\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (CIS, ICE, CBP) - 2003 \ FEDERAL REGISTER FINAL REGULATIONS - 2003 \ Aliens and Nationality; Homeland Security; Reorganization of Regulations; Final Rule [68 FR 9824] [FR 19-03] \ F. Summary of the Changes From 8 CFR Chapter I to Chapter V
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Summary of the Changes From 8 CFR Chapter I to Chapter V
Set out below are general descriptions of the sets of changes in chapter I to chapter V and the rationale for each set of changes.
Part 1--Definitions, is duplicated in part 1001, because the same definitions apply to INS and EOIR.
Part 3--Executive Office for Immigration Review, is transferred to part 1003, because this part is the organic regulation for EOIR. Additionally, provisions have been added to clarify certification procedures and the authority of the Secretary of Homeland Security to designate specific officials to certify cases and questions of law to the Attorney General pursuant to redesignated 8 CFR 1003.1(h). These provisions are provided in parallel for the Department of Homeland Security in a new section of part 3. F
inally, savings provisions are added to part 103 and part 1003 to clarify that the jurisdiction and procedures in effect on February 28, 2003, continue in effect after the transition on March 1, 2003.
Part 101--Presumption of lawful admission, is duplicated as part 1101, because it establishes a necessary presumption under the Act for both INS and EOIR.
Part 103--Powers and duties of service officers; availability of service records, is partially duplicated and is amended in several sections to ensure that the existing practices of EOIR are not changed through the transfer of functions.
Part 205--Revocation of approval of petitions, is duplicated as part 1205 because the revocation of petitions involves substantial appeals to the Board of Immigration Appeals and the provisions intermingle the jurisdiction and procedures before the Board of Immigration Appeals with the substantive provisions for revocation of approval of petitions.
Part 207--Admission of refugees, is duplicated in part in part 1207. Only § 207.3 necessarily involves procedure before the Executive Office for Immigration Review and this is the only section that is duplicated.
Part 208--Proceedings for asylum and withholding of removal, is duplicated in part 1208 because these provisions relate to both INS and EOIR and are so interrelated that no simple division of jurisdiction is possible. The Department of Justice expects that further division will be accomplished by the Department of Homeland Security and the Department of Justice at a later time.
Part 209--Adjustment of status of refugees and aliens granted asylum, is duplicated as part 1209. For the most part, adjustment of status is accomplished administratively by INS, but provisions that are affected by EOIR are intermingled in this part.
Part 211--Documentary requirements; immigrants; waivers, is duplicated in part in part 1211. The only section that is duplicated is § 211.4, Waiver of documents of returning residents, and this section is duplicated because the section contains the predicate jurisdiction of immigration judges to consider an renewed application in proceedings.
Part 212--Documentary requirements: nonimmigrants: waivers; admission of certain inadmissible aliens; parole, is duplicated in part 1212 because these provisions relate to both INS and EOIR and are so interrelated that no simple division of jurisdiction is possible. Part 212 provides the predicates and standards for proceedings to exclude aliens from the United States.
Part 214--Nonimmigrant classes, is duplicated in part in part 1214, because the specific duplicated provisions provide the jurisdictional predicates for review of certain waiver applications by immigration judges.
Part 215--Controls of aliens departing from the United States, is duplicated in part 1215. Although these provisions have been rarely used, they include a number of jurisdictional predicates for review of administrative decisions by an immigration judge, called a special inquiry officer in these sections. These regulations are joint regulations with the Secretary of State, see 22 CFR part 46, and may require further refinement in the future.
Part 216--Conditional basis of lawful permanent residence status, is duplicated in part 1216. This part contains both the administrative and adjudicatory process for revoking the conditional basis for lawful permanent residence based upon marriage.
Part 235--Inspection of persons applying for admission, is duplicated in part 1235 because nearly all of the provisions of this part affect bond hearings before immigration judges.
Part 236--Apprehension and detention of inadmissible and deportable aliens, removal of aliens ordered removed, is duplicated in part in part 1236. Subpart A relates to the determinations of inadmissibility and deportability of aliens and is duplicated in part 1236. Subpart B of part 236, however, relates to the INS Family Unity Program, which does not relate to EOIR processes. Accordingly, Subpart B is not duplicated, although it may be interpreted in appropriate proceedings.
Part 238--Expedited removal of aggravated felons, is duplicated in part 1238 because the expedited removal under this part can be converted to ordinary removal proceedings before an immigration judge under part 240, and initiated proceedings under part 240 may, upon approval of the immigration judge, be terminated and the INS may then file expedited removal proceedings under part 238.
Part 239--Initiation of removal proceedings, is duplicated as part 1239 because the initiation of proceedings before immigration judges is a detailed mix of authority of service officers to initiate and file charges before an immigration judge.
Part 240--Proceedings to determine removability of aliens in the United States, is largely transferred to part 1240, as proceedings before immigration judges. However, 8 CFR 240.25, which is the INS authority for voluntary departure, is not transferred. Furthermore, 8 CFR 240.21, and subpart H, are duplicated in new part 1240 because these provisions affect both the INS and EOIR. The Department expects, as in many other cases, a further division of these parts will be effected by further regulatory actions
by the Department of Homeland Security and the Department of Justice.
Part 241--Apprehension and detention of aliens ordered removed, is duplicated in part 1241 because the finality and implementation of final orders of removal issued by immigration judges and the Board of Immigration Appeals regularly involve the authority of EOIR and interpretation of these regulations by both the INS and EOIR. In particular, changes in the bonding and surrender process currently under consideration will require changes in the authority of both EOIR and the successor agencies of INS within
Part 244--Temporary protected status for national of designated states, is duplicated in part 1244 because many of the decisions under temporary protected status are made by immigration judges and the Board of Immigration Appeals. Sections 244.1, 244.7, 244.11, and 244.18 all refer to immigration judges' decisional authority. Section 244.20 has a unique fee waiver provisions that also implicates administration and proceedings before EOIR. This duplication will require further refinement to clarify the autho
rity of Secretary of Homeland Security to designate countries for temporary protected status purposes and the duplication should not be viewed as any indication that the Department of Justice is involved in those future decisions. The duplication is necessary at this time to ensure continuity and will be subject to further adjustment by the Department of Homeland Security and the Department of Justice.
Part 245--Adjustment of status to that of person admitted for permanent residence, is duplicated in part 1245 because jurisdiction is intermingled throughout the part. See Matter of Artigas, 23 I&N Dec. 99 (BIA 2001). Further refinement of the division of authority and detailed technical amendments will be required in the future.
Part 246--Rescission of adjustment of status, is duplicated in part 1246 because the part provides the comprehensive procedure before both the Service and EOIR for the rescission of adjustment of status to lawful permanent residence.
Part 249--Creation of records of lawful admission for permanent residence, is duplicated in part 1249 because this part includes both the Service and EOIR procedures for registry of lawful permanent residence. Although the statutory requirements for registry limit the number of cases that arise under this part, the division of authority requires further detailed analysis.
Part 270--Penalties for document fraud, is duplicated in part 1270 because this part sets forth the procedures for document fraud cases before both the Service and the administrative law judges of EOIR. See also 28 CFR Part 68.
Part 274a--Control of employment of aliens, is duplicated as part 1274a because it contains substantial definitional and procedural material relevant to both the INS and the Special Counsel for Immigration-Related Unfair Employment Practices of the Civil Rights Division of the Department of Justice under 28 CFR 0.53, as well as the predicates to administrative proceedings before administrative law judges in EOIR.
Part 280--Imposition and collection of fines, is duplicated in part 1280 because this part is interpreted by the Board of Immigration Appeals in fines appeals. Substantial portions of this duplicated part will ultimately be removed as the jurisdiction of such fines is ultimately transferred from the Board of Immigration Appeals to the administrative law judges of EOIR as previously proposed in other rulemaking. 67 FR 7309 (Feb. 22, 2002).
Part 287--Field officers; powers and duties, is duplicated in part in part 1287 because several discrete provisions of this part provide the underpinnings for specific authority of immigration judges. In particular, the subpoena authority of § 287.4 provides the mechanism for subpoenas before immigration judges. Certification of official records before an immigration judge is provided in § 287.6.
Several sections of part 287 that are not amended or duplicated implicate other authorities of the Attorney General as the United States' prosecutor, including § 287.5 delegations of authority to the Deputy Attorney General to approve the expansion of criminal law enforcement authority in certain areas. That provision, in particular, relates to the Attorney General's inherent authority to manage the criminal law enforcement community, and the delegations that he has made to the Deputy Attorney General to m
anage the Department. 28 CFR 0.15(a). As with the past practice of the Department, changes in these criminal law enforcement powers are governed by executive branch policies that include review and recommendations from the Criminal Division, through the Deputy Attorney General, to the Attorney General for final determination regarding agencies outside the Department of Justice. The unique regulatory authority in part 287 is the product of statutory requirements in section 287(a)(4) of the Immigration and Na
tionality Act, 8 U.S.C. 1357(a)(4), as amended by 503(a) of the Immigration Act of 1990, Pub. L. No. 101-690, 104 Stat. 4978 (Nov. 29, 1990). These provisions will require further coordination between the Department of Homeland Security and the Department of Justice.
Part 292--Representation and appearances, is duplicated in part 1292 because representation of aliens before INS and EOIR has historically been considered as a single process and will continue to be so considered for the foreseeable future.
Part 299--Immigration forms, is not duplicated, but is referred to in new part 1299. EOIR will continue to utilize INS forms for most purposes, such as to establish a basis for asylum, adjustment of status, etc. There is no need to create new forms to replicate the forms that are already in use. By the same token, however, there are a number of forms that provide information that is useful to immigration judges in adjudicating cases, and, therefore, the Director of EOIR is authorized to designate the versio
n of the forms to be used.
Part 337--Oath of allegiance, is duplicated in part 1337 only because it involves the authority of immigration judges to administer the oath of citizenship in naturalization ceremonies, and related authorities.
Part 507--Alien terrorist removal procedures, is moved to newly created 28 CFR part 200, to reflect the operational functions of the Office for Immigration Litigation within the Civil Division, which is delegated authority to represent the United States before the Alien Terrorist Removal Court, and the fact that this process is not administrative in nature, but judicial, before Article III judges designated by the Chief Justice of the United States. The sole provision in this part refers to the Attorney Gen
eral's authority to make a final determination of eligibility for relief from a judicial order of removal from the Alien Terrorist Removal Court on the grounds that such post-judicial removal would violate the Convention Against Torture.
A number of changes will need to be made in the future, but are not made at this time. For example, part 215, concerning departure control, refers to “special inquiry officers” instead of immigration judges. This is not uncommon in the older provisions of 8 CFR that have not been amended since 1987. Amendments to this particular part require the concurrence of the Secretary of State because this part is a parallel to 22 CFR part 46. Rather than attempt to conform two separate parts, neither of which will re
main within the jurisdiction of the Attorney General, this commonly understood term--a historical anomaly that predates the creation of EOIR and means “immigration judge”--is left in place until such time as the Secretary of State and the Secretary of Homeland Security determine to change the substantive regulations, at which time they, and the Attorney General, will make this necessary but only technical adjustment.
The Department will publish in the very near future a table of changes of cross-references in parts of chapter V to other parts of chapter V, and other conforming technical changes.
Administrative Procedure Act
The Department of Justice finds that good cause exists for adopting this rule as a final rule and without public notice and comment under 5 U.S.C. 553 because this rule only makes technical amendments to the organization, procedures, and practices of the Department of Justice to improve the organization of the regulations of the Department of Justice and reflects the transfer of functions contemplated by the Homeland Security Act of 2002. Similarly, because this final rule makes changes in internal delegati
ons and procedures, and is a recodification of existing regulations, this final rule is not subject to the effective date limitation of 5 U.S.C. 553(d).
Regulatory Flexibility Act
Because no notice of proposed rule-making is required for this rule under the Administrative Procedure Act (5 U.S.C. 553), the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.
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 record keeping or reporting requirements.
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.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Department has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review.
Executive Order 13132
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, the Department of Justice has determined that this rule does not have sufficient federalism implications to warrant a federalism summary impact statement.
Executive Order 12988
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.