BIA Procedural Reforms to Improve Case Management (Aug. 26, 2002), 67 Fed. Reg. 54,878, AG Order No....

8/14/2019 BIA Procedural Reforms to Improve Case Management (Aug. 26, 2002), 67 Fed. Reg. 54,878, AG Order No. 2609-…

http://slidepdf.com/reader/full/bia-procedural-reforms-to-improve-case-management-aug-26-2002-67-fed 1/29

Monday,

August 26, 2002

Part III

Department of JusticeImmigration and Naturalization Service

8 CFR Part 3

Board of Immigration Appeals; Procedural Reforms To Improve Case Management;Final Rule

VerDate Aug<23>2002 15:19 Aug 23, 2002 Jkt 197001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\26AUR2.SGM 26AUR2



54878 Federal Register / Vol. 67, No. 165/ Monday, August 26, 2002/ Rules and Regulations

1 In this SUPPLEMENTARY INFORMATION, theDepartment uses the term ‘‘removal,’’ andappropriate variations, to encompass all forms of proceedings before the Board. Similarly, theDepartment refers to all aliens in proceedings as‘‘respondents,’’ whether they would be respondentsor applicants. The use of these simplified terms isfor the ease of the reader and should not beconstrued to imply any limitations on the scope of the final rule as it applies to matters within thejurisdiction of the Board.

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 3

[EOIR No. 131; AG Order No. 2609–2002]

RIN 1125–AA36

Board of Immigration Appeals:Procedural Reforms To Improve CaseManagement

AGENCY: Executive Office forImmigration Review, Immigration andNaturalization Service, Department of

Justice.

ACTION: Final rule.

SUMMARY: This final rule revises thestructure and procedures of the Board of Immigration Appeals (Board), providesfor an enhanced case managementprocedure, and expands the number of cases referred to a single Board member

for disposition. These procedures areintended to reduce delays in the reviewprocess, enable the Board to keep upwith its caseload and reduce theexisting backlog of cases, and allow theBoard to focus more attention on thosecases presenting significant issues forresolution by a three-member panel.After a transition period to implementthe new procedures in order to reducethe Board’s backlog of pending cases,the size of the Board will be reduced toeleven.

DATES: This final rule is effectiveSeptember 25, 2002.

FOR FURTHER INFORMATION CONTACT: Charles Adkins-Blanch, GeneralCounsel, Executive Office forImmigration Review, 5107 LeesburgPike, Suite 2600, Falls Church, Virginia22041, telephone (703) 305–0470.

SUPPLEMENTARY INFORMATION:I. Introduction

A. The Problem PresentedB. History of the RulemakingC. 30-Day Notice and Comment Period

II. Summary of the Revised Review SystemA. Description of the Department’s GoalsB. Summary of the Provisions of the Rule

III. Comments on the Proposed RuleA. General Due Process Issues

1. The Respondent’s Interest in theIndividual Proceeding

2. The Government’s Interest in theImmigration Adjudication Process

3. Balancing of Interests in theAdjudicatory Process

B. General Comments Relating to the Roleand Independence of the Board

1. The Attorney General’s Authority2. Independence of Administrative

Adjudicators3. Attorney General Opinions and Written

Orders4. The Effect of RegulationsC. Expanded Single-Member Review

1. General Comments on the Adequacy of Single-Member Review

2. Summary Dismissals3. Summary Affirmances Under

Streamlining4. Other Dispositions by a Single Board

Member—Affirmances, Modifications,and Remands

5. Reversals and Terminations of Proceedings

6. Quality Assurance of Decisions7. Single Board Member Participation in

Reopening and Reconsideration of OwnDecision

D. Standards for Referral of Cases to Three-Member Panels

1. In General2. Particular Classes of Cases3. Clarification of Standards for Panel

ReviewE. De novo Review and the Clearly

Erroneous Standard1. De novo and Clearly Erroneous

Standards of Review of FactualDeterminations by the Immigration

Judges2. ‘‘Correction’’ of Clearly Erroneous

Factual Determinations3. Clearly Erroneous Standard Applied4. Harmless Error5. Litigation Concerns6. De novo Review by the Attorney General7. Review of Service DecisionsF. New Evidence and Taking

Administrative Notice of FactsG. Reduction in Size of the Board1. Quality of Board Member Personnel2. Resource Requirement Concerns3. Advantages of a Smaller BoardH. Case Processing Issues1. Simultaneous Briefing2. Transcript Timing3. Immigration Judge Time Limits To

Review Decisions

4. 30-Day Notice of Appeal FilingRequirement5. Decisional Time Limits6. Holding Cases Pending Significant

Changes in Law and PrecedentI. Decisional Issues1. Management of Decisions2. Remand Motions3. Rehearing en banc4. Separate Opinions5. Changes in the Notice of Appeal6. Barring Oral Argument Before a Single

Board Member7. Location of Oral Argument8. Summary Dismissal of Frivolous

Appeals and Discipline9. Mandatory Summary Dismissals

10. Finality of Decisions and Remands J. Applicability of Procedural Reforms toPending Cases

K. Transition Period and Reduction of theBacklog

L. Administrative Fines CasesM. Miscellaneous and Technical Issues1. The Board’s Pro Bono Project2. Fundamental Changes in Structure3. Technical Amendments

I. Introduction

The Attorney General has delegated tothe Board of Immigration Appeals(Board) broad jurisdiction over appeals

from decisions of the immigrationjudges in exclusion, deportation, andremoval proceedings, bond appeals,asylum-only cases, and other specificmatters, and also the authority to reviewcertain final decisions by districtdirectors and other officials of theImmigration and Naturalization Service(Service).1 See 8 CFR part 3, subpart A.

Decisions of the Board are subject toreview by the Attorney General asprovided in 8 CFR 3.1(h).

The Executive Office for ImmigrationReview (EOIR) was created by theAttorney General in 1983 to consolidatethe adjudicatory process by placing theimmigration judges and the Board in asingle administrative unit separate andapart from the Service. 52 FR 2931 (Jan.29, 1987). In 1987, the Attorney Generalalso established the Office of the Chief Administrative Hearing Officer(OCAHO) within EOIR to adjudicatecertain civil penalty issues. EOIR is an

administrative component under thedirection of the Attorney General, not aseparate agency of the United States. Itis, however, wholly separate from, andindependent of, the Service.

A. The Problem Presented

The Attorney General is promulgatingthis rule to improve the adjudicatoryprocess for the Board because, under thecurrent process, the Board has beenunable to adjudicate immigrationappeals in removal proceedingseffectively and efficiently. In 1992, theBoard received 12,823 cases anddecided 11,720 cases, including appeals

from the immigration judges or theService, and motions to reopenproceedings. At the end of FY1992, theBoard had 18,054 pending cases. By1997, the number of new cases rose to29,913, dispositions rose to 23,099, andthe pending caseload had grown to47,295 cases. Most recently, in FY2001,the Board received 27,505 cases anddecided 31,789 cases. The pendingcaseload on September 30, 2001, totaled57,597 cases.

To meet this demand, the number of Board members was increased from 5positions to 12 positions in 1995, with

further incremental increases insubsequent years to a total of 23authorized Board member positions(with 19 members and four vacancies at




54879Federal Register / Vol. 67, No. 165/ Monday, August 26, 2002/ Rules and Regulations

present). It is now apparent that thissubstantial enlargement—more thanquadrupling the size of the Board in lessthan seven years—has not succeeded inaddressing the problem of effective andefficient administrative adjudication,and the Department declines tocontinue committing more resources tosupport the existing process. Rather, the

Department believes that amendment of the adjudicatory process is a moreeffective approach to facilitate theability of the Board to adjudicate thecase backlog, as well as to providemeaningful guidance for immigrationjudges, the Service, attorneys andaccredited representatives, andrespondents.

Until recently, three-member panelsreviewed all cases, even cases thatpresented no colorable basis for appeal.However, beginning in 1999, theAttorney General instituted amechanism for streamlining cases. See

64 FR 56135 (Oct. 18, 1999). Thestreamlining process permits a singleBoard member to summarily affirm theimmigration judge’s decision withoutopinion; the Chairman is authorized todesignate the type of cases that could be‘‘streamlined.’’

The streamlining process undertaken by the Board has provided the bestopportunity to manage the Board’s

backlog. Over 58% of all new cases in2001 were sent to be summarily decided

by single Board member review throughstreamlining. Testimony of KevinRooney, Director, EOIR, Hearing beforethe Committee on the Judiciary,

Subcommittee on Immigration andClaims, United States House of Representatives, Operations of theExecutive Office for Immigration Review (EOIR), 107th Cong., 2nd Sess. 23 (Feb.6, 2002) (hereinafter ‘‘House JudiciarySubcommittee Hearing’’). Thatinitiative, allowing certain categories of appeals to be adjudicated by a singlemember, was recently assessedfavorably by an external auditor. ArthurAndersen & Company, Board of Immigration Appeals (BIA) Streamlining Pilot Project Assessment Report (Dec.13, 2001) (hereinafter ‘‘Streamlining

Study’’). Streamlining was the firstdisengagement from a ‘‘one size fits all’’ philosophy of using three memberpanels for all cases. The final rulecontinues that process.

The Department agrees with thefundamental assessment that theBoard’s use of the streamlining processhas been successful, and, in this rule,expands the single-member process to

be the dominant method of adjudicationfor the large majority of cases before theBoard. In particular, this rule removesthe restriction that a single Board

member is limited to affirming animmigration judge’s decision ‘‘withoutopinion’’ in those cases where anaffirmance is appropriate. While suchdispositions are proper in a substantialnumber of cases, as the Board’sexperience to date with the streamliningprocess has demonstrated, there aremany other cases that may require some

explanation of the Board’s rationale, forexample, as to why the immigrationjudge’s decision was the proper result,or why any asserted errors wereharmless or immaterial.

Under the existing streamliningprocedures, any case that is notappropriate for summary affirmancewithout opinion must be referred to athree-member panel for disposition,even if the issues are not novel orcomplex. 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 throughissuance of a brief written opinion, theBoard will be able to concentrate greaterresources on the more complex casesthat are appropriate for review by athree-member panel, and will also beable to focus greater attention on theissuance of precedent decisions thatprovide guidance to the immigrationjudges, the Service, attorneys andaccredited representatives, andrespondents.

Finally, under the Board’s existingprocesses, decisions have all too often

been issued long after the Notice of Appeal. Cases have routinely remained

pending before the Board for more thantwo years, and some cases have takenmore than five years to resolve. There isreason for concern that many appealshave been filed precisely to takeadvantage of this delay. Moreover, thequality of precedent decisions has notimproved and the number of precedentdecisions has remained relativelyconstant despite substantial changes inthe law.

B. History of the Rulemaking

The Department published a proposedrule in the Federal Register on February

19, 2002, 67 FR 7309, proposingprocedural reforms to improve casemanagement at the Board. A 30-daypublic comment period ended on March21, 2002.

In response to the proposedrulemaking, the Department receivednumerous comments from variousnongovernmental organizations (NGOs),members of Congress, private attorneys,and other interested individuals. TheDepartment received a total of 68separate, timely submissions (withseveral NGOs submitting separate

comments with attachments that wereidentical, and one set of NGO commentsthat attached lists of signatures totalingin excess of 900 individuals). Sincemany of the comments are similar andendorse the submissions of othercommenters, the Department addressesthe responses by topic rather than byreferencing each specific commenterand comment. In addition, fivecomments were either postmarked and/or received by EOIR after the closingdate for the comment period. None of the untimely submissions presented anycomment that was not alreadyaddressed by an earlier commenter.

In addition, the Department hasconsidered the record of the House

Judiciary Subcommittee Hearing, supra, because that hearing dealt with the samesubject as the rule and because of theperceptive discussion before theSubcommittee. The Department also

considered the evaluation of thestreamlining project in the StreamliningStudy.

C. 30-Day Notice and Comment Period

Several commenters objected to the30-day comment period for theproposed rule and requested anextension. Some of the NGOs alsorequested a meeting with theDepartment.

Notwithstanding the length of thecomment period, 68 commenterssubmitted a variety of comments, many

of which were thoughtful and extensive.The Department has reviewed andcarefully considered all of thecomments submitted and believes thatthe 30-day comment period has beensufficient. Additionally, the Departmenthas decided against engaging inmeetings with particular commenterssince the written comments of allcommenters as submitted are sufficient.The Department also notes that theAdministrative Procedure Act (APA)provides that procedural rules may beissued without notice and opportunityfor prior comment and may be effective

upon publication. Rules which arearguably ‘‘substantive’’ require at least30 days prior notice subject to certainexceptions. See 5 U.S.C. 553(b)(A), (d).Accordingly, the Department has fullycomplied with the APA, and noadditional opportunity for comment isrequired or necessary considering thewritten comments already submitted.Furthermore, the 30-day commentperiod is in keeping with theDepartment’s objectives, includingeliminating unwarranted delay.





II. Summary of the Revised ReviewSystem

A. Description of the Department’sGoals

At the time this rule was proposed,the Attorney General laid out fourimportant objectives in the dispositionof administrative immigration appeals:

(1) Eliminating the current backlog of cases pending before the Board; (2)eliminating unwarranted delays in theadjudication of administrative appeals;(3) utilizing the resources of the Boardmore efficiently; and (4) allowing moreresources to be allocated to theresolution of those cases that presentdifficult or controversial legalquestions—cases that are mostappropriate for searching appellatereview and that may be appropriate forthe issuance of precedent decisions.This rule reflects a variety of necessaryreforms to achieve these variousobjectives, in order to strengthen thereview process, enhance the function of the Board in resolving issues, provideeffective guidance regarding theimplementation of the immigrationlaws, and improve the timeliness of theBoard’s review.

The Board’s decisions focus, for themost part, on the issue of whether arespondent has established eligibilityfor relief from removal from the UnitedStates and whether the Attorney Generalshould affirmatively exercise discretionin the respondent’s favor. Although thenature of the Board’s caseload appearsto be changing somewhat in light of

changes in the law, the Board’s caseloadcontinues to focus heavily on relief fromremoval. Most respondents eitherconcede removability before theimmigration judge, or do not appeal theimmigration judge’s determination thatthe respondent is removable. Therefore,the dominant number of the Board’scases relate to the application of specificportions of the Act relating to relief fromremoval.

Moreover, the Department agrees withthe assessment of former Board memberMichael Heilman, based on his reviewof over 100,000 appeals over some 15

years of service on the Board, that the‘‘overwhelming percentage of immigration judge decisions * * * [are]legally and factually correct.’’ House

Judiciary Subcommittee Hearing, supra,at 15. The Department disagrees with aview that suggests that ‘‘the factualrecords made in the majority of hearings* * * [are not] fully considered andassessed by either the Immigration

Judge or the Board.’’ See Matter of A– S– , 21 I&N Dec. 1106, 1122 (BIA 1998)(Rosenberg, dissenting). Accordingly,the final rule continues to focus on the

primacy of immigration judges asfactfinders and determiners of the cases

before them. The role of the Board is toidentify clear errors of fact or errors of law in decisions under review, toprovide guidance and direction to theimmigration judges, and to issueprecedential interpretations as anappellate body, not to serve as a second-

tier trier of fact.In this adjudicatory process, the

Department employs Board members todecide the merits of cases brought

before the Board. That decisionalprocess includes not only the individualcase, but also the function of settingprecedent to guide the immigrationjudges, the Service, attorneys andaccredited representatives, andrespondents. Historically, as theAttorney General’s delegate, the Board’sprecedent decisions have been accordedappropriate deference under theSupreme Court’s decisions in Chevron

v. NRDC , 467 U.S. 837 (1984) (deferencedue agency interpretation of statuteswithin delegated authority); INS v.Aguirre-Aguirre, 526 U.S. 415, 425(1999) (Attorney General, and hence theBoard, accorded Chevron deference);INS v. Cardoza-Fonseca, 480 U.S. 421,448–449 (1987) (same), as the primaryinterpreter of the Immigration andNationality Act. The Attorney General’sultimate authority to decide the casespresented to the Board through hisdelegation has not changed over theyears, although it has been exercisedwith varying frequency at differenttimes of the Board’s history.

This precedent setting functionrecognizes that novel issues arise eachand every time that the Act, or theregulations, change; complex issuesarise because of the interrelationship of multiple provisions of law; andrepetitive issues arise before differentimmigration judges because of thenational nature of the immigrationprocess. All of the participants in theimmigration adjudication processdeserve concise and useful guidance onhow these novel, complex, andrepetitive issues are best resolved. Therule of law guides Board members’

adjudications; the Act and regulationsprovide the context for thatadjudication.

B. Summary of the Provisions of theRule

The Attorney General has determinedthat the rights of all respondents are

better protected by restructuring theappeals process so that three-memberpanels may focus their attention onwriting quality precedent-settingdecisions, correcting clear errors of factand interpreting the law, and providing

guidance regarding the standards for theexercise of discretion, rather thanreviewing appeals that involve routinequestions of law or fact or that presentno substantial basis for reversing thedecision under appeal. In this regard,the Board is delegated authority toreview questions of fact to determinewhether they are clearly erroneous; all

other questions, whether of law ordiscretion, may be reviewed by theBoard de novo. A key element of thisreform is that the Chairman willestablish, and be responsible for, a casemanagement screening system to reviewall incoming appeals and to provide forprompt and appropriate disposition— bya three-member panel in those instanceswhere the merits of the case presentedto the Board call for review by a three-member panel under § 3.1(e)(6) of therule, and by a single Board member inevery other case that does not meetthose standards.

The final rule establishes the primacyof the streamlining system for themajority of cases. These do not presentnovel or complex issues. A single Boardmember may issue a brief order whereappropriate to affirm the decision of theimmigration judge or dismiss the appealon procedural grounds. A single Boardmember may issue a short order thatexplicates the reasons, for example, whyan immigration judge’s findings of factare not clearly erroneous, or why theimmigration judge’s exercise of discretion was appropriate, or why therecord should be remanded to theimmigration judge for further

proceedings.Under specific circumstances, the

single Board member may refer therecord for decision by a three-memberpanel. These more complex casesdeserve closer attention. The Board’s enbanc process remains as currentlydevised to provide interpretation of theAct through precedent decisions,whether through affirmation of adecision of a three-member panel orthrough review by the entire Board.Both the three-member panel and the enbanc Board should be used to developconcise interpretive guidance on the

meaning of the Act and regulations.Thus, the Department expects the Boardto be able to provide more precedentialguidance to the immigration judges, theService, attorneys and accreditedrepresentatives, and respondents.

This process will resolve simple casesefficiently while reserving the Board’slimited resources for more complexcases and the development of precedentto guide the immigration judges and theService. The Department believes thatthis allocation of resources will betterserve the respondents, the Service, the





public, and the administration of justice.

The final rule establishes the primacyof the immigration judges as factfinders

by utilizing a clearly erroneous standardof review for all determinations of fact.The Board’s historic rule, explained

below, of not considering new evidenceon appeal, is codified in this rule.

Factfinding that may be required will beconducted by the immigration judge onremand.

However, the rule retains de novo review both for questions of law and forquestions of judgment (concerningwhether to favorably exercise discretionin light of the facts and the applicablestandards governing the exercise of suchdiscretion).

The rule contains a number of thetime limits of the proposed rule.However, recognizing the concern of anumber of commenters, the Departmenthas decided to retain the currentsequential briefing schedule for non-detained cases, but with shorter timelimits. Under the final rule, detainedcases will be briefed concurrently on a21-day calendar and non-detained caseswill be briefed consecutively on a 21-day calendar. Moreover, the Chairman isdirected to undertake improvements inthe transcription process to assist in the

briefing process.Finally, the rule retains the reduction

to 11 Board members after a transitionperiod. The Department is unpersuaded

by the arguments received, particularlyin light of the objective evidence, thatthe reduction to 11 Board members

should be changed. The Board should,under this rule, be able to reduce its

backlog and keep current, as well asconduct the en banc proceedingsnecessary to provide precedentguidance to the immigrationcommunity. Given the scope of thesechanges to the Board’s structure andrevisions to current procedures, theDepartment will continuously reviewthe effectiveness of the rule in achievingthe aforementioned Departmental goals.

III. Comments on the Proposed Rule

The comments received on the

proposed rule can generally be groupedinto broad categories. In this analysis,we divide the comments and furtherdiscussion of the rule into specificsubparts in order to provide a cohesiveoverview of the comments, the changesmade in light of the comments, and thefinal rule. Many of the issues overlapand commenters treated the same issuesin different ways. Accordingly, while allcomments have been carefullyreviewed, it may not be apparent fromthis discussion that a particular versionof a comment has been directly

addressed. To the extent practical, theDepartment has attempted to addressthe comments received as specifically aspossible, but the duplication of comments, either by filing the samecomment multiple times, or makingminor adjustments in differentsubmissions, makes it impossible toaddress each specific comment in a

structured response.The Department received widely

divergent comments that both supportedand opposed the proposed rule. TheDepartment appreciates thecontributions of all the individuals andgroups who submitted comments. TheDepartment has given carefulconsideration to all of the commentsreceived on the proposed rule, asindicated in the following discussion.The thoughtfulness of the publiccomments has contributed greatly toimprovement in the final rule. Asdiscussed below, the comments also

included ideas and specific proposalsthat were beyond the scope of theproposed rule.

Overall, most of the commenterssupported at least some of theDepartment’s objectives, especially theelimination of unwarranted delays andthe current backlog of cases pending

before the Board. As numerouscommenters noted, languishing appealsdo not serve the interests of justice.There are divergent views, though,regarding how these objectives should

be accomplished. Some commentersgenerally supported the proposed rule,while many other commenters strongly

opposed many or most of the specificprovisions of the proposed rule.

A. General Due Process Issues

Some commenters argued in a generalway that the proposed rule violates dueprocess or that it is otherwise badprocedure.

Initially, the Department notes thatthe due process clause of theConstitution does not confer a right toappeal, even in criminal prosecutions.See Ross v. Moffitt, 417 U.S. 600, 611(1974) (‘‘[W]hile no one would agreethat the State may simply dispense with

the trial stage of proceedings without acriminal defendant’s consent, it is clearthat the State need not provide anyappeal at all.’’); Griffin v. Illinois, 351U.S. 12, 18 (1956) (plurality opinion)(noting that ‘‘a State is not required bythe Federal Constitution to provideappellate courts or a right to appellatereview at all’’) (citation omitted). Muchas the Congress may dispense with theinferior federal courts by the samelegislative stroke that created them, theAttorney General could dispense withthe appellate review process in

immigration proceedings, i.e., the Boardof Immigration Appeals.

Some of the commenters arguedspecifically that the proposed ruleviolates a respondent’s right to dueprocess under the Supreme Court’s

balancing in Mathews v. Eldridge, 424U.S. 319 (1976). The Department agreesthat some form of hearing is appropriate

and beneficial under the circumstances.See Wolff v. McDonnell , 418 U.S. 539,557–58 (1974). However, due process isnot ‘‘a technical conception with a fixedcontent unrelated to time, place andcircumstances,’’ Cafeteria and Restaurant Workers v. McElroy , 367 U.S.886, 895 (1961), but is ‘‘flexible andcalls for such procedural protections asthe particular situation demands.’’ Morrissey v. Brewer , 408 U.S. 471, 481(1972).

Assuming that Mathews is theappropriate touchstone, the process thatis due is determined by balancing thenature of the individual’s interest, thefairness and reliability of theprocedures, and the nature of thegovernmental interest. Many of thecommenters focused on the nature of the interest of the individual,particularly in asylum and related caseswhere the respondents assert that therespondent will be persecuted, his orher life or freedom will be threatened,or that he or she will be tortured, if returned to his or her country of origin.

1. The Respondent’s Interest in theIndividual Proceeding

First, and foremost, the vast majority

of issues presented on appeal to theBoard involve applications for relief from removal, not removal itself.Accordingly, the process that is due isnot a process related to thegovernment’s efforts to remove therespondent from the United States. Theprocess that is due is process relating tothe respondent’s request foramelioration of removal.

Those cases where the respondent hasa basis to contest a finding of removability would appear to be moreamenable to review by a three-memberpanel under § 3.1(e)(6). Removability,

and whether the Service has establishedclear and convincing evidence tosupport the charge, when disputed, may

be more likely to involve novel orcomplex factual or legal issues becauseof the multitude of governing statutoryprovisions, such as divisible Statecriminal laws. Whether a single-memberor three-member review is moreefficacious is a question best decided bythe Board under the standards of thisrule.

In most cases, the issues before theBoard relate to whether the respondent





2 In recognition of the differences betweenappeals from the decision of an immigration judgeand appeals from decisions by a district director orother Service official, this rule retains the de novo standard of review for appeals in the latter case, asdiscussed below.

has established eligibility for anapplication for relief from removal, orwhether the Attorney General shouldexercise discretion in the respondent’sfavor. In these cases, the Service hasestablished the government’s interest inremoval of the respondent. The burdenof proof in these cases shifts to therespondent to establish eligibility for

relief from removal and, in most cases,that the respondent deserves a favorableexercise of the Attorney General’sdiscretion. The process due under theConstitution in determiningremovability is substantially higher thanthe process required by the Constitutionin determining whether to grant relief from such an order of removal.

2. The Government’s Interest in theImmigration Adjudication Process

The interest of the government ineffective and efficient adjudication of immigration matters, moreover, issubstantially higher than an individualrespondent’s interest in his or her ownproceeding. Congress is granted plenaryauthority under the Constitution inimmigration matters and Congress hasdelegated broad authority to theAttorney General to administer theimmigration laws. The authority is notmerely one involving a discrete set of

benefits and penalties, but implicates, inconjunction with the Secretary of State,the vast external realm of foreignrelations. Not only does the removalprocess utilize reports and profiles of country conditions provided by theDepartment of State, the actual removal

process implicates the relationships of the United States with other countries.INS v. Aguirre-Aguirre, 526 U.S. 415,425 (1999); INS v. Abudu, 485 U.S. 94,110 (1988). In this context, the AttorneyGeneral has substantially more authorityto structure the administrativeadjudicatory process than mostadministrative processes. Indeed, theDepartment questions whether Mathews is the appropriate touchstone in light of the unique nature of the Act as the toolfor managing the intersection of foreignand domestic interests regarding aliens.Congress has provided almost no

parameters for the exercise of theAttorney General’s broad authority tomanage immigration adjudications, andto the extent it has done so, has limiteddiscretionary procedure available torespondents. See, e.g., INS v. Rios-Pineda, 471 U.S. 444, 446 (1985)(Attorney General’s creation of motionto reopen, and delegation to the Board,

by regulation), 8 U.S.C. 1229(c)(6)(motions to reopen in statutory removalproceedings specified by statute in1996). Accordingly, more deference tothe Attorney General is appropriate. Cf.

Weiss v. United States, 510 U.S. 163,176–79 (1994).

3. Balancing of Interests in theAdjudicatory Process

Some commenters expressed concernthat the expansion of the streamlininginitiative, with its emphasis on single-member review of cases, will result in

violations of the due process rights of respondents-appellants. Somecommenters contended that three-member reviews of appeals providemore protection for due process rightsthan single-member reviews. Theprimary concern of the comments is aperceived inadequacy in the ability of asingle Board member to decide anappeal in a way that protects the dueprocess rights of appellants whilemaintaining administrative efficiency.

The Department finds that single-member review under the final rule is

both fair and reliable as a means of resolving the vast majority of non-controversial cases, while reservingthree-member review for the muchsmaller number of cases in which thereis a substantial factual or legal basis forcontesting removability or in which anapplication for relief presents complexissues of law or fact. In this context, theAttorney General is free to tailor thescope and procedures of administrativereview of immigration matters as amatter of discretion. Maka v. INS, 904F.2d 1351 (9th Cir. 1990); see alsoVermont Yankee Nuclear Power Corp. v.NRDC , 435 U.S. 519, 524–25 (1978),quoting FCC v. Pottsville Broadcasting

Co., 309 U.S. 134, 143 (1940)(‘‘administrative agencies should be freeto fashion their own rules of procedureand to pursue methods of inquirycapable of permitting them to dischargetheir multitudinous duties’ ’’). Seegenerally J. McKenna, L. Hooper & M.Clark, Federal Judicial Center, CaseManagement Procedures in the Federal Courts of Appeals (2000) (comparativecompendium of innovations in circuitcourt case management systems).

Each case varies according to theneeds presented by the respondent andthe issues.2 In the typical case that

reaches the appeal stage, the respondentmakes an initial appearance and isadvised of his or her rights, includingthe right to be represented by counsel oran accredited representative at no costto the government, the right to inspectall evidence presented, and the right topresent evidence and testimony, by the

respondent and other witnesses, in thelanguage the respondent understands.Pleadings are usually taken after acontinuance, with a further hearing

being held to determine whether thealien is deportable or inadmissible, if the respondent contests removability. If the immigration judge finds that therespondent is removable, the

immigration judge informs therespondent of possible forms of relief,and further continuances may begranted to allow time for the respondentto prepare applications for relief andacquire additional evidence. A call-update is established for filing theapplication and a deadline is set forfiling additional evidence. Only then isthe respondent expected to present hiscase for relief from removal. All of theseproceedings are on the record andrecorded verbatim. A transcript of proceedings has been prepared in allappeals, including any oral decision by

the immigration judge. See, e.g., 8 CFR240.3–240.13 (procedure in removalcases). Accordingly, by the time a casereaches the Board on appeal, many, if not most, respondents have already hadseveral hearings on the record before theimmigration judge, been explained theirrights, and been given more than oneopportunity to ask questions and raiseissues.

On appeal, the respondent is requiredunder existing regulations to file astatement indicating the grounds forappeal, and has the right to file a moredetailed brief. On this record, singleBoard members are well-equipped both

to determine the legal quality andsufficiency of an immigration judge’sdecision and to determine if the appealqualifies under 8 CFR 3.1(e)(6) forreferral to a three-member panel. Eachappeal will be fully reviewed anddecided by the Board member withinthe law and regulations, precedentdecisions, and federal court decisions.The Department is not persuaded that asingle Board member review gives anyless due process to an respondent’sappeal that involves routine legal andfactual bases than would a three-member panel considering the same

appeal.B. General Comments Relating to theRole and Independence of the Board

Some commenters argued that theprovisions of this rule, eitherindividually or in combination, wouldadversely affect the fairness oreffectiveness of the Board’sadjudications by limiting theindependence and perceivedimpartiality of the Board. Somecommenters criticized the provision in§ 3.1(a)(1) of the proposed rule that the





3The Board was created by the Attorney Generalin 1940, after a transfer of functions from theDepartment of Labor. Reorg. Plan V (May 22, 1940);3 CFR Comp. 1940, Supp. tit.3, 336. The Board isnot a statutory body; it was created wholly by theAttorney General from the functions transferred.A.G. Order 3888, 5 FR 2454 (July 1, 1940); seeMatter of L-, 1 I&N Dec. 1 (BIA; A.G. 1940).

Board members act as the ‘‘delegates’’ of the Attorney General in adjudicatingappeals, as well as the language in§ 3.1(d)(1) of the proposed rule makingclear that, in exercising theirindependent judgment and discretion incases coming before them, the Boardmembers are subject to the Act and theimplementing regulations, and the

direction of the Attorney General.1. The Attorney General’s Authority

These arguments misapprehend thenature of the Board and the rule. TheBoard is an administrative body withinthe Department, and it is well withinthe Attorney General’s discretion todevelop the management andprocedural reforms provided in thisrule.3 As one court has noted, theAttorney General could dispense withBoard review entirely and delegate hispower to the immigration judges, orcould give the Board discretion to

choose which cases to review. SeeGuentchev v. INS, 77 F.3d 1036, 1037(7th Cir. 1996).

In Nash v. Bowen, 869 F.2d 675 (2ndCir. 1989), the court of appealsaddressed similar concerns by anadministrative law judge (ALJ)challenging efforts by the SocialSecurity Administration (SSA) toimprove the ALJ’s quality andefficiency. In an effort to reduce a

backlog of 100,000 cases, the SSAinstituted a series of reforms thatincluded a monthly production quota,an appellate system or peer reviewprogram, and a reversal rate policy. The

court rejected challenges to each of these reforms, explaining that ‘‘thoseconcerns are more appropriatelyaddressed by Congress or by courtsthrough the usual channels of judicialreview in Social Security cases. The

bottom line in this case is that it wasentirely within the Secretary’sdiscretion to adopt reasonableadministrative measures in order toimprove the decision making process.’’ Id. at 681 (citations omitted). Similarly,the Attorney General has promulgated afinal rule within his discretion intendedto reduce delays in the review process,

enable the Board to keep up with itscaseload and reduce the existing

backlog of cases, and allow the Board tofocus more attention on those casespresenting significant issues forresolution by a three-member panel. The

Department, in this final rule, does notgo so far as did the SSA, nor does itintend to impinge on the intellectualindependence of its adjudicators.

2. Independence of AdministrativeAdjudicators

Several commenters argued that theindependence and impartiality of

immigration judges and immigrationadjudicators must be affirmed. Theyasserted that the proposed rule wouldadversely affect the independence of theBoard. Some of these same commentersexpressed the view that immigrationcourts should be independent from theDepartment.

These comments misapprehend thedistinction between ‘‘independence’’ and ‘‘fundamental fairness.’’ TheConstitution requires fundamentalfairness, not that the adjudicator be‘‘independent’’ of policy direction ormanagement by the Executive. TheDepartment agrees with the principle of independence of adjudicators within theindividual adjudications, but notes thatfreedom to decide cases under the lawand regulations should not be confusedwith managing the caseload and settingstandards for review. The casemanagement process that is establishedand delegated by the Attorney Generalto the Director of EOIR and theChairman deals with management of theworkload, not professional judgment inadjudicating any individual case.Similarly, establishing standards forreview by rule is well within theAttorney General’s authority to oversee

and manage the Board; again, it is notrelated to the Board’s professionaljudgment in adjudicating any individualcase. The key to understanding here isthat the Department employs Boardmembers to make professionaladjudicatory judgments in individualcases and to establish precedent subjectto further review, but it is within theAttorney General’s authority to managethe caseload and to set policy.

The authority of the Attorney Generalto establish standards for the Board’sadjudications, and to review thedecisions of the Board, is well

established. ‘‘[T]he Board acts on theAttorney General’s behalf rather than asan independent body. The relationship

between the Board and the AttorneyGeneral thus is analogous to anemployee and his superior rather thanto the relationship between anadministrative agency and a reviewingcourt.’’ Matter of Hernandez-Casillas, 20I&N Dec. 262, 289 n.9 (BIA 1990, A.G.1991).

The final rule does not obstruct theBoard’s judgment. As the SupremeCourt has noted, ‘‘The Board is

appointed by the Attorney General,serves at his pleasure, and operatesunder regulations [that provided] that‘‘in considering and determining * * *appeals, the Board * * * shall exercisesuch discretion and power conferredupon the Attorney General by law as isappropriate and necessary for thedisposition of the case. The decision of

the Board * * * shall be final except inthose cases reviewed by the AttorneyGeneral.’’ United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266(1954). In that case, the Court initiallyfound sufficient cause for a furtherhearing on whether the AttorneyGeneral had interfered with theauthority that he had delegated to theBoard, and concluded: ‘‘[A]s long as theregulations remain operative, theAttorney General denies himself theright to sidestep the Board or dictate itsdecision in any manner.’’ Id., at 267.However, after a formal hearing on the

petition for habeas corpus and furtherreview by the court of appeals, the Courtultimately concluded that no suchviolation of the regulation, adverselyaffecting the respondent, had occurred.Shaughnessy v. United States ex rel.Accardi, 349 U.S. 280 (1955).

This case is important tounderstanding the final rule for twodistinct reasons. First, the final ruleamends the very rule underconsideration by the Supreme Court inAccardi to structure the Board’sprocedures and scope of review in allcases. This is precisely the manner bywhich the law requires such changes to

be made: amendment of the Board’sregulations. Second, no portion of thefinal rule relates to any specific case oralien, or decides any such case, orimplicates any alien. The actions heretaken are those prescribed by the Courtin Accardi.

3. Attorney General Opinions andWritten Orders

Several commenters objected to thenew language in § 3.1(d)(3)(i) of theproposed rule that the Board is subjectto legal opinions and written ordersissued by the Attorney General, in

addition to the Attorney General’sreview of individual Board decisions.The Department notes that the proposedrule, in this respect, is virtuallyidentical to the proposed rule published

by former Attorney General Janet Reno,and retains this provision withoutchange. 65 FR 81435, 81437 (Dec. 26,2000).

The Attorney General is the principallegal advisor to the President and theExecutive Branch. In particular, section103(a) of the Immigration andNationality Act (‘‘Act’’), 8 U.S.C.





4The Board has expressly acknowledged, forexample, that the Attorney General’s determinationof a legal issue in interpreting the Act is bindingon the Board and the immigration judges, even if that determination is reflected in theSUPPLEMENTARY INFORMATION to a rule rather than inthe text of a rule or in an Attorney General or OLC

Opinion. See Matter of A– A– , 20 I&N Dec. 492, 502(BIA 1992): ‘In the supplementary informationpublished with the regulation, the Attorney Generalmade clear that ‘‘under the prevailingintrepretation, the phrase ‘‘shall apply toadmissions’’ as used in section 511(b) of the [1990Act] refers to all applications for relief pursuant tosection 212(c) of the Act submitted after November29, 1990, whether at a port of entry or in subsequentproceedings before a district director orImmigration Judge.’’ 56 FR 50,033–34 (1991)(SUPPLEMENTARY INFORMATION). The AttorneyGeneral has thereby determined that the statutory bar to section 212(c) relief shall apply only to thoseapplications submitted after November 29, 1990.We are therefore bound by his determination in thisregard.’’

5 In any case where the Board believes that aparticular regulation may conflict with the languageof the Act, the Board can proceed as it did in Matter

1103(a), provides that the opinion of theAttorney General on legal issues iscontrolling. In addition, the role of theDepartment’s Office of Legal Counsel inissuing legal opinions, on behalf of theAttorney General, that are binding onthe Executive Branch, is wellestablished. See e.g., Secretary of theInterior v. California, 464 U.S. 312, 320–

21 n.6 (1984); Sea-Land Service, Inc. v.Department of Transportation, 137 F.3d640, 643 (D.C. Cir. 1998).

This rule makes clear that theAttorney General need not be strictlylimited to the issuance of legal opinionsand the direct review of individualBoard opinions, and that the AttorneyGeneral may provide direction to theBoard through written orders.4 It may beappropriate for the Board to takeaccount of the policy goals or prioritiesestablished by the Attorney General.Such actions by the Attorney General donot encroach on the decisional

independence of Board members inparticular cases before them.

4. The Effect of Regulations

Although not specifically raised in thepublic comments, the Department alsonotes that the language of § 3.1(d)(1) of the proposed rule states that the Boardwill resolve the issues before it in amanner that is ‘‘consistent with the Actand the regulations.’’ This languageclarifies the role of regulations inadministrative adjudications under theAct.

The Board has long recognized that itis bound by the provisions of the Act,as well as by regulations adopted by theAttorney General. See Matter of Poncede Leon-Ruiz, 21 I&N Dec. 154, 158 (BIA1996) (‘‘The Board is bound to upholdagency regulations * * * A regulationpromulgated by the Attorney Generalhas the force and effect of law as to thisBoard and Immigration Judges.

Regulations in effect have the force andeffect of law.’’) (citations omitted).

The immigration regulations,however, include not only those rulesadopted personally by the AttorneyGeneral, but also substantive andprocedural rules duly promulgated bythe Commissioner of the Service, underan express delegation of rulemaking

authority from Congress to the AttorneyGeneral and, in turn, from the AttorneyGeneral to the Commissioner. See 8U.S.C. 1103; 8 CFR 2.1. The Departmentfully recognizes and reiterates, of course, that the Board and theimmigration judges are independent of the Service (although some courtopinions contain language that appearsto blur this key distinction). For thisreason, the Attorney General, and notthe Commissioner, has consistentlypromulgated the regulations that governthe organization, procedures, or powersof the Board and the immigration judges

and the conduct of immigrationproceedings. See, e.g., 8 CFR parts 3,236, 240. Thus, for example, standardsgoverning the availability of discretionary relief in immigrationproceedings are properly adopted by theAttorney General, either by rule, e.g., 8CFR 240.58, or by written decision, e.g.,Matter of Jean, 23 I&N Dec. 373, 383–85 (A.G. 2002). See generally, Lopez v.Davis, 531 U.S. 230, 238–42 (2001).

The authority delegated to theCommissioner to promulgatesubstantive or ‘‘legislative’’ rules doesproperly extend, however, to theinterpretation of the general provisions

of the Act. A regulation adoptedpursuant to delegated statutoryauthority and pursuant to applicablerulemaking requirements under theAdministrative Procedure Act has the‘‘force and effect of law’’ as asubstantive or legislative rule. Theexisting language in section 3.1(d)(1),which defines the broad general powersof the Board, specifies that the Board’sauthority in cases before it is ‘‘[s]ubjectto any specific limitation prescribed bythis chapter [constituting 8 CFR parts 1–499].’’ Necessarily, such limitationswould include a regulatory provision

that has given a specific legalinterpretation to a provision of the Act.The language of this rule makes explicitwhat was implicit in the current versionof § 3.1.

A fundamental premise of theimmigration enforcement process must

be that the substantive regulationscodified in title 8 of the Code of FederalRegulations are binding in alladministrative settings, and thisspecifically includes substantiveregulations interpreting and applyingthe provisions of the Act. Of course, the

Service and the Board are bound by thedecisions of the federal courts, see, e.g.,Matter of Anselmo, 20 I&N Dec. 25 (BIA1989), but even the federal courts owedeference to authoritative agencyinterpretations of the substantiveprovisions of the Act, within the limitsrecognized by the Supreme Court.Chevron v. NRDC, supra (deference due

agency’s interpretation of statutesdelegated for administration); INS v.Aguirre-Aguirre, supra (deference dueadministrative interpretations of theAct); cf., Fisher v. INS, 79 F.3d 955, 961(9th Cir. 1996) (en banc) (same; differentstandard). In the absence of suchcontrolling judicial interpretations, therespondents, the immigration judges,the Service, and the public at largeshould not be left to wonder whetherthe regulations interpreting andapplying the substantive provisions of the Act will be binding inadministrative proceedings under the

Act. Cf. Matter of Rodriguez-Tejedor, 23I&N Dec. 153, 156 (BIA 2001).Such regulations themselves, of

course, are susceptible to interpretationand application of their regulatorylanguage by the immigration judges andthe Board. However, if a substantiverule clearly defines a statutory term, orreflects a legal interpretation of thestatutory provisions, then the positionset forth in the rule will govern both theactions of the Service and theadjudication of immigrationproceedings before the immigrationjudges and the Board. The Departmentrecognizes that the Board members,under § 3.1(a)(1) in the currentregulations and under § 3.1(d)(1)(ii) asrevised, ‘‘shall exercise theirindependent judgment and discretion inconsidering and determining the casescoming before the Board.’’ But suchjudgment and discretion mustnecessarily be exercised subject to theapplicable standards. In turn, legislativerules that interpret and apply theprovisions of the Act, and that arepromulgated under rulemakingauthority expressly delegated by theAttorney General have the ‘‘force andeffect of law’’ and accordingly are part

of the governing law. Accordingly, theBoard members properly havedecisional independence and discretionin interpreting and applying the law tothe facts of particular cases and inexercising judgment in matters of discretionary action, but they are notindependent from the governingregulatory standards that are otherwise

binding and effective.5





of Ponce de Leon by certifying the case to theAttorney General for consideration. In that case, theAttorney General ultimately dismissed thecertification in light of an intervening amendmentto the regulation at issue, 8 CFR 212.3(f)(2). SeePonce de Leon, 21 I&N Dec. at 184 (A.G. 1997); 61FR 59824 (Nov. 25, 1996).

C. Expanded Single-Member Review

Many of the key features of the finalrule are codified in the new provisionsof 8 CFR 3.1(e), which directs theChairman to establish a casemanagement system with specific newstandards for the efficient andexpeditious resolution of all appealscoming before the Board. One of theprimary components of the casemanagement system is expanded single-member review. The currentstreamlining process permits a singleBoard member to affirm the decision of the immigration judge without opinion.8 CFR 3.1(a)(7). The final rule retainsthis current practice intact, but expandsupon this authority to permit a singleBoard member to affirm, modify, orremand the immigration judge’sdecision with a short explanation. Thefinal rule also provides that thereviewing Board member may refer acase for disposition by a three-member

panel only if the Board memberdetermines, after a review of the case onthe merits, that it satisfies one of thestandards prescribed in § 3.1(e)(6).

1. General Comments on the Adequacyof Single-Member Review

Many of the comments expressed theconcern that single-member review of decisions by the immigration judgeswill mean that procedural failures in therecord will be overlooked—that a singleBoard member’s review will somehow

be ‘‘cursory’’ or will give a ‘‘ boilerplatestamp of approval’’ to the decision onappeal. Some commenters asserted thatthe single-member decisions that will beissued under this rule will be poorlyconsidered and will not provide asufficient basis for further review bydistrict and circuit courts.

The Department believes that theBoard’s experience with thestreamlining initiative has proven thatfears of procedural failures orsubstantive errors being overlooked arenot well founded. Even single-memberreview is a multi-stage processinvolving review by Board staff and bya Board member assigned to thescreening panel. Individual Board

members are well-equipped todetermine both the legal quality andsufficiency of an immigration judge’sdecision, and to determine if the appealqualifies for referral to a three-memberpanel under § 3.1(e)(6). Each appeal will

be fully reviewed and decided by the

Board member, within the guidelines of current Board practice and legalprecedent. Under the standards of § 3.1(e)(4) and (5) of this rule, it is onlyif the Board member finds that therecord is complete and legally adequate,and the Board member agrees that thedecision below is legally correct, thatthe Board member may affirm the

decision of the immigration judge,either as a summary affirmance withoutopinion or in a short opinion.

2. Summary Dismissals

The proposed rule included aprovision that the screening panel, inthose cases not summarily dismissed,would order the preparation of atranscript and set a briefing schedule.This provision presumed a review bythe screening panel at the outset of theprocess based solely on the immigrationjudge’s order and the Notice of Appealto determine such fundamental mattersas whether the appeal was timely filed,whether the Board had jurisdiction, orwhether the Notice of Appeal faciallyprovided sufficient reasons for anappeal to be lodged. Some commentersdid not seem to grasp the distinction

between these core ‘‘adjudicability’’ issues that could be dismissed withoutthe preparation of the transcript and

briefs, and those issues, such as whethera brief was filed, that inevitably must bedecided only upon the completedrecord. Although this lack of understanding appears to theDepartment to require this furtherexplanation, it does not appear to

warrant any change in the rule.3. Summary Affirmances UnderStreamlining

Many commenters expressedconcerns about the general idea of authorizing a single Board member toissue a summary affirmance of animmigration judge’s decision. A fewcommenters argued that decisionsaffirming an immigration judge’sdecision without further elaborationwould not be considered by the publicto be as legitimate as a more fullydeveloped written decision. Other

commenters suggested that such anaffirmance would hinder a respondent’sunderstanding of the rationale behindthe decision. Some commenters alsosuggested that courts of appeals willreturn many of the single-member andsummary affirmance decisions for afuller written decision, thus negatingany advances made in diminishing theBoard’s backlog and arriving atdecisions more quickly.

These concerns fail to consider theBoard’s experience under the existingstreamlining process, which, since 1999,

has authorized single Board members tosummarily affirm a decision withoutopinion, in appropriate cases. Similarobjections were raised regardingsummary affirmance when theDepartment first proposed the‘‘streamlining’’ initiative in 1998, see 64FR 56135, 56137 (Oct. 18, 1999), buthave not been borne out by the Board’s

experience since then.The streamlining initiative allowed

for summary decisions by a single Boardmember in certain limited situations. InFY2001, the Board issued 15,372decisions under the streamlininginitiative, or approximately one-half of all decisions. The Streamlining Studyhas not noted an appreciable differencein the quality of the decisionmaking

based on the experience of theparticipants. Although a complex studyof the results of streamlining, byfollowing a specific set of streamlinedcases through judicial review, has been

proposed, such a theoretically‘‘objective’’ evaluation could take years.The Department may or may notundertake such a study, but thedemands for fair, effective, and efficientadjudication of present cases do notpermit the luxury of waiting for theresults of such a study. StreamliningStudy, 10–11 and Appendix C.Summary affirmances have not yetresulted in an overwhelming number of remands from Federal district andappeals courts. See 64 FR at 56138 (Oct.18, 1999). Of the 23,224 streamlineddecisions between 1999 and 2001, only0.7% have resulted in judicial remands

or reversals. Although this is not the fullstudy envisioned by the StreamliningReport, cited above, it is, together withanecdotal evidence, sufficient evidencefor the Department to proceed with anexpansion of the single-member reviewprocess. The Department has concludedthat streamlining has proven to be aneffective procedure for managing anever-increasing caseload and willsignificantly assist and promote fair andexpeditious review of all pending andincoming appeals while maintaining arespondent’s rights to a reasonedadministrative decision.

Furthermore, the Department hasdetermined that, because a summaryaffirmance without opinion concludesthat any error in the immigration judge’sdecision was harmless or immaterial,there is no basis for the contention thata respondent will be unable to discernthe rationale behind a decision. Theimmigration judge’s order provides therationale, and thus the legitimacy, forthe Board’s summary affirmance. TheDepartment, in this rule, agrees with thesuccinct summary of one court of appeals that, ‘‘if the Board’s view is that





6 Individual panels at the Board have differed onthe content of Board decisions in non-precedentcases over time. Some panels have included anintroduction, a statement of issues present in therecord, a full restatement of the proceedings beforethe immigration judge, a complete recitation of the

established and controverted facts presented in therecord, analysis of the applicable law, and thepanel’s conclusions and order. This is, in effect, denovo review of every case, notwithstanding thecomplexity of the issues presented. For cases inwhich there are no substantial factual or legalissues, this commitment of resources cannot bejustified in light of the Board’s current situation.

Other panels, more recently, have developedorders that include an adoption of the immigrationjudge’s decision, only a short statement of theissues presented on appeal, with a statement of relevant facts and controlling precedent, and theorder. Typically, these decisions are to be read inconjunction with the immigration judge’s decision.The Department believes that this more limitedappellate review process, to determine whether theimmigration judge has erred, is more appropriatefor the majority of cases.

The different approaches can also be understoodon the basis of the way in which the decisions arereviewed. In the first example, a full de novo reviewresults in a court of appeals review of the Boarddecision and does not extend to the immigrationjudge’s decision. In the second example, a ‘‘clearlyerroneous’’ standards will allow the courts of appeals to review the immigration judge’s factfindings in conjunction with the Board’s legalfindings, thereby obviating the need for lengthyBoard decisions that do little more than reiteratefacts. The short orders of the Board alreadyeffectively utilize this methodology. This processadds nothing to the burden of the court of appealson review and is a substantially more efficientallocation of resources within the administrativeadjudicatory process.

the [immigration judge] ‘got it right,’ thelaw does not demand that the Board gothrough the idle motions of dressing the[immigration judge’s] findings in itsown prose.’’ Chen v. INS, 87 F.3d 5, 7(1st Cir. 1996). The Department does not

believe that there is any basis for believing that providing a regurgitationof the same facts and legal reasoning,

albeit with citation to more legalprecedent, will be beneficial to therespondent or the reviewing courts inmost cases. Section 3.1(e)(4) of the finalrule therefore continues to authorize asingle Board member to issue an orderwith the same effect, an order affirmingthe immigration judge without opinion.

Moreover, Service appeals are equallysubject to summary affirmance.Although the Service appeals fewimmigration judge decisions terminatingproceedings or granting relief fromremoval, there is no distinction betweenthose appeals and appeals filed by

respondents.4. Other Dispositions by a Single BoardMember—Affirmances, Modifications,and Remands

Some commenters took the positionthat single Board members should not

be permitted to affirm, modify, orremand the decision of an immigrationjudge in a short opinion. They arguethat, if there are factual errors, a three-member panel should consider theentire record. This rule retains theexisting ‘‘summary affirmance withoutopinion’’ process intact, but alsoauthorizes single Board members to

resolve other cases by issuance of ashort order explaining the relevantissues in the case.

At the outset, it should be noted thatthe Board has been allowed tosummarily affirm decisions of theimmigration judge ‘‘for the reasonsstated therein’’ for many years beforethe streamlining initiative was begun.The Board was never prohibited fromdoing so. In reality, some panels of theBoard have done so in the past withgreat success.

However, there may be a number of instances where the reviewing Board

member believes that the result of thecase under review is essentially correct, but requires some further explanation ordiscussion in the disposition of theappeal. For example, an immigrationjudge may not have explained his or herevaluation of the facts or the law in themanner in which the respondent

believes was appropriate. However, inthose instances where there is no errorthat affects the outcome of theproceedings, there is also no point inexpending substantial time and effort to‘‘correct’’ such a record. Rather, a single

Board member is authorized to issue ashort order affirming the immigrationjudge’s decision, but adding anadditional explanation of discussion of the case in that Board member’s view.6

As discussed below, § 3.1(e)(5) alsoauthorizes a single Board member toenter a decision that modifies theimmigration judge’s decision or

remands the case to the immigrationjudge in any case that does not meet thestandards for three-member panelreview under § 3.1(e)(6). Such anopinion may properly begin with theopinion of the immigration judge andmake specific modifications to thatopinion. For example, a single-memberopinion may state that the Boardmember ‘‘adopts the opinion of theimmigration judge, except to note that’’ a particular issue is governed byintervening precedent, and to explainthat the immigration judge’s opinionwould still be correct in light of the

intervening precedent. Accordingly,such an opinion would conclude thatthe ‘‘immigration judge’s opinion isaffirmed for the reasons set forth thereinand as set forth in this opinion.’’ In thisinstance, the parties and any reviewingcourt would be able to look to thecombination of the immigration judge’sopinion and the single-member decision

to understand the conclusions reachedin the adjudication.

Similarly, the single-member reviewmay result in a determination that theimmigration judge clearly erred over aspecific fact, but that the error did notprejudice the appealing party and washarmless. For example, an immigrationjudge might determine that the

respondent had entered on a specificdate based on conflicting evidence, butfail to note in the oral decision that aspecific official government documentindicated a slightly different date, suchas a traffic violation in the United Statessome days prior to the date determined

by the immigration judge. In this case,if neither date would satisfy arequirement for a period of continuousphysical presence in the United States,the finding of fact might be both clearlyerroneous and harmless. However, if theexistence of the documented infraction,presented by the respondent, convinced

the Board member that the respondentwas being candid and warranted afavorable exercise of discretion involuntary departure, which theimmigration judge had also denied as amatter of discretion, the single Boardmember would have the option of modifying the order to grant voluntarydeparture.

Finally, a single Board member would be authorized to grant a motion toremand the record for specificfactfinding if the respondent providednew evidence that was not previouslyavailable under the standards of theregulations. Whether agreed upon by all

of the parties or contested, this singlemember review process permits themore expeditious disposition of casesthan a full three-member panel review.In each of these cases, the Departmenthas no reason to believe that suchdecisions would be any less efficaciousthan the current decisions of the Boardresulting from three-member panelreview.

The Department has noted that somelanguage in this section and§ 3.1(d)(2)(ii) could cause confusionover the finality of a decision by a singlemember. Accordingly, the language in

these two provisions has been revisedfor clarity, and the provisions relating tofinality of the Board’s decisions have

been consolidated in § 3.1(d)(6), asdiscussed in part I below.

However, the provision authorizing asingle Board member to affirm, modify,or remand a decision must beunderstood in light of the standards forthree-member panel review. That is, thisauthority will apply only if the Boardmember has already determined, basedon a review of the appeal on the merits,that the case should not be referred to





a three-member panel—for example, because of factual determinations by theimmigration judge that appear to beclearly erroneous, because the decisionis not in conformity with applicableprecedents, or because of the need toreview the dispositions of similar issues

by various immigration judges or toestablish precedential guidance on

matters of law or procedure.5. Reversals and Terminations of Proceedings

Several commenters raised issuesregarding the propriety of a summarydecision by a single Board member thatreverses the decision of the immigrationjudge, with some suggesting that asingle Board member should not be ableto reverse a decision granting relief orterminating proceedings, while otherssuggested that a single Board membershould not be able to reverse a decisiondenying relief.

In general, if the single Board member believes that the decision of animmigration judge should be reversed

because of a clearly erroneous factualdetermination or an error in law, or oneof the other reasons specified in§ 3.1(e)(6), the Board member shouldrefer the case to a three-member panel.Under the terms of the proposed rule, itis reasonable to expect that mostreversals would likely have beenhandled by a three-member panel ratherthan by single Board members.However, in order to avoid uncertaintiesas to how to proceed, this final ruleadds an additional provision under the

standards of § 3.1(e)(6) providing forreferral of a case to a three-memberpanel where there is a need to reversethe decision of an immigration judge orthe Service.

However, the Department alsorecognizes that there may be caseswhere reversals may be required as anondiscretionary matter. This would beparticularly true where there has beenan intervening change in the law, suchas the publication of a Board precedentdecision interpreting a statutoryprovision relating to eligibility orineligibility for a form of relief, that

mandates the reversal of immigrationjudge decisions in pending cases thatwere inconsistent. If the Boarddetermines that relief should be grantedin particular circumstances, and animmigration judge had denied relief ina case where the facts areindistinguishable, there is no reasonwhy a single Board member cannotsummarily vacate the immigrationjudge’s order denying relief. On theother hand, if the factual record doesnot compel reversal under the precedentas applied to that case, the single Board

member may then refer the case to athree-member panel or remand therecord for further proceedings. This istypical of the implementation of precedent.

6. Quality Assurance of Decisions

Other commenters questionedwhether the Board would be able to

assure that single Board members didnot act arbitrarily or institute amechanical, rather than thoughtful,approach to disposing of casesthemselves or forwarding cases to three-member panels. In essence, thesecomments focus on both the individualthoroughness of review and the integrityof the review process amongdecisionmakers.

The Department has carefullyconsidered the argument that there areinadequate safeguards to protect thesystem and its participants fromdivergent decisions by single Boardmembers, but has concluded that theprovisions of this rule as written areadequate. As mentioned previously,concerns regarding the adequacy of summary affirmances were addressed inthe streamlining regulations. This rule

builds upon the streamlining process byproviding for a case managementscreening process to review all casescoming before the Board initially, thusallowing the members of the screeningpanel to become familiar with the broadrange of issues coming before the Board,and the processes for both single-member and panel dispositions of casesdecided by the Board. The existing

checks of three-member review of complex issues and other cases underthe standards of § 3.1(d)(6), and of enbanc Board review, remain in effect.Accordingly, the Department believesthat a shift to predominantly single-member adjudication in the substantialmajority of cases is a legitimate exerciseof agency discretion and will notsignificantly increase judicial remands.

However, the Department recognizesthat any tribunal must be concernedwith whether its members areadjudicating factually and legallysimilar claims in a similar fashion, a

concern that is particularly apt given thelarge volume of cases being decided bythe Board. See generally House

Judiciary Subcommittee Hearing, at 10.These general concerns relating to thisaspect of the Board’s operation areimportant to the Department, to theimmigration judges, to aliens inproceedings, and to the general public.These concerns are relevant whetherapplied to several different individualmembers’ decisions in single-membercases, or to the results of the variousthree-member panel reviews that have

been used in the past and will continueto be used in the future.

The Board recently has taken furthersteps to review the disposition of Boarddecisions in light of the need to resolveissues and provide guidance through theissuance of precedent decisions.Exercising its authority under theexisting rules and the revisions made by

this rule, the Department expects theBoard will be able to determine whetherissues are developing appropriately andwhether referral of similar cases to athree-member panel, or furtheradjudication of those issues by issuanceof a precedent decision, may beappropriate. See generally J. McKenna,L. Hooper & M. Clark, Federal JudicialCenter, Case Management Procedures inthe Federal Courts of Appeals 163(2000) (case weighting and issuetracking in the Ninth Circuit); seegenerally B. White, et al., Commissionon Structural Alternatives for the

Federal Courts of Appeals: Final Report, at 39–40 (1998).

7. Single Board Member Participation inReopening and Reconsideration of OwnDecision

One commenter suggested that asingle Board member who made aninitial decision should be recused fromadjudication of the motion to reopen orreconsider. The Department disagreesthat the single Board member who madethe initial decision should be recusedfrom adjudicating these types of motions. The long-standing practice of the Board has been to assign motions toreopen and reconsider to the originalBoard Members who considered theappeal if they are available. Thispermits some familiarity with the recordand obviates the use of such a motionto merely seek a second panel review of a decision. Moreover, as with the initialnotice of appeal, a party filing a motionto reopen or to reconsider can state inthe motion any reasons why the motionshould be referred to a three-memberpanel for adjudication, as provided in§ 3.1(e)(6).

D. Standards for Referral of Cases to

Three-Member Panels1. In General

Some commenters suggested amodification to the rule to specifyadditional types of cases that would bereferred to a three-member panel. Thisrule retains the basic provisions of theproposed rule, which provide for aninitial review of each case by a singleBoard member, and allows for referral of cases to a three-member panel basedupon the specific criteria of 8 CFR3.1(e)(6). This review process for





adjudicating the cases is both fair andefficient in meeting the Department’sgoals. However, as discussed below, theDepartment has made certainclarifications to these provisions basedon the public comments.

As noted above, an agency must havediscretion to innovate and establish newprocedures for administrative appeals.

See Vermont Yankee, 435 U.S. at 525(‘‘[A]dministrative agencies andadministrators will be familiar with theindustries which they regulate and will

be in a better position than federalcourts * * * to design procedural rulesadapted to the peculiarities of theindustry and the tasks of the agencyinvolved.’’) (internal quotes omitted); cf. D. Meador & J. Bernstein, AppellateCourts in the United States 78–91 (1994)(differentiated internal decision tracksin federal courts of appeals, and otherinnovations).

The criteria used in the final rule are

similar to those used by the federalcourts of appeals in deciding whether tohold oral argument or to publish anopinion. The Department believes thatthese criteria strike the proper balance

between cases that do not present novelor complicated issues that may bedecided by a single Board member, andthose issues that are appropriate forreview by a three-member panel.

2. Particular Classes of Cases

Some commenters recommended thata full written decision by a three-member panel be required in cases

denying asylum, withholding of removal, or Convention Against Torturerelief.

The Department does not agree thatcertain classes of cases, such as thosefacially raising an asylum issue, shouldroutinely be referred to a three-memberpanel. While asylum cases can includecomplex issues of law and fact, anobjective review of those cases indicatesthat many do not. Moreover, casesinvolving asylum and asylum-relatedrelief appear to make up a substantialportion of cases pending before theBoard, although there are currently nostatistics captured on forms of relief sought. The Department has not foundevidence to support a view that everysuch case is profoundly complicated.

Of course, in those appeals that doraise novel or complex factual or legalissues in asylum or asylum-relatedcases, a respondent is permitted, evenencouraged, under the provisions of thisrule to state in the Notice of Appeal andelaborate in a brief, the reasons why theappeal merits review by a three-memberpanel under § 3.1(e)(6) of the rule. Suchcontentions will be reviewed in each

case as part of the case managementscreening process.

3. Clarification of Standards for PanelReview

In the proposed rule, the Departmentstipulated in § 3.1(e)(6) that a Boardmember ‘‘shall’’ refer specific classes of cases for three-member panel review. It

was not the Department’s intent,however, that this language might leadto judicial enforcement of three-memberpanel review. Rather, the Department

believes that it is appropriate for thedecision to refer a case for panel reviewto be made on a case-by-case basisaccording to the judgment of thereviewing Board member under thestandards of this rule. Accordingly, themandatory ‘‘shall’’ has been changed to‘‘may only’’ to avoid this possibility.This change does not broaden theauthority of a single Board member todecide these cases, but rather providesdiscretion to refer the cases to a three-member panel if appropriate.

Section § 3.1(e)(6)(ii) of the proposedrule states that three-member panelshave authority to review records if thereis ‘‘[t]he need to establish a precedent toclarify ambiguous laws, regulations, orprocedures.’’ The Department did notintend, by this language, to narrow thescope of panel review anddecisionmaking to ‘‘Chevron step II’’ issues—i.e., ‘‘ambiguous’’ questions of statutory or regulatory construction.Chevron v. NRDC, supra. On furtherreview, the Department has revised thislanguage to make clear that three-

member panels should be able to decideall precedential questions of firstimpression as to the interpretation of the provisions of the Act and itsimplementing regulations, regardless of whether the parties or the immigrationjudge believe that the meaning is‘‘plain’’ or ‘‘ambiguous.’’ Accordingly,the Department has altered thislanguage to permit three-member panelsto adjudicate cases where there is a‘‘need to establish precedent construingthe meaning of laws, regulations, orprocedure’’ encompassing both theChevron step II interpretive issues as

well as the initial Chevron step Iinterpretation of the statute orregulation to determine the scope andimplementation of clear and plainstatutory language.

The Department has noted that§ 3.1(e)(6)(iii) suggests that three-member review is appropriate if theerror of law is ‘‘plain[].’’ This might givethe impression that the Department isadopting the ‘‘plain error’’ standard of F.R. Crim. P., Rule 52(b), by which anappellate court may review errors of lawthat are ‘‘plain’’ even if not raised by a

party. Under the context of this rule,such an interpretation would tend tolimit the authority to refer cases to athree-member panel by suggesting thatonly ‘‘plain error’’ was referable. Thiswas not the Department’s intent and theword ‘‘plainly’’ has been deleted. If thesingle Board member believes that anerror of law warrants three-member

review, the single Board member mayrefer the case.

E. De novo Review and the Clearly Erroneous Standard

Many commenters expressedopposition to the provision in proposed§ 3.1(d)(3), which provided that theBoard would not engage in de novo review but would accept the factualfindings of the immigration judges indecisions under review, includingfindings as to the credibility of testimony, unless the determinations areclearly erroneous. These commentersnoted that the Board had asserted itsauthority to conduct de novo review of cases on appeal from the immigrationjudges in cases dating back to Matter of B–, 7 I&N Dec. 1 (BIA 1955; A.G. 1956),and as applied in many decisions sincethen. Several NGOs attached lists of case examples describing instanceswhere the Board on appeal had rejectedthe factual determinations or the denialof relief from removal by animmigration judge.

The Department has considered thesecomments very carefully. The final ruleadopts the approach of proposed§ 3.1(d)(3) by eliminating the Board’s de

novo appellate review of factual issues before an immigration judge, but withcertain modifications. Guidance has

been added to the rule to clarify thestandard of review in light of commentsreceived indicating confusion over theapplication of the clearly erroneousstandard with respect to factualdeterminations.

The Department is also concernedthat some commenters did not have aclear understanding of the relationship

between this change and the standard of review with respect to matters of lawand discretionary determinations, and,

accordingly, the final rule contains newlanguage to clarify these importantissues as well. Where the Board reviewswhat was previously called a mixedquestion of law and fact in the proposedrule, and is now referred to as adiscretionary decision, the Board willdefer to the factual findings of theimmigration judge unless clearlyerroneous, but the Board members willretain their ‘‘independent judgment anddiscretion,’’ subject to the applicablegoverning standards, regarding thereview of pure questions of law and the





application of the standard of law tothose facts. (However, when an appealis taken from a decision of a Serviceofficer, the standard of review willremain de novo.)

1. De novo and Clearly ErroneousStandards of Review of FactualDeterminations by the Immigration

JudgesThe Department received a number of

comments opposed to elimination of denovo appellate review of determinationsof facts by the immigration judges andthe substitution of a ‘‘clearly erroneous’’ standard of review. The commentersgenerally asserted that eliminating theBoard’s de novo appellate review of factual issues will result in an overalldenial of due process. Commenters alsoexpressed their opinions that, becauseimmigration judges occasionallymisstate or omit important facts, andcountry conditions change, substituting‘‘clearly erroneous’’ review for de novo review of facts will compel the Board toperform a brief, cursory review of therecord, resulting in decisions that do notaccurately reflect the facts.

The Department has determined thatthe proposed rule eliminating de novo review of facts by the Board andreplacing it with ‘‘clearly erroneous’’ review should remain intact, withappropriate clarifications. TheDepartment does not accept thesuggestions that a clearly erroneousstandard of review, as provided in thisrule, will lead to decisions by the Boardthat ‘‘rubber stamp’’ the decisions of the

immigration judges without thoughtfulreview or analysis, or that retaining denovo review by the Board is necessaryin order to deal with erroneousdecisions by immigration judges whoare ‘‘antagonistic, biased and ignorant,’’ in the words of one commenter.

A finding is ‘‘clearly erroneous’’ when, although there is evidence tosupport it, the reviewing Board memberor panel is left with the definite andfirm conviction that a mistake has beencommitted. A factfinding may not beoverturned simply because the Boardwould have weighed the evidence

differently or decided the factsdifferently had it been the factfinder.Anderson v. City of Bessemer, 470 U.S.564, 573 (1985).

The ‘‘clearly erroneous’’ standardreflects the major role of immigrationjudges under the Act and implementingregulations as determiners of facts. Inremoval proceedings, it is theimmigration judges, not the Board, whohave been given authority to‘‘administer oaths, receive evidence,and interrogate, examine, and cross-examine the alien and any witnesses.’’

8 U.S.C. 1229a(b)(1). Moreover,immigration judges are generally in the

best position to make determinations asto the credibility of witnesses. SeeMatter of A– S–, 21 I&N Dec. 1106 (BIA1998); Matter of Burbano, 20 I&N Dec.872, 874 (BIA 1994). Immigration judgesconducting the hearings are aware of variations in demeanor and tone of

voice that bear so heavily on thelistener’s understanding of and belief inwhat is said. See Wainwright v. Witt, 469 U.S. 412 (1985).

Accordingly, even under its presentauthority to conduct de novo review of the facts, the Board gives ‘‘significantweight to the determinations of theimmigration judge regarding thecredibility of witnesses’’ as well as to‘‘other findings of an immigration judgethat are based upon his or herobservance of witnesses.’’ Matter of Burbano, 20 I&N Dec. at 874 (citationsomitted); see Matter of A– S–, 21 I&N

Dec. at 1108–1112. The Department believes that this deference isappropriate. Indeed, as we havediscussed above, the Board has longengaged in the practice of adopting andaffirming the immigration judges’ factual determinations and decisions,for the reasons stated in the immigrationjudges’ decisions, and this is ‘‘not onlycommon practice, but universallyaccepted.’’ Giday v. INS, 113 F.3d 230,234 (D.C. Cir. 1997); see, e.g., Chen v.INS, supra; Prado-Gonzalez v. INS, 75F.3d 631, 632 (11th Cir. 1996); Alaelue v. INS, 45 F.3d 1379, 1382 (9th Cir.1995).

Thus, for example, it is wellestablished that, because theimmigration judge has the advantage of observing the respondent as therespondent testifies, the Board alreadyaccords deference to the Immigration

Judge’s findings concerning credibilityand credibility-related issues. SeeMatter of A– S–, 21 I&N Dec. at 1109–1112; Matter of Burbano, 20 I&N Dec. at874; Matter of Pula, 19 I&N Dec. 467,471–72 (BIA 1987); Matter of Kulle, 19I&N Dec. 318, 331–32 (BIA 1985), aff ’ d, 825 F.2d 1188 (7th Cir. 1987), cert.denied, 484 U.S. 1042 (1988). Under

certain circumstances, the Board maynot accord deference to an immigrationjudge’s credibility finding where thatfinding is not supported by the record.See, e.g., Matter of B–, 21 I&N Dec. 66,70–71 (BIA 1995); Matter of B–, 7 I&NDec. 1, 32 (BIA 1955; A.G. 1956).However, because an immigration judgehas the ability to see and hear therespondent, which the Board and thecourts of appeals do not, if theimmigration judge’s reasons for anadverse credibility finding aresupported by specific and cogent

reasons with respect to inconsistenciesand omissions with respect to arespondent’s claim, observations of therespondent’s demeanor, and reasonableinferences from those indicia, the Boardwill not disturb an adverse credibilityfinding. Matter of A– S–, supra.

In Matter of A– S–, the Boardconcluded that it would defer to the

credibility findings of an immigrationjudge, but only if (1) the record revealsthat the discrepancies and omissionsdescribed by the immigration judge areactually present; (2) the discrepanciesand omissions provide specific andcogent reasons to conclude that thealien provided incredible testimony;and (3) the alien has not supplied aconvincing explanation for thediscrepancies and omissions. 21 I&NDec. at 1109–1111. The Department

believes that these standards offer someappropriate guidance, but should beapplied to the broader factfinding

process. That is, under this rule, theBoard should start from the premise thatit will accept the findings of fact made

by the immigration judge, unless theBoard identifies specific reasons,including the inverse of those stated inMatter of A– S–, for forming a definiteand firm conviction that a mistake has

been made.The rationale for changing to a

‘‘clearly erroneous’’ standard of reviewof fact findings is not limited to theconsideration that immigration judgesmay be better positioned than the Boardto decide factual issues, includingissues of credibility. See generally

Anderson, 470 U.S. at 574–75. As theSupreme Court has opined in anothersetting, the ‘‘clearly erroneous’’ standardrather than a de novo standard of reviewis appropriate for factfindings by trialcourts because ‘‘[d]uplication of the trialjudge’s efforts [by an appellate body]would very likely contribute onlynegligibly to the accuracy of factdetermination at a huge cost indiversion of judicial resources.’’ Id. ‘‘[T]he parties to a case on appeal havealready been forced to concentrate theirenergies and resources on persuadingthe trial judge that their account of the

facts is the correct one’’ and ‘‘requiringthem to persuade three more judges atthe appellate level is requiring toomuch.’’ Id. at 575. The ‘‘clearlyerroneous’’ standard of reviewrecognizes that an evidentiary hearingon the merits should be the ‘‘ ‘mainevent’ * * * rather than a ‘tryout on theroad.’ ’’ Wainwright v. Sykes, 433 U.S.72, 90 (1977).

Just as the Supreme Court hasconcluded that on balance the ‘‘clearlyerroneous’’ standard is an effective,reasonable, and efficient standard of





appellate review of factualdeterminations by federal districtcourts, see Anderson, 470 U.S. at 574–75, and Fed. R. Civ. P. 52(a), theDepartment has concluded that the‘‘clearly erroneous’’ standard is aneffective, reasonable, and efficientstandard for appellate administrativereview of factual determinations by

immigration judges. The ‘‘clearlyerroneous’’ standard is duly protectiveof the Department’s legitimateinstitutional interests in the effectiveadjudication of administrative appealsand eliminating the duplication of resources involved in successive denovo factual determinations, first byimmigration judges and then the Board.At the same time, it allows for thecorrection of fact findings in the rarecase where the Board is left with thedefinite and firm conviction that amistake has been committed. Seegenerally United States v. United States

Gypsum Co., 333 U.S. 364, 395 (1948).Therefore, in the administrativeimmigration system, the Department hasdetermined that the ‘‘clearly erroneous’’ standard of review—with its deferenceto the initial factfinder—should be ‘‘therule, not the exception.’’ See generally Streamlining Study, supra.

This is not a novel standard in theadministrative process; rather, similarstandards have been applied withinagency review proceedings for manyyears. See, e.g., 10 CFR 2.786 (NuclearRegulatory Commission; domesticlicensing proceedings; review of decisions of a presiding officer); 17 CFR

201.411 (Securities and ExchangeCommission; consideration of initialdecisions by hearing officers); 20 CFR422.114 (Social SecurityAdministration; annual wage reportingprocess); 29 CFR 1614.405 (EEOC;decisions on appeals); 40 CFR 124.19(EPA; appeal of certain permits). TheDepartment believes there is ampleauthority and experience to apply thisstandard to the agency review process inimmigration proceedings.

2. ‘‘Correction’’ of Clearly ErroneousFactual Determinations

The Department’s adoption of the‘‘clearly erroneous’’ standardencompasses the standards nowcommonly used by the federal courtswith respect to appellate court review of findings of fact made by a trial court.See Dickinson v. Zurko, 527 U.S. 150,153 (1999). Under this standard, anappellate tribunal merely has authorityto reverse erroneous fact findings andno authority to correct them. See id. However, it has been pointed out thatthe word ‘‘correct’’ in proposed§ 3.1(e)(6) might appear to give three-

member panels authority to go beyondthe traditional ‘‘clearly erroneous’’ standard used in such review and toengage in de novo factfinding to‘‘correct’’ clearly erroneous facts. Thiswas not the Department’s intent and§ 3.1(e)(6) has been revised.

3. Clearly Erroneous Standard Applied

One of the more complicated contextsin which the clearly erroneous standardwill be applied is in the area of asylum.For example, the Board has establishedstandards for immigration judges tomake credibility determinations. Matter of A– S–, supra. These standards involveseveral different types of findings:whether inconsistencies exist, whetheromissions in an application indicateexaggeration in testimony, or whether arespondent has indicated through his orher demeanor that he or she is being lessthan truthful.

The ‘‘clearly erroneous’’ standard will

apply only to the factual findings by animmigration judge, includingdeterminations as to the credibility of testimony, that form the factual basis forthe decision under review. The ‘‘clearlyerroneous’’ standard does not apply todeterminations of matters of law, nor tothe application of legal standards, in theexercise of judgment or discretion. Thisincludes judgments as to whether thefacts established by a particular alienamount to ‘‘past persecution’’ or a‘‘well-founded fear of futurepersecution.’’

The distinction requires a more

refined analytical approach to decidingcases, but focuses on the qualities of adjudication that best suit the differentdecisionmakers. Immigration judges are

better positioned to discern credibilityand assess the facts with the witnesses

before them; the Board is betterpositioned to review the decisions fromthe perspective of legal standards andthe exercise of discretion.

For example, under section 208 of theAct, a respondent may establisheligibility for asylum by showing that hehas been persecuted on account of aprotected ground under section

101(a)(42) of the Act, e.g., religion. Seegenerally Matter of Chen, 20 I&N Dec.16 (BIA 1989). The immigration judge’sdetermination of ‘‘what happened’’ tothe individual is a factual determinationthat will be reviewed under the clearlyerroneous standard. The immigrationjudge’s determinations of whether thesefacts demonstrate harm that rises to thelevel of ‘‘persecution,’’ and whether theharm inflicted was ‘‘on account of ’’ aprotected ground, are questions that willnot be limited by the ‘‘clearlyerroneous’’ standard.

Similarly, in cancellation of removal,those facts that a respondent claimsmake up ‘‘exceptional and extremelyunusual hardship’’ to a respondent’sputative qualifying relative undersection 240A(b)(1)(D) of the Act, andwhether the putative qualifying relativeis actually a qualifying relative, will bereviewed by the Board only to

determine if the immigration judge’sdetermination was clearly erroneous.Whether those facts, as determined bythe immigration judge and found not to

be clearly erroneous, amount to‘‘exceptional and extremely unusualhardship’’ under the Act may bereviewed by the Board de novo. See,e.g., Matter of Andaloza-Rovas, 23 I&NDec. 319 (BIA 2002) (evaluation of legalstandard; de novo review leading toreversal of immigration judge’s grant of relief); & id. at 330–331 n.1 (Osuna,dissenting, suggesting reliance onimmigration judge’s factfinding leads to

a different evaluation); Matter of Monreal-Aguinaga, 23 I&N Dec. 56 (BIA2001) (evaluation of whether hardshipto qualifying relatives is ‘‘substantiallydifferent from, or beyond, that whichwould normally be expected’’ from theremoval of the respondent).

Third, in both of these two examples,the underlying statutes grant theAttorney General discretion to grantrelief. This ‘‘discretionary’’ determination can likewise beconsidered under this dichotomy. Whathave historically been referred to as‘‘equities’’ are facts that the respondentestablishes in his or her case, and these

factual determinations by animmigration judge may be reviewed bythe Board only to determine if they areclearly erroneous. However, the‘‘discretion,’’ or judgment, exercised

based on those findings of fact, and theweight accorded to individual factors,may be reviewed by the Board de novo.

Thus, properly understood, the‘‘clearly erroneous’’ standard will onlyapply to the specific findings of fact bythe immigration judges, and will notlimit the Board to reviewingdiscretionary determinations.Accordingly, in reviewing the various

decisions of the immigration judges, theBoard will still be able to consider andresolve instances where ‘‘differingdecisions may be reached based onessentially identical facts.’’ Matter of Burbano, 20 I&N Dec. at 873. For thesereasons, the Department does not agreewith the comments suggesting that the‘‘clearly erroneous’’ standard would‘‘severely reduce’’ the Board’s ability toact as a check against the widedisparities in discretionary decisions bythe immigration judges to grant or denyrelief in factually similar cases.





4. Harmless Error

Several commenters expressed theview, in essence, that there exists a gap

between review of all facts de novo anda ‘‘clearly erroneous’’ threshold. Theyargue that the immigration judgesfrequently misstate facts that requirefurther review.

The Department agrees that in somecases an immigration judge maymisstate facts, but disagrees that in allsuch cases further adjudication of thosefacts is necessary. In many instances,such errors, or perceived errors, do notprejudice a respondent, and are, ineffect, harmless errors. Section 3.1(e)(4)of the rule provides that summaryaffirmance is only appropriate if thesingle Board Member determines that‘‘any errors in the decision under reviewwere harmless or nonmaterial’’ and allother conditions apply. Thus, anaffirmance without opinion signifiesthat any such error is considered to be

harmless. Historically, many cases areappealed to the Board on the basis of perceived factual errors in animmigration judge’s decision that are, infact, harmless or immaterial. Forexample, an immigration judge’smisstatement of a fact in evaluatingwhether a nonimmigrant respondentseeking cancellation of removal hadestablished a particular element of ‘‘exceptional and extremely unusualhardship’’ under 8 U.S.C. 1229b(b)(1)(D)of the Act is not a harmful, prejudicial,or material error if the immigrationjudge also concluded that the

respondent had not accrued therequired 10 years of continuousphysical presence under subsection(b)(1)(A). A single-member brief ordermay elaborate on why such an error isharmless and not prejudicial.

By contrast, where a material findingof fact is clearly erroneous, the Boardmay review the record before a three-member panel under § 3.1(e)(6)(v). Thisis precisely the function of a three-member panel.

5. Litigation Concerns

Some commenters were also of the

opinion that if the Board reviews factfindings to determine if they are‘‘clearly erroneous,’’ as opposed todeciding the facts de novo, courts willgive less deference to the agency’sdecisions and more cases will beremanded to the immigration judges forfurther factfinding; they allege this to betrue particularly in cases where anasylum applicant is alleging changedcountry conditions. Consequently, thecommenters were of the opinion that byimplementing a ‘‘clearly erroneous’’ standard of review for facts, the Board’s

appellate decisionmaking would become less, rather than more, timelyand efficient.

The Department disagrees with thisevaluation. Under the Act, courts of appeals must apply a highly deferential‘‘substantial evidence’’ standard inreviewing administrative factfinding inremoval orders, including the findings

made regarding asylum and changedcountry conditions. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)(substantial evidence standard requiredfor asylum determinations); 8 U.S.C.1252(b)(4)(B) (‘‘administrative findingsof fact are conclusive unless anyreasonable adjudicator would becompelled to conclude to the contrary’’).Where the Act precludes direct reviewin the courts of appeals, district courtshave limited jurisdiction to reviewremoval orders by means of habeascorpus, encompassing only purely legalchallenges to removal orders. INS v. St.

Cyr, 533 U.S. 289, 306, 314 n.38 (2001).Habeas review does not permit reviewof administrative factfinding, exceptperhaps to determine whether such factsare ‘‘unsupported by any evidence.’’ Id. at 306 n.27.

Accordingly, the commenters’ concerns that courts may choose toaccord less deference to administrativefactfinding and may reverse the Boardmore frequently if the Board reviewsappeals under a ‘‘clearly erroneous’’ standard are not well founded. Suchconcerns overlook the courts’ inabilityto alter the standard of review, and theirobligation of deference to the Attorney

General’s factfinding (by whatevermeans such authority is exercised).

The Department recognizes thatincreasingly, and particularly in asylumcases, some courts have failed to deferto administrative factfinding. See, e.g.,Abovian v. INS, 257 F.3d 971 (9th Cir.2001) (Kozinski, O’Scannlain, T.G.Nelson, Kleinfeld, Graber, Tallman,Rawlinson, JJ., dissenting from denial of rehearing en banc); Agbuya v. INS, 219F.3d 962, 967 (9th Cir. 2000) (Hall, J.,dissenting); Briones v. INS, 175 F.3d727, 730 (9th Cir. 1999) (en banc)(O’Scannlain, J., dissenting); Borja v.

INS, 175 F.3d 732, 738 (9th Cir. 1999)(en banc) (O’Scannlain and Kleinfeld, JJ., dissenting); Mgoian v. INS, 184 F.3d1029, 1037 (9th Cir. 1999) (Rymer, J.,dissenting). The Department disagreeswith such an approach, and thereforedoes not consider it appropriate to alterthe nature of the Board’s appellatereview to conform to it.

6. De novo Review by the AttorneyGeneral

Some commenters suggested that itwas inappropriate for the Attorney

General to adopt a ‘‘clearly erroneous’’ standard for the Board, but use a denovo standard himself in reviewing theBoard’s determination, such as in Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002).This suggestion misapprehends thedifferent roles of the Attorney Generaland the Board. As discussed above, theAttorney General is charged not merely

with adjudicating immigration matters, but with establishing policy andmanaging the immigration process. TheBoard, on the other hand, is delegatedauthority by the Attorney General toadjudicate cases before it, not makepolicy or manage the immigrationprocess. It is appropriate for theAttorney General to exercise broaderauthority than he delegates to the Board.

7. Review of Service Decisions

The comments on de novo reviewhave raised an issue of the scope of review of factual determinations byofficers of the Service in decisionsunder review by the Board. Review of decisions by the district director andother Service officers do not have the

benefit of a full record of proceedingsor, except in rare cases, a transcript of hearings before an independentadjudicating officer. Rather thesedecisions are made on applications andinterviews, and other informationavailable to the Service.

In light of this difference, theDepartment has clarified the language of the final rule to retain de novo reviewof Service officer decisions, either by asingle Board member or by a three-

member panel. Accordingly, § 3.1(d)(3)has been revised to retain the Board’sauthority to review decisions of theService de novo. The process for initialsingle Board member review will beretained, but the scope of review is

broadened. The same standards forreferral to a three-member panel will beapplied.

F. New Evidence and Taking Administrative Notice of Facts

Section 3.1(d)(3) of the proposed rulealso generally prohibits the introductionand consideration of new evidence in

proceedings before the Board, except fortaking administrative notice of commonly known facts such as currentevents, or the contents of officialdocuments such as country conditionreports prepared by the Department of State.

Several commenters suggested thatthe rule would alter the Board’sauthority to administratively noticefacts. Some commenters believed that a

broadening of the authority toadministratively notice facts wasappropriate, while others argued that





7The First, Seventh, Ninth, and Tenth Circuitshave held that it is a violation of due process forthe board to take administrative notice of new factson appeal without affording notice and anopportunity to respond. In the Ninth and TenthCircuits the board must provide notice and anopportunity to respond before taking administrativenotice. Kowalczyk v. INS, 245 F.3d 1143 (10th Cir.2001); de la Llana-Castellon v. INS, 16 F.3d 1093,1099–1100 (10th Cir. 1994); Castellon-Villagra v.INS, 972 F.2d 1017 (9th Cir. 1992) (motion toreopen does not provide adequate opportunity torebut administrative notice of changed countryconditions and due process requires BIA to give

prior notice and opportunity to rebut). In othercircuits a post-decision motion to reopen, or, moreproperly, a motion to reconsider, disputing thetaking of administrative notice is a sufficientremedy. Gonzalez v. INS, 77 F.3d 1015, 1024 (7thCir. 1996) (rejecting approach of 9th and 10thcircuits and holding that ‘‘mechanism of the motionto reopen * * * ‘allows asylum petitioners anopportunity to introduce evidence rebuttingofficially noticed facts,’ [and] provides a sufficientopportunity to be heard to satisfy the requirementsof due process’’). Accord Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C. Cir. 1992); Rivera-Cruz v.INS, 948 F.2d 962, 968–69 (5th Cir. 1991), rehearingdenied, 954 F.2d 723 (1992). The First Circuitinitially adopted the position that a post-decisionmotion to reopen is sufficient to satisfy due process but may not continue to hold that view. CompareGebremichael v. INS, 10 F.3d 28 (1st Cir. 1993)

(‘‘We agree with the majority of those circuitswhich have addressed the question that [a post-decision] motion to reopen * * * can ordinarily satisfy the demands of due process.’’) (emphasisadded, citations omitted), with Fergiste v. INS, 138F.3d 14, 19 n.4 (1st Cir. 1998) (declining to decidewhether reliance on extra-record evidence of changed country conditions violated proceduraldue process without pre-decision notification, butreinterpreting Gebremichael to state that ‘‘[o]urholding in that case was not * * * that a motionto reopen is always necessary and sufficient toprotect an alien’s rights [but] [r]ather * * * that ‘thedemands of due process will, as always, ultimatelydepend on the circumstances’ ’’).

8See Sevoian v. Ashcroft, 290 F.3d 166, 176 (3rdCir. 2002), quoting Kazlaukas v. INS, 46 F.3d 902,

906 (9th Cir. 1995); Gonahasa v. INS, 181 F.3d 538,542 (4th Cir. 1999) (describing these reports as‘‘highly probative evidence in a well-formed fear

case’’); Marcu v. INS, 147 F.3d 1078, 1081 (9th Cir.1998) (reliance on reports ‘‘makes sense becausethis inquiry is directly within the expertise of theDepartment of State’’); Gailius v. INS, 147 F.3d 34,46 (1st Cir. 1998) (Department of State opinions‘‘receive considerable weight in the courts becauseof the * * * Department’s expertise’’); Rojas v. INS, 937 F.2d 186, 190 n.1 (5th Cir. 1991) (Departmentof State a ‘‘relatively impeccable source[]’’ forinformation on political conditions in foreigncountries); Koliada v. INS, 259 F.3d 482 (6th Cir.2001) (deference due even though Department of State report reproduced for the Service in supportof litigation); Mitev v. INS, 67 F.3d 1325, 1332 (7thCir. 1995) (‘‘we give great [deference] to[Department of State] opinions on matters within itsarea of expertise’’).

the Board should, in essence, not beable to take administrative notice of facts without providing a hearing.Where it is established that an appealcannot be properly resolved withoutfurther findings of fact, other than thoseestablished by administrative notice, theBoard will remand the proceeding to theimmigration judge.

The rule codifies existing Boardprecedent holding that new facts willnot be considered on appeal. The‘‘clearly erroneous’’ standard of review,in contrast to the de novo standard of review, is also consistent with thelongstanding policy of the Board, nowcodified in § 3.1(d)(3), of notconsidering evidence filed on appeal.The Board reviews the record of proceedings made before theimmigration judge. Matter of Fedorenko, 19 I&N Dec. 57, 73–4 & n.10 (BIA 1984);Matter of Haim, 19 I&N Dec. 641 (BIA

1988). Under existing practice, newevidence would be considered at theappeal stage through a motion toremand. See generally G. Hurwitz,Motions Practice Before the Board of Immigration Appeals, 20 San Diego L.Rev. 79, 91–2 (1982). See Matter of Coelho, 20 I&N Dec. 464, 471–2 (BIA1992). See also 8 CFR 3.2(c) (2001).

Contrary to the assertions of severalcommenters, this rule does not disturbthe Board’s authority to takeadministrative notice of commonlyknown facts. The Board may, and does,take administrative notice of commonly

known facts such as agency documentsand current events. See e.g. Matter of S– M – J – , 21 I&N Dec. 722, 733 n.2 (BIA1997), disapproved on other grounds,Ladha v. INS, 215 F.3d 889 (9th Cir.2000); Kaczmarczyk v. INS, 933 F.2d588, 593 (7th Cir. 1991). The languageof the regulation explicitly uses thephrase ‘‘commonly known facts’’ todescribe the kinds of facts or matters of which the Board may takeadministrative notice, giving by way of example ‘‘current events’’ or ‘‘thecontents of official documents.’’ TheDepartment intends by use of this

language to make clear that the Boardmay take administrative notice not onlyof current events but also of the contentsof official documents such as thecountry condition reports prepared bythe Department of State, including itsforeign policy expertise, analysis, andopinion.

The Department does note, however,that there is an intercircuit conflict overthe degree to which the Board may takeadministrative notice of facts withoutfirst providing notice and an

opportunity to respond.7 Afterreviewing the comments, theDepartment agrees with those courtsthat have found post-decision motionsto reconsider and reopen under 8 CFR3.2, alleging a specific error of fact (theadministratively noticed fact), to besufficient to preserve a respondent’sconstitutional due process rights.

In immigration proceedings, theadministrative notice of facts—usuallyrelating to country conditions—revolveson issues that form the respondent’s

burden of proof for relief from removal.The most common facts about countryconditions appropriate foradministrative notice are thosecontained in country reports andprofiles prepared by experienced foreignservice officers in the Department of State who are experts on specificregions and countries. As the courtshave recognized, they, the immigrationjudges, and the Board owe deference to

the Department of State on such mattersof foreign intelligence as assessments of conditions.8 Some commenters relied

upon the opinions expressed by NGOsin disputing the deference that should

be given to Department of States reportsand profiles, either directly or throughadministrative notice of facts andofficial documents. However, reports byNGOs are simply not as reliable as thoseof the Department of State because themission of those organizations is to

advocate specific ideas and views, theirpositions are often based on anecdotalexperiences of identified andunidentified persons, and their opinionstend to lack the discernment andexpertise of those provided by theDepartment of State.

The important, complicated, delicate,and manifold problems of assessingconditions in a foreign country warrantdeference to those whose expertise theUnited States tasks with that duty. It isthe respondent’s responsibility topresent facts on the record that refutethose assessments. The Department

believes that, given this requireddeference, post hoc rebuttal of administratively noticed facts isappropriate and sufficient for dueprocess purposes. Accordingly, theDepartment has not altered the final rulein response to these comments.Nonetheless, the Board is mindful of thelimitations on the use of administrativenotice in those circuits that havecontrary precedents.

In light of the intercircuit conflict andthe deference that is due suchDepartment of State reports and profiles,the Department believes that acompelling case is made for a liberal

interpretation of the rule onreconsideration and reopening in casesin which the Board has administrativelynoticed facts such as a Department of State country report. Accordingly, theDepartment is of the view that in anycase in which the Board takesadministrative notice of a specific fact

by reference to any documentaryevidence, e.g., a Department of Statecountry report or profile published afterthe immigration judge’s decision), not





9The Board has interpreted, since its inception,what constitutes a ‘‘crime involving moralturpitude.’’ See Matter of G – , 1 I&N Dec. 8 (BIA,A.G. 1940) (interpreting 1917 Act); 8 U.S.C.1182(a)(2)(A)(i), 237(a)(2)(A)(i). An increasing

Continued

theretofore in the record of proceedings,either party may file as part of a motionto reopen any contradictorydocumentary evidence (e.g., acontradictory report by a third partysuch as Amnesty International), whichshall be considered, for the purpose of this section, to have been not availableand which could not have been

discovered and presented at the formerhearing. If administrative notice is takenof a fact, then the parties should havethe opportunity to challenge that fact.The Department’s interpretation is thatthe ‘‘not available’’ and ‘‘could not have

been discovered’’ requirements of section 3.2(c) should not stand in theway of such a review and determinationon the merits of the motion. If themotion has merit and additionalfactfinding is required, the Board mayreconsider and vacate its decision,reopen proceedings, and remand therecord to the immigration judge.

G. Reduction in Size of the Board The proposed rule provided that, after

the transition period of 180 days haselapsed, the final structural reform of the Board will occur. The number of Board members will be reduced to 11,with the Attorney General designatingthe membership of the Board. Afterreviewing the comments, theDepartment has determined to retain thereduction of the size of the Board to 11,as proposed.

We note at the outset that twoindividuals who understand the Boardwell from their previous experience as

Board members, and who testified before the House JudiciarySubcommittee, both agreed that the sizeof the Board should be reduced butdiffered over the proper reduction—onearguing for a reduction to no more than9 while the other suggested 16.Testimony of M. Heilman and L.Mathon, House Judiciary SubcommitteeHearing, 10, 13, 18.

The Department has determined that11 Board members is the appropriatesize for the Board based on judgmentsmade about the historic capacity of appellate courts and administrative

appellate bodies to adjudicate the law ina cohesive manner, the ability of individuals to reach consensus on legalissues, and the requirements of theexisting and projected caseload. TheBoard is expected to function with twothree-member panels and five Boardmembers acting individually indeciding cases. The Department believesthat this is a realistic evaluation of theresource needs, capacities and resourcesof the Board in adjudicatingimmigration issues. The AttorneyGeneral may reevaluate the staffing

requirements of the Board in light of changing caseloads and legalrequirements following implementationof the final rule.

1. Quality of Board Member Personnel

Several commenters questioned howthis reduction would occur.Commenters objected to the reduction

stating generally that it raisesconstitutional issues, but withoutsignificant elaboration. Thesecommenters either supportedmaintaining the current number of Board members or supported anincrease in the number of Boardmembers, staff, and resources.Comments concerned the transitionperiod, in which the backlog of caseswill be eliminated and the Board sizereduced.

A few commenters stated that thereduction could be perceived as part of a design to eliminate Board memberswith whom the Attorney Generaldisagrees and noted that diverse Boardmember opinions are important. Severalcommenters asserted that, during the180-day transition period, Boardmembers would be ‘‘auditioning’’ tokeep their jobs and that it would affectthe perceived impartiality of currentBoard members given that it wasannounced before the backlog wasreduced.

The Department has alreadyaddressed, in part III.B above, thegeneral comments asserting thatreducing the number of Board memberswould adversely affect the due process

of respondents by affecting theindependence and perceivedimpartiality of the Board.

The Department expects that thereduction in the number of Boardmember positions will be effectuated bythe Attorney General from among thecurrent Board Members, afterconsultation with the Director of theExecutive Office for ImmigrationReview (EOIR) and the Board Chairman,

but that determination remains one thatis within the discretion of the AttorneyGeneral. As EOIR Director Rooneypointed out in testimony before a

subcommittee of the House JudiciaryCommittee, the Attorney Generalgenerally looks to traditional factors thatguide the selection of adjudicators, suchas experience, judicial temperament,and efficiency, particularly in anexperienced adjudicator. Testimony of K. Rooney, House JudiciarySubcommittee Hearing, 37–38. TheDepartment expects that the finaldeterminations will be made on factorsincluding, but not limited to, integrity(including past adherence toprofessional standards), professional

competence, and adjudicatorialtemperament. Cf ., D. Meador, M.Rosenberg, & P. Carrington, eds.,Appellate Courts: Structures, Functions,Processes and Personnel (1994), 671–681 (varying views on the qualificationsof judges in the judicial setting ratherthan the administrative adjudicationsetting); D. Meador & J. Bernstein,

Appellate Courts in the United States (1994), 94–99.

In the end, however, it is not possibleto establish guidelines or specific factorsthat will be considered, nor should theAttorney General limit hisdecisionmaking process. The decisionas to the relative values and the weightsgiven to those values belongs to theAttorney General. Each Board memberis a Department of Justice attorney whois appointed by, and may be removed orreassigned by, the Attorney General. Allattorneys in the Department areexcepted employees, subject to removal

by the Attorney General, and may betransferred from and to assignments asnecessary to fulfill the Department’smission. Moreover, and of criticalimportance, the Department has notindicated that any of the existing Boardmembers will be adversely affected bythe reduction in the number of Boardmembers. Until the Attorney Generalmakes these personnel decisions, suchcomments are, at best, speculative.

A few commenters supportedreduction based solely on seniority.While seniority is an experienceindicator, the Department does not

believe that it should be considered a

presumptive factor.Several commenters have suggested

that the Attorney General must appointindividuals to the Board who are expertin immigration law. The Department

believes that this argument rests on thefaulty premise that immigration law isthe only area of the law where Boardmembers must have expertise. Althoughimmigration law is a unique blend of foreign and domestic concerns, it is notso discrete and insular in nature.

In reality, immigration law is part of the larger body, and requires a moreglobal view, of federal law. The Board

is no longer, and perhaps never has been, a body whose decisions relateonly to the interpretation of the Act andregulations. More frequently now thanever before, the Board decides cases

based on the criminal law, and expertisein that area of the law is also requiredof the Board.9 Accordingly, it is not





number of recent Board decisions have focused onthe interrelationship of provisions of the criminalCode, the United States Sentencing Guidelines, andthe Act. For example, the term ‘‘aggravated felony’’

defined in section 101(a)(43) of the Act, 8 U.S.C.1101(a)(43), is referenced in the United StatesSentencing Guidelines as the controlling definitionfor certain sentencing enhancements. U.S.S.G.2L1.2(b)(2). The definition of ‘‘crime of violence’’ that makes up one of the definitions of anaggravated felony is defined by 18 U.S.C. 16. ‘‘Drugtrafficking,’’ another aggravated felony, is defined in18 U.S.C. 924. The Board has, at times struggledwith this panoply of legal provisions. See, e.g.,Matter of K – V – D – , 22 I&N Dec. 1163 (BIA 1999),overruled, Matter of Yanez, 23 I&N Dec. 390 (BIA2002) (whether conviction under state lawconstitutes drug trafficking under section101(a)(43)(B) of the Act); Matter of Vasquez-Muniz,22 I&N Dec. 1415 (BIA 2000), rev ’ d 23 I&N Dec. 207(BIA 2002) (whether an offense defined by state orforeign law may be classified as an aggravatedfelony as an offense ‘‘described in’’ a federal statute

enumerated in section 101(a)(43) of the Act even if it lacks the jurisdictional element of the federalstatute); Matter of Ramos, 23 I&N Dec. 336 (BIA2002), overruling Matter of Puente-Salazar , 22 I&NDec. 1006 (BIA 1999), and Matter of Magallanes-Garcia, 22 I&N Dec. 1 (BIA 1998) (whether drivingwhile intoxicated under various state criminal lawsconstitutes crime of violence under 18 U.S.C. 16(b)and an aggravated felony under section101(a)(43)(F) of the Act). This complexinterrelationship of the immigration law and thecriminal law has also lead to recent precedentdecisions by the Attorney General. Matter of Y – L–23 I&N Dec. 270 (A.G. 2002), overruling Matter of S– S– , 22 I&N Dec. 458 (BIA 1999); Matter of Jean,23 I&N Dec. 373 (A.G. 2002), disapproving Matter of H – N – , 22 I&N Dec. 1039 (BIA 1999).

10The Board currently has 19 members and 4vacancies, which the Department has declined tofill in light of the fact that the expansion has notachieved the desired results based upon historicalstaffing levels.

11The Department notes that not all of the Boardprecedent decisions are issued en banc. Under 8CFR 3.1(g), the Board designates particulardecisions for publication as precedent decisions, but the Board can and frequently does designate athree-member panel decision as a precedentdecision.

merely expertise in immigration lawthat must guide the Attorney General’sdecisions on immigration law andpolicy, or to whom to delegate authorityto make immigration decisions, but alsoexpertise in the inextricably interrelatedcriminal law. By the same token, theBoard’s determinations under theRefugee Act of 1980, 8 U.S.C. 1158, and

implementing regulations, 8 CFR part208, necessarily include both facts andinferences from the expertise of theDepartment of State on matters of foreign conditions. INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)(deference due Attorney General’s, andhence Board’s, role in foreign policy);INS v. Abudu, 485 U.S. 94, 110 (1988)(foreign policy considerations inimmigration proceedings).

2. Resource Requirement Concerns

A number of commenters expressedthe view that the current case backlog

reflects the need for more resources. Intheir view, increased attorney andparalegal staffing, as well as filling allexisting Board member positions, would

be a preferable method of reducing the backlog.

As described above, beginning in1995, the Department sought to aid theBoard in reducing its burgeoningcaseload by increasing its size from 5 to23 Board members with increases in its

attorney and support staff.10 It is nowevident that the Board does not face a‘‘personnel-budget’’ problem but rathera fundamental systemic problem. Thecontinued expansion of the Board hasnot effectively reduced the existing case

backlog. The one element that has begunto help reduce the backlog—streamlining—is being expanded

through this rule. By expanding thenumber of cases that can be resolvedeither through a summary affirmancewithout opinion, or by a short writtenorder by a single Board member, thisprocess will substantially free up thestaff resources of the Board to focus on

backlog reduction and the preparationof careful legal and factual analyses incases meriting three-member panelreview, including cases to be designatedas precedent decisions.

3. Advantages of a Smaller Board

The Department believes that the

continued expansion of the Board has,indeed, had significant institutionalcosts including effects on thecohesiveness and collegiality of theBoard’s decision making process, andthe Department’s perception of theuniformity of its decisions, and anadministrative and supervisory strain onthe Board’s staff. Cf. Commission onRevision of the Federal Court AppellateSystem, Structure and Internal Procedures: Recommendations for Change 16–21 (1975). These costs have

been magnified by substantial changesin the immigration laws and haveresulted in unnecessary delays inissuing final agency decisions. Thiscontinued expansion has shifted theBoard’s attention away from providingnationwide guidance on those casespresenting difficult and repetitive orcontroversial legal questions. Testimonyof M. Heilman, House JudiciarySubcommittee Hearings 13, 16. Theinstitutional cost of unlimitedexpansion is not a new phenomenon,

but one that has been experienced in thefederal court system. See generally Structural Alternatives, at 29–57. At thesame time, the Board’s precedentdecisions indicate an inability to reach

consensus about even fundamentalapproaches to the law.

Accordingly, the Department agreeswith certain comments that thereduction in the number of Boardmembers should increase the coherenceof Board decisions and facilitate the enbanc process, thereby improving the

value of Board precedents.11 TheDepartment believes that more andclearer precedent will be of greaterassistance to the immigration judges,practitioners, and respondents.

Another commenter argued thatreducing the number of Board memberscombined with increasing single-member review will save American

taxpayers money. It is not clear to theDepartment that the cost of operatingthe Board will substantially be reduced,nor does the Department plan topropose a substantial reduction in

budget outlays. However, by furtherexpediting the disposition of cases foraliens currently held in detention, theDepartment expects to realize savings inthe costs of detaining such alienspending their removal from the UnitedStates. In addition, the Department

believes that following implementationof the streamlining process and thisrule, maintaining the current number of

Board members will be unnecessary.With greater efficiency, fewer Boardmembers will be needed to adjudicatethe caseload. A reduction to 11 Boardmembers will allow for the mostefficient use of resources to adjudicateadministrative appeals on a timely

basis.

H. Case Processing Issues

Section 3.1(e)(8) of the proposed rule,as well as §§ 3.3 and 3.5, establishednew time limits for several elements of the appellate process while maintainingseveral aspects of current Boardpractice. Some commenters implied that

these time limits could create justifiablerights. The Department disagrees. Theseinternal management limitations areintended only to provide direction forthe management of the Board, notestablish any right or remedy inlitigation. See United States v. Caceres,440 U.S. 741 (1979).

In response to the public comments,the Department has changed the briefingprocess, establishing a distinction

between detained and non-detainedcases. For detained cases, the final ruleestablishes a simultaneous briefingprocess, with a time limit of 21 days for

the filing of briefs by each party. Fornon-detained cases, the Department isretaining a sequential, but reduced,

briefing schedule, allowing theappealing party 21 days in which to filea brief, and allowing the opposing party21 days to respond. As in the proposed





12The proposed rule provided that theimmigration judge would have a set time to ‘‘reviewand approve the transcript.’’ This language mayhave given the impression that an immigrationjudge may alter a transcript when this authorityclearly does not exist. An immigration judgeshould, of course, review the transcript of proceedings to ensure that it is complete, but thereis no authority to ‘‘amend’’ the transcript. Theimmigration judge’s oral decision, on the otherhand, is subject to a small degree of modificationand clarification necessitated by the fact that thedecision is orally dictated and does not reflectinflection. An immigration judge may not, however,make substantive changes in the decision.

rule, an immigration judge will have 14days to review the transcript andapprove a decision (or 7 days afterreturning from an absence from thecourt).12 Also as in the proposed rule,an appealing party asserting that a three-member review is warranted must do soin the Notice of Appeal within theperiod allowed for an appeal. Once the

record is completed and ready foradjudication, single Board memberdecisions must generally be madewithin 90 days and three-memberdecisions must be made within 180days. Provisions for discretionaryextensions of time have been expanded.The Department has also retained theprovisions of the proposed rule onrehearings en banc.

1. Simultaneous Briefing

Several commenters expressedconcern that the practice of simultaneous briefing, coupled with ashorter time frame, raises due processconcerns because it would be unfairly

burdensome to immigrationpractitioners and pro se litigants. Somecommenters believe that, as aconsequence of the compressed timeframe, pro bono representation woulddecrease because of the difficultiesassociated with the new rule. Manycommenters asserted that pro serespondents who are unfamiliar withEnglish and the immigration laws will

be unable to effectively articulate theirposition on appeal or to anticipate andrebut arguments presented by theService. Furthermore, a few commenters

argued that detained respondents willnot even have the benefit of the 21-dayperiod due to systemic problems inreceiving the transcripts and briefingschedules in a timely manner whilethey are either detained or being movedto other detention facilities. Finally,multiple commenters suggested that thereduced time frame would result inhastily drafted briefs that would beunhelpful to the Board in decidingappeals.

After reviewing the commentsreceived, the Department has decided tochange the proposed regulation with

respect to the simultaneous briefing

process but otherwise maintain the timelimits as proposed. The final rulemodifies the existing 8 CFR 3.3(c) bycreating a distinction between detainedand non-detained cases. In detainedcases, the Department maintains itsposition that a 21-day simultaneous

briefing schedule is sufficient.Simultaneous briefing is the common

practice in detained cases. See, e.g.,Matter of Jean, 23 I&N Dec. 373, 380(A.G. 2002) (addressing simultaneous

briefing before the Board in detainedcases).

In non-detained cases, the Departmentwill retain the proposed 21-day briefingschedule, but agrees with thecommenters that this should be asequential briefing schedule, which iscurrently the common practice in non-detained cases. Under existingregulations, parties are allowed 30 dayseach in which to file briefs (for a totalof up to 60 days). Under the final rule,

for non-detained cases, after a transcriptis made available, the Board willestablish a 21-day sequential briefingschedule. The ability of either party toseek an extension of the period for filinga brief or reply brief up to 90 days forgood cause shown remains from currentBoard practice. The Departmentapproves of the Board’s current practiceof granting extensions of only 21 days.Beyond that, the Board retains itsdiscretion to consider briefs and reply

briefs that are filed out of time.Furthermore, the parties also retain theirability to file motions to reconsider afterthe Board has rendered a decision. 8

CFR 3.2(b).

2. Transcript Timing

Other commenters indicated that, because the availability of a transcript is beyond an appellant’s control, anappellant might be unfairly surprised byits arrival and unable to prepare a brief within the time frame. Somecommenters stated that, in theirexperience, it has sometimes taken ayear or more for the preparation of transcripts after the filing of an appealwith the Board.

The Department agrees that

substantial delay in the production of transcripts in many cases has been aserious problem. The earlier a transcriptis available, closer in time to the actualhearing and decision of the immigrationjudge, the more readily the respondentand the Service will be able to utilizethat transcript. The longer a transcript isdelayed, the more the eventsmemorialized in that transcript mayfade from the memories of therespondent, respondent’s counsel, andthe Service’s trial attorney. TheDepartment believes that fairness

requires that the transcript be madeavailable to all of the parties at theearliest possible time.

The Department also recognizes thatthe Board has made substantialimprovement in this area. For appealsfiled in fiscal year 2001, the averagetime from the filing of the Notice of Appeal to setting the briefing schedule

was 158 days. That statistic wouldappear to reflect the commenters’ concerns. However, for fiscal year 2002through June 2002, the average time was97 days. The Department is not satisfiedwith this delay and believes that a 60-day time-frame is possible and should

be implemented. If necessary, the Boardand the immigration courts should altertheir internal operating procedures toensure that transcripts can be providedwithin this time-frame.

In response to this concern by thecommenters, the Department has addeda requirement in § 3.5(a) that theChairman and the Chief Immigration

Judge take such steps as necessary toensure that transcripts are produced assoon as practical after the filing of theNotice of Appeal. This will also assistthe immigration judges in reviewing anyoral decision in the transcript. TheChairman and the Chief Immigration

Judge are expected to report on progressin this area regularly.

3. Immigration Judge Time Limits ToReview Decisions

Some commenters voiced a concernthat the 14-day time limit for animmigration judge to review transcripts

and any oral decision was unrealistic inhigh-volume jurisdictions. TheDepartment disagrees. The Departmentrecognizes that there will be somedislocation as the transcription processis accelerated and the immigrationjudges have a shorter period of time toreview a number of transcripts to meetthis deadline. However, once theseprocesses are in place, that pressure willdissipate. The Department is confidentthat the immigration judges will be ableto adjust their schedules toaccommodate this implementationprocess.

4. 30-Day Notice of Appeal FilingRequirement

Some commenters felt that the 30-dayperiod within which an appeal must befiled was too short a period withinwhich a party can be expected toarticulate reasons for contending thatthree-member review is warranted. TheDepartment disagrees. The filing timefor a Notice of Appeal has not beenchanged by the proposed or final rule.The existing 30-day period—asubstantial increase in the 10-day limit





that formerly applied until recentyears—appears to have worked well. Asnoted above, the parties are alreadyfamiliar with the issues presented andshould, in a short period of time, be ableto articulate with some specificity theissues that they wish to raise on appeal.The transcript of hearings is notnecessary for this process. The facts

should be fresh in the parties’ mindsand the legal arguments should have

been fleshed out before the immigrationjudge. The Department has found noreason to change this provision of theregulations.

5. Decisional Time Limits

Some commenters also argued thatthe 90- and 180-day time limits foradjudication were unrealistic and wouldresult in rushed and erroneousdecisions. Other commenters, however,supported the new time limits, and afew suggested that a 90-day limit beplaced on deciding all detained cases.

The Department is not persuaded thatthe proposed time frames for deciding acase will hinder the quality of decisionsmade by either single Board members orthree-member panels. The rule providesadequate time for the Board to decidethe vast majority of cases before it, andin those rare cases where more time isneeded, the rule provides a procedurefor extending that time. The Departmentalso believes that 8 CFR 3.1(e)(8)sufficiently directs the Board to assignpriority to deciding case appealsinvolving detained respondents, or bondappeals, which procedure is consistent

with existing practice, without the needfor separate time limits for thosematters.

6. Holding Cases Pending SignificantChanges in Law and Precedent

A few commenters noted thatproposed § 3.1(e)(8)(iii) permits theChairman to hold a case or casespending resolution of issues pending

before the United States Supreme Courtor the courts of appeals that willsubstantially affect the outcome of thecases to be held. These commentssuggested that the Chairman should also

be authorized to hold cases that aredirectly affected by pending legislation,pending regulatory changes, andpending en banc decisions.

The Department agrees with thesecomments in part, and has expanded 8CFR 3.1(e)(8)(iii) to cover pendingDepartment regulations and pending enbanc decisions. Because some issueswill arise rapidly and in multiple cases,the Department expects that theChairman, as a matter of discretion inmanaging the caseload, will be able toutilize the authority granted under this

provision to group cases to determinewhich record provides the clearest issuefor precedent decisions by the Board enbanc. To facilitate the management of these case and case-group holds withthe legislative and regulatory programsof the Department, the Chairman isdirected to inform the Director of EOIRand the Attorney General of all such

holds.

I. Decisional Issues

1. Management of Decisions

Several commenters expressed theview that the regulation granted toomuch authority to the Attorney General,the Director of EOIR, and the Chairmanof the Board to manage the decision-making of individual Board members.Some of these commenters generallychallenged the Attorney General’sauthority over the Board.

These commenters misunderstand thenature of the Board. The Board is the

creation of the Attorney General; it isnot a statutory body. As discussedabove, the Board’s authority derivesfrom a delegation of authority from theAttorney General. See Guentchev v. INS,supra; Matter of Hernandez-Casillas,supra, at 289 n.9. In this rule, theDepartment alters the process by whichthe caseload is managed, but does notdictate or determine the ultimateoutcome in any case or group of cases.The Department expects the BoardMembers to continue to exerciseindependent judgment regarding theinterpretation of the law, subject to

applicable legal standards and review by the Attorney General, and inconformity with applicable judicialprecedents.

2. Remand Motions

One commenter stated that underproposed § 3.1(e)(2), respondents shouldalso be afforded the right to file amotion to remand on any substantiveground. The Department notes that thissuggestion is outside the scope of therulemaking and does not address thatsuggestion at this time. However, in thefuture, the Department may consider a

more complete revision of the motionspractice before the Board. At this time,the Department has changed § 3.1(e)(2)to more closely reflect the authoritycurrently codified in § 3.1(a)(1) for asingle Board member to make variousprocedural dispositions of cases. Thereis also no provision that bars a contestedmotion to remand the record; the Boardhas considered such motions for years.

3. Rehearing en banc

One commenter stated that rehearingen banc is almost never done, and

suggested that revising the Board’srehearing en banc authority iseffectively meaningless. TheDepartment believes that en banc review is a valuable process in theestablishment of precedential guidancefor immigration judges, and one of theresults of decreasing the size of theBoard is to increase its ability to provide

such guidance in a meaningful way.However, en banc proceedings are veryresource intensive and should not bereadily undertaken. The Department

believes that the Board’s electronic enbanc process has been successful andshould be continued. Moreover, theBoard can and does designate paneldecisions as precedent decisionswithout the need to convene a full enbanc proceeding by using the electronicen banc, and should continue thatpractice whenever possible. Theproposed rule added a sentence in 8CFR 3.1(a)(5), taken from Federal Rules

of Appellate Procedure Rule 35(a), withrespect to rehearing en banc in thecourts of appeals, providing that enbanc proceedings are disfavored andshall ordinarily be ordered only forquestions of exceptional importance orto secure or maintain the uniformity of the Board’s decisions. However, toavoid concerns that this language mightunintentionally inhibit the Board’s useof the en banc process, the final ruleuses the term ‘‘particular importance’’ rather than ‘‘exceptional’’ importance.The Department disagrees with thesuggestion of some commenters that thisprovision is effectively meaningless.

4. Separate Opinions

One commenter suggested that theDepartment eliminate dissenting andconcurring opinions for precedentdecisions. This rule does not take aposition on that suggestion. Dissentingand concurring opinions can serve avaluable purpose, within limits, inprecedential decisions. Not allprecedent decisions can resolve allaspects of an issue presented and theremay be valuable disagreements thatwarrant further briefing in subsequentcases. The Department does not wish to

limit the conversation that must occurto develop lines of precedent so long asthe concurring and dissenting opinionsare efficiently prepared.

On the other hand, there is substantialreason to question the number of lengthy written dissents in unpublished,non-precedential decisions. Althoughthe percentage of separate opinions may

be relatively low, there is a seriousquestion of the merits of committingsubstantial time and effort to writingseparate opinions in a non-precedentialcase. Accordingly, while the





Department recognizes that Boardmembers may wish to file suchopinions, the Department also believesthat it is appropriate that such opinionsnot adversely affect the time andresources of the Board.

5. Changes in the Notice of Appeal

Several commenters recognized that

the Notice of Appeal forms must bemodified to conform with the changesunder the new rule. The Departmentagrees, and has made changes to FormEOIR–26 and Form EOIR–29 toincorporate the final rule.

Form EOIR–26 has generally beenrevised to include the new basis forsummary dismissal and requires therespondent to identify the legal andfactual bases for appeal when requestingreview by a three-member panel. FormEOIR–29 also provides that a partyappealing a decision of a Service officer(therein referred to as an ‘‘INS officer’’ for ease of understanding by theapplicants) must file an appeal within30 days of receiving the decision. TheDepartment expects that these formswill be used upon the effective date of this regulation. We have attempted tomake the requirements of the Notice of Appeal as clear as possible, taking intoaccount the concerns expressed in casessuch as Vargas-Garcia v. INS, 287 F.3d882 (9th Cir. 2002).

6. Barring Oral Argument Before aSingle Board Member

One commenter stated thateliminating oral argument in cases

assigned to a single Board member fordecision is a further erosion of arespondent’s due process rights. Section3.1(e)(7) reflects the current authority of the Board to grant or deny requests fororal argument, but it also makes clearthat no oral argument will be availablein any case assigned to a single BoardMember for disposition. TheDepartment disagrees that this provisionis a further erosion of a respondent’sdue process rights, initially becausethere is no due process right to an oralargument before the Board. Moreover,oral argument is rarely granted even in

cases that are heard by a three-memberpanel, and the Department believes thatit is entirely appropriate to establish ageneral rule barring oral argument in acase that does not even meet any of thefactors meriting review by a three-member panel under § 3.1(e)(6) of thisrule.

7. Location of Oral Argument

One commenter noted that the Boardhas held oral argument in other cities,sometimes without regard to whetherthe cases being argued were from those

localities, thus imposing burdens on theparties and the Board. Accordingly, thecommenter suggested limiting thelocation of oral argument to EOIR’sheadquarters. The Department agreesthat it is generally unwarranted for theBoard to hold oral argument other thanin its own oral argument room, unlesssuch other location is more convenient

to the Board and the parties.Accordingly, the final rule directs theChairman to hold oral argument at theEOIR’s headquarters unless the DeputyAttorney General or his delegatespecifically provides otherwise.

8. Summary Dismissal of FrivolousAppeals and Discipline

The final rule in § 3.1(d)(2)(i)(D) givesthe Board the authority to summarilydismiss an appeal that the Board findshas been filed for an improper purpose,such as to cause unnecessary delay, orthat lacks an arguable basis in fact orlaw, unless the appeal is supported bya good faith argument for extension,modification, or reversal of existing law.Attorneys who file appeals that aresummarily dismissed under§ 3.1(d)(2)(i)(D) may be subject to afinding that they have engaged infrivolous behavior as defined in§ 3.102(j).

Several commenters expressed theview that giving the Board the authorityto dismiss an appeal because it has beendeemed frivolous under the standards of paragraph (D) will have a chilling effecton attorneys, so as to reduce the numberof attorneys who will file appeals before

the Board. These commenters believethat, if disciplinary measures are strictlyenforced, attorneys will be deterredfrom filing an appeal on behalf of indigent respondents. Severalcommenters stated that the necessity of § 3.1(d)(2)(i)(D) has not been sufficientlyexplained and that this section isunnecessary since regulations alreadyexist to impose disciplinary measureson attorneys. These commentersmaintained that the line between anappeal that has been deemed frivolousand a bona fide legal argument is hardto distinguish. Therefore, they argue, it

will be difficult for the Board toappropriately determine what actuallyconstitutes an appeal that should bedismissed under this section.

Several commenters expressed theview that this section will also deterattorneys from presenting arguments onappeal because the Board may deemthem as frivolous. A few commentersmaintained that the definition of ‘‘frivolous’’ that will be used by theBoard in its determination should beconsistent with the definition providedin prevailing law, common law, the

Federal Rules of Civil Procedure, andthe Canons of ProfessionalResponsibility. Another commentcontended that the definition of frivolous may change based on the stateof immigration law.

The Department has decided to retainthe regulation as proposed. The primaryconcern stated in all of these comments

is the effect this ground will have on thetypes and number of appeals filed. TheAttorney General has the authority toinstruct the Board to set criteria forwhich appeals may be dismissed. Anappeal that is filed for an improperpurpose is chief among those appealsthat the Board should not be forced toreview. The Department concludes thatthese appeals should be dismissed inorder to give Board members more timeto adjudicate meritorious appeals.

The Board previously had theauthority to dismiss frivolous appeals.See 47 FR 16771, 16772 (April 20, 1982)(giving the Board authority tosummarily dismiss a frivolous appeal);8 CFR 3.1(d)(1–a)(iv) (1982). The Boardhas also dismissed frivolous appeals.See, e.g., Matter of Gamboa, 14 I&N Dec.244 (BIA 1972). There is no showingthat, when these provisions were ineffect, attorneys were deterred fromfiling appeals, or that the Board wasactively dismissing appeals that trulyhad merit.

The prior experience of the Board indismissing frivolous appeals also servesto address the concern that there is noappropriate definition for whatconstitutes a frivolous appeal. The

Board can rely on earlier precedentdecisions to make such a finding. Seee.g., Matter of Gamboa, supra; Matter of L– O– G – , 21 I&N Dec. 413 (BIA 1996);Matter of R– P –, 20 I&N Dec. 230 (BIA1990); Matter of Patel , 19 I&N Dec. 394(BIA 1986). Along with this case law,the Board can draw from the definitionfor frivolous behavior in 8 CFR 3.102(j)to determine what constitutes afrivolous appeal. The Department alsoexpects the Board to be guided by otherinterpretations of what amounts to‘‘frivolous’’ in implementing the rule,including the decisions of the United

States courts under F. R. Civ. P. 11 andthe American Bar Association’sStandards of Professional Conduct. Anattorney is clearly on notice as to thedefinition of frivolous behavior.

The commenters also stated that thissection is unnecessary becauseregulations already exist to imposedisciplinary measures on attorneys. TheDepartment disagrees and will retain therule as proposed. Section 3.1(d)(2)(iii)provides that filing an appeal that issummarily dismissed as frivolous mayconstitute grounds for disciplining an





attorney or representative under 8 CFR3.102. The purpose of this provision isto invoke the disciplinary process, thatis, to give the EOIR Office of the GeneralCounsel an opportunity to considerwhether a complaint should be filedunder the existing disciplinary process.EOIR’s General Counsel may commencethe disciplinary process based on a

referral by anyone. The process of areferral for review by EOIR’s GeneralCounsel, and the possibility of a hearingand determination, may be invoked if the Board member or panel believessuch an inquiry is justified.Accordingly, the Department believesthat there is no ‘‘chilling’’ effect fromthe promulgation of this rule.

9. Mandatory Summary Dismissals

Some commenters suggested that itwas inappropriate to change theauthority to summarily dismiss appealsfrom discretionary to mandatory,

because respondents may notunderstand the requirements and theBoard members should retaindiscretion.

The Department has considered theviews of the commenters, as well asjudicial decisions such as Vargas-Garcia v. INS, 287 F.3d 882 (9th Cir. 2002),which have challenged summarydismissals by the Board. TheDepartment has decided not to makethis proposed change at the presenttime, but to defer consideration of theseissues for possible action in the future.In the meantime, the Department notesthat the grounds for summary dismissal

in § 3.1(d)(2)(i), including the restoredground relating to frivolous appeals,will remain available for the Board toutilize, in all appropriate cases, in theexercise of discretion by the Boardmember or panel to which an appeal isassigned.

The rules have provided for years thatan appeal may be dismissed if theappealing party ‘‘fails to specify thereasons for the appeal on [the Notice of Appeal] or other document filedtherewith.’’ 8 CFR 3.1(d)(2)(i)(A). SeeToquero v. INS, 956 F.2d 193 (9th Cir.1992); Alleyne v. INS, 879 F.2d 1177

(3rd Cir. 1989); Athehortua-Vanegas v.INS, 876 F.2d 238 (1st Cir. 1989);Bonne-Annee v. INS, 810 F.2d 1077(11th Cir. 1987); Townsend v. United States Department of Justice, INS, 799F.2d 179 (5th Cir. 1986); Matter of Lodge, 19 I&N Dec. 500 (BIA 1987);Matter of Valencia, 19 I&N Dec. 354(BIA 1986). The Department expects theBoard to continue to utilize thisauthority in appropriate cases andreiterates the view that theserequirements are fundamentally soundand in conformity with due process.

10. Finality of Decisions and Remands

The final rule also reinserts former 8CFR 3.1(d)(3) (2000), without change,dealing with finality of decisions andremands, as new § 3.1(d)(6). Thatprovision had been part of the Board’sregulations for many years but wasinadvertently overwritten when

unrelated changes in the regulationswere made in 2000. Under thecircumstances, the Department hasdetermined that this preexistingprovision may be reinserted in theBoard’s regulations without notice andcomment under the AdministrativeProcedure Act.

In 1999, as part of the streamliningrule, the Department amended 8 CFR3.1(d) to redesignate its paragraphs forclarity. 64 FR 56135 (Oct. 18, 1999). Thestreamlining rule redesignated formerparagraphs (d)(1–a), (d)(2), and (d)(3) asnew paragraphs (d)(2), (d)(3), and (d)(4),respectively. 64 FR at 56141. After the

redesignation in 1999, paragraph (d)(2)on finality of decisions and remandswas codified as § 3.1(d)(3) (2000).

However, this change wasunintentionally disrupted by thesubsequent final disciplinary rule in2000. 65 FR 39513 (June 27, 2000). Thepreamble and the regulatory text makeclear the intent to update the specificregulatory citations of the summarydismissal grounds to reflect the newcodification of the disciplinary grounds,and to revise the paragraph dealing withrules of practice and discipline,§ 3.1(d)(4) (2000). However, that final

disciplinary rule incorrectly instructedthe Federal Register to codify therevised paragraph dealing with rules of practice as paragraph (d)(3). The resultof this error was effectively to overwritethe language of the preexistingparagraph (d)(3) on finality of decisionsand remands, and to leave instead twodifferent versions of the rules of practiceprovision in paragraphs (d)(3) and(d)(4).

Operationally, the Board’s practicehas not changed despite this error incodification. Given the clearlyunintended result of the erroneous 2000

regulatory instructions, the Departmentis reinserting the overwritten languagewithout change, as a new paragraph(d)(6).

J. Applicability of Procedural Reforms toPending Cases

Many commenters raised concernsthat the proposed rule would imposeprocedural obligations that would beimpossible to meet for pending casesand would otherwise violate dueprocess. The Department notes,however, that changes in procedural

rules typically are made applicable toall cases pending as of the date the newprocedural rules are promulgated. See,e.g., Order, 383 U.S. 1031 (1966)(transmitting amendments to theFederal Rules of Civil Procedure;including amendments to Fed. R. Civ. P.12, 13, 19, 23); Landgraf v. USI FilmProducts, 511 U.S. 244, 275 n.29 (1994).

The Department has determined that thefinal rule will apply to all pendingcases, with one exception. See Smiley v.Citibank (South Dakota), N.A., 517 U.S.735, 739–40 (1996); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995); United States v. Morton, 467 U.S. 822, 835–36n.21 (1984); United States v. Schooner Peggy , 5 U.S. (1 Cranch) 103, 110 (1801).

Some commenters were of theopinion that all the pending cases,‘‘approximately 40,000,’’ would have to

be re-briefed in a short time, affectingthe quality of representation. A fewcommenters argued that re-briefing all

the pending cases would have asignificant impact on small entities andtherefore implicate the Small BusinessRegulatory Enforcement Fairness Act of 1996 and the Unfunded MandatesReform Act of 1995.

After careful consideration of thepublic comments suggesting the needfor an opportunity for those individualswith pending appeals at the Board torespond to the new screening criteria,the Department has adopted, in part, anapproach suggested by some of thecommenters. The final rule contains anotice provision at § 3.3(f) providingthat a party who has an appeal pending

at the Board on August 26, 2002, mayfile a supplemental brief or statement onwhy the appeal meets the criteria forthree-member review under § 3.1(e)(6)of the final rule on or before September25, 2002, or the due date for the party’s

brief, whichever is later. Following theeffective date, the Board will apply thefinal rule to all appeals, withconsideration given to any additional

brief or statement filed in accordancewith this provision. The filing of anysuch additional brief or statement,however, is entirely optional in all of the pending cases. The Board, in its

discretion, will determine how these briefs will be considered and whatprocedure will be used in determiningwhether to apply a single-member orthree-member panel review.

The Department disagrees with thenotion that these cases cannot bereviewed under the standards specifiedin the rule for single-member and three-member panel review. Appellants donot have any vested right or entitlementto review by a three-member panel of the Board, or even an expectation thattheir case is more likely than not to be





referred to a three-member panel. Atpresent, all pending cases are subject toreview under the existing streamliningprocess under § 3.1(a)(7) of the existingrules, and this new rule would retainthat streamlining process under§ 3.1(e)(4). Even in FY 2001, long beforethe publication of the proposed rule toreform the Board’s procedural rules, the

Board already was resolving a clearmajority of pending appeals bysummary affirmance without opinion,issued by a single Board member, afterdetermining that those cases meet thestandards of the existing streamliningprocess. Under the new rule, all caseswill be reviewed on the merits todetermine if there are any factual orlegal errors or other circumstances thatmeet the criteria for three-memberreview. The opportunity for those withpending cases to assert that an appealwarrants three-member review is notintended as a substitute for Board

screening; rather, it is an additionalopportunity to facilitate the screeningprocess. The burden of administeringthis provision is quite limited. A partyis not required to make any filing, butmay do so. Regardless of whether aparty files an optional brief or statementunder § 3.3(f) regarding a pendingappeal, every case will still be reviewedunder the standards of this rule todetermine whether or not the case meetsthe standards of § 3.1(e)(6).

The Department also disagrees withthe notion that the application of thecase management system to pending

appeals at the Board will have asignificant impact on small entities andimplicate the Unfunded MandatesReform Act. In approximately one thirdof cases filed with the Board, therespondent is not represented. In asmall percentage of cases, the Servicehas appealed. In those cases where therespondent has appealed throughcounsel or an accredited representative,it behooves the attorney orrepresentative to review the case file todetermine whether these standardswarrant an additional filing. However,this does not mean, and the Department

does not expect, that a large number of cases will warrant such an additionalfiling. This is not an open invitation tofile a brief where a respondent haspreviously indicated that he or shewould file a brief in the Notice of Appeal and has not done so. Thesecases may be subject to summarydismissal under existing standards orunder the final rule. All cases arecurrently subject to the streamliningreview and this rule does notappreciably change that review in anycase where summary affirmance would

be appropriate. Accordingly, whilesome individual attorneys orrepresentatives may find a few casesthat objectively warrant an additionalfiling, the Department does not expectthe impact to be significant.

Some commenters suggested thatLandgraf v. USI Film Products bars theapplication of the revised standard of

review in § 3.1(d)(3) to pending cases.The Department believes that theserules are generally administrative andprocedural in nature and do notimplicate the retroactivity concernsexpressed in INS v. St. Cyr , 533 U.S. 289(2001); Lindh v. Murphy , 521 U.S. 320,327–28 (1997); and Landgraf v. USI FilmProducts, supra.

The commenters’ concerns seem torelate particularly to whether the clearlyerroneous standard for review of animmigration judge’s factual findingsunder § 3.1(d)(3)(i) would prejudice anindividual respondent. Section

3.1(d)(3)(i) of the rule establishes thescope of review for factualdeterminations of the immigrationjudge. However, the change in thestandard would have no effect on anyappeal where the decision is based ona question of law or the exercise of discretion based on established facts, orany appeal where a disputed fact is notmaterial to the decision. The provisiondoes not have any bearing on motions

before the Board or appeals fromdecisions by Service officers. Thus, theDepartment believes that the number of such cases would be very small.

In order for the application of theclearly erroneous standard to beprejudicial to the respondent in apending case, the case must turn on anerror of fact made by the immigrationjudge—a factual finding that iserroneous, but not clearly erroneous—and that is also material to the basis forthe decision of the immigration judgeand the Board.

Even so, the Department recognizesthat an application of the clearlyerroneous standard to all pending caseswould require the Board to review eachcase, on an individualized basis, to

determine if such circumstances may bepresent. Rather than having the Boardtake the time to make these additionaldeterminations in such pendingappeals, the Department has determinedthat it would be more efficacious simplyto continue the current scope of reviewstandards for pending cases, and toapply the clearly erroneous standardonly to the review of immigration judgedecisions in those appeals filed on orafter the effective date. Accordingly,§ 3.3(f) of the final rule provides that§ 3.1(d)(3)(i) will not apply with respect

to pending cases filed with the Boardprior to September 25, 2002.

The Department notes that§ 3.1(d)(3)(iv), which prohibitsadditional factfinding by the Board onappeal, will apply to all cases pendingas of the effective date of this rule.There can be no prejudice in theapplication of this rule to pending cases,

because the rule provides for a remandfor further factfinding in any case wherethe Board determines that additionalfactfinding is required in a particularcase.

K. Transition Period and Reduction of the Backlog

A number of commenters suggestedthat the period of time imposed withinthe proposed rule for the Board to meetthe backlog reduction requirements wasfar too short. They argued that the sheernumbers of cases to be decided withinthat six-month period would reduce theamount of time available for each case,with some commenters offeringcalculations that this would be reducedto approximately 15 minutes.

The Department disagrees with thesecomments and has not altered the timeframe for eliminating the backlog of pending cases. Pure mathematicalformulas in this area have the beauty of simplicity, but are deceptive.Calculating an average amount of timefor a single Board member to decide onecase overlooks the differences in casesthemselves and the preparatory workthat goes into decisions. For example,the Department expects that a clearly

untimely appeal can be dispatchedpromptly by a Board member under thestreamlining process. For each suchsimple case (and the Board’s experiencestreamlining has shown there are many),more time is afforded for consideringthe issues to which the Board’s timeshould be devoted.

Moreover, the six-month time frameruns from the effective date of the rule,not the date on which it is published inthe Federal Register. To say that theBoard has not been on notice of this rulealso disserves the Board. The Board has

been diligently preparing for the

implementation of this rule to reduce its backlog of pending cases since theNotice of Proposed Rulemaking waspublished on February 19, 2002. TheBoard has increased its disposition ratedramatically. In 2000, the first full yearin which the Board utilizedstreamlining, the Board averaged 1800dispositions per month. With theexpanded use of streamlining,dispositions increased to an average of 2600 per month in 2001. In February,2002, when the proposed rule waspublished, the Board decided 3300





cases. In recent months, utilizing itsauthority under streamlining, the Boardhas increased dispositions to an averageof over 5200 dispositions per month.With the additional authority granted bythis final rule, the Department believesthat it is reasonable to expect the Boardto bring the caseload backlog down to,or near, a current balance within the six-

month transition period. TheDepartment is aware, of course, thatspecific factors, such as the requirementthat the Board improve on providingtranscripts to the parties in a timelymanner, may adversely impact thedisposition rate against the number of cases available for disposition byaccelerating the number of records thatare available for disposition. TheDepartment is convinced that thetransition period is sufficient for theBoard to reduce the backlog.Accordingly, the Department isunconvinced that this implementation

period should be altered.L. Administrative Fines Cases

The Department has decided toaddress the transfer of administrativefines cases to the Office of the Chief Hearing Examiner (OCAHO) in aseparate final rule because of a technicallegal issue unrelated to the proposedrule and the comments received on theproposed rule. The Department plans topublish this separate final rule in thenear future.

M. Miscellaneous and Technical Issues

1. The Board’s Pro Bono Project

Several commenters stated that theDepartment should not take anyadministrative actions that woulddisrupt the success of the Board’s ProBono Project. Although these commentsfall outside the scope of the proposedand final rule, the Department wishes totake this opportunity to assure the

bench, bar, and public of itscommitment to this process. On January17, 2001, EOIR announced a Pro BonoProject that links volunteerrepresentatives from around the country

with detained immigrants who lacklegal representation. The Departmentfully supports this partnership betweenthe government and nonprofitorganizations. The Departmentrecognizes the value of representationfor respondents in the removal process.Although respondents generally are ableto present their points of view ably,often with the assistance of languagetranslators, the availability of attorneysand representatives learned in thetechnical aspects of immigration law isuseful both to guide the respondent and

to conserve judicial resources of theimmigration judges and the Board.

2. Fundamental Changes in Structure

Other commenters have suggestedsubstantial changes in the underlyingstructure of the administrativeimmigration adjudication system. Forexample, some suggested that

respondents should be charged filingand transcript fees more commensuratewith the actual costs of the proceedings.Another comment, as well as a proposal

by a former Member of the House Judiciary Committee, was that theDepartment abolish automatic appeals(either generally or of denial of asylum

by Service asylum officers) or that onlya discretionary appeal to the Board beallowed. The Department believes thatthese proposals fall outside the scope of the present rule and will not considersuch proposals at this time.

3. Technical Amendments

The Department has changed theregulation in § 3.1(a)(4) to permitadministrative law judges (ALJs) retiredfrom EOIR to serve as temporary Boardmembers. Under the existingregulations, ALJs from OCAHO mayparticipate in Board decisions astemporary members. Accordingly, theDepartment has determined that thistechnical change should be made in thefinal rule.

Section 3.1(e), dealing with the casemanagement system, begins byinstructing the Chairman to establish acase management system to screen all

‘‘appeals.’’ The current streamliningprocess screens, and the proposed rulewas designed to provide screening of,all cases filed with the Board, includingmotions as well as appeals.Accordingly, the term has been changedto reflect the existing practice and theintent behind the proposed rule.

The Department has changed the rulein § 3.1(e)(8) to eliminate the words‘‘denials of review as a matter of discretion’’ because it has beensuggested that these words imply thatthe Board has authority to deny reviewas a matter of discretion. This was not

the Department’s intent. To eliminatethis concern, the text has been changed.The proposed rule in § 3.1(e)(8)(ii)

provides the Chairman with theauthority, in exigent circumstances, toissue a decision where a panel is unableto meet the time limits. The Departmenthas amended the rule to permit theChairman the authority to delegate suchdecisions to a Vice-Chairman.

Regulatory Flexibility Act

The Attorney General, in accordancewith 5 U.S.C. 605(b), has reviewed this

rule and, by approving it, certifies thatit affects only Departmental employees,aliens, or their representatives whoappear in proceedings before the Boardof Immigration Appeals, and carrierswho appeal decisions of Immigrationand Naturalization Service (INS)officers. Therefore, this rule does nothave a significant economic impact on

a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

This rule will not result in theexpenditure by state, local, and tribalgovernments, in the aggregate, or by theprivate sector, of $100 million or morein any one year, and it will notsignificantly or uniquely affect smallgovernments. Therefore, no actions weredeemed necessary under the provisionsof the Unfunded Mandates Reform Actof 1995.

Small Business Regulatory EnforcementFairness Act of 1996

This rule is not a major rule asdefined by section 251 of the SmallBusiness Regulatory EnforcementFairness Act of 1996, 5 U.S.C. 804. Thisrule will not result in an annual effecton the economy of $100 million ormore; a major increase in costs or prices;or significant adverse effects oncompetition, employment, investment,productivity, innovation, or on theability of United States-basedcompanies to compete with foreign-

based companies in domestic and

export markets.Executive Order 12866

This rule has been drafted andreviewed in accordance with ExecutiveOrder 12866, section 1(b), Principles of Regulation. The Department hasdetermined that this rule is a‘‘significant regulatory action’’ undersection 3(f) of Executive Order 12866,Regulatory Planning and Review.Accordingly, this rule has beensubmitted to the Office of Managementand Budget for review.

Executive Order 13132

This rule will not have substantialdirect effects on the States, on therelationship between the nationalgovernment and the States, or on thedistribution of power andresponsibilities among the variouslevels of government. Therefore, inaccordance with section 6 of ExecutiveOrder 13132, the Department of Justicehas determined that this rule does nothave sufficient federalism implicationsto warrant a federalism summary impactstatement.





Executive Order 12988

This rule meets the applicablestandards set forth in sections 3(a) and3(b)(2) of Executive Order 12988, Civil

Justice Reform.

Paperwork Reduction Act of 1995

The Executive Office of ImmigrationReview has submitted the followinginformation collection requests to theOffice of Management and Budget forreview and approval in accordance withthe Paperwork Reduction Act of 1995.The proposed information collectionsare published to obtain comments fromthe public and affected agencies.Comments are encouraged and will beaccepted for sixty days. This process isconducted in accordance with 5 CFR1320.10.

If you have comments on theestimated public burden or associatedresponse time, suggestions, or need acopy of one of the proposed information

collection instruments with instructionsor additional information, pleasecontact the Executive Office forImmigration Review as noted above.Written comments and suggestions fromthe public and affected agenciesconcerning the proposed collections of information are encouraged. Yourcomments should address one or moreof the following four points: (1) Evaluatewhether the proposed collection of information is necessary for the properperformance of the functions of theagency, including whether theinformation will have practical utility;

(2) evaluate the accuracy of the agency’sestimate of the burden of the proposedcollection of information, including thevalidity of the methodology andassumptions used; (3) enhance thequality, utility, and clarity of theinformation to be collected; and (4)minimize the burden of the collection of information on those who are torespond, including through the use of appropriate automated, electronic,mechanical, or other technologicalcollection techniques or other forms of information technology, e.g., permittingelectronic submission of responses.

The first information collection, titledNotice of Appeal from a Decision of anImmigration Judge, is a revision of acurrently approved collection. Theagency form number is EOIR–26. Theinformation collected will be sponsored

by the Executive Office for ImmigrationReview for parties affected by a decisionof an Immigration Judge who mayappeal to the Board of ImmigrationAppeals, provided the Board hasjurisdiction pursuant to 8 CFR 3.1(b).An appeal from an Immigration Judge’sdecision is taken by completing the

form and submitting it to the Board. Thecollection will be distributed primarilyto the Federal Government. It isestimated that 23,417 complainants willreport one complaint, taking an averageof 30 minutes to complete. This willresult in 23,417 responses with anestimated total of 11,707 annual burdenhours. This is a reduction of 1,791.5 in

burden hours due to a decrease in thenumber of appeals filed with the Boardsince this form was last approved in1999.

The second information collection,titled Notice of Appeal to the Board of Immigration Appeals from a Decision of a Service Officer, is a revision of acurrently approved collection,occasioned by changes in theregulations. The agency form number isEOIR–29. The information collected will

be sponsored by the Executive Office forImmigration Review for a party affected

by a decision of a Service Officer who

may appeal that decision to the Boardof Immigration Appeals, provided the board has jurisdiction pursuant to 8 CFR3.1(b). An appeal from a ServiceOfficer’s decision is taken bycompleting the form EOIR–29. It is thensubmitted to the Service office havingadministrative control over the record of proceedings. The collection will bedistributed primarily to individuals andhouseholds. It is estimated that 3,156complainants will report one complaint,taking an average of 30 minutes tocomplete. This will result in 3,156responses with an estimated total of

1,578 annual burden hours, which is thesame as currently required.

Plain Language Instructions

We try to write clearly. If you cansuggest how to improve the clarity of these regulations, call or write CharlesAdkins-Blanch, General Counsel,Executive Office for ImmigrationReview, 5107 Leesburg Pike, Suite 2600,Falls Church, Virginia 22041, telephone(703) 305–0470.

List of Subjects in 8 CFR Part 3

Aliens, Immigration.

Accordingly, for the reasons set forth

in the preamble, part 3 of chapter I of title 8 of the Code of FederalRegulations is amended as follows:

PART 3 —EXECUTIVE OFFICE FORIMMIGRATION REVIEW

1. The authority citation for 8 CFRpart 3 continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1101note, 1103, 1252 note, 1252b, 1324b, 1362; 28U.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; section1505 of Pub. L. 106–554, 114 Stat. 2763A–326 to –328.

2. Amend § 3.1 by:a. Revising the heading;

b. Revising paragraphs (a)(1) through(a)(6) and paragraph (b) introductory

text;c. Revising paragraphs (d)(1), (d)(2)(i)introductory text, (d)(2)(ii), (d)(2)(iii),and (d)(3);

d. Redesignating paragraphs(d)(2)(i)(D) through (G) as paragraphs(d)(2)(i)(E) through (H), respectively,and adding a new paragraph (d)(2)(i)(D);

e. Revising paragraph (d)(4) andadding paragraphs (d)(5) and (d)(6); and

f. Revising paragraphs (e) and (g), toread as follows:

§ 3.1 Organization, jurisdiction, andpowers of the Board of ImmigrationAppeals.

(a)(1) Organization. There shall be inthe Department of Justice a Board of Immigration Appeals, subject to thegeneral supervision of the Director,Executive Office for ImmigrationReview (EOIR). The Board membersshall be attorneys appointed by theAttorney General to act as the AttorneyGeneral’s delegates in the cases thatcome before them. Within six months of the implementation of the casemanagement screening system asprovided in paragraph (e) of thissection, or such other time as may bespecified by the Attorney General, theBoard shall be reduced to elevenmembers as designated by the AttorneyGeneral. A vacancy, or the absence orunavailability of a Board member, shallnot impair the right of the remainingmembers to exercise all the powers of the Board.

(2) Chairman. The Attorney Generalshall designate one of the Boardmembers to serve as Chairman. TheAttorney General may designate one ortwo Vice Chairmen to assist theChairman in the performance of hisduties and to exercise all of the powersand duties of the Chairman in the

absence or unavailability of theChairman.

(i) The Chairman, subject to thesupervision of the Director, shall direct,supervise, and establish internaloperating procedures and policies of theBoard. The Chairman shall haveauthority to:

(A) Issue operational instructions andpolicy, including proceduralinstructions regarding theimplementation of new statutory orregulatory authorities;





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

(C) Direct the conduct of allemployees assigned to the Board toensure the efficient disposition of allpending cases, including the power, inhis discretion, to set priorities or timeframes for the resolution of cases; to

direct that the adjudication of certaincases be deferred, to regulate theassignment of Board members to cases,and otherwise to manage the docket of matters to be decided by the Board;

(D) Evaluate the performance of theBoard by making appropriate reportsand inspections, and take correctiveaction where needed;

(E) Adjudicate cases as a Boardmember; and

(F) Exercise such other authorities asthe Director may provide.

(ii) The Chairman shall have noauthority to direct the result of anadjudication assigned to another Boardmember or to a panel; provided,however, that nothing in this sectionshall be construed to limit themanagement authority of the Chairmanunder paragraph (a)(2)(i) of this section.

(3) Panels. The Chairman shall dividethe Board into three-member panels anddesignate a presiding member of eachpanel if the Chairman or Vice Chairmanis not assigned to the panel. TheChairman may from time to time makechanges in the composition of suchpanels and of presiding members. Eachthree-member panel shall beempowered to decide cases by majority

vote, and a majority of the Boardmembers assigned to the panel shallconstitute a quorum for such panel. Inaddition, the Chairman shall assign anynumber of Board members, as needed,to serve on the screening panel toimplement the case managementprocess as provided in paragraph (e) of this section.

(4) Temporary Board members. TheDirector may in his discretion designateimmigration judges, retired Boardmembers, retired immigration judges,and administrative law judges employedwithin, or retired from, EOIR to act as

temporary, additional Board membersfor terms not to exceed six months. Atemporary Board member assigned to acase may continue to participate in thecase to its normal conclusion, but shallhave no role in the actions of the Boarden banc.

(5) En banc process. A majority of thepermanent Board members shallconstitute a quorum for purposes of convening the Board en banc. TheBoard may on its own motion by amajority vote of the permanent Boardmembers, or by direction of the

Chairman, consider any case en banc, orreconsider as the Board en banc anycase that has been considered ordecided by a three-member panel. En

banc proceedings are not favored, andshall ordinarily be ordered only wherenecessary to address an issue of particular importance or to secure ormaintain consistency of the Board’s

decisions.(6) Board staff. There shall also be

attached to the Board such number of attorneys and other employees as theDeputy Attorney General, uponrecommendation of the Director, shallfrom time to time direct.

* * * * *(b) Appellate jurisdiction. Appeals

may be filed with the Board of Immigration Appeals from thefollowing:

(d) Powers of the Board —(1)Generally. The Board shall function asan appellate body charged with the

review of those administrativeadjudications under the Act that theAttorney General may by regulationassign to it. The Board shall resolve thequestions before it in a manner that istimely, impartial, and consistent withthe Act and regulations. In addition, theBoard, through precedent decisions,shall provide clear and uniformguidance to the Service, the immigrationjudges, and the general public on theproper interpretation andadministration of the Act and itsimplementing regulations.

(i) The Board shall be governed by the

provisions and limitations prescribed byapplicable law, regulations, andprocedures, and by decisions of theAttorney General (through review of adecision of the Board, by written order,or by determination and ruling pursuantto section 103 of the Act).

(ii) Subject to these governingstandards, Board members shall exercisetheir independent judgment anddiscretion in considering anddetermining the cases coming before theBoard, and a panel or Board member towhom a case is assigned may take anyaction consistent with their authoritiesunder the Act and the regulations as isappropriate and necessary for thedisposition of the case.

(2) Summary dismissal of appeals—(i)Standards. A single Board member orpanel may summarily dismiss anyappeal or portion of any appeal in anycase in which:

* * * * *(D) The Board is satisfied, from a

review of the record, that the appeal isfiled for an improper purpose, such asto cause unnecessary delay, or that theappeal lacks an arguable basis in fact or

in law unless the Board determines thatit is supported by a good faith argumentfor extension, modification, or reversalof existing law;

* * * * *(ii) Action by the Board. The Board’s

case management screening plan shallpromptly identify cases that are subjectto summary dismissal pursuant to thisparagraph. An order dismissing anyappeal pursuant to this paragraph (d)(2)shall constitute the final decision of theBoard.

(iii) Disciplinary consequences. Thefiling by an attorney or representativeaccredited under § 292.2(d) of thischapter of an appeal that is summarilydismissed under paragraph (d)(2)(i) of this section may constitute frivolous

behavior under § 3.102(j). Summarydismissal of an appeal under paragraph(d)(2)(i) of this section does not limit theother grounds and procedures fordisciplinary action against attorneys or

representatives.(3) Scope of review. (i) The Board will

not engage in de novo review of findingsof fact determined by an immigrationjudge. Facts determined by theimmigration judge, including findingsas to the credibility of testimony, shall

be reviewed only to determine whetherthe findings of the immigration judgeare clearly erroneous.

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

(iii) The Board may review all

questions arising in appeals fromdecisions issued by Service officers denovo.

(iv) Except for taking administrativenotice of commonly known facts such ascurrent events or the contents of officialdocuments, the Board will not engage infactfinding in the course of decidingappeals. A party asserting that the Boardcannot properly resolve an appealwithout further factfinding must file amotion for remand. If further factfindingis needed in a particular case, the Boardmay remand the proceeding to theimmigration judge or, as appropriate, to

the Service.(4) Rules of practice. The Board shallhave authority, with the approval of theDirector, EOIR, to prescribe proceduresgoverning proceedings before it.

(5) Discipline of attorneys and representatives. The Board shalldetermine whether any organization orindividual desiring to represent aliensin immigration proceedings meets therequirements as set forth in § 292.2 of this chapter. It shall also determinewhether any organization desiringrepresentation is of a kind described in





is unable to issue a decision within theestablished time limits, as extended, theChairman shall either assign the case tohimself or a Vice-Chairman for finaldecision within 14 days or shall referthe case to the Attorney General fordecision. If a dissenting or concurringpanel member fails to complete his orher opinion by the end of the extension

period, the decision of the majority will be issued without the separate opinion.

(iii) In rare circumstances, when animpending decision by the UnitedStates Supreme Court or a United StatesCourt of Appeals, or impendingDepartment regulatory amendments, oran impending en banc Board decisionmay substantially determine theoutcome of a case or group of casespending before the Board, the Chairmanmay hold the case or cases until suchdecision is rendered, temporarilysuspending the time limits described inthis paragraph (e)(8).

(iv) For any case ready foradjudication as of September 25, 2002,and that has not been completed withinthe established time lines, the Chairmanmay, as a matter of discretion, grant anextension of up to 120 days.

(v) The Chairman shall notify theDirector of EOIR and the AttorneyGeneral if a Board member consistentlyfails to meet the assigned deadlines forthe disposition of appeals, or otherwisefails to adhere to the standards of thecase management system. The Chairmanshall also prepare a report assessing thetimeliness of the disposition of cases by

each Board member on an annual basis.(vi) The provisions of this paragraph

(e)(8) establishing time limits for theadjudication of appeals reflect aninternal management directive in favorof timely dispositions, but do not affectthe validity of any decision issued bythe Board and do not, and shall not beinterpreted to, create any substantive orprocedural rights enforceable before anyimmigration judge or the Board, or inany court of law or equity.

* * * * *

(g) Decisions of the Board as precedents. Except as they may bemodified or overruled by the Board orthe Attorney General, decisions of theBoard shall be binding on all officersand employees of the Service orimmigration judges in theadministration of the Act. By majorityvote of the permanent Board members,selected decisions of the Board rendered

by a three-member panel or by theBoard en banc may be designated toserve as precedents in all proceedingsinvolving the same issue or issues.

* * * * *

3. In § 3.2, paragraph (i) is amended by adding after the first sentence a newsentence, to read as follows:

§ 3.2 Reopening or reconsideration beforethe Board of Immigration Appeals.

* * * * *(i) * * * Any motion for

reconsideration or reopening of a

decision issued by a single Boardmember will be referred to the screeningpanel for disposition by a single Boardmember, unless the screening panelmember determines, in the exercise of judgment, that the motion forreconsideration or reopening should beassigned to a three-member panel underthe standards of § 3.1(e)(6). * * *

* * * * *4. In § 3.3, paragraphs (a) and (c) are

revised, paragraph (b) is amended byadding a new sentence at the endthereof, and paragraph (f) is added, toread as follows:

§ 3.3 Notice of appeal.(a) Filing —(1) Appeal from decision of

an immigration judge. A party affected by a decision of an immigration judgewhich may be appealed to the Boardunder this chapter shall be given noticeof the opportunity for filing an appeal.An appeal from a decision of animmigration judge shall be taken byfiling a Notice of Appeal from aDecision of an Immigration Judge (FormEOIR–26) directly with the Board,within the time specified in § 3.38. Theappealing parties are only those partieswho are covered by the decision of an

immigration judge and who arespecifically named on the Notice of Appeal. The appeal must reflect proof of service of a copy of the appeal and allattachments on the opposing party. Anappeal is not properly filed unless it isreceived at the Board, along with allrequired documents, fees or fee waiverrequests, and proof of service, withinthe time specified in the governingsections of this chapter. A Notice of Appeal may not be filed by any partywho has waived appeal pursuant to§ 3.39.

(2) Appeal from decision of a Service

officer. A party affected by a decision of a Service officer that may be appealedto the Board under this chapter shall begiven notice of the opportunity to file anappeal. An appeal from a decision of aService officer shall be taken by filing aNotice of Appeal to the Board of Immigration Appeals from a Decision of an INS Officer (Form EOIR–29) directlywith the office of the Service havingadministrative control over the record of proceeding within 30 days of the serviceof the decision being appealed. Anappeal is not properly filed until it is

received at the appropriate office of theService, together with all requireddocuments, and the fee provisions of § 3.8 are satisfied.

(3) General requirements for all appeals. The appeal must beaccompanied by a check, money order,or fee waiver request in satisfaction of the fee requirements of § 3.8. If the

respondent or applicant is represented,a Notice of Entry of Appearance asAttorney or Representative Before theBoard (Form EOIR–27) must be filedwith the Notice of Appeal. The appealand all attachments must be in Englishor accompanied by a certified Englishtranslation.

(b) * * * An appellant who assertsthat the appeal may warrant review bya three-member panel under thestandards of § 3.1(e)(6) may identify inthe Notice of Appeal the specific factualor legal basis for that contention.

* * * * *

(c) Briefs—(1) Appeal from decision of an immigration judge. Briefs in supportof or in opposition to an appeal from adecision of an immigration judge shall

be filed directly with the Board. In thosecases that are transcribed, the briefingschedule shall be set by the Board afterthe transcript is available. In casesinvolving aliens in custody, the partiesshall be provided 21 days in which tofile simultaneous briefs unless a shorterperiod is specified by the Board, andreply briefs shall be permitted only byleave of the Board. In cases involvingaliens who are not in custody, the

appellant shall be provided 21 days inwhich to file a brief, unless a shorterperiod is specified by the Board. Theappellee shall have the same period of time in which to file a reply brief thatwas initially granted to the appellant tofile his or her brief. The time to file areply brief commences from the dateupon which the appellant’s brief wasdue, as originally set or extended by theBoard. The Board, upon written motion,may extend the period for filing a brief or a reply brief for up to 90 days forgood cause shown. In its discretion, theBoard may consider a brief that has been

filed out of time. All briefs, filings, andmotions filed in conjunction with anappeal shall include proof of service onthe opposing party.

(2) Appeal from decision of a Serviceofficer. Briefs in support of or inopposition to an appeal from a decisionof a Service officer shall be filed directlywith the office of the Service havingadministrative control over the file. Thealien and the Service shall be provided21 days in which to file a brief, unlessa shorter period is specified by theService officer from whose decision the





appeal is taken, and reply briefs shall bepermitted only by leave of the Board.Upon written request of the alien, theService officer from whose decision theappeal is taken or the Board may extendthe period for filing a brief for goodcause shown. The Board may authorizethe filing of briefs directly with theBoard. In its discretion, the Board may

consider a brief that has been filed outof time. All briefs and other documentsfiled in conjunction with an appeal,unless filed by an alien directly with aService office, shall include proof of service on the opposing party.

* * * * *(f) Application on effective date. All

cases and motions pending onSeptember 25, 2002, shall beadjudicated according to the rules ineffect on or after that date, except that§ 3.1(d)(3)(i) shall not apply to appeals

filed before September 25, 2002. A partyto an appeal or motion pending onAugust 26, 2002, may, until September25, 2002, or the expiration of any

briefing schedule set by the Board,whichever is later, submit a brief orstatement limited to explaining why theappeal or motion does or does not meetthe criteria for three-member review

under § 3.1(e)(6).* * * * *

5. In § 3.5, paragraph (a) is revised toread as follows:

§ 3.5 Forwarding of record on appeal.

(a) Appeal from decision of animmigration judge. If an appeal is takenfrom a decision of an immigration judge,the record of proceeding shall beforwarded to the Board upon the requestor the order of the Board. Wheretranscription of an oral decision is

required, the immigration judge shallreview the transcript and approve thedecision within 14 days of receipt, orwithin 7 days after the immigrationjudge returns to his or her duty stationif the immigration judge was on leave ordetailed to another location. TheChairman and the Chief Immigration

Judge shall determine the most effective

and expeditious way to transcribeproceedings before the immigrationjudges, and take such steps as necessaryto reduce the time required to producetranscripts of those proceedings andimprove their quality.

* * * * *

Dated: August 19, 2002.

John Ashcroft,

Attorney General.

[FR Doc. 02–21545 Filed 8–23–02; 8:45 am]

BILLING CODE 4410 –30 –P

BIA Procedural Reforms to Improve Case Management (Aug. 26, 2002), 67 Fed. Reg. 54,878, AG Order No....

Documents

Transcript of BIA Procedural Reforms to Improve Case Management (Aug. 26, 2002), 67 Fed. Reg. 54,878, AG Order No....