Aliens and Nationality; Homeland Security; Reorganization of Regulations; Final Rule [68 FR 9824] [FR 19-03]

DOCUMENT NUMBER: FR 19-03

FEDERAL REGISTER CITE: 68 FR 9824

DATE OF PUBLICATION: February 28, 2003

NOTE: All tables for the INSERTS version of this final rule have been removed. To view the table please go to the Federal Register website at:

http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/03-4935.htm

BILLING CODE: 4410-30

DEPARTMENT OF JUSTICE

Aliens and Nationality; Homeland Security; Reorganization of Regulations; Final Rule

8 CFR Parts 1, 3, 101, 103, 204, 205, 207, 208, 209, 211, 212, 214, 215, 216, 235, 236, 238, 239, 240, 241, 244, 245, 246, 249, 270, 274a, 280, 287, 292, 337, 507, 1001, 1003, 1101, 1103, 1204, 1205, 1207, 1208, 1209, 1211, 1212, 1214, 1215, 1216, 1235, 1236, 1238, 1239, 1240, 1241, 1244, 1245, 1246, 1249, 1270, 1274a, 1280, 1287, 1292, 1299, 1337

28 CFR Part 200

[EOIR No. 137F; AG Order No. 2662-2003]RIN 1125-AA42

Aliens and Nationality; Homeland Security; Reorganization of Regulations

AGENCY: Department of Justice.

ACTION: Final rule.

SUMMARY: The Homeland Security Act of 2002, as amended, transfers the functions of the Immigration and Naturalization Service to the Department of Homeland Security. The Homeland Security Act of 2002, as amended, retains in the Department of Justice, under the direction of the Attorney General, the functions of the Executive Office for Immigration Review and other functions related to immigration that are indigenous to the functions of the Attorney General. These changes require reorganization of title 8 of the Cod e of Federal Regulations. This final rule reflects the transfer of functions of the Immigration and Naturalization Service through the division of jurisdiction over regulations currently codified in 8 CFR chapter I, by establishing a new chapter V in 8 CFR, by transferring or duplicating certain parts and sections to the new chapter V and to 28 CFR chapter I, and by making other amendments as are necessary to continue existing authorities after the transfer of functions to the Department of Homeland Securit y on March 1, 2003.

DATES: This rule is effective on February 28, 2003.

FOR FURTHER INFORMATION CONTACT: Executive Office for Immigration Review: Chuck Adkins-Blanch, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470; Civil Division: Thomas W. Hussey, Director, Office of Immigration Litigation, United States Department of Justice, 950 Pennsylvania Ave. NW., Washington, DC 20530, telephone (202) 616-4852.

SUPPLEMENTARY INFORMATION:

Background

The Homeland Security Act of 2002, as amended (“HSA”), transfers the functions of the Immigration and Naturalization Service (“Service” or “INS”) to the Department of Homeland Security (“DHS”). Pub. L. 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002), as amended (“HSA”). The HSA retains in the Department of Justice, under the direction of the Attorney General, the functions of the Executive Office for Immigration Review (“EOIR”). HSA, 116 Stat. at 2273. This rule reflects that transf er through the division of jurisdiction over regulations currently codified in 8 CFR Chapter I.

EOIR was created by the Attorney General in 1983 to combine the functions of immigration judges and the Board of Immigration Appeals into a single administrative component of the Department of Justice under the Attorney General. 48 FR 8038 (Feb. 25, 1983). The Office of the Chief Administrative Hearing Officer (“OCAHO”) and its administrative law judges were added to EOIR in 1987. 52 FR 44971 (Nov. 24, 1987). This administrative structure separated the administrative adjudication functions from the enforcem ent and service functions of the INS, both for administrative efficiency and to foster independent judgment in adjudication. However, because both INS and EOIR were elements of the Department of Justice, the regulations affecting these components were included in the same chapter. The Attorney General, as the head of the Department, amended regulations affecting both components in a coordinated manner. The enactment of the Homeland Security Act of 2002, and its transfer of functions to the Department of Hom eland Security, now requires that the INS regulations and the EOIR regulations be placed in separate chapters.

As explained more fully below, this final rule transfers certain parts that relate to the jurisdiction and procedures of EOIR to a new chapter V, i.e. administrative review provisions. This rule duplicates certain parts and sections of the regulations that relate to proceedings before both the INS and EOIR in both chapter I and chapter V, respectively, i.e., shared provisions. The rule also makes a number of technical amendments to both chapters I and V to ensure that the authorities existing in the INS and EOIR prior to the transfer of functions of the INS to the Department of Homeland Security continue in effect after March 1, 2003.

A. Homeland Security Act of 2002 Division of Jurisdiction and Continuing Relationship

The HSA transfers the enforcement, services, and administrative functions of the INS to the Department of Homeland Security. HSA § § 441, 451, 455, 456. In addition, the HSA abolishes the INS. HSA § 471. The new structure for immigration enforcement, services and shared services is more fully explained by the HSA, the President's Reorganization Plan under HSA § 1512, and amendments thereto. 1/ For the purposes of this rule, and to provide the Secretary of Homeland Security maximum flexibility in the further division of immigration regulations between components of the Department of Homeland Security, if he deems appropriate, this rule makes no changes in the immigration regulations for functions that are being transferred to DHS other than those necessary to effectuate the division of regulations between the functions being transferred to DHS and the functions being retained in the Department of Justice. For purposes of simplicity, this rule continues to refer to the transferred functions as functions held by the INS.

Section 103(g) of the Immigration and Nationality Act, as amended by section 1102 of the HSA provides:

(1) In General . The Attorney General shall have such authorities and functions under this Act and all other laws relating to the immigration and naturalization of aliens as were exercised by the Executive Office for Immigration Review, or by the Attorney General with respect to the Executive Office for Immigration Review, on the day before the effective date [of the Act].

(2) Powers . The Attorney General shall establish such regulations, prescribe such forms of bond, reports, entries, and other papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.

The final rule creates, a new chapter V within 8 CFR and moves the relevant functions to that chapter. The rule also makes other necessary conforming amendments.

After this rule makes the necessary division of regulations within title 8 CFR to reflect the transfer of INS authorities, the Secretary of DHS can make substantive changes to INS rules; the Attorney General can make substantive changes to EOIR rules, and the Secretary and the Attorney General can consult each other when contemplating changes in those rules that affect both EOIR and INS.

B. General Comments

The rule makes no substantive change in the regulations. The rule is a technical rule dividing the regulations for purposes of the transfer of authorities under the HSA. For the ease of public understanding, the structure of chapter V has been created in parallel to the existing structure of chapter I. Accordingly, for example, in asylum proceedings before immigration judges, applicable provisions of chapter I, part 208 (e.g., 8 CFR 208.15(a)) are established in parallel in chapter V, part 1208 (e.g., 8 CFR 1208.15(a)). In creating this parallel structure, the Attorney General is attempting to provide as simple a format as possible for all to understand the legal effect of the transfer, while minimizing the confusion that might occur in practice before the Service and EOIR. Under this technical restructuring, incorrect citation to a regulation that has been transferred into Chapter V will be considered inconsequential. Similarly, until EOIR updates its forms, the references to sections of chapter I should be considered to be references to chapter V, as appropriate.

The rule transfers those parts and sections that deal with procedures before the immigration judges and Board of Immigration Appeals to chapter V. This transfer permits future amendment of the rules without unnecessary conflict with provisions relating to the INS. Similarly, the elimination of those provisions from chapter I that deal with proceedings before EOIR permits the amendment of the substantive regulations of the Service by the Department of Homeland Security without unnecessary conflict with the A ttorney General's regulations for EOIR.

The rule duplicates a number of parts and sections that affect both the Service and EOIR, such as the asylum regulations. These provisions necessarily require coordination between the INS and EOIR. The Department of Justice has been guided by the principles of the HSA in duplicating only those provisions that directly affect the authority of EOIR, but has also necessarily duplicated some provisions that affect INS until a further and more detailed division can be accomplished in consultation with the Depart ment of Homeland Security. In this sense, the rule is interim in nature in that further division and elimination of a substantial number of sections is expected in the near future. The inclusion of a section in this duplication process should be understood as a temporary measure to ensure continuity, not as a permanent disposition of authority in the Department of Justice.

The rule also makes a number of specific technical amendments to continue existing authority that cannot be made by simply moving or duplicating sections. For example, the precedent decisions of the Board of Immigration Appeals and the INS are published in Administrative Decisions under the Immigration and Nationality Laws of the United States, cited as “I&N Dec.” However, there is no rule that currently provides for the publication of Service decisions outside of 8 CFR 103.3, and that provision is incomple te. Accordingly, a provision has been added to chapter I, part 1, providing for the determination of precedent decisions within the Department of Homeland Security and publication of such decisions by EOIR in Administrative Decisions under the Immigration and Nationality Laws of the United States.

C. Parts and Sections Affecting EOIR Moved

Part 3, and almost all of part 240, are moved to chapter V because these provisions directly affect only the Executive Office for Immigration Review and proceedings before EOIR. A more general revision of these separated provisions is contemplated in the future to further refine the adjudicatory process, but this rule makes no substantive change in jurisdiction or procedure.

D. Parts and Sections Affecting INS and EOIR Duplicated

A larger number of parts and sections that are currently in chapter I are duplicated in chapter V because they establish processes that are common to both the INS and EOIR. In some cases, for convenience, an entire part has been moved because substantial portions effect common procedure, even though particular sections may affect only the INS or only EOIR. A concerted decision has been made to carry forward the duplication of entire parts to ensure continuity, even though the Attorney General and the Secret ary may later amend their respective regulations to further separate the procedures and clarify those sections that affect each agency. It is not manageable at this time to detail a complete paragraph-by-paragraph jurisdictional split between INS and EOIR, and the duplication assures that interpretation will be consistent until coordinated decisions are made respecting these procedures. Thus, for example, part 208, relating to asylum and related forms of relief, is duplicated in part 1208, even though speci fic subsections relate only with procedure before INS and other subsections relate only to procedure before EOIR. Further disposition of these sections will be made in future rulemaking.

E. Specific Technical Amendments

A number of technical amendments are required to effect a proper division of the authorities from chapter I. In certain instances, new sections must be written, and in others cross-references are required. This is particularly true where only one section or paragraph refers to processes within EOIR, but otherwise the part or section refers only to processes of INS. For example, a number of INS processes result in a decision on an application that may be renewed before an immigration judge or an appeal taken to the Board of Immigration Appeals. Where the part or section is otherwise entirely within the scope of the functions transferred to DHS, only a technical amendment may be necessary to provide for the appeal with the appropriate cross-reference. The major technical changes--which go beyond these cross-references--and the continuity that these changes provide are described below.

Existing 8 CFR § 3.1(g) provides that precedent decisions of the Board of Immigration Appeals and the Attorney General are binding on all Service officers. This historical specification was made by the Attorney General in the course of his overall management of the Service. However, because of the transfer of functions of the Service to the Department of Homeland Security, it is necessary to specify this result in the ongoing regulations of the Service, as well as EOIR. The provision of § 3.1(g) is, there fore, duplicated in chapter I, part 1, § 103.37(g). This restatement of the binding effect of precedent decisions effectuates the clear intent of the Congress in section 1101(2) of the HSA, as amended, amending section 103 of the Immigration and Nationality Act, 8 U.S.C. 1103, by adding subsection (g), and in transferring the Service to DHS while leaving the immigration adjudicatory functions of EOIR under the Attorney General.

Moreover, it is necessary to clarify that the Secretary of Homeland Security may refer cases or questions of law to the Attorney General for decision at any time, both generally, and pursuant to the proviso of section 103(a)(1) of the Act, 8 U.S.C. 1103(a)(1), relating to the Attorney General's resolution of legal issues. At the same time, the Attorney General has specified the reservation of the parallel authority to refer cases to himself for decision at any time.

Similarly, the authority to publish precedential decisions of the Service in Administrative Decisions under the Immigration and Nationality Laws of the United States is set forth in new 8 CFR § § 103.37 and 1003.1(i). New § 103.37 is added to ensure that the Secretary of Homeland Security can continue to publish appropriate precedent decisions. See, e.g., Matter of Safetran, 20 I&N Dec. 49 (Comm. 1989).

The fees that are charged for applications for relief filed with the INS are also collected in conjunction with applications filed with the immigration judges and, on occasion, on motions to reopen before the Board of Immigration Appeals. A specific authorization is included in chapter V, referencing the fees charged by the Service for these applications. A separate table is not developed within EOIR for the simple reason that the INS must recalculate the fees periodically to conform them to the actual cost s, as more fully explained in each of the fee change regulations. Rather than coordinate each change, in a situation in which EOIR does not have an interest in the substance of the fee calculation, but only in the actual fee imposed, it makes more sense to reference the fees charged by the Service as established in 8 CFR 103.7. This provision does not alter the filing fee for appeals and motions before the Board of Immigration Appeals.

Finally, some specific provisions are moved or not moved, duplicated or not duplicated, because that process provides the simplest means of effecting the division of the regulations without substantive effect. For example, part 240 of chapter I is moved to part 1240 of chapter V, with the exception of § 240.25, which deals with the Service's authority to grant voluntary departure. Similarly, § 240.21 and Subpart H are duplicated because these provisions affect both INS and EOIR.