--and of any high-level official she would entrust as a
designee--relying on the Attorney General or a designee to direct
designation of a Board decision to be published as a precedent would be
impractical on a consistent basis. The Department believes that it is
important that the number of authorized positions be an odd number to
ensure the Board is not prevented from issuing a precedent decision by
an evenly divided Board.
In addition, the increasing number of Board members has resulted in
greater inconsistency in the Board's non-precedent decisions. Board
members exercise independent judgment and discretion in deciding the
cases that come before them. See 8 CFR 1003.1(d)(1)(ii). The Department
recognizes that there will be some level of inconsistency in
unpublished decisions, regardless of the size of the Board. However,
retaining a 28-member Board only increases the likelihood of such
inconsistency and adversely impacts the uniformity of its decisions.
Lastly, the increase in the number of Board members, particularly
in the last four years, has not been met with a proportionate increase
in the number of attorney advisors, paralegals, and administrative
staff, resulting in administrative and supervisory strain on the
Board's limited legal staff. Over the last four years, the Department
has prioritized immigration-judge and Board-member hiring without
prioritizing the hiring of necessary staff to support these positions.
At the Board, attorney advisors play a pivotal role in the adjudicatory
process, analyzing administrative records, providing guidance and
interpretation of immigration law, and preparing proposed decisions for
Board-member consideration. Without sufficient attorney advisors and
other support staff, the Board cannot efficiently adjudicate its
caseload, no matter how much it increases the number of permanent Board
members.
Furthermore, the Department believes that, when previously
assessing the expansion of the size of the Board from 23 to 28
permanent members, insufficient weight was given to the authority of
the Attorney General to appoint temporary Board members to address any
significant fluctuations in the Board's caseload or changes in case
processing priorities. See 8 CFR 1003.1(a)(4). The appointment of
temporary Board members provides a two-fold benefit. First, temporary
Board members are appointed for renewable six-month terms and have the
authority of a Board member to adjudicate assigned cases, but they do
not have the authority to vote on any matter decided by the Board en
banc, including whether a decision should be designated as precedent.
See 8 CFR 1003.1(a)(4) and (5), (g)(3). Thus, the appointment of
temporary Board members affords the Department significant flexibility
in addressing the Board's case adjudication priorities but does not
adversely impact the Board's en banc process.
Second, temporary Board-member appointments play an important role
in the long-term interests of EOIR, including through career
development and advancement for immigration judges and others serving
temporarily in Board-member positions.\3\
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\3\ The Attorney General may in her discretion appoint, among
others, EOIR immigration judges, administrative law judges, and
senior attorneys with at least 10 years of immigration experience to
serve as temporary Board members for renewable terms not to exceed
six months. 8 CFR 1003.1(a)(4). Serving as a temporary Board member
provides a unique opportunity to observe and participate in the
Board's adjudicatory process. While temporary Board members are non-
voting members of the en banc Board, they may serve as the author or
panel member for a precedent decision. These opportunities develop
valuable skills and provide experiences that help to strengthen and
improve the EOIR career staff.
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In short, a reduction in permanent Board-member positions will not
impede the Board's ability to address exigent circumstances because of
the availability of temporary Board members. Further, temporary Board
members can be appointed relatively quickly, whereas expanding the
Board requires a regulatory change; thus, temporary Board members also
provide added flexibility for shifts in the Board's workload.
In conclusion, the Department believes that reducing the number of
Board member positions to 15 would increase the consistency of Board
decisions and facilitate an efficient en banc process, thereby
improving the quantity and value of Board precedents. Fifteen is an odd
number, so it reduces the likelihood of tie votes en banc. It also
serves as an appropriate baseline by returning the Board to the number
of members it had prior to the wave of expansion that began in 2015. In
the Board's experience, particularly considering the period between
December 2006 and June 2015 when the Board stood at 15 members compared
to the subsequent decade when the Board expanded multiple times and
nearly doubled in size, a cohort of 15 members represents a realistic
capacity to adjudicate cases in a cohesive and efficient manner without
sacrificing quality decision-making or the ability to publish
precedents which can aid immigration judges, DHS, practitioners, and
aliens in addressing the large backlog of pending cases in immigration
courts.
It will also increase the Board's ability to more quickly,
effectively, and consistently issue precedent decisions on critical
questions involving the interpretation of immigration laws. The
Department believes that an increase in the number of precedent
decisions will be of greater assistance to immigration judges, DHS,
practitioners, and individuals in immigration proceedings and will
improve overall efficiency in the immigration court system. In
particular, the issuance of Board precedent decisions provides guidance
to immigration judges, which increases their efficiency by allowing
them to rely on such precedent rather than having to provide their own
independent legal analysis on some complex recurring issues. Similarly,
DHS officers are bound by Board precedent decisions. See 8 CFR
103.10(b). A reduction to 15 Board member positions will allow for the
most efficient use of appellate judge resources to adjudicate
administrative appeals on a timely basis, thereby balancing the Board's
role in interpretation and administration of the law with its overall
efficiency. Finally, the reduction in size of the Board, which
effectively began in December of 2024, has been implemented through a
combination of retirements, voluntary reassignments, the recent
government-wide deferred-resignation program, and a reduction-in-force
measure.
[[Page 15528]]
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 it relates to a
matter of agency organization, procedure, or practice. See 5 U.S.C.
553(b)(A). The Department nonetheless has chosen to promulgate this
rule as an IFR, providing the public with opportunity for post-
promulgation comment before the Department issues a final rule on this
matter.
V. Regulatory Requirements
A. Administrative Procedure Act
Notice and comment is unnecessary because this is a rule of agency
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''), a regulatory
flexibility analysis is not required when a rule is exempt from notice-
and-comment rulemaking under 5 U.S.C. 553(b) or other law. 5 U.S.C.
603(a), 604(a). 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 (adjusted for inflation), 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, codified at 2 U.S.C. 1501 et seq.
D. Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review)
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 the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including 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 issues regarding the size of the
Board. The public will benefit from the reduction of the number of
Board members because such reduction will help EOIR better accomplish
its mission of adjudicating cases in an efficient and timely manner.
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, the Attorney
General is amending 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. 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 15 members.* * *
* * * * *
Dated: April 4, 2025.
Pamela Bondi,
Attorney General.
[FR Doc. 2025-06294 Filed 4-11-25; 8:45 am]
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