(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 (EOIR). The Board members shall be attorneys appointed by the Attorney General to act as the Attorney General's delegates in the cases that come before them. The Board shall consist of 15 members. 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.(Revised 12/7/06; 71 FR 70855 ) (Revised effective 9/25/02; 67 FR 54878 ) (Amended 11/14/01; 66 FR 56967 ) (Amended 9/12/01; 66 FR 47379 ) (Amended 4/14/00; 65 FR 20068 )(Amended 10/18/99; 64 FR 56135 ) (Revised 9/15/94; 59 FR 47231 ) (Revised 6/5/95; 60 FR 29469 ) (Amended 11/15/95; 60 FR 57313 ) (Amended 11/22/96; 61 FR 59305 ) (Revised 6/11/98; 63 FR 31889 )

(2) Chairman . The Attorney General shall designate one of the Board members to serve as Chairman. The Attorney General may designate one or two Vice Chairmen to assist the Chairman in the performance of his duties and to exercise all of the powers and duties of the Chairman in the absence or unavailability of the Chairman. (Revised effective 9/25/02; 67 FR 54878 ) (Amended 4/14/00; 65 FR 20068 )(Amended 11/15/95; 60 FR 57313 )

(i) The Chairman, subject to the supervision of the Director, shall direct, supervise, and establish internal operating procedures and policies of the Board. The Chairman shall have authority to:

(A) Issue operational instructions and policy, including procedural instructions regarding the implementation of new statutory or regulatory authorities;

(B) Provide for appropriate training of Board members and staff on the conduct of their powers and duties;

(C) Direct the conduct of all employees assigned to the Board to ensure the efficient disposition of all pending cases, including the power, in his discretion, to set priorities or time frames for the resolution of cases; to direct that the adjudication of certain cases be deferred, to regulate the assignment of Board members to cases, and otherwise to manage the docket of matters to be decided by the Board;

(D) Evaluate the performance of the Board by making appropriate reports and inspections, and take corrective action where needed;

(E) Adjudicate cases as a Board member; and

(F) Exercise such other authorities as the Director may provide.

(ii) The Chairman shall have no authority to direct the result of an adjudication assigned to another Board member or to a panel; provided, however, that nothing in this section shall be construed to limit the management authority of the Chairman under paragraph (a)(2)(i) of this section.

(3) Panels . The Chairman shall divide the Board into three-member panels and designate a presiding member of each panel if the Chairman or Vice Chairman is not assigned to the panel. The Chairman may from time to time make changes in the composition of such panels and of presiding members. Each three-member panel shall be empowered to decide cases by majority vote, and a majority of the Board members assigned to the panel shall constitute a quorum for such panel. In addition, the Chairman shall assign any number of B oard members, as needed, to serve on the screening panel to implement the case management process as provided in paragraph (e) of this section. (Revised effective 9/25/02; 67 FR 54878 )

(4) Temporary Board members . The Director may in his discretion designate immigration judges, retired Board members, retired immigration judges, and administrative law judges employed within, or retired from, EOIR to act as temporary Board members for terms not to exceed six months. In addition, with the approval of the Deputy Attorney General, the Director may designate one or more senior EOIR attorneys with at least ten years of experience in the field of immigration law to act as temporary Board members for terms not to exceed six months. A temporary Board member shall have the authority of a Board member to adjudicate assigned cases, except that temporary Board members shall not have the authority to vote on any matter decided by the Board en banc. (Revised 12/7/06; 71 FR 70855 )(Revised effective 9/25/02; 67 FR 54878 ) (Amended 4/14/00; 65 FR 20068 )(Added 6/11/98; 63 FR 31889 )

(5) En banc process . A majority of the permanent Board members shall constitute a quorum for purposes of convening the Board en banc. The Board may on its own motion by a majority vote of the permanent Board members, or by direction of the Chairman, consider any case en banc, or reconsider as the Board en banc any case that has been considered or decided by a three-member panel. En banc proceedings are not favored, and shall ordinarily be ordered only where necessary to address an issue of particular importance or to secure o r maintain consistency of the Board's decisions. (Revised effective 9/25/02; 67 FR 54878 )(Added 6/11/98; 63 FR 31889 )

(6) Board staff . 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. (Revised effective 9/25/02; 67 FR 54878 ) (Added 6/11/98; 63 FR 31889 )

(7) Affirmance without opinion . (i) The Chairman may designate, from time-to-time, permanent Board Members who are authorized, acting alone, to affirm decisions of Immigration Judges and the Service without opinion. The Chairman may designate certain categories of cases as suitable for review pursuant to this paragraph. (Paragraph (a)(7) added 10/18/99; 64 FR 56135 )

(ii) The single Board Member to whom a case is assigned may affirm the decision of the Service or the Immigration Judge, without opinion, if the Board Member determines that the result reached in the decision under review was correct; that any errors in the decision under review were harmless or nonmaterial; and that

(A) the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of precedent to a novel fact situation; or

(B) the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted.

(iii) If the Board Member determines that the decision should be affirmed without opinion, the Board shall issue an order that reads as follows: "The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination. See 8 CFR 3.1(a)(7)." An order affirming without opinion, issued under authority of this provision, shall not include further explanation or reasoning. Such an order approves the result reached in the decision below; it does not necessarily imply approval of all of the reasoning of that decision, but does signify the Board's conclusion that any errors in the decision of the Immigration Judge or the Service were harmless or nonmaterial.

(iv) If the Board Member determines that the decision is not appropriate for affirmance without opinion, the case will be assigned to a three-Member panel for review and decision. The panel to which the case is assigned also has the authority to determine that a case should be affirmed without opinion.

(b) Appellate jurisdiction . Appeals may be filed with the Board of Immigration Appeals from the following: (Introductory text revised effective 9/25/02; 67 FR 54878 )

(1) Decisions of Immigration Judges in exclusion cases, as provided in 8 CFR part 240, Subpart D. (Revised 4/29/96; 61 FR 18900 ) (Revised effective 4/1/97; 62 FR 10312 )

(2) Decisions of Immigration Judges in deportation cases, as provided in 8 CFR part 1240, Subpart E, except that no appeal shall lie seeking review of a length of a period of voluntary departure granted by an Immigration Judge under section 244E of the Act as it existed prior to April 1, 1997. (Amended 3/5/03; 68 FR 10349 ) (Revised 4/29/96; 61 FR 18900 ) (Revised effective 4/1/97; 62 FR 10312 )

(3) Decisions of Immigration Judges in removal proceedings, as provided in 8 CFR part 1240 , except that no appeal shall lie seeking review of the length of a period of voluntary departure granted by an immigration judge under section 240B of the Act or part 240 of this chapter. (Amended 3/5/03; 68 FR 10349 ) (Revised effective 4/1/97; 62 FR 10312 )

(4) Decisions involving administrative fines and penalties, including mitigation thereof, as provided in Part 280 of this chapter.

(5) Decisions on petitions filed in accordance with section 204 of the act (except petitions to accord preference classifications under section 203(a)(3) or section 203(a)(6) of the act, or a petition on behalf of a child described in section 101(b)(1)(F) of the act), and decisions on requests for revalidation and decisions revoking the approval of such petitions, in accordance with section 205 of the act, as provided in Parts 204 and 205 , respectively, of 8 CFR chapter I or parts 1204 and 1205, respectively of this chapter. (Amended 3/5/03; 68 FR 10349 )

(6) Decisions on applications for the exercise of the discretionary authority contained in section 212(d)(3) of the act as provided in Part 1212 of this chapter. (Amended 3/5/03; 68 FR 10349 )

(7) Determinations relating to bond, parole, or detention of an alien as provided in 8 CFR part 1236, Subpart A. (Amended 3/5/03; 68 FR 10349 ) (Revised effective 4/1/97; 62 FR 10312 ) (Corrected 4/1/97; 62 FR 15362 )

(8) Decisions of Immigration Judges in rescission of adjustment of status cases, as provided in Part 1246 of this chapter. (Amended 3/5/03; 68 FR 10349 )

(9) Decisions of Immigration Judges in asylum proceedings pursuant to 1208.2(b) of this chapter. (Amended 3/5/03; 68 FR 10349 ) (Revised effective 4/1/97; 62 FR 10312 )

(10) Decisions of Immigration Judges relating to Temporary Protected Status as provided in 8 CFR part 1244. (Amended 3/5/03; 68 FR 10349 ) (Revised effective 4/1/97; 62 FR 10312 )

(11) Decisions on applications from organizations or attorneys requesting to be included on a list of free legal services providers and decisions on removals therefrom pursuant to § 1003.65 . (Added effective 3/31/97; 62 FR 9071 )

(12) Decisions of Immigration Judges on applications for adjustment of status referred on a Notice of Certification (Form I-290C) to the Immigration Court in accordance with §§ 1245.13(n)(2) and 1245.15(n)(3) of this chapter or remanded to the Immigration Court in accordance with §§ 1245.13(d)(2) and 1245.15(e)(2) of this chapter. (Amended 3/5/03; 68 FR 10349 ) (Added effective 6/22/98; 63 FR 27823 ) (Revised effective 6/11/99; 64 FR 25756 )

(13) Decisions of adjudicating officials in practitioner disciplinary proceedings as provided in subpart G of this part. (Added effective 7/27/00; 65 FR 39513 )

(14) Decisions of immigration judges regarding custody of aliens subject to a final order of removal made pursuant to § 1241.14 of this chapter. (Amended 3/5/03; 68 FR 10349 ) (Added 11/14/01; 66 FR 56967 )

(c) Jurisdiction by certification . The Commissioner, or any other duly authorized officer of the Service, any Immigration Judge, or the Board may in any case arising under paragraph (b) of this section certify such case to the Board. The Board in its discretion may review any such case by certification without regard to the provisions of § 1003.7 if it determines that the parties have already been given a fair opportunity to make representations before the Board regarding the case, including the opportunity request oral argument and to submit a brief. (Revised 4/29/96; 61 FR 18900 )

(d) Powers of the Board -- (1) Generally . The Board shall function as an appellate body charged with the review of those administrative adjudications under the Act that the Attorney General may by regulation assign to it. The Board shall resolve the questions before it in a manner that is timely, impartial, and consistent with the Act and regulations. In addition, the Board, through precedent decisions, shall provide clear and uniform guidance to the Service, the immigration judges, and the general public on the proper interpretation and administ ration of the Act and its implementing regulations. (Paragraph (d)(1) revised effective 9/25/02; 67 FR 54878 )

(i) The Board shall be governed by the provisions and limitations prescribed by applicable law, regulations, and procedures, and by decisions of the Attorney General (through review of a decision of the Board, by written order, or by determination and ruling pursuant to section 103 of the Act).

(ii) Subject to these governing standards, Board members shall exercise their independent judgment and discretion in considering and determining the cases coming before the Board, and a panel or Board member to whom a case is assigned may take any action consistent with their authorities under the Act and the regulations as is appropriate and necessary for the disposition of the case.

(2) Summary dismissal of appeals . (i) Standards . A single Board member or panel may summarily dismiss any appeal or portion of any appeal in any case in which: (Introductory text revised effective 9/25/02; 67 FR 54878 )(Redesignated as paragraph (d)(2), previously (d-1a); 10/18/99; 64 FR 56135 )

(A) The party concerned fails to specify the reasons for the appeal on Form EOIR-26 or Form EOIR-29 (Notices of Appeal) or other document filed therewith;

(B) The only reason for the appeal specified by the party concerned involves a finding of fact or a conclusion of law that was conceded by that party at a prior proceeding;

(C) The appeal is from an order that granted the party concerned the relief that had been requested;

(D) The Board is satisfied, from a review of the record, that the appeal is filed for an improper purpose, such as to cause unnecessary delay, or that the appeal lacks an arguable basis in fact or in law unless the Board determines that it is supported by a good faith argument for extension, modification, or reversal of existing law; (Added effective 9/25/02; 67 FR 54878 )

(E) The party concerned indicates on Form EOIR-26 or Form-29 that he or she will file a brief or statement in support of the appeal and, thereafter, does not file such brief or statement, or reasonably explain his or her failure to do so, within the time set for filing; (Redesignated as (d)(2)(i)(E), previously (d)(2)(i)(D) effective 9/25/02; 67 FR 54878 ) (Amended and redesignated as paragraph (d)(2)(i)(D), previously (d)(2)(i)(E), 10/18/99; 64 FR 56135 )

(F) The appeal does not fall within the Board's jurisdiction, or lies with the Immigration Judge rather than the Board; (Redesignated as (d)(2)(i)(F), previously (d)(2)(i)(E) effective 9/25/02; 67 FR 54878 ) (Added 10/18/99; 64 FR 56135 )

(G) The appeal is untimely, or barred by an affirmative waiver of the right of appeal that is clear on the record; or (Redesignated as (d)(2)(i)(G), previously (d)(2)(i)(F) effective 9/25/02; 67 FR 54878 ) (Added 10/18/99; 64 FR 56135 )

(H) The appeal fails to meet essential statutory or regulatory requirements or is expressly excluded by statute or regulation. (Redesignated as (d)(2)(i)(H), previously (d)(2)(i)(G) effective 9/25/02; 67 FR 54878 ) (Redesignated as paragraph (d)(2)(i)(G), previously (d)(2)(i)(F), 10/18/99; 64 FR 56135 )

(ii) Action by the Board . The Board's case management screening plan shall promptly identify cases that are subject to summary dismissal pursuant to this paragraph. An order dismissing any appeal pursuant to this paragraph (d)(2) shall constitute the final decision of the Board. (Revised effective 9/25/02; 67 FR 54878 )

(iii) Disciplinary consequences . The filing by an attorney or representative accredited under § 1292.2(d) of this chapter of an appeal that is summarily dismissed under paragraph (d)(2)(i) of this section may constitute frivolous behavior under § 1003.102(j). Summary dismissal of an appeal under paragraph (d)(2)(i) of this section does not limit the other grounds and procedures for disciplinary action against attorneys or representatives. (Amended 3/5/03; 68 FR 10349 ) (Revised effective 9/25/02; 67 FR 54878 ) (Redesignated as paragraph (d)(2)(iii), previously (d)(2)(ii); 10/18/99; 64 FR 56135 ) (Amended 1/22/01; 66 FR 6436 )

(3) Scope of review . (i) The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous. (Revised effective 9/25/02; 67 FR 54878 ) (Redesignated as paragraph (d)(3), previously (d)(2); 10/18/99; 64 FR 56135 )

(ii) The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.

(iii) The Board may review all questions arising in appeals from decisions issued by Service officers de novo.

(iv) Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals. A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand. If further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge or, as appropriate, to the Service.

(4) Rules of practice . The Board shall have authority, with the approval of the Director, EOIR, to prescribe procedures governing proceedings before it. (Revised effective 9/25/02; 67 FR 54878 ) (Redesignated as paragraph (d)(4), previously (d)(3); 10/18/99; 64 FR 56135 )

(5) Discipline of attorneys and representatives . The Board shall determine whether any organization or individual desiring to represent aliens in immigration proceedings meets the requirements as set forth in § 1292.2 of this chapter. It shall also determine whether any organization desiring representation is of a kind described in § 1001.1(i) of this chapter, and shall regulate the conduct of attorneys, representatives of organizations, and others who appear in a representative capacity before the Board or the Service or any immigration judge. (Amended effective 1/20/09; 73 FR 76914 )(Amended 3/5/03; 68 FR 10349 ) (Added effective 9/25/02; 67 FR 54878 )

(6) Identity, law enforcement, or security investigations or examinations . (i) The Board shall not issue a decision affirming or granting to an alien an immigration status, relief or protection from removal, or other immigration benefit, as provided in 8 CFR 1003.47(b) , that requires completion of identity, law enforcement, or security investigations or examinations if: (Paragraph (d)(6) added effective 4/1/05; 70 FR 4743 )

(A) Identity, law enforcement, or security investigations or examinations have not been completed during the proceedings;

(B) DHS reports to the Board that the results of prior identity, law enforcement, or security investigations or examinations are no longer current under the standards established by DHS and must be updated; or

(C) Identity, law enforcement, or security investigations or examinations have uncovered new information bearing on the merits of the alien's application for relief.

(ii) Except as provided in paragraph (d)(6)(iv) of this section, if identity, law enforcement, or security investigations or examinations have not been completed or DHS reports that the results of prior investigations or examinations are no longer current under the standards established by DHS, then the Board will determine the best means to facilitate the final disposition of the case, as follows:

(A) The Board may issue an order remanding the case to the immigration judge with instructions to allow DHS to complete or update the appropriate identity, law enforcement, or security investigations or examinations pursuant to § 1003.47 ; or

(B) The Board may provide notice to both parties that in order to complete adjudication of the appeal the case is being placed on hold until such time as all identity, law enforcement, or security investigations or examinations are completed or updated and the results have been reported to the Board.

(iii) In any case placed on hold under paragraph (d)(6)(ii)(B) of this section, DHS shall report to the Board promptly when the identity, law enforcement, or security investigations or examinations have been completed or updated. If DHS obtains relevant information as a result of the identity, law enforcement, or security investigations or examinations, or if the applicant fails to comply with necessary procedures for collecting biometrics or other biographical information, DHS may move to remand the record to the immigration judge for consideration of whether, in view of the new information or the alien's failure to comply, the immigration relief should be denied, either on grounds of eligibility or, where applicable, as a matter of discretion.

(iv) The Board is not required to remand or hold a case pursuant to paragraph (d)(6)(ii) of this paragraph if the Board decides to dismiss the respondent's appeal or deny the relief sought.

(v) The immigration relief described in 8 CFR 1003.47(b) and granted by the Board shall take effect as provided in 8 CFR 1003.47(i) .

(7) Finality of decision . The decision of the Board shall be final except in those cases reviewed by the Attorney General in accordance with paragraph (h) of this section. The Board may return a case to the Service or an immigration judge for such further action as may be appropriate, without entering a final decision on the merits of the case. (Redesignated as paragraph (d)(7), previously paragraph (d)(6) effective 4/1/05; 70 FR 4743 ) (Added effective 9/25/02; 67 FR 54878 )