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Board of Immigration Appeals: Procedural Reforms to Improve Case Management [67 FR 54878][FR 44-02]
FEDERAL REGISTER CITE:
67 FR 54878
DATE OF PUBLICATION:
August 26, 2002
BILLING CODE: 4410-10
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
[EOIR No. 131; AG Order No. 2609-2002]
Board of Immigration Appeals: Procedural Reforms To Improve
Executive Office for Immigration Review, Immigration and Naturalization Service, Department of Justice.
This final rule revises the structure and procedures of the Board of Immigration Appeals (Board), provides for an enhanced case management procedure, and expands the number of cases referred to a single Board member for disposition. These procedures are intended to reduce delays in the review process, enable the Board to keep up with its caseload and reduce the existing backlog of cases, and allow the Board to focus more attention on those cases presenting significant issues for resolution by a three-membe
r panel. After a transition period to implement the new procedures in order to reduce the Board's backlog of pending cases, the size of the Board will be reduced to eleven.
This final rule is effective September 25, 2002.
FOR FURTHER INFORMATION CONTACT:
Charles Adkins-Blanch, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470.
A. The Problem Presented
B. History of the Rulemaking
C. 30-Day Notice and Comment Period
II. Summary of the Revised Review System
A. Description of the Department's Goals
B. Summary of the Provisions of the RuleIII. Comments on the Proposed Rule
A. General Due Process Issues
1. The Respondent's Interest in the Individual Proceeding
2. The Government's Interest in the Immigration Adjudication Process
3. Balancing of Interests in the Adjudicatory Process
B. General Comments Relating to the Role and Independence of the Board
1. The Attorney General's Authority
2. Independence of Administrative Adjudicators
3. Attorney General Opinions and Written Orders
4. The Effect of Regulations
C. Expanded Single-Member Review
1. General Comments on the Adequacy of Single-Member Review
2. Summary Dismissals
3. Summary Affirmances Under Streamlining
4. Other Dispositions by a Single Board Member--Affirmances, Modifications, and Remands
5. Reversals and Terminations of Proceedings
6. Quality Assurance of Decisions
7. Single Board Member Participation in Reopening and Reconsideration of Own Decision
D. Standards for Referral of Cases to Three-Member Panels
1. In General
2. Particular Classes of Cases
3. Clarification of Standards for Panel Review
E. De novo Review and the Clearly Erroneous Standard
1. De novo and Clearly Erroneous Standards of Review of Factual Determinations by the Immigration Judges
2. “Correction” of Clearly Erroneous Factual Determinations
3. Clearly Erroneous Standard Applied
4. Harmless Error
5. Litigation Concerns
6. De novo Review by the Attorney General
7. Review of Service Decisions
F. New Evidence and Taking Administrative Notice of Facts
G. Reduction in Size of the Board
1. Quality of Board Member Personnel
2. Resource Requirement Concerns
3. Advantages of a Smaller Board
H. Case Processing Issues
1. Simultaneous Briefing
2. Transcript Timing
3. Immigration Judge Time Limits To Review Decisions
4. 30-Day Notice of Appeal Filing Requirement
5. Decisional Time Limits
6. Holding Cases Pending Significant Changes in Law and Precedent
I. Decisional Issues
1. Management of Decisions
2. Remand Motions
3. Rehearing en banc
4. Separate Opinions
5. Changes in the Notice of Appeal
6. Barring Oral Argument Before a Single Board Member
7. Location of Oral Argument
8. Summary Dismissal of Frivolous Appeals and Discipline
9. Mandatory Summary Dismissals
10. Finality of Decisions and Remands
J. Applicability of Procedural Reforms to Pending Cases
K. Transition Period and Reduction of the Backlog
L. Administrative Fines Cases
M. Miscellaneous and Technical Issues
1. The Board's Pro Bono Project
2. Fundamental Changes in Structure
3. Technical Amendments
The Attorney General has delegated to the Board of Immigration Appeals (Board) broad jurisdiction over appeals from decisions of the immigration judges in exclusion, deportation, and removal proceedings, bond appeals, asylum-only cases, and other specific matters, and also the authority to review certain final decisions by district directors and other officials of the Immigration and Naturalization Service (Service).
See 8 CFR part 3, subpart A. Decisions of the Board are subject to review by the Attorney General as provided in 8 CFR 3.1(h).
The Executive Office for Immigration Review (EOIR) was created by the Attorney General in 1983 to consolidate the adjudicatory process by placing the immigration judges and the Board in a single administrative unit separate and apart from the Service. 52 FR 2931 (Jan. 29, 1987). In 1987, the Attorney General also established the Office of the Chief Administrative Hearing Officer (OCAHO) within EOIR to adjudicate certain civil penalty issues. EOIR is an administrative component under the direction of the Att
orney General, not a separate agency of the United States. It is, however, wholly separate from, and independent of, the Service.
The Problem Presented
The Attorney General is promulgating this rule to improve the adjudicatory process for the Board because, under the current process, the Board has been unable to adjudicate immigration appeals in removal proceedings effectively and efficiently. In 1992, the Board received 12,823 cases and decided 11,720 cases, including appeals from the immigration judges or the Service, and motions to reopen proceedings. At the end of FY1992, the Board had 18,054 pending cases. By 1997, the number of new cases rose to 29,9
13, dispositions rose to 23,099, and the pending caseload had grown to 47,295 cases. Most recently, in FY2001, the Board received 27,505 cases and decided 31,789 cases. The pending caseload on September 30, 2001, totaled 57,597 cases.
To meet this demand, the number of Board members was increased from 5 positions to 12 positions in 1995, with further incremental increases in subsequent years to a total of 23 authorized Board member positions (with 19 members and four vacancies at present). It is now apparent that this substantial enlargement--more than quadrupling the size of the Board in less than seven years--has not succeeded in addressing the problem of effective and efficient administrative adjudication, and the Department declines
to continue committing more resources to support the existing process. Rather, the Department believes that amendment of the adjudicatory process is a more effective approach to facilitate the ability of the Board to adjudicate the case backlog, as well as to provide meaningful guidance for immigration judges, the Service, attorneys and accredited representatives, and respondents.
Until recently, three-member panels reviewed all cases, even cases that presented no colorable basis for appeal. However, beginning in 1999, the Attorney General instituted a mechanism for streamlining cases. See 64 FR 56135 (Oct. 18, 1999). The streamlining process permits a single Board member to summarily affirm the immigration judge's decision without opinion; the Chairman is authorized to designate the type of cases that could be “streamlined.”
The streamlining process undertaken by the Board has provided the best opportunity to manage the Board's backlog. Over 58% of all new cases in 2001 were sent to be summarily decided by single Board member review through streamlining. Testimony of Kevin Rooney, Director, EOIR, Hearing before the Committee on the Judiciary, Subcommittee on Immigration and Claims, United States House of Representatives, Operations of the Executive Office for Immigration Review (EOIR), 107th Cong., 2nd Sess. 23 (Feb. 6, 2002) (
hereinafter “House Judiciary Subcommittee Hearing”). That initiative, allowing certain categories of appeals to be adjudicated by a single member, was recently assessed favorably by an external auditor. Arthur Andersen & Company, Board of Immigration Appeals (BIA) Streamlining Pilot Project Assessment Report (Dec. 13, 2001) (hereinafter “Streamlining Study”). Streamlining was the first disengagement from a “one size fits all” philosophy of using three member panels for all cases. The final rule continues th
The Department agrees with the fundamental assessment that the Board's use of the streamlining process has been successful, and, in this rule, expands the single-member process to be the dominant method of adjudication for the large majority of cases before the Board. In particular, this rule removes the restriction that a single Board member is limited to affirming an immigration judge's decision “without opinion” in those cases where an affirmance is appropriate. While such dispositions are proper in a su
bstantial number of cases, as the Board's experience to date with the streamlining process has demonstrated, there are many other cases that may require some explanation of the Board's rationale, for example, as to why the immigration judge's decision was the proper result, or why any asserted errors were harmless or immaterial.
Under the existing streamlining procedures, any case that is not appropriate for summary affirmance without opinion must be referred to a three-member panel for disposition, even if the issues are not novel or complex. That process can be, and has been, cumbersome and time-consuming, and expends an excessive amount of resources. Where single Board members can resolve such appeals through issuance of a brief written opinion, the Board will be able to concentrate greater resources on the more complex cases th
at are appropriate for review by a three-member panel, and will also be able to focus greater attention on the issuance of precedent decisions that provide guidance to the immigration judges, the Service, attorneys and accredited representatives, and respondents.
Finally, under the Board's existing processes, decisions have all too often been issued long after the Notice of Appeal. Cases have routinely remained pending before the Board for more than two years, and some cases have taken more than five years to resolve. There is reason for concern that many appeals have been filed precisely to take advantage of this delay. Moreover, the quality of precedent decisions has not improved and the number of precedent decisions has remained relatively constant despite substa
ntial changes in the law.
History of the Rulemaking
The Department published a proposed rule in the Federal Register on February 19, 2002, 67 FR 7309, proposing procedural reforms to improve case management at the Board. A 30-day public comment period ended on March 21, 2002.
In response to the proposed rulemaking, the Department received numerous comments from various nongovernmental organizations (NGOs), members of Congress, private attorneys, and other interested individuals. The Department received a total of 68 separate, timely submissions (with several NGOs submitting separate comments with attachments that were identical, and one set of NGO comments that attached lists of signatures totaling in excess of 900 individuals). Since many of the comments are similar and endorse
the submissions of other commenters, the Department addresses the responses by topic rather than by referencing each specific commenter and comment. In addition, five comments were either postmarked and/or received by EOIR after the closing date for the comment period. None of the untimely submissions presented any comment that was not already addressed by an earlier commenter.
In addition, the Department has considered the record of the House Judiciary Subcommittee Hearing, supra, because that hearing dealt with the same subject as the rule and because of the perceptive discussion before the Subcommittee. The Department also considered the evaluation of the streamlining project in the Streamlining Study.
30-Day Notice and Comment Period
Several commenters objected to the 30-day comment period for the proposed rule and requested an extension. Some of the NGOs also requested a meeting with the Department.
Notwithstanding the length of the comment period, 68 commenters submitted a variety of comments, many of which were thoughtful and extensive. The Department has reviewed and carefully considered all of the comments submitted and believes that the 30-day comment period has been sufficient. Additionally, the Department has decided against engaging in meetings with particular commenters since the written comments of all commenters as submitted are sufficient. The Department also notes that the Administrative P
rocedure Act (APA) provides that procedural rules may be issued without notice and opportunity for prior comment and may be effective upon publication. Rules which are arguably “substantive” require at least 30 days prior notice subject to certain exceptions. See 5 U.S.C. 553(b)(A), (d). Accordingly, the Department has fully complied with the APA, and no additional opportunity for comment is required or necessary considering the written comments already submitted. Furthermore, the 30-day comment period is i
n keeping with the Department's objectives, including eliminating unwarranted delay.