[Federal Register Volume 83, Number 39 (Tuesday, February 27, 2018)]
[Rules and Regulations]
[Pages 8321-8323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03980]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 83, No. 39 / Tuesday, February 27, 2018 /
Rules and Regulations
[[Page 8321]]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1003
[Docket No. EOIR 183; A.G. Order No. 4119-2018]
RIN 1125-AA79
Expanding the Size of the Board of Immigration Appeals
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Final rule.
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SUMMARY: This final rule amends the Executive Office for Immigration
Review (EOIR) regulations relating to the organization of the Board of
Immigration Appeals (Board) by adding four additional Board member
positions, thereby expanding the Board to 21 members.
DATES: This rule is effective February 27, 2018.
FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Acting Chief of the
Immigration Law Division, Office of Policy, Executive Office for
Immigration Review, 5107 Leesburg Pike, Suite 1902, Falls Church, VA
20530, telephone (703) 305-0289 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Current Interim Rule
On June 3, 2015, the Department of Justice (Department) published
an interim rule amending 8 CFR 1003.1 to increase the Board of
Immigration Appeals (Board) from 15 to 17 members, with a request for
comments. 80 FR 31461 (June 3, 2015). As explained in the interim rule,
expanding the number of Board members is necessary to accomplish EOIR's
commitment to promptly provide Board appellate review of timely filed
immigration case appeals. The interim rule provided two primary reasons
for increasing the number of Board members from 15 to 17. First, EOIR
was managing the largest caseload the immigration court system had ever
seen. Second, the Department was in the process of hiring a substantial
number of additional immigration judges, which the Department expected
would increase the number of appeals filed with the Board.
The Department provided an opportunity for post-promulgation
comment even though this was a rule of internal agency organization and
therefore notice-and-comment rulemaking was not required. The
Department received two comments by the deadline of August 3, 2015. For
the reasons set forth below, the Department is finalizing the interim
rule amending 8 CFR part 1003, and adding four additional Board members
for a total of 21 Board members.
II. Background
EOIR administers the Nation's immigration court system. Generally,
cases commence before an immigration judge when the Department of
Homeland Security (DHS) files with the immigration court a charging
document against an alien. See 8 CFR 1003.14(a). EOIR primarily decides
whether foreign nationals whom DHS charges with violating immigration
law pursuant to the Immigration and Nationality Act are removable as
charged and, if so, whether they should be ordered removed from the
United States, or should be granted protection or relief from removal
and be permitted to remain in the United States. EOIR's Office of the
Chief Immigration Judge administers the adjudications of the
immigration judges nationwide.
Decisions of the immigration judges are subject to review by EOIR's
appellate body, the Board, which is currently composed of 17 Board
members. The Board is the highest administrative tribunal for
interpreting and applying U.S. immigration law. The Board's decisions
can be reviewed by the Attorney General, as provided in 8 CFR 1003.1(g)
and (h). Decisions of the Board and the Attorney General are subject to
judicial review in the United States Courts of Appeals.
III. Expansion of Number of Board Members
EOIR's mission is to adjudicate immigration cases by fairly,
expeditiously, and uniformly interpreting and administering the
Nation's immigration laws. This task includes the initial adjudication
of aliens' cases in immigration courts nationwide, as well as appellate
review by the Board when appeals are timely filed. In order to more
efficiently accomplish the agency's commitment to promptly decide an
increasing volume of cases, as well as to review appeals in those
cases, this rule serves to finalize the interim rule, with the addition
of four additional Board members.\1\ This rule adopts a revision to the
third sentence of 8 CFR 1003.1(a)(1). The remainder of paragraph (a)(1)
is unchanged.
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\1\ The Department previously expanded the number of Board
members--from 11 to 15 members--on December 7, 2006, when it
published in the Federal Register an interim rule amending 8 CFR
1003.1. 71 FR 70855 (Dec. 7, 2006). On June 16, 2008, the Department
published a final rule adopting, without change, that interim rule.
73 FR 33875 (June 16, 2008).
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Expanding the number of Board members was necessary when the
interim rule was published in 2015 because EOIR was experiencing an
increased caseload. Since the interim rule's publication, EOIR's
caseload has continued to grow; EOIR is currently managing the largest
caseload the immigration court system has ever seen. At the end of FY
2016, there were 518,545 total cases pending before the immigration
courts, marking an increase of 58,988 cases pending above those at the
end of FY 2015. See 2016 EOIR Statistics Yearbook W1.\2\ As of January
1, 2018, there were 667,292 total cases pending before the immigration
courts. This total increase included an increase in the number of
pending cases of detained aliens. EOIR's highest priority is the
efficient and timely adjudication of detained alien cases, and EOIR
requires additional resources to handle the increased caseload.
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\2\ EOIR's FY 2016 Statistics Yearbook, prepared by EOIR's
Office of Planning, Analysis, and Statistics, is available at
https://www.justice.gov/eoir/page/file/fysb16/download.
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The Department is taking steps to address the unprecedented pending
caseload. The Department hired 64 additional immigration judges in FY
2017 and continues to hire new immigration judges. The Department
expects that, as these additional immigration judges enter on duty, the
number of decisions rendered by the immigration judges nationwide will
[[Page 8322]]
increase, and the number of appeals filed with the Board will increase
as a result. The Department is also taking a number of management steps
to more efficiently address the pending caseload, which EOIR expects
will result in an increase in immigration judge decisions and, in turn,
an increase in the flow of appeals to the Board.\3\
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\3\ Statement of James McHenry, Acting Director, Executive
Office for Immigration Review, United States Department of Justice,
Before the Subcommittee on Immigration and Border Security,
Committee on the Judiciary, United States House of Representatives,
November 1, 2017.
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Since January 2017, the Board has experienced a steady increase in
appeals. For example, the number of appeals increased throughout FY
2017, from 2,618 in October 2016 to 3,035 in September 2017. This
caseload is burdensome and, given current trends, may become
overwhelming were the Board to maintain 17 members.
The interim rule modified the number of Board members to 17, and
requested post-promulgation comment on the proposal to increase the
number of Board members in light of the increased caseload. Keeping in
mind the goal of maintaining cohesion and the ability to reach
consensus, but recognizing the challenges the Board faces in light of
its current and anticipated increased caseload, the Department has
determined that four additional members should be added to the Board.
The Department acknowledges the potential impact of the expansion to 21
members upon the Board's ability to provide coherent direction and to
issue precedential decisions, which require approval of a majority of
the Board, and will continue to consider means to improve the Board's
operations over time. But the interim rule's logic--balancing
efficiency with administrability--supports increasing the size of the
Board in the final rule to 21. These changes will help support an
efficient system of appellate adjudication in light of the increasing
caseload.
IV. Public Comments
The interim rule was exempt from the usual requirements of prior
notice and comment and a 30-day delay in effective date because, as an
internal delegation of authority, it is a rule of management or
personnel and relates to a matter of agency organization, procedure, or
practice. See 5 U.S.C. 553(a), (b), (d). Nonetheless, when promulgating
the interim rule, the Department provided an opportunity for post-
promulgation comment. The Department received two comments by the
deadline, only one of which was responsive to the rule. The commenter
stated that ``[e]xpanding the Board of Immigration Appeals (BIA) to 17
members from 15 members is . . . a necessary action as the pending
times for appeals has substantially increased as the docket of EOIR has
expanded.''
In response, the Department appreciates this expression of support.
EOIR has steadily hired new immigration judges, and continues to hire
new immigration judges, to adjudicate EOIR's historically large
caseload. As the number of immigration judges increases, so does the
number of decisions rendered by immigration judges. In turn, the number
of appeals filed with the Board also increases. Increasing the number
of Board members will assist EOIR in accomplishing its mission of
adjudicating appeals in a timely manner.
V. Regulatory Requirements
A. Administrative Procedure Act
As this rule is the finalization of an interim final rule, further
request for comment is not required. Alternately, comment is
unnecessary because this final rule is a rule of management or
personnel as well as a rule of agency organization, procedure, or
practice. See 5 U.S.C. 553(a)(2), (b)(A). For the same reasons, this
rule is not subject to a 30-day delay in effective date. See 5 U.S.C.
553(a)(2), (d).
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), ``[w]henever an agency
is required by section 553 of [the Administrative Procedure Act], or
any other law, to publish general notice of proposed rulemaking for any
proposed rule . . . the agency shall prepare and make available for
public comment an initial regulatory flexibility analysis.'' 5 U.S.C.
603(a); see 5 U.S.C. 604(a). Such analysis is not required when a rule
is exempt from notice-and-comment rulemaking under 5 U.S.C. 553(b).
Because this is a rule of internal agency organization and therefore is
exempt from notice-and-comment rulemaking, no RFA analysis under 5
U.S.C. 603 or 604 is required for this rule.
C. 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.
D. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 13771 (Reducing
Regulation and Controlling Regulatory Costs)
This rule is limited to agency organization, management, or
personnel matters and is therefore not subject to review by the Office
of Management and Budget pursuant to section 3(d)(3) of Executive Order
12866, Regulatory Planning and Review. Nevertheless, the Department
certifies that this regulation has been drafted in accordance with the
principles of Executive Order 12866, section 1(b), and Executive Order
13563. Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits, including consideration of potential economic,
environmental, public health, and safety effects; distributive impacts;
and equity. The benefits of this rule include providing the Department
with an appropriate means of responding to the increased number of
appeals to the Board. The public will benefit from the expansion of the
number of Board members because such expansion will help EOIR better
accomplish its mission of adjudicating cases in an efficient and timely
manner. Overall, the benefits provided by the Board's expansion
outweigh the costs of employing additional federal employees. Finally,
because this rule is one of internal organization, management, or
personnel, it is not subject to the requirements of Executive Order
13771.
E. Executive Order 13132--Federalism
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, this rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
F. Executive Order 12988--Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
[[Page 8323]]
G. 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 recordkeeping or reporting requirements.
H. Congressional Review Act
This is not a major rule as defined by 5 U.S.C. 804(2). This action
pertains to agency organization, management, and personnel and,
accordingly, is not a ``rule'' as that term is used in 5 U.S.C. 804(3).
Therefore, the reports to Congress and the Government Accountability
Office specified by 5 U.S.C. 801 are not required.
List of Subjects in 8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
services, Organization and functions (Government agencies).
Accordingly, for the reasons stated in the preamble, the interim
rule amending 8 CFR part 1003, which was published at 80 FR 31461 on
June 3, 2015, is adopted as a final rule, with the following change:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
1. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
0
2. Amend Sec. 1003.1 by revising the third sentence of paragraph
(a)(1) to read as follows:
Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.
(a)(1) * * * The Board shall consist of 21 members. * * *
* * * * *
Dated: February 20, 2018.
Jefferson B. Sessions III,
Attorney General.
[FR Doc. 2018-03980 Filed 2-26-18; 8:45 am]
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