Federal Register, Volume 80 Issue 106 (Wednesday, June 3, 2015)
[Federal Register Volume 80, Number 106 (Wednesday, June 3, 2015)]
[Rules and Regulations]
[Pages 31461-31463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-13459]

Rules and Regulations
                                                Federal Register

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Federal Register / Vol. 80, No. 106 / Wednesday, June 3, 2015 / Rules 
and Regulations

[[Page 31461]]


Executive Office for Immigration Review

8 CFR Part 1003

[Docket No. EOIR 183; A.G. Order No. 3534-2015]
RIN 1125-AA79

Expanding the Size of the Board of Immigration Appeals

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Interim rule with request for comments.


SUMMARY: This rule amends the Department of Justice regulations 
relating to the organization of the Board of Immigration Appeals 
(Board) by adding two Board member positions, thereby expanding the 
Board to 17 members.

DATES: Effective date: This rule is effective June 3, 2015. Comment 
date: Written comments must be submitted on or before August 3, 2015. 
Comments received by mail will be considered timely if they are 
postmarked on or before that date. The electronic Federal Docket 
Management System (FDMS) will accept comments until midnight eastern 
time at the end of that day.

ADDRESSES: Please submit written comments to Jean King, Acting General 
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2600, Falls Church, VA 20530. To ensure proper handling, please 
reference RIN No. 1125-AA79 or EOIR docket No. 183 on your 
correspondence. You may submit comments electronically or view an 
electronic version of this interim rule at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jean King, Acting General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, VA 20530, telephone (703) 305-0470 (not a toll-free 


I. Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at 
www.regulations.gov. Such information includes personally identifiable 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personally identifiable information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONALLY 
IDENTIFIABLE INFORMATION'' in the first paragraph of your comment. You 
must also locate all the personally identifiable information you do not 
want posted online in the first paragraph of your comment and identify 
what information you want redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You must also prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
    Personally identifiable information identified and located as set 
forth above will be placed in the agency's public docket file, but not 
posted online. Confidential business information identified and located 
as set forth above will not be placed in the public docket file. If you 
wish to inspect the agency's public docket file in person by 
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

II. Background

    The Executive Office for Immigration Review (EOIR) administers the 
Nation's immigration court system. Generally, cases commence before an 
immigration judge when the Department of Homeland Security (DHS) files 
a charging document against an alien with the immigration court. See 8 
CFR 1003.14(a). EOIR primarily decides whether foreign-born individuals 
who are charged by DHS with violating immigration law pursuant to the 
Immigration and Nationality Act (INA) should be ordered removed from 
the United States, or should be granted relief or protection from 
removal and be permitted to remain in the United States. EOIR's Office 
of the Chief Immigration Judge administers these adjudications in 
immigration courts nationwide.
    Decisions of the immigration judges are subject to review by EOIR's 
appellate body, the Board of Immigration Appeals (Board), which 
currently comprises 15 permanent 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.

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 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 EOIR's commitment to promptly decide a large 
volume of cases, as well as review a large quantity of appeals of those 
cases, this rule amends the Department's regulations relating to the 
organization of the Board by adding two Board member positions, thereby 
expanding the Board from 15 to 17 members.\1\ This rule revises the 
third sentence of 8 CFR 1003.1(a)(1), leaving

[[Page 31462]]

the remainder of paragraph (a)(1) unchanged.

    \1\ The Department last 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. See 71 FR 
70855 (Dec. 7, 2006). On June 16, 2008, the Department published a 
final rule adopting, without change, the interim rule. See 73 FR 
33875 (Jun. 16, 2008).

    Expanding the number of Board members is necessary at this time for 
two primary reasons. First, EOIR is currently managing the largest 
caseload the immigration court system has ever seen. At the end of FY 
2014, there were 418,861 total cases pending at the immigration courts, 
marking an increase of 62,831 cases pending above those at the end of 
FY 2013. See 2014 EOIR Stat. Y.B. W1.\2\ This total increase included 
an increase in the number of pending cases involving detained aliens. 
The efficient and timely adjudication of cases of detained aliens is 
the highest priority for EOIR and requires additional resources to 
handle the increased caseload. As the caseload in the immigration 
courts increases, the Department anticipates that the corresponding 
caseload at the Board will also expand.

    \2\ EOIR's FY2014 Statistical Year Book, prepared by EOIR's 
Office of Planning, Analysis, and Technology, is available at http://www.justice.gov/eoir/statspub/fy14syb.pdf.

    Second, after the hiring freeze was lifted in fiscal year (FY) 
2014, the Department processed and identified for hire 25 immigration 
judge candidates. Also in FY 2014, the Department advertised for and is 
now in the process of selecting a substantial number of additional 
immigration judges. The Department expects that, as these new 
immigration judges enter on duty, the number of decisions rendered 
nationwide by immigration judges will increase and, in turn, the number 
of appeals filed with the Board will also increase.
    The current caseload at the Board is burdensome and may become 
overwhelming in the future for a Board of 15 members. At the same time, 
if the Board becomes too large, it may have difficulty fulfilling its 
responsibility of providing coherent direction with respect to the 
immigration laws. In particular, because the Board currently issues 
precedent decisions only with the approval of a majority of permanent 
Board members, a substantial increase in Board members may make the 
process of issuing such decisions more difficult.
    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 two members should be added to the Board at this 
time. These changes are necessary to maintain an efficient system of 
appellate adjudication in light of the increasing caseload.

IV. Public Comments

    This rule is 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 relates to a matter of agency organization, 
procedure, or practice. See 5 U.S.C. 553(b). The Department is 
nonetheless promulgating this rule as an interim rule, providing the 
public with opportunity for post-promulgation comment before the 
Department issues a final rule on these matters.

V. Regulatory Requirements

A. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), ``[w]henever an agency 
is required by section 553 of [the RFA], 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). 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 is required for this 

B. 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 

C. 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 (SBREFA), 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 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

D. Executive Orders 12866 and 13563--Regulatory Planning and Review

    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,'' and the Office of Management and 
Budget has concurred in this determination. 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, ``Improving Regulation and Regulatory 
Review.'' 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 interim 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 a 
timely manner. The Department does not foresee any burdens to the 
public or the Department.

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 

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.

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 interim rule because there are no new 
or revised recordkeeping or reporting requirements.

[[Page 31463]]

H. Congressional Review Act

    This action pertains to agency management and personnel and, 
accordingly, is not a ``rule'' as that term is used by the 
Congressional Review Act (CRA) (Subtitle E of the Small Business 
Regulatory Enforcement Fairness Act (SBREFA)), 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 Attorney 
General is amending part 1003 of chapter V of title 8 of the Code of 
Federal Regulations as follows:


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.

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 17 members.* * *
* * * * *

     Dated: May 28, 2015.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2015-13459 Filed 6-2-15; 8:45 am]