DOCUMENT NUMBER: FR 54-94

FEDERAL REGISTER CITE:     59 FR 47231

PUBLICATION DATE:     September 15, 1994

BILLING CODE 4410-01-M

DEPARTMENT OF JUSTICE

8 CFR Part 3

[AG Order No. 1916-94]

Executive Office for Immigration Review; Board of Immigration

Appeals; Expansion of the Board

AGENCY: Department of Justice.

ACTION: Final rule.

SUMMARY: This final rule expands the Board of Immigration Appeals to nine permanent members, including eight Board Members and a Chairman. It provides for the designation of three-member panels to adjudicate cases and stay requests. It also provides for a quorum of a majority of the permanent Board for en banc adjudication, and a quorum of a majority of the panel members for panel adjudications. The permanent Board may, by majority vote or at the direction of the Chairman, consider or reconsider en banc any case that was previously decided by a panel. The rule also retains the authority of the Director of the Executive Office for Immigration Review to designate Immigration Judges as temporary additional Board Members.

EFFECTIVE DATE: This final rule is effective September 15, 1994.

FOR FURTHER INFORMATION CONTACT: Gerald S. Hurwitz, Counsel to the Director, Executive Office for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041, telephone: (703) 305-0470.

SUPPLEMENTARY INFORMATION: The final rule provides for an expansion of the Board of Immigration Appeals to a nine-member permanent Board. This is necessary because of the Board's greatly increased caseload, which has more than quadrupled over the past decade. To maintain an effective, efficient system of appellate adjudication, it has become necessary to increase the number of Board Members. The most efficient utilization of the Board is through increased use of the panel system, which has been in effect since 1988. This will ensu re effective, efficient adjudications while providing for en banc review in appropriate cases.

This final rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b). The Attorney General has determined that this rule is not a significant regulatory action under Executive Order 12866, section 3(f), and accordingly this rule has not been reviewed by the Office of Management and Budget.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this final rule and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This final 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 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Compliance with 5 U.S.C. 553 as to notice of proposed rule making and delayed effective date is not necessary because this rule relates to agency organization and management.

List of Subjects in 8 CFR Part 3

Administrative practice and procedure, Aliens.

For the reasons set forth in the preamble, 8 CFR part 3 is amended as follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

Subpart A--Board of Immigration Appeals

1. The authority citation for part 3 continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR, 1949-1953 Comp., p. 1002.

2. Section 3.1, paragraph (a)(1), is revised to read as follows:

Sec. 3.1 General authorities.

(a)(1) Organization . There shall be in the Department of Justice a Board of Immigration Appeals, subject to the general supervision of the Director, Executive Office for Immigration Review. The Board shall consist of a Chairman and eight other members. The Board Members shall exercise their independent judgment and discretion in the cases coming before the Board. A
majority of the permanent Board Members shall constitute a quorum of the Board sitting en banc. A vacancy, or the absence or unavailability of a Board Member, shall not impair the right of the remaining members to exercise all the powers of the Board. The Director may in his discretion designate Immigration Judges to act as temporary, additional Board Members for whatever time the Director deems necessary. The Chairman may divide the Board into three-member panels and designate a presiding member of each p anel. The Chairman may from time to time make changes in the composition of such panels and of presiding members. Each panel shall be empowered to review cases by majority vote. A majority of the number of Board Members authorized to constitute a panel shall constitute a quorum for such panel. Each panel may exercise the appropriate authority of the Board as set out in part 3 that is necessary for the adjudication of cases before it. The permanent Board may, by majority vote on its own motion or by direct ion of the Chairman, consider any case en banc or reconsider en banc any case decided by a panel. By majority vote of the permanent Board, decisions of the Board shall be designated to serve as precedents pursuant to paragraph (g) of this section. There shall also be attached to the Board such number of attorneys and other employees as the Deputy Attorney General, upon recommendation of the Director, shall from time to time direct.

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September 6, 1994 _________________ Dated:

Signed _______________________________ Janet Reno, Attorney General.