2020-20046. Office of the Chief Administrative Hearing Officer, Chief Administrative Law Judge

AGENCY:

Executive Office for Immigration Review, Department of Justice.

ACTION:

Interim final rule; request for comment.

SUMMARY:

The Department of Justice (“Department”) is amending the regulations governing the Office of the Chief Administrative Hearing Officer to reflect the creation of the position of Chief Administrative Law Judge and make technical corrections.

DATES:

Effective date: October 7, 2020.

Comments: Electronic comments must be submitted and written comments must be postmarked or otherwise indicate a shipping date on or before November 6, 2020. The electronic Federal Docket Management System at www.regulations.gov will accept electronic comments until 11:59 p.m. Eastern Time on that date.

ADDRESSES:

If you wish to provide comment regarding this rulemaking, you must submit comments, identified by the agency name and reference RIN 1125-AB06 or EOIR Docket No. 19-0312, by one of the two methods below:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the website instructions for submitting comments.
• Mail: Paper comments that duplicate an electronic submission are unnecessary. If you wish to submit a paper comment in lieu of electronic submission, please direct the mail/shipment to: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041. To ensure proper handling, please reference the agency name and RIN 1125-AB06 or EOIR Docket No. 19-0312 on your correspondence. Mailed items must be postmarked or otherwise indicate a shipping date on or before the submission deadline.

FOR FURTHER INFORMATION CONTACT:

Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Falls Church, VA 22041, telephone [phone] (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule via one of the methods and by the deadline stated above. All comments must be submitted in English, or accompanied by an English translation. The Department also invites comments that relate to the economic, environmental, or federalism effects that might result from this rule. Comments that will provide the most assistance to the Department in developing these procedures will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

Please note that all comments received are considered part of the public record and made available for public inspection at www.regulations.gov. Such information includes personally identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

If you want to submit personally identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONALLY IDENTIFYING INFORMATION” in the first paragraph of your comment and identify the information you want redacted.

If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on www.regulations.gov.

Personally identifying information located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. The Departments may withhold from public viewing information provided in comments that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of http://www.regulations.gov. To inspect the agency's public docket file in person, you must make an appointment with the agency. Please see the “For Further Information Contact” paragraph above for the agency contact information.

II. Purpose of This Rule

A. Chief Administrative Law Judge

The Office of the Chief Administrative Hearing Officer (“OCAHO”) is a component of the Executive Office for Immigration Review (“EOIR”), which is also an office of the Department of Justice. See 8 CFR 1003.0(a). An Administrative Law Judge (“ALJ”) in OCAHO has jurisdiction to, among other matters, decide cases arising under sections 274A, 274B, and 274C of the Immigration and Nationality Act (“INA”) (8 U.S.C. 1324a, 1324b, and 1324c).^[1] See generally 28 CFR part 68. These cases seek the imposition of civil penalties and other remedies against persons or entities alleged to have violated the provisions of these sections.

The Department is amending the regulations that govern OCAHO to recognize the creation of a Chief Administrative Law Judge (“CALJ”) position and to delineate the responsibilities and authorities of the CALJ and the Chief Administrative Hearing Officer (“CAHO”). In addition to serving as an ALJ, the CALJ will serve as the direct supervisor of the OCAHO ALJs and related ALJ support staff.^[2] See Interim Final Rule at 68.2. In turn, the CAHO will supervise the CALJ. Although the CAHO will continue to designate the presiding ALJ in each case as an initial matter, the CALJ may reassign ALJs as necessary to promote administrative efficiency (e.g., if the previously assigned ALJ becomes unavailable or is disqualified). See Interim Final Rule at 28 CFR 68.26, 68.29, 68.30(c). This interim final rule (“interim final rule” or “rule”) makes additional technical edits to 28 CFR part 68 to amend various references to the “Chief Administrative Hearing Officer” to read “Chief Administrative Law Judge.”

OCAHO is expanding its reach nationwide to account for an expected increase in volume of new case filings, particularly under sections 274A and 274B of the INA. See, e.g., Immigration and Customs Enforcement, ICE Worksite Enforcement Investigations in FY18 Surge (Dec. 11, 2018), https://www.ice.gov/​news/​releases/​ice-worksite-enforcement-investigations-fy18-surge (indicating a threefold increase in investigations under section 274A in FY 2018); Department of Justice, Departments of Justice and State Partner to Protect U.S. Workers from Discrimination and Combat Fraud (Oct. 11, 2017), https://www.justice.gov/​opa/​pr/​departments-justice-and-statepartner-protect-us-workers-discrimination-and-combat-fraud (outlining a “Protecting U.S. Workers Initiative” that includes cases brought under section 274B). The expansion of OCAHO's ALJ corps nationwide necessitates a CALJ position to ensure coordination and appropriate management oversight of the corps. The CALJ also further buffers the CAHO's management and administrative functions for OCAHO from the supervisory responsibilities for the ALJs and ensure that the CAHO does not inadvertently create a conflict during the adjudication of a case that would later require the CAHO's recusal from conducting any administrative review of that adjudication. 28 CFR 68.53, 68.5.

To further avoid potential recusal issues based on OCAHO's size, the interim final rule also clarifies that (1) if an ALJ is disqualified from adjudicating a case, the CALJ will reassign the case to another ALJ; (2) if the CALJ is disqualified from adjudicating a case, the CAHO will reassign the case to another ALJ; and (3) if the CAHO is disqualified from reviewing an interlocutory order under 28 CFR 68.53 or a final order under 28 CFR 68.54, the review will be reassigned to the EOIR Director. The interim final rule also clarifies that the disqualification procedures for ALJs in 28 CFR 68.30 also apply to the CAHO conducting an administrative review under 28 CFR 68.53 or 68.54.

Most Federal administrative agencies that utilize ALJs—including the other Department component that has ALJs, the Drug Enforcement Administration, see Drug Enforcement Administration, Administrative Law Judges (last visited Aug. 14, 2020), https://www.dea.gov/​administrative-law-judges—have a CALJ position with similar management and oversight functions as those assigned to the OCAHO CALJ. See, e.g., 5 CFR 2421.10 (Federal Labor Relations Authority); 7 CFR 2.27(b) (Department of Agriculture); 14 CFR 385.10 (Department of Transportation); 20 CFR 404.937 and 416.1437 (Social Security Administration); 20 CFR 801.2 (Department of Labor); 30 CFR 44.15 (Mine Safety and Health Administration); 40 CFR 305.4 (Environmental Protection Agency); 47 CFR 0.351 (Federal Communications Commission). The CALJ position is similar to the supervisory immigration judge positions in the Office of the Chief Immigration Judge, 8 CFR 1003.9(a), which assist the Chief Immigration Judge with the management and supervision of the immigration judges nationally.

B. Technical Changes

This rule makes technical changes at 28 CFR 68.15, 68.23, 68.33, 68.55, and 68.57. These provisions contain outdated references to the former Immigration and Naturalization Service (“INS”). The Homeland Security Act of 2002, Public Law 207-296, 116 Stat. 2135, as amended, transferred the responsibilities of the INS to the newly created Department of Homeland Security (“DHS”). Accordingly, the Department is updating these references to reflect the current agency organization.

This rule also italicizes defined terms in 28 CFR 68.2 to improve clarity, makes stylistic changes in 28 CFR 68.2 to improve clarity, and amends a typographical error in the cross-reference at 28 CFR 68.33(d)(iv).

III. Regulatory Requirements

A. Administrative Procedure Act

The Department has determined that this rule is not subject to the general requirements of notice and comment and a 30-day delay in the effective date. The requirements of 5 U.S.C. 553 do not apply to these regulatory changes creating the CALJ position because it is a rule of “agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). The Department also finds good cause to issue the technical changes without notice and comment, as those procedures are unnecessary. 5 U.S.C. 553(b)(B) and (d)(3). These changes are non-substantive. They simply reflect the current government organization as determined by Congress in 2002 and follow other similar amendments by the Department to the regulations governing EOIR. See, e.g., 77 FR 59567, 59569 (Sep. 28, 2012) (describing similar updated references to DHS in chapter V of 8 CFR).

The Department is nonetheless promulgating this rule as an interim rule, providing the public with opportunity for post-promulgation comment before the Department issues a final rule on these matters.

B. Regulatory Flexibility Act

The Department has reviewed this regulation in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), and has determined that this rule will not have a significant economic impact on a substantial number of small entities.

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. Congressional Review Act

This rule is not a major rule as defined by section 804 of the Congressional Review Act. 5 U.S.C. 804. This action pertains to agency management or personnel and is a rule of agency organization that does not substantially affect the rights or obligations of non-agency parties. Accordingly, it is not a “rule” as that term is used in 5 U.S.C. 804(3). Further, this rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, the reports to Congress and the Government Accountability Office specified by 5 U.S.C. 801 are not required.

E. Executive Order 12866, Executive Order 13563, and Executive Order 13771 (Regulatory Planning and Review)

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 also emphasizes the importance of using the best available methods to quantify costs and benefits, and of reducing costs, harmonizing rules, and promoting flexibility. Executive Order 13771 directs agencies to reduce regulation and control regulatory costs and, for all qualifying regulations, to identify at least two existing regulations for elimination. Notably, the requirements in Executive Order 13771 do not apply to regulations involving agency organization, management, or personnel.

Because this rule is limited to agency organization, management, or personnel matters, it is not subject to review by the Office of Management and Budget pursuant to section 3(d)(3) of Executive Order 12866. Further, because this rule is one of internal organization, management, or personnel, it is not subject to the requirements of Executive Orders 13563 and 13771.

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, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

G. Executive Order 12988 (Civil Justice Reform)

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

H. Paperwork Reduction Act

This rule does not propose new or revisions to existing “collection[s] of information” as that term is defined under the Paperwork Reduction Act of 1995, Pubic Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.

List of Subjects in 28 CFR Part 68

• Administrative practice and procedure
• Aliens
• Citizenship and naturalization
• Civil Rights
• Discrimination in employment
• Employment
• Equal employment opportunity
• Immigration
• Nationality
• Non-discrimination

Accordingly, for the reasons set forth in the preamble, part 68 of chapter I of title 28 is amended as follows:

PART 68—RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF ALIENS, UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD

1. The authority citation for part 68 continues to read as fol1ows:

Authority: 5 U.S.C. 301, 554; 8 U.S.C. 1103, 1324a, 1324b, and 1324c; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

2. Amend § 68.2 by:

a. Revising the definition of “Chief Administrative Hearing Officer,”

b. Adding a definition for “Chief Administrative Law Judge” in alphabetical order; and

c. Revising the definitions of “complainant” and “pleading”.

The revisions and addition read as follows:

§ 68.2

Definitions.

* * * * *

Chief Administrative Hearing Officer is the official who, under the Director, Executive Office for Immigration Review, exercises administrative supervision over the Chief Administrative Law Judge and others assigned to the Office of the Chief Administrative Hearing Officer (OCAHO). Subject to the supervision of the Director, the Chief Administrative Hearing Officer shall be responsible for the management and direction of hearings and duties within the jurisdiction of OCAHO. The Chief Administrative Hearing Officer shall have no authority to direct the result of an adjudication assigned to an administrative law judge unless done so in accordance with the review process in this part, provided, however, that nothing in this part otherwise shall be construed to limit the authority of the Chief Administrative Hearing Officer to carry out his or her duties. In coordination with the Director, and following consultation with the Chief Administrative Law Judge, the Chief Administrative Hearing Officer is authorized to:

(1) Advise the Office of Policy on the issuance of operational instructions and policy, including procedural instructions regarding the implementation of new statutory or regulatory authorities;

(2) Advise the Office of Policy on the provision of appropriate training of the administrative law judges and other OCAHO staff on the conduct of their authorities and duties;

(3) Direct the conduct of employees assigned to OCAHO to ensure the efficient disposition of all pending cases, including the authority to regulate the initial assignment of administrative law judges to cases and to set priorities or time frames for the resolution of cases;

(4) Evaluate the activities performed by OCAHO by making appropriate reports and inspections, and taking corrective action where needed, provided that nothing in this part shall be construed as providing for the performance evaluation of an administrative law judge;

(5) Adjudicate cases on administrative review, as provided in this part; and

(6) Exercise such other authorities as the Director may provide;

Chief Administrative Law Judge means an Administrative Law Judge who, in addition to performing the general duties of an Administrative Law Judge, serves as the immediate supervisor of all other Administrative Law Judges in the Office of the Chief Administrative Hearing Officer and performs other regulatory duties as identified in this part and elsewhere. Subject to the supervision of the Director and the Chief Administrative Hearing Officer, the Chief Administrative Law Judge shall be responsible for the supervision, direction, and scheduling of the administrative law judges in the conduct of the hearings and duties assigned to them. The Chief Administrative Law Judge shall have no authority to direct the result of an adjudication assigned to another Administrative Law Judge, provided, however, that nothing in this part shall otherwise be construed to limit the authority of the Chief Administrative Law Judge to carry out his or her duties. In coordination with the Director and the Chief Administrative Hearing Officer, the Chief Administrative Law Judge is authorized to:

(1) Advise the Office of Policy on the issuance of operational instructions and policy, including procedural instructions regarding the implementation of new statutory or regulatory authorities;

(2) Advise the Office of Policy on the provision of appropriate training of the administrative law judges and other OCAHO staff on the conduct of their authorities and duties;

(3) Direct the conduct of employees assigned to an administrative law judge team in OCAHO to ensure the efficient disposition of all pending cases, including the authority to regulate the assignment of administrative law judges to cases to promote administrative efficiency and the authority to set priorities or time frames for the resolution of cases;

(4) Evaluate the activities performed by administrative law judge teams by making appropriate reports and inspections, and take corrective action where needed, provided that nothing in this part shall be construed as providing for the performance evaluation of an administrative law judge;

(5) Adjudicate cases as an administrative law judge; and

(6) Exercise such other authorities as the Director or Chief Administrative Hearing Officer may provide;

Complainant means the Department of Homeland Security in cases arising under sections 274A and 274C of the INA. In cases arising under section 274B of the INA, “complainant” means the Special Counsel (as defined in this section), and also includes the person or entity who has filed a charge with the Special Counsel, or, in private actions, an individual or private organization;

* * * * *

Pleading means the complaint, the answer thereto, any motions, any supplements or amendments to any motions or amendments, and any reply that may be permitted to any answer, supplement, or amendment submitted to the Administrative Law Judge or, when no judge is assigned, the Chief Administrative Law Judge;

* * * * *

3. Amend § 68.3 by revising paragraphs (a) introductory text and (c) to read as follows:

§ 68.3

Service of complaint, notice of hearing, written orders, and decisions.

(a) Service of complaint, notice of hearing, written orders, and decisions shall be made by the Office of the Chief Administrative Hearing Officer, the Chief Administrative Law Judge, or the Administrative Law Judge to whom the case is assigned either:

* * * * *

(c) In circumstances where the Office of the Chief Administrative Hearing Officer, the Chief Administrative Law Judge, or the Administrative Law Judge encounters difficulty with perfecting service, the Chief Administrative Hearing Officer, the Chief Administrative Law Judge, or the Administrative Law Judge may direct that a party execute service of process.

4. Amend § 68.8 by revising paragraphs (b) and (c)(2) to read as follows:

§ 68.8

Time computations.

* * * * *

(b) Computation of time for filing by mail. Pleadings are not deemed filed until received by the Office of the Chief Administrative Hearing Officer, the Chief Administrative Law Judge, or the Administrative Law Judge assigned to the case.

* * * * *

(c) * * *

(2) Whenever a party has the right or is required to take some action within a prescribed period after the service upon such party of a pleading, notice, or other document (other than a complaint or a subpoena) and the pleading, notice, or document is served by ordinary mail, five (5) days shall be added to the prescribed period unless the compliance date is otherwise specified by the Chief Administrative Hearing Officer, the Chief Administrative Law Judge, or the Administrative Law Judge.

§ 68.15

[Amended]

5. Amend § 68.15 by removing the words “Immigration and Naturalization Service” and adding in their place the words “Department of Homeland Security”.

6. Revise § 68.26 to read as follows:

§ 68.26

Designation of Administrative Law Judge.

Hearings shall be held before an Administrative Law Judge appointed under 5 U.S.C. 3105 and assigned to the Department of Justice. The presiding judge in any case shall be initially designated by the Chief Administrative Hearing Officer. The Chief Administrative Law Judge may reassign a case previously assigned to an Administrative Law Judge to promote administrative efficiency. In unfair-immigration-related employment practice cases, only Administrative Law Judges specially designated by the Attorney General as having special training respecting employment discrimination may be chosen by the Chief Administrative Hearing Officer or Chief Administrative Law Judge to preside.

§ 68.29

[Amended]

7. Amend § 68.29 by removing the words “Hearing Officer” and adding in their place the words “Law Judge”.

8. Amend § 68.30 by:

a. Removing the words “Hearing Officer” and adding in their place the words “Law Judge” in paragraphs (a) and (c); and

b. Adding paragraphs (d) and (e).

The additions read as follows:

§ 68.30

Disqualification.

* * * * *

(d) In the event of disqualification or recusal of the Chief Administrative Law Judge as provided in this section, the Chief Administrative Hearing Officer shall refer the matter to another Administrative Law Judge for further proceedings.

(e) The disqualification procedures in this section apply to reviews by the Chief Administrative Hearing Officer conducted under § 68.53 or § 68.54. In the event of disqualification or recusal of the Chief Administrative Hearing Officer as provided in this section, the review shall be referred to the Director for further proceedings. For a case referred to the Director under this paragraph (e), the Director shall exercise delegated authority from the Attorney General identical to that of the Chief Administrative Hearing Officer as described in § 68.53 or 68.54.

§ 68.33

[Amended]

9. Amend § 68.33 by:

a. Removing in paragraph (c)(3)(iv) the words “paragraph (e)” and adding in their place “paragraph (f)”; and

b. Removing in paragraph (f) the words “Immigration and Naturalization Service” and adding in their place the words “Department of Homeland Security”.

§ 68.55

[Amended]

10. Amend § 68.55 by:

a. Removing the words “Immigration and Naturalization Service” and adding in their place the words “Department of Homeland Security” in paragraph (b)(1);

b. Removing the words “Commissioner of Immigration and Naturalization” and adding in their place the words “Secretary of Homeland Security” in four places in paragraph (b); and

c. Removing the words “Commissioner's” and adding in their place the words “Secretary of Homeland Security's” once in paragraph (b)(3) and twice in paragraph (d)(2).

§ 68.57

[Amended]

11. Amend § 68.57 by removing the words “the Immigration and Naturalization Service” and adding in their place the words “a Department of Homeland Security”.

Dated: September 2, 2020.

William P. Barr,

Attorney General.

Footnotes

1.  OCAHO ALJs may serve other functions, including the adjudication of cases in immigration proceedings under other provisions of the INA.

2.  Because the CALJ may serve as an ALJ in a proceeding before OCAHO, references to “ALJ” in 28 CFR part 68 include the CALJ, whenever the CALJ is acting in that capacity. Accordingly, the Department believes that the current regulations appropriately provide for the CALJ when they reference “ALJ,” and, therefore, this rulemaking need not amend the regulations in part 68 to expressly include “CALJ” whenever the regulations provide for the authority or role of an ALJ in a proceeding.