[Federal Register Volume 64, Number 200 (Monday, October 18, 1999)]
[Rules and Regulations]
[Pages 56135-56142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26887]
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DEPARTMENT OF JUSTICE
8 CFR Part 3
[EOIR No. 122F; AG Order No. 2263-99]
RIN 1125-AA22
Executive Office for Immigration Review; Board of Immigration
Appeals: Streamlining
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This final rule establishes a streamlined appellate review
procedure for the Board of Immigration Appeals. The final rule responds
to an enormous and unprecedented increase in the caseload of the Board.
The rule recognizes that in a significant number of appeals and motions
filed with the Board, a single appellate adjudicator can reliably
determine that the result reached by the adjudicator below is correct
and should not be changed on appeal. In these cases, the rule
authorizes a single permanent Board Member to review the record and
affirm
[[Page 56136]]
the result reached below without issuing an opinion. This procedure
will enable the Board to render decisions in a more timely manner,
while concentrating its resources primarily on cases where there is a
reasonable possibility that the result below was incorrect, or where a
new or significant issue is presented. In addition, the rule provides
that a single Board Member may decide certain additional types of
cases, motions, or other procedural or ministerial appeals, where the
result is clearly dictated by statute, regulation, or precedential
decision.
EFFECTIVE DATE: This rule is effective on October 18, 1999.
SUPPLEMENTARY INFORMATION:
Background
The mission of the Board of Immigration Appeals is to provide fair
and timely immigration adjudications and authoritative guidance and
uniformity in the interpretation of the immigration laws. Rapid growth
in the Board's caseload has severely challenged the Board's ability to
accomplish its mission and requires the adoption of new case management
techniques.
In 1984, the Board received fewer than 3,000 new appeals and
motions. In 1994, it received more than 14,000 new appeals and motions.
In 1998, in excess of 28,000 new appeals and motions were filed. There
is no reason to believe that the number of matters filed with the Board
will decrease in the foreseeable future, especially as the number of
Immigration Judges continues to increase.
As the number of appellate filings has increased, the need for the
Board to provide guidance and uniformity to the Immigration Judges, the
Immigration and Naturalization Service, affected individuals, the
immigration bar, and the general public, has grown. The Board now
reviews the decisions of more than 200 Immigration Judges. There were,
in comparison, 69 Immigration Judges in 1990 and 86 Judges in 1994.
Frequent and significant changes in the complex immigration laws over
the last several years, including a major overhaul of those laws in the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,
heighten the need for the Board's authoritative guidance in the
immigration area, particularly in view of the fact that the 1996
legislation drastically reduced aliens' rights to judicial review.
To meet its overriding objective of providing fairness in
adjudicating appeals, the Board must achieve four goals. It must: (1)
Promote uniformity in dispositions by Immigration Judges by providing
authoritative guidance in high quality appellate decisions; (2) decide
all incoming cases in a timely and fair manner; (3) assure that
individual cases are decided correctly; and (4) eliminate its backlog
of cases.
To accomplish these goals under current conditions, the Board must
limit its use of three-Member panels to cases where there is a
reasonable possibility of reversible error in the result below. The
Department published a proposed rule on September 14, 1998, at 63 FR
49043 (Sept. 14, 1998), with written comments due by November 13, 1998.
The proposed rule included a new provision, now designated as 8 CFR
3.1(a)(7),1 designed to allow single permanent Board
Members, selected by the Board Chairman, to affirm the results reached
below without an opinion where (1) the result reached in the decision
under review was correct; (2) any errors in the decision under review
were harmless or nonmaterial; and (3) either (a) the issue on appeal
was squarely controlled by existing Board or federal court precedent
and did not involve the application of such precedent to a novel fact
situation; or (b) the factual and legal questions raised on appeal were
so insubstantial that three-Member review was not warranted.
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\1\ This new provisions was cited in the proposed rule as 8 CFR
3.1(a)(5). Due to intervening changes in 8 CFR 3.1(a), is it now
designated as 8 CFR 3.1(a)(7).
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Under the proposed rule, if the single permanent Board Member found
the case to be appropriate for affirmance without opinion, that Board
Member would sign a simple order to that effect, without additional
explanation or reasoning. If the Board Member found affirmance without
opinion to be inappropriate, the case would be assigned to a three-
Member panel for review and decision. Thus, the proposed rule described
an affirmance without opinion as a determination that the result
reached below was correct and that the case did not warrant three-
Member review. The proposed rule also authorized three-Member panels to
affirm without opinion, where such a disposition was determined to be
appropriate.
The proposed rule at 8 CFR 3.1(a)(5) (now 8 CFR 3.1(a)(7)) also
included provisions that would authorize the Chairman to designate
certain categories of cases as suitable for affirmance without opinion
by a single permanent Board Member or by a three-Member panel. These
categories could include, but would not be limited to, the following:
(1) Cases challenging findings of fact where the findings below are not
against the weight of the evidence; (2) cases controlled by precedents
of the Board where there is no basis for overruling the precedent, or
by precedents of the relevant United States Court of Appeals, or the
United States Supreme Court; (3) cases seeking discretionary relief for
which the appellant is clearly ineligible; (4) cases challenging
discretionary decisions where the decision maker has neither applied
the wrong criteria nor deviated from precedents of the Board or the
controlling law from the United States Court of Appeals or the United
States Supreme Court; and (5) cases challenging only procedural rulings
or deficiencies that are not material to the outcome of the case.
The proposed rule also contained provisions that would authorize
the Chairman to designate the permanent Board Members who would be
authorized to affirm cases without opinion.
The proposed rule also suggested amendments to the regulation
regarding motions to reconsider. Under proposed 8 CFR 3.2(b)(3), a
motion to reconsider based solely on an argument that the case should
not have been summarily affirmed--that a full opinion was required--
would be barred. Otherwise, the standard motions to reconsider and/or
reopen are allowed, but are subject to all the regular requirements and
restrictions regarding motions, including the time and number
limitations.
In addition to describing a new procedure for affirmance without
opinion by a single Board Member, the proposed rule also included
provisions that would empower a single Board Member or the Chief
Attorney Examiner to rule on certain dispositive motions or to issue
other orders disposing of appeals on procedural or ministerial grounds.
Presently, the regulations allow a single Board Member to adjudicate
unopposed motions or motions to withdraw an appeal. See 8 CFR 3.1(a).
The proposed rule identified additional categories of cases that were
deemed suitable for disposition by a single Board Member. Unlike the
one-line affirmances by single Board Members that the proposed rule
would authorize, these dispositions generally would not affirm a result
below. Rather, in these cases, a single fact, easily identified in the
record of proceedings, dictates the result through a straightforward,
nondiscretionary application of a statute, a regulation, or a
controlling precedent. Dispositions under this procedure are separate
and
[[Page 56137]]
distinct from affirmances without opinions.
Under Sec. 3.1(a)(1) of the proposed rule, a single Board Member
would be authorized to issue orders (1) remanding an appeal from the
denial of a visa petition where the Regional Service Center Director
requests a remand for further consideration of the appellant's
arguments or evidence raised on appeal; (2) remanding to correct for a
defective or missing transcript; and (3) disposing of other procedural
or ministerial matters designated by the Chairman (possible examples
might include dismissal of an appeal as moot where the alien has since
become a lawful permanent resident).
The proposed rule also set forth proposed amendments to the
regulation regarding summary dismissals of appeals. This regulation,
presently codified at 8 CFR 3.1(d)(1-a), generally provides for
dismissals on grounds that do not go to the underlying merits of a
case. The proposed revisions to this provision, redesignated as
Sec. 3.1(d)(2), would add to the existing rule's listing of the types
of cases that are appropriate for summary dismissal, authorize a single
Board Member to dispose of such cases, and empower the Chairman to
designate who from among the Board Members may exercise this authority.
Summary dismissal under proposed section 3.1(d)(2) would be separate
and distinct from affirmance without opinion.
The proposed rule also would augment existing grounds for summary
dismissals, authorizing dismissal of (1) cases in which the appeal or
motion does not fall within the Board's jurisdiction; (2) cases in
which jurisdiction over a motion lies with the Immigration Judge rather
than with the Board; (3) untimely appeals and motions; and (4) cases in
which it is clear that the right of appeal was affirmatively waived.
Comments
In response to the proposed rule, the Department received 24
comments pertaining to the proposed summary affirmance procedures.
Because a number of these comments overlap or endorse the submissions
of other commenters, the comments are addressed by topic rather than
individually. Before describing the comments and the Department's
responses, it is important to mention two changes that the Department
has decided to make to the proposed rule for reasons not presented in
the comments.
First, although the Department did not receive any comments
criticizing our proposal to change the summary dismissal regulation, we
have determined that an additional change is warranted. In particular,
current 8 CFR 3.1(d)(1-a)(i)(D) will be deleted to avoid confusion in
light of the new summary affirmance procedure. Current Sec. 3.1(d)(1-
a)(i)(D) allows summary dismissal when, ``[t]he Board is satisfied,
from a review of the record, that the appeal is filed for an improper
purpose, such as to cause unnecessary delay, or that the appeal lacks
an arguable basis in law or fact unless the Board determines that it is
supported by a good faith argument for extension, modification or
reversal of existing law.'' This summary dismissal authority is
virtually never used by the Board, and retaining it could lead to
confusion concerning the relationship between this provision and the
new summary affirmance procedure. Accordingly, this part of the
existing summary dismissal regulation will be deleted.
A second change that was not advocated by any commenter concerns
the proposed rule's references to the Chief Attorney Examiner. Because
that position was eliminated after publication of the proposed rule,
references to the Chief Attorney Examiner will be eliminated from the
final rule.
The Department has also concluded, in the course of preparing this
streamlining rule, that the regulations governing BIA procedures have
become unduly complex and that a complete reorganization of part 3 of 8
CFR is needed. The Executive Office for Immigration Review is presently
working on such a reorganization. This final rule is being published in
advance of that reorganization because of the overriding need to
implement the streamlining procedures.
Single Board Member Summary Affirmance Without Opinion
Comments: Twenty-three commenters objected to the proposal to allow
a single permanent Board Member to affirm the result reached below by
issuing a form, one-line affirmance order. Most of the commenters
recognized the difficulties the Board faces in managing its expanding
caseload, and several offered alternatives for accomplishing that task.
However, the commenters uniformly stated that an appellate body such as
the Board should meaningfully address the issues before it by providing
reasons for its decisions. A number of the commenters cited Mathews v.
Eldridge, 424 U.S. 319 (1976), as support for their contention that the
Due Process Clause of the Fifth Amendment requires the Board to provide
a rationale for its decisions. Some pointed out that several courts of
appeals have criticized the Board when it did not provide an adequate
rationale, suggesting that the proposed rule could therefore be struck
down in court. Some suggested that, given the Board's caseload, there
would be a temptation to avoid detailed review or consideration of
complex issues.
Response and Disposition: The Department has carefully considered
the comments regarding the proposal to allow one permanent Board Member
to affirm a decision by issuing a one-line form order, and has decided
to retain the regulation as proposed. To operate effectively in an
environment where over 28,000 appeals and motions are filed yearly, the
Board must have discretion over the methods by which it handles its
cases. The process of screening, assigning, tracking, drafting,
revising, and circulating cases is extremely time consuming. Even in
routine cases in which all Panel Members agree that the result reached
below was correct, disagreements concerning the rationale or style of a
draft decision can require significant time to resolve. The Department
has determined that the Board's resources are better spent on cases
where there is a reasonable possibility of reversible error in the
result reached below.
Appellants have a right to a reasoned administrative decision. In
cases that are adjudicated by one Board Member, that right will be
protected by a written decision by the Immigration Judge or the INS
Director and a determination by the Board that the result below is
correct. A permanent Board Member will review and consider every case.
The decision rendered below will be the final agency decision for
judicial review purposes. Under this new system of streamlined review,
complex and significant cases will not be avoided, nor will they be
adjudicated by one Board Member. Rather, they will be given additional
time and consideration by three-Member panels of the Board. The most
important of the three-Member panel cases may receive en banc review
(either full or limited) by the Board.
The streamlined review process that the Board will follow is
different from the ``leave to appeal'' and certiorari systems that some
appellate courts and administrative tribunals use to control their
dockets. These systems often look to a variety of factors apart from
whether the decision for which appellate review is sought reached a
correct result. In contrast, the summary affirmance system that the
Department is adopting will continue to focus on the importance of
correct results, even in
[[Page 56138]]
cases that do not present significant legal or factual issues or a
question requiring guidance from the Board. The summary affirmance
system represents a careful balancing of the need to ensure correct
results in individual cases with the efficiencies necessary to maintain
a viable appellate organization that handles an extraordinarily large
caseload. The streamlining system will allow the Board to manage its
caseload in a more timely manner while permitting it to continue
providing nationwide guidance through published precedents in complex
cases involving significant legal issues.
In Mathews v. Eldridge, supra, the Supreme Court held that due
process is a flexible concept and identified three factors that
agencies and courts must consider in determining the administrative
procedures that due process requires in a particular setting. Those
factors are, ``[f]irst, the private interest that will be affected by
the official action; second, the risk of an erroneous deprivation of
such interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and finally,
the Government's interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.'' 424 U.S. at 334-35.
In the case of immigration proceedings, the private interests at
stake are undoubtedly very weighty, as many commenters have pointed
out. However, the Department believes that the risk of erroneous
decisions resulting from the streamlining of Board procedures is
minimal. Most appellants will already have had a full evidentiary
hearing before an Immigration Judge; some will have had their cases
considered by an INS Director. The case will then be considered on its
merits by a permanent Member of the Board. If that Board Member finds a
reasonable possibility that the result reached below was incorrect, the
case will be referred to a three-Member Panel, and a written decision
will be provided. Only if the permanent Board Member determines, after
review of the appeal, that the regulatory criteria are satisfied and,
consequently, that there is no reasonable possibility that the result
below was incorrect, will he or she issue a one-line, form order
affirmance. The Department believes that appellants' rights are
protected by these procedures.
Finally, as noted earlier, the Government's interests are also
significant here. The number of appeals filed with the Board in recent
years has exceeded the Board's capacity to give meaningful, three-
Member consideration to each appeal, and to issue written decisions in
every case. The summary affirmance process is a reasonable response to
the current situation, because it allows the Board to concentrate its
resources on cases where there is a reasonable possibility of reversal,
or where a significant issue is raised in the appeal, while still
providing assurances that correct results are achieved in all cases
under the Board's appellate jurisdiction.
The Department is aware of one federal appeals court decision
indicating that due process requires the Board to state reasons for its
decisions. See De la Llana-Castellon v. INS, 16 F.3d 1093, 1098 (10th
Cir. 1994) (due process ``requires that the decisionmaker actually
consider the evidence and argument that a party presents''). In
addition, several other appeals court decisions have struck down, on
statutory grounds, Board decisions that were found to have lacked
adequate explanations of the Board's reasoning. See, e.g., Velerde v.
INS, 140 F.3d 1305, 1310-11 (9th Cir. 1998) (BIA abused its discretion
by failing to provide reasoned basis for its decision); Sanon v. INS,
52 F.3d 648, 651 (7th Cir. 1995) (in reviewing BIA denials of asylum
requests, court requires ``some proof that the Board has exercised its
expertise in hearing a case.''); Turri v. INS, 997 F.2d 1306, 1308
(10th Cir. 1993) (to survive statutory review, Board decision must
contain terms sufficient to demonstrate that the Board heard,
considered, and decided the case); Diaz-Resendez v. INS, 960 F.2d 493,
495 (5th Cir. 1992) (Board decision will be reversed as arbitrary if it
``fails to address meaningfully all material factors'').
Notwithstanding these decisions, eight federal courts of appeals
have rejected direct challenges to the Board's practice of affirming
decisions of Immigration Judges, where appropriate, for the reasons
given in those decisions. See Giday v. INS, 113 F.3d 230, 234 (D.C.
Cir. 1997) (Board's summary affirmance of an Immigration Judge's
decision for the reasons given by the Immigration Judge is ``not only
common practice, but universally accepted by every other circuit that
has squarely confronted the issue''); Chen v. INS, 87 F.3d 5, 7-8 (1st
Cir. 1996) (``[I]f the Board's view is that the Immigration Judge ``got
it right,'' the law does not demand that the Board go through the idle
motions of dressing the Immigration Judge's findings in its own
prose.''); Prado-Gonzalez v. INS, 75 F.3d 631, 632 (11th Cir. 1996);
Urokov v. INS, 55 F.3d 222, 227-28 (7th Cir. 1995); Alaelua v. INS, 45
F.3d 1379, 1382 (9th Cir. 1995); Maashio v. INS, 45 F.3d 1235, 1238
(8th Cir. 1995); Panrit v. INS, 19 F.3d 544, 545-46 (10th Cir. 1994)
(distinguishing Turri v. INS); Arango-Aradondo v. INS, 13 F.3d 610, 613
(2nd 1994). In addition, two other federal courts of appeals have
treated summary affirmance by the BIA as a proper method of disposing
of appeals, sustaining such summary affirmances against merits
challenges after review of the reasoning set forth in the Immigration
Judge decisions that the BIA affirmed. See, e.g., Gomez-Mejia v. INS,
56 F.3d 700, 702 (5th Cir. 1995) (court will review the Immigration
Judge's decision where the Board affirms without any additional
reasoning); Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1255 (4th Cir.
1995) (where the Board relies on the Immigration Judge's decision, the
immigration Judge's reasoning will be the sole basis for the court
review).
It is therefore well-established that the Board may decline to
write a full decision in any given case, and may instead summarily
affirm the Immigration Judge's decision. The summary affirmance
procedure set forth in this streamlining rule makes clear that a
summary affirmance does not necessarily indicate that the Board Member
is adopting the Immigration Judge's or Service Officer's decision in it
entirety, including all its reasoning; rather, it is a determination by
the Board Member, upon review of the record, that the result reached
below is correct. For purposes of judicial review, however, the
Immigration Judge's decision becomes the decision reviewed.
In addressing any due process concerns, it is also important to
point out that due process does not confer a right to appeal, even in
criminal prosecutions. See Ross v. Moffitt, 417 U.S. 600, 611 (1974)
(``[W]hile no one would agree that the State may simply dispense with
the trial stage of proceedings without a criminal defendant's consent,
it is clear that the State need not provide any appeal at all.'');
Griffin v. Illinois, 351 U.S. 12, 18 (1956) (plurality opinion) (noting
that ``a State is not required by the Federal Constitution to provide
appellate courts or a right to appellate review at all'') (citation
omitted). Indeed, one federal court has specifically stated that
``[t]he Constitution does not entitle aliens to administrative appeals
* * *. The Attorney General could dispense with the Board and delegate
her power to the immigration judge's, or could give the Board
discretion to choose which cases to review.'' Guentchev v. INS, 77 F.3d
1036, 1037 (7th Cir. 1996).
[[Page 56139]]
It is true that the power to eliminate appeals does not carry with
it the power to maintain a procedurally deficient appellate process.
See, e.g., Evitts v. Lucey, 469 U.S. 387, 400-05 (1985) (although due
process does not require that a state provide any appeal, it does
require that a defendant receive effective assistance of counsel on the
first appeal as of right, if such an appeal is provided); Mayer v.
Chicago, 404 U.S. 189, 198 (1971) (if the Government chooses to provide
for appeals, an impecunious defendant in a petty offense prosecution
``cannot be denied a record of sufficient completeness to permit proper
(appellate) consideration of his claims'' (internal quotation marks
omitted)); see also M.L.B. v. S.L.J., 519 U.S. 102, 117-124 (1996)
(state cannot use parent's inability to pay record preparation fees as
grounds for denying an appeal in a proceeding that could result in
permanent termination of her parental rights). However, the omission of
a case-specific statement of reasons for an appellate ruling does not
represent a constitutional deficiency in appellate procedure.
In sum, appeals are not constitutionally required, and an
endorsement of the result reached by the decision-maker below satisfies
any conceivable due process requirement concerning justifications for
the decisions made in any appellate process that the government decides
to provide. The Department believes it is within the Attorney General's
authority to provide for the streamlining of BIA procedures in
appropriate cases as described in this final rule.
Single Board Member Adjudication on the Merits
Comments: In addition to objecting to a one-line, form order, most
of the 23 commenters objected to allowing a single permanent Board
Member to decide appeals on the merits. Commenters noted that appellate
review by a single Board Member increases the risk of error resulting
from the mistakes or prejudices of one person. Three-Member panels
provide both a moderating influence and a check against possible
undetected errors. Commenters also feared that review by a single Board
Member would compromise consistency and thereby devalue the guidance
that the Board provides.
Response and Disposition: After careful consideration, the
Department has decided to retain the provision that allows a single
Board Member to adjudicate certain routine appeals on the merits. While
three-Member review can reduce the risk of error in complex cases, this
process is extremely time and labor intensive and is of significantly
less value in routine cases. The Department believes that single-Member
review without appellate opinion represents an appropriate means of
resolving routine appeals that do not present substantial legal issues
or substantial arguments for reversal of the result reached below. The
current requirement that three Board Members review such cases results
in a serious misallocation of resources in an agency that receives over
28,000 appeals and motions per year. The Department believes that the
Board Members' time will be more effectively used if they are able to
concentrate on the more significant issues, and on cases where there is
a reasonable possibility of reversible error in the result reached
below. Authorizing a single permanent Board Member to adjudicate cases
where there is no reasonable possibility of reversible error and no
significant legal issues are presented will allow this more effective
use of Board Member time. Single-Member review and summary affirmance
in routine cases will actually preserve the ability of the Board to
conduct three-Member review and prepare careful opinions in a
significant number of more complex cases.
Single Board Member Adjudications for All Cases
Comments: Two commenters suggested that the Board adopt a system of
single Board Member adjudication of most cases, but with reasons given
in every case. One of these comments was signed by 52 individuals and
organizations. These commenters acknowledged that under current
conditions, the Board cannot continue to give full three-Member review
to all cases, and further recognized that most cases do not require
three-Member review. It was suggested that only a few cases per year
would need to be considered by the en banc Board, and that single-
Member review of the rest of the cases would be appropriate, so long as
the reasons for the decisions were provided, even briefly. Several
other commenters also referred to this comment with approval.
Response and Disposition: The Department carefully considered the
option of moving to single-Member review of most cases, but has decided
not to adopt that option at this time. The Department believes that
single-Member review is appropriate in many cases coming before the
Board. However, in cases where a significant issue is presented, or
where there is a reasonable possibility that the result below was
incorrect, three-Member adjudication is preferable for the reasons
discussed above. Three-Member adjudication of such cases also provides
an additional check, and provides more guidance to the Immigration
Judges, the Service, the bar, and the public.
In addition, a move to single-Member adjudication of nearly all
cases would make it more difficult to maintain the consistency of
adjudication that the Board attempts to provide. Therefore, the
Department has decided to adopt the system as proposed, under which
some cases will be adjudicated on the merits by a single Board Member,
while those presenting significant issues or a reasonable possibility
of a change in the result reached below, will continue to be decided by
three-Member panels. Of course, the Board also retains the authority to
consider cases under its en banc or limited en banc procedures.
Expand Board To Handle Caseload
Comments: Several commenters noted the recent expansion of the
Board and staff. Some questioned why these increases had not been
adequate to handle all cases and several suggested that the Board
should be further expanded as necessary to deal with current and
incoming cases.
Response and Disposition: The Department has carefully considered
these comments and has decided against further expansion of the Board
at this time. The Attorney General has made significant efforts to aid
the Board in handling its burgeoning caseload by increasing its size
from 5 to 12 Members in 1995, from 12 to 15 in 1998, and by recently
authorizing four additional permanent Board Members, which will bring
the total to 19 Board Members. Significant staff increases have
accompanied the expansion of the Board.
Board production has increased commensurately with these
expansions. For example, in fiscal year 1998, more than 29,000 final
dispositions were issued by the Board. However, this figure included
some 6000 routine, form dispositions resulting from new legislation,
including approximately 5000 cases that the Board remanded following
enactment of the Nicaraguan Adjustment and Central American Relief Act.
Moreover, while the Board was able to reduce its backlog by 1000 cases
in 1998, the pending caseload at the Board is over 47,000 cases. The
backlog must be reduced at a greater rate than 1000 cases per year.
Even with Board Member and staff increases, the Board is not
currently able to adjudicate its pending caseload, to deal with its
entire incoming caseload
[[Page 56140]]
on a timely basis, to meaningfully reduce its backlog, to position
itself to deal with future increases in caseload, and to provide
nationwide guidance through published precedents (most of which are
issued by the full en banc Board) in a growing number of complex cases
involving application of new statutory and regulatory provisions.
Moreover, continued expansion of the Board and its staff would have
significant institutional costs in terms of the collegiality of the
Board's decision-making process, the uniformity of its decisions, and
the administration and supervision of its staff.
Standards for Selecting Cases for Adjudication by a Single Board
Member
Comments: Several commenters stated that the proposed rule
contained inconsistent formulations of the standard for determining
which cases would be adjudicated on the merits by a single Board
Member. They pointed out that the Supplementary Information
accompanying the proposed rule referred variously to one-Member review
in cases where there is no ``realistic chance'' that three-Member
review would change the result below, where the factual and legal
questions raised on appeal are ``so insubstantial'' that three-Member
review is not warranted, or where no legal or factual basis for
reversal ``is apparent.'' In addition, the Supplementary Information
also stated that an affirmance without opinion would not be issued if
an appellant made a ``substantial argument for reversal.'' The
commenters pointed out that the proposed regulation itself allows
single-Member affirmance without opinion where, inter alia, the factual
and legal questions raised were ``so insubstantial that three-Member
review is not warranted.'' These commenters suggested that the
Department adopt a realistic and consistent standard for determining
which cases are subject to summary affirmance.
One commenter, responding to the proposed rule's statement that
single Board Member review can be appropriate where the issue on appeal
is squarely controlled by existing Board or federal court precedent and
does not involve the application of such precedent ``to a novel fact
situation,'' suggested that virtually every case will present a novel
fact situation.
Response and Disposition: The Department agrees that some of the
language in the Supplementary Information of the proposed rule could
have been clearer. However, the Department also recognizes that any
standard adopted could be attacked as involving a subjective element.
The Department believes that use of the three-part test set forth
above--requiring determinations that the result below was correct, that
any errors were harmless or immaterial, and either that the issues on
appeal are controlled by precedent or that the factual or legal
questions raised are insubstantial--will ensure that only cases where
there is no reasonable possibility of changing the result reached below
will be subject to single-Member summary affirmance. Moreover, the
Department believes it is reasonable to require an appellant to make a
substantial argument that the result reached below should be reversed.
The Department believes that the language regarding a ``novel fact
situation'' requires clarification. The Department notes that while the
facts of each case are different, the legally significant facts often
fall into recognizable patterns, and that where this occurs, a novel
fact situation may not be presented. As just one example, the Attorney
General's decision in Matter of Soriano held that section 212(c) relief
was no longer available to aliens in certain appeals pending before the
Board. See Matter of Soriano, Op. Att'y Gen. (Feb. 21, 1997),
overruling Interim Decision No. 3289 (BIA June 27, 1996) (en banc).
That decision made the factual differences in a large number of those
cases legally insignificant from the standpoint of the Board's
appellate review. Such cases would be appropriate for single-Member
affirmance even though each case presented a different set of facts.
Single Board Member Authority To Reverse or Remand
Comments: Several commenters suggested that the proposed rule was
biased in favor of the Government because it would allow a single Board
Member to affirm by summary decision but not to reverse or remand
without referral to a three-Member panel. These commenters stated that
in some cases an obvious error may appear that clearly warrants
reversal or remand, without the necessity of three-Member review, and
the regulation should allow single-Member reversals or remands in such
cases.
Response and Disposition: The Department has considered these
comments and has decided to retain the regulation as proposed on this
point. The cornerstone of the new streamlining procedures is that
summary affirmance by a single permanent Board Member is authorized
only when the result reached below was correct. A reversal or remand
will necessarily require some explanation, while an affirmance without
opinion leaves the decision below as the final agency decision. The
Department has determined that it is appropriate to allow the Board to
affirm without opinion only when this disposition leaves intact correct
results reached below. The Department also notes that a decision below
that is unfavorable to the Government may also be summarily affirmed.
Chairman's Authority
Comments: Several commenters expressed concern about the authority
given to the Chairman to select the Board Members who will be
authorized to affirm cases without opinion. They stated that giving
this authority to the Chairman could invite an abuse of authority and
suggested that a more neutral or random selection process be
established.
Response and Disposition: The Department has considered this
comment and decided to retain the regulation as proposed. It is
anticipated that all Board Members will be given the opportunity to
participate in the streamlined adjudication process. However, the
Chairman must have the flexibility to administer the program as he sees
fit. The selection of Board Members for participation in the single
Board Member affirmance process, and the process of selection, are
internal Board matters and will remain so.
Fine Cases
Comment: One of the 24 comments came from an airline. It noted that
there was a large backlog of airline fine cases, and suggested that the
rule should specifically address the Board's handling of these cases.
Response and Disposition: Fine cases could potentially be handled
under the procedures set forth in the new rule. The Department does not
find it necessary to establish special streamlining procedures for fine
cases at this time.
Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule will not have a significant economic impact on a
substantial number of small entities. The rule will only affect
individuals involved in immigration proceedings and transportation
firms subject to fines under 8 CFR part 280. See 8 CFR 3.1(b)(4). This
rule will not have a substantial economic impact on these firms because
it will only change the procedures under which the BIA adjudicates
appeals of such fines. These
[[Page 56141]]
procedural reforms are not expected to alter substantive outcomes
except to the extent the BIA's redirection of its resources improves
the consistency and uniformity of its adjudications and the quality of
the legal guidance that the Board provides to Immigration Judges and
the Service.
Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This final rule is not a major rule as defined by section 251 of
the Small Business Regulatory Enforcement Fairness Act of 1996. 5
U.S.C. 804. This rule will not result in an annual effect on the
economy of $100 million or more; a major increase in costs or prices;
or significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Executive Order 12866
This final rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. This
rule falls within a category of actions that the Office of Management
and Budget (OMB) has determined not to constitute ``significant
regulatory actions'' under section 3(f) of Executive Order 12866,
Regulatory Planning and Review, and accordingly has not been submitted
to OMB for review.
Executive Order 12612
This final rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 12612, the Department of Justice has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Executive Order 12988
The final rule meets the applicable standards provided in sections
3(a) and 3(b)(2) of Executive Order 12988.
List of Subjects in 8 CFR Part 3
Administrative practice and procedure, Immigration, Lawyers,
Organizations and functions (Government agencies), Reporting and
recordkeeping requirements.
Accordingly, part 3 of chapter 1 of title 8 of the Code of Federal
Regulations is to be amended as follows:
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. The authority citation for part 3 is revised to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note,
1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of
1950, 3 CFR, 1949-1953 Comp., p. 1002.
2. Section 3.1 is amended by:
a. Adding two sentences at the end of paragraph (a)(1);
b. Adding a new paragraph (a)(7);
c. Redesignating paragraphs (d)(1-a), (2), and (3) as paragraphs
(d)(2), (3), and (4), respectively;
d. Removing redesignated paragraph (d)(2)(i)(D);
e. Redesignating paragraph (d)(2)(i)(E) as paragraph (d)(2)(i)(D)
and removing the word ``or'' at the end of that paragraph;
f. Redesignating paragraph (d)(2)(i)(F) as paragraph (d)(2)(i)(G);
g. Adding new paragraphs (d)(2)(i)(E) and (F);
h. Redesignating paragraph (d)(2)(ii) as paragraph (d)(2)(iii); and
by
i. Adding a new paragraph (d)(2)(ii). The additions to Sec. 3.1
read as follows:
Sec. 3.1 General authorities.
(a)(1) Organization. * * * In addition, a single Board Member may
exercise such authority in disposing of the following matters: a
Service motion to remand an appeal from the denial of a visa petition
where the Regional Service Center Director requests that the matter be
remanded to the Service for further consideration of the appellant's
arguments or evidence raised on appeal; a case where remand is required
because of a defective or missing transcript; and other procedural or
ministerial issues as provided by the Chairman. A motion to reconsider
or to reopen a decision that was rendered by a single Board Member may
be adjudicated by that Board Member.
* * * * *
(7) Affirmance without opinion. (i) The Chairman may designate,
from time-to-time, permanent Board Members who are authorized, acting
alone, to affirm decisions of Immigration Judges and the Service
without opinion. The Chairman may designate certain categories of cases
as suitable for review pursuant to this paragraph.
(ii) The single Board Member to whom a case is assigned may affirm
the decision of the Service or the Immigration Judge, without opinion,
if the Board Member determines that the result reached in the decision
under review was correct; that any errors in the decision under review
were harmless or nonmaterial; and that
(A) the issue on appeal is squarely controlled by existing Board or
federal court precedent and does not involve the application of
precedent to a novel fact situation; or
(B) the factual and legal questions raised on appeal are so
insubstantial that three-Member review is not warranted.
(iii) If the Board Member determines that the decision should be
affirmed without opinion, the Board shall issue an order that reads as
follows: ``The Board affirms, without opinion, the result of the
decision below. The decision below is, therefore, the final agency
determination. See 8 CFR 3.1(a)(7).'' An order affirming without
opinion, issued under authority of this provision, shall not include
further explanation or reasoning. Such an order approves the result
reached in the decision below; it does not necessarily imply approval
of all of the reasoning of that decision, but does signify the Board's
conclusion that any errors in the decision of the Immigration Judge or
the Service were harmless or nonmaterial.
(iv) If the Board Member determines that the decision is not
appropriate for affirmance without opinion, the case will be assigned
to a three-Member panel for review and decision. The panel to which the
case is assigned also has the authority to determine that a case should
be affirmed without opinion.
* * * * *
(d) Powers of the Board--(1) * * *
(2) Summary dismissal of appeals. (i) Standards. * * *
(E) The appeal does not fall within the Board's jurisdiction, or
lies with the Immigration Judge rather than the Board;
(F) The appeal is untimely, or barred by an affirmative waiver of
the right of appeal that is clear on the record; or
* * * * *
(ii) Action by the Board. The Chairman may provide for the exercise
of the appropriate authority of the Board
[[Page 56142]]
to dismiss an appeal pursuant to paragraph (d)(2) of this section by a
three-Member panel, or by a single Board Member. The Chairman may
determine who from among the Board Members is authorized to exercise
the authority under this paragraph and the designation may be changed
by the Chairman as he deems appropriate. Except as provided in this
part for review by the Board en banc or by the Attorney General, or for
consideration of motions to reconsider or reopen, an order dismissing
any appeal pursuant to this paragraph (d)(2) shall constitute the final
decision of the Board. If the single Board Member to whom the case is
assigned determines that the case is not appropriate for summary
dismissal, the case will be assigned for review and decision pursuant
to paragraph (a) of this section.
* * * * *
3. Section 3.2 is amended by adding a new paragraph (b)(3) to read
as follows:
Sec. 3.2 Reopening or reconsideration before the Board of Immigration
Appeals.
* * * * *
(b) * * *
(3) A motion to reconsider based solely on an argument that the
case should not have been affirmed without opinion by a single Board
Member, or by a three-Member panel, is barred.
Dated: October 6, 1999.
Janet Reno,
Attorney General.
[FR Doc. 99-26887 Filed 10-15-99; 8:45 am]
BILLING CODE 4410-30-P
