E8-13436. Board of Immigration Appeals: Composition of Board and Temporary Board Members

AGENCY:

Executive Office for Immigration Review, Department of Justice.

ACTION:

Final rule.

SUMMARY:

This final rule adopts without change an interim rule with request for comments published in the Federal Register on December 7, 2006. The interim rule amended the Executive Office for Immigration Review (EOIR) regulations relating to the organization of the Board of Immigration Appeals (Board) by adding four Board member positions, thereby expanding the Board to 15 members. This rule also expanded the list of persons eligible to serve as temporary Board members to include senior EOIR attorneys with at least ten years of experience in the field of immigration law.

DATES:

Effective date: This rule is effective June 16, 2008.

FOR FURTHER INFORMATION CONTACT:

John Blum, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041; telephone [phone] (not a toll free call).

SUPPLEMENTARY INFORMATION:

On December 7, 2006, the Department published an interim rule with request for comments amending 8 CFR 1003.1. Board of Immigration Appeals: Composition of Board and Temporary Board Members, 71 FR 70855. As explained in the interim rule, following a comprehensive review of the Immigration Courts and the Board, the Attorney General announced a series of measures be taken to improve adjudications by the immigration judges and the Board. Increasing the number of Board members was one of the measures the Attorney General directed the Director of EOIR to implement. Accordingly, the interim rule increased the Board from 11 to 15 members.

The interim rule also amended the Director's temporary appointment authority by creating an additional category of people eligible to serve as temporary Board members. The amendment allows the Director, with the approval of the Deputy Attorney General, to designate senior EOIR attorneys with at least ten years of experience in the field of immigration law.

The Department provided an opportunity for post-promulgation comment even though this is a rule of internal agency organization. Written comments were required on or before February 5, 2007. One comment was received. However, the comment does not relate to the issues set forth in the interim rule. Instead, it expresses an opinion about an increase in fees “to be charged immigrants who wish to change their status, or begin the process of applying for citizenship in our country.” Because this comment does not address the changes set forth in the interim rule, it has not been considered. Accordingly, the interim rule amending 8 CFR part 1003 that was published at 71 FR 70855 on December 7, 2006, is adopted as a final rule without change.

Regulatory Requirements

A. Administrative Procedure Act

Compliance with requirements in 5 U.S.C. 553 with regard to notice of proposed rulemaking and delayed effective date is unnecessary as this rule addresses only internal agency organization and management. Accordingly, it is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)), and the reporting requirement of 5 U.S.C. 801 does not apply.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) mandates that an agency conduct an RFA analysis when an agency is “required by section 553 * * *, or any other law, to publish general notice of proposed rulemaking for any proposed rule.” 5 U.S.C. 603(a). RFA analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). This rule is exempt from notice and comment rulemaking. Therefore, no RFA analysis under 5 U.S.C. 603 is required for this rule.

C. Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

D. Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement 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, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

E. Executive Order 12866 (Regulatory Planning and Review)

The Department does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review.

F. Executive Order 13132 (Federalism)

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant preparation of a federalism summary impact statement.

G. Executive Order 12988 (Civil Justice Reform)

This rule has been prepared in accordance with the standards in sections 3(a) and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act

This rule does not create any information collection requirement.

List of Subjects in 8 CFR Part 1003

• Administrative practice and procedure
• Aliens
• Immigration
• Legal services
• Organization and functions (Government agencies)

8 CFR Chapter V

Accordingly, for the reasons stated in the interim rule published at 71 FR 70855 on December 7, 2006, the amendments set forth in the interim rule are adopted as final without change.

Dated: June 5, 2008.

Michael B. Mukasey,

Attorney General.