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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having general applicability and legal effect, most of which are keyed
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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]