* * * * *

(i)     * * * Any motion for reconsideration or reopening of a decision issued by a single Board member will be referred to the screening panel for disposition by a single Board member, unless the screening panel member determines, in the exercise of judgment, that the motion for reconsideration or reopening should be assigned to a three-member panel under the standards of § 3.1(e)(6). * * *

* * * * *

    4. In § 3.3, paragraphs (a) and (c) are revised, paragraph (b) is amended by adding a new sentence at the end thereof, and paragraph (f) is added, to read as follows:

§ 3.3 Notice of appeal .

    (a) Filing --(1) Appeal from decision of an immigration judge . A party affected by a decision of an immigration judge which may be appealed to the Board under this chapter shall be given notice of the opportunity for filing an appeal. An appeal from a decision of an immigration judge shall be taken by filing a Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26) directly with the Board, within the time specified in § 3.38. The appealing parties are only those parties who are covered by the decision of an immigration judge and who are specifically n amed on the Notice of Appeal. The appeal must reflect proof of service of a copy of the appeal and all attachments on the opposing party. An appeal is not properly filed unless it is received at the Board, along with all required documents, fees or fee waiver requests, and proof of service, within the time specified in the governing sections of this chapter. A Notice of Appeal may not be filed by any party who has waived appeal pursuant to § 3.39.

    (2) Appeal from decision of a Service officer . A party affected by a decision of a Service officer that may be appealed to the Board under this chapter shall be given notice of the opportunity to file an appeal. An appeal from a decision of a Service officer shall be taken by filing a Notice of Appeal to the Board of Immigration Appeals from a Decision of an INS Officer (Form EOIR-29) directly with the office of the Service having administrative control over the record of proceeding within 30 days of the service of the decision being appealed. An appe al is not properly filed until it is received at the appropriate office of the Service, together with all required documents, and the fee provisions of § 3.8 are satisfied.

    (3) General requirements for all appeals . The appeal must be accompanied by a check, money order, or fee waiver request in satisfaction of the fee requirements of § 3.8. If the respondent or applicant is represented, a Notice of Entry of Appearance as Attorney or Representative Before the Board (Form EOIR-27) must be filed with the Notice of Appeal. The appeal and all attachments must be in English or accompanied by a certified English translation.

    (b) * * * An appellant who asserts that the appeal may warrant review by a three-member panel under the standards of § 3.1(e)(6) may identify in the Notice of Appeal the specific factual or legal basis for that contention.

* * * * *

    (c) Briefs --(1) Appeal from decision of an immigration judge . Briefs in support of or in opposition to an appeal from a decision of an immigration judge shall be filed directly with the Board. In those cases that are transcribed, the briefing schedule shall be set by the Board after the transcript is available. In cases involving aliens in custody, the parties shall be provided 21 days in which to file simultaneous briefs unless a shorter period is specified by the Board, and reply briefs shall be permitted only by leave of the Board. In cases involving aliens who a re not in custody, the appellant shall be provided 21 days in which to file a brief, unless a shorter period is specified by the Board. The appellee shall have the same period of time in which to file a reply brief that was initially granted to the appellant to file his or her brief. The time to file a reply brief commences from the date upon which the appellant's brief was due, as originally set or extended by the Board. The Board, upon written motion, may extend the period for filing a brief or a reply br ief for up to 90 days for good cause shown. In its discretion, the Board may consider a brief that has been filed out of time. All briefs, filings, and motions filed in conjunction with an appeal shall include proof of service on the opposing party.

    (2) Appeal from decision of a Service officer . Briefs in support of or in opposition to an appeal from a decision of a Service officer shall be filed directly with the office of the Service having administrative control over the file. The alien and the Service shall be provided 21 days in which to file a brief, unless a shorter period is specified by the Service officer from whose decision the

appeal is taken, and reply briefs shall be permitted only by leave of the Board. Upon written request of the alien, the Service officer from whose decision the appeal is taken or the Board may extend the period for filing a brief for good cause shown. The Board may authorize the filing of briefs directly with the Board. In its discretion, the Board may consider a brief that has been filed out of time. All briefs and other documents filed in conjunction with an appeal, unless filed by an alien directly with a Service office, shall include proof of service on the opposing party.

* * * * *

    (f) Application on effective date . All cases and motions pending on September 25, 2002, shall be adjudicated according to the rules in effect on or after that date, except that § 3.1(d)(3)(i) shall not apply to appeals filed before September 25, 2002. A party to an appeal or motion pending on August 26, 2002, may, until September 25, 2002, or the expiration of any briefing schedule set by the Board, whichever is later, submit a brief or statement limited to explaining why the appeal or motion does or does not meet the criteria for three-me mber review under § 3.1(e)(6).

* * * * *

    5. In § 3.5, paragraph (a) is revised to read as follows:

§ 3.5 Forwarding of record on appeal.

(a)     Appeal from decision of an immigration judge . If an appeal is taken from a decision of an immigration judge, the record of proceeding shall be forwarded to the Board upon the request or the order of the Board. Where transcription of an oral decision is required, the immigration judge shall review the transcript and approve the decision within 14 days of receipt, or within 7 days after the immigration judge returns to his or her duty station if the immigration judge was on leave or detailed to another location. The Chairman and the Chief Immigration J udge shall determine the most effective and expeditious way to transcribe proceedings before the immigration judges, and take such steps as necessary to reduce the time required to produce transcripts of those proceedings and improve their quality.

* * * * *

August 19, 2002 ___________________ Dated:

Signed _____________________________ John Ashcroft, Attorney General

FOOTNOTES

1/     In this SUPPLEMENTARY INFORMATION, the Department uses the term “removal,” and appropriate variations, to encompass all forms of proceedings before the Board. Similarly, the Department refers to all aliens in proceedings as “respondents,” whether they would be respondents or applicants. The use of these simplified terms is for the ease of the reader and should not be construed to imply any limitations on the scope of the final rule as it applies to matters within the jurisdiction of the Board.

2/     In recognition of the differences between appeals from the decision of an immigration judge and appeals from decisions by a district director or other Service official, this rule retains the de novo standard of review for appeals in the latter case, as discussed below.

3/     The Board was created by the Attorney General in 1940, after a transfer of functions from the Department of Labor. Reorg. Plan V (May 22, 1940); 3 CFR Comp. 1940, Supp. tit.3, 336. The Board is not a statutory body; it was created wholly by the Attorney General from the functions transferred. A.G. Order 3888, 5 FR 2454 (July 1, 1940); see Matter of L-, 1 I&N Dec. 1 (BIA; A.G. 1940).---------------

4/     The Board has expressly acknowledged, for example, that the Attorney General's determination of a legal issue in interpreting the Act is binding on the Board and the immigration judges, even if that determination is reflected in the SUPPLEMENTARY INFORMATION to a rule rather than in the text of a rule or in an Attorney General or OLC Opinion. See Matter of A-A-, 20 I&N Dec. 492, 502 (BIA 1992): `In the supplementary information published with the regulation, the Attorney General made clear that “under the p revailing intrepretation, the phrase “shall apply to admissions” as used in section 511(b) of the [1990 Act] refers to all applications for relief pursuant to section 212(c) of the Act submitted after November 29, 1990, whether at a port of entry or in subsequent proceedings before a district director or Immigration Judge.” 56 FR 50,033-34 (1991) (SUPPLEMENTARY INFORMATION). The Attorney General has thereby determined that the statutory bar to section 212(c) relief shall apply only to those applications sub mitted after November 29, 1990. We are therefore bound by his determination in this regard.”

5/     In any case where the Board believes that a particular regulation may conflict with the language of the Act, the Board can proceed as it did in Matter of Ponce de Leon by certifying the case to the Attorney General for consideration. In that case, the Attorney General ultimately dismissed the certification in light of an intervening amendment to the regulation at issue, 8 CFR 212.3(f)(2). See Ponce de Leon, 21 I&N Dec. at 184 (A.G. 1997); 61 FR 59824 (Nov. 25, 1996).

6/     Individual panels at the Board have differed on the content of Board decisions in non-precedent cases over time. Some panels have included an introduction, a statement of issues present in the record, a full restatement of the proceedings before the immigration judge, a complete recitation of the established and controverted facts presented in the record, analysis of the applicable law, and the panel's conclusions and order. This is, in effect, de novo review of every case, notwithstanding the complexity of the issues presented. For cases in which there are no substantial factual or legal issues, this commitment of resources cannot be justified in light of the Board's current situation.

Other panels, more recently, have developed orders that include an adoption of the immigration judge's decision, only a short statement of the issues presented on appeal, with a statement of relevant facts and controlling precedent, and the order. Typically, these decisions are to be read in conjunction with the immigration judge's decision. The Department believes that this more limited appellate review process, to determine whether the immigration judge has erred, is more appropriate for the majority of c ases.

The different approaches can also be understood on the basis of the way in which the decisions are reviewed. In the first example, a full de novo review results in a court of appeals review of the Board decision and does not extend to the immigration judge's decision. In the second example, a “clearly erroneous” standards will allow the courts of appeals to review the immigration judge's fact findings in conjunction with the Board's legal findings, thereby obviating the need for lengthy Board decisions that do little more than reiterate facts. The short orders of the Board already effectively utilize this methodology. This process adds nothing to the burden of the court of appeals on review and is a substantially more efficient allocation of resources within the administrative adjudicatory process.

7/     The First, Seventh, Ninth, and Tenth Circuits have held that it is a violation of due process for the board to take administrative notice of new facts on appeal without affording notice and an opportunity to respond. In the Ninth and Tenth Circuits the board must provide notice and an opportunity to respond before taking administrative notice. Kowalczyk v. INS, 245 F.3d 1143 (10th Cir. 2001); de la Llana-Castellon v. INS, 16 F.3d 1093, 1099-1100 (10th Cir. 1994); Castellon-Villagra v. INS, 972 F.2d 1017 (9t h Cir. 1992) (motion to reopen does not provide adequate opportunity to rebut administrative notice of changed country conditions and due process requires BIA to give prior notice and opportunity to rebut). In other circuits a post-decision motion to reopen, or, more properly, a motion to reconsider, disputing the taking of administrative notice is a sufficient remedy. Gonzalez v. INS, 77 F.3d 1015, 1024 (7th Cir. 1996) (rejecting approach of 9th and 10th circuits and holding that “mechanism of the motion t o reopen * * * `allows asylum petitioners an opportunity to introduce evidence rebutting officially noticed facts,' [and] provides a sufficient opportunity to be heard to satisfy the requirements of due process”). Accord Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C. Cir. 1992); Rivera-Cruz v. INS, 948 F.2d 962, 968-69 (5th Cir. 1991), rehearing denied, 954 F.2d 723 (1992). The First Circuit initially adopted the position that a post-decision motion to reopen is sufficient to satisfy due process but may no t continue to hold that view. Compare Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1993) (“We agree with the majority of those circuits which have addressed the question that [a post-decision] motion to reopen * * * can ordinarily satisfy the demands of due process.”) (emphasis added, citations omitted), with Fergiste v. INS, 138 F.3d 14, 19 n.4 (1st Cir. 1998) (declining to decide whether reliance on extra-record evidence of changed country conditions violated procedural due process without pre-decision notif ication, but reinterpreting Gebremichael to state that “[o]ur holding in that case was not * * * that a motion to reopen is always necessary and sufficient to protect an alien's rights [but] [r]ather * * * that `the demands of due process will, as always, ultimately depend on the circumstances' “).

8/     See Sevoian v. Ashcroft, 290 F.3d 166, 176 (3rd Cir. 2002), quoting Kazlaukas v. INS, 46 F.3d 902, 906 (9th Cir. 1995); Gonahasa v. INS, 181 F.3d 538, 542 (4th Cir. 1999) (describing these reports as “highly probative evidence in a well-formed fear case”); Marcu v. INS, 147 F.3d 1078, 1081 (9th Cir. 1998) (reliance on reports “makes sense because this inquiry is directly within the expertise of the Department of State”); Gailius v. INS, 147 F.3d 34, 46 (1st Cir. 1998) (Department of State opinions “receive considerable weight in the courts because of the * * * Department's expertise”); Rojas v. INS, 937 F.2d 186, 190 n.1 (5th Cir. 1991) (Department of State a “relatively impeccable source[]” for information on political conditions in foreign countries); Koliada v. INS, 259 F.3d 482 (6th Cir. 2001) (deference due even though Department of State report reproduced for the Service in support of litigation); Mitev v. INS, 67 F.3d 1325, 1332 (7th Cir. 1995) (“we give great [deference] to [Department of State] opini ons on matters within its area of expertise”).

9/     The Board has interpreted, since its inception, what constitutes a “crime involving moral turpitude.” See Matter of G-, 1 I&N Dec. 8 (BIA, A.G. 1940) (interpreting 1917 Act); 8 U.S.C. 1182(a)(2)(A)(i), 237(a)(2)(A)(i). An increasing number of recent Board decisions have focused on the interrelationship of provisions of the criminal Code, the United States Sentencing Guidelines, and the Act. For example, the term “aggravated felony” defined in section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43), is reference d in the United States Sentencing Guidelines as the controlling definition for certain sentencing enhancements. U.S.S.G. 2L1.2(b)(2). The definition of “crime of violence” that makes up one of the definitions of an aggravated felony is defined by 18 U.S.C. 16. “Drug trafficking,” another aggravated felony, is defined in 18 U.S.C. 924. The Board has, at times struggled with this panoply of legal provisions. See, e.g., Matter of K-V-D-, 22 I&N Dec. 1163 (BIA 1999), overruled, Matter of Yanez, 23 I&N Dec. 390 (BIA 2002) (whether conviction under state law constitutes drug trafficking under section 101(a)(43)(B) of the Act); Matter of Vasquez-Muniz, 22 I&N Dec. 1415 (BIA 2000), rev'd 23 I&N Dec. 207 (BIA 2002) (whether an offense defined by state or foreign law may be classified as an aggravated felony as an offense “described in” a federal statute enumerated in section 101(a)(43) of the Act even if it lacks the jurisdictional element of the federal statute); Matter of Ramos, 23 I&N Dec. 336 (BIA 2002), overrulin g Matter of Puente-Salazar, 22 I&N Dec. 1006 (BIA 1999), and Matter of Magallanes-Garcia, 22 I&N Dec. 1 (BIA 1998) (whether driving while intoxicated under various state criminal laws constitutes crime of violence under 18 U.S.C. 16(b) and an aggravated felony under section 101(a)(43)(F) of the Act). This complex interrelationship of the immigration law and the criminal law has also lead to recent precedent decisions by the Attorney General. Matter of Y-L-23 I&N Dec. 270 (A.G. 2002), overruling Matter of S- S-, 22 I&N Dec. 458 (BIA 1999); Matter of Jean, 23 I&N Dec. 373 (A.G. 2002), disapproving Matter of H-N-, 22 I&N Dec. 1039 (BIA 1999).

10/     The Board currently has 19 members and 4 vacancies, which the Department has declined to fill in light of the fact that the expansion has not achieved the desired results based upon historical staffing levels.

11/     The Department notes that not all of the Board precedent decisions are issued en banc. Under 8 CFR 3.1(g), the Board designates particular decisions for publication as precedent decisions, but the Board can and frequently does designate a three-member panel decision as a precedent decision.

12/     The proposed rule provided that the immigration judge would have a set time to “review and approve the transcript.” This language may have given the impression that an immigration judge may alter a transcript when this authority clearly does not exist. An immigration judge should, of course, review the transcript of proceedings to ensure that it is complete, but there is no authority to “amend” the transcript. The immigration judge's oral decision, on the other hand, is subject to a small degree of modifica tion and clarification necessitated by the fact that the decision is orally dictated and does not reflect inflection. An immigration judge may not, however, make substantive changes in the decision.