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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly


[Federal Register: August 26, 2002 (Volume 67, Number 165)]
[Rules and Regulations]               
[Page 54877-54905]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26au02-17]                         


[[Page 54877]]

-----------------------------------------------------------------------

Part III





Department of Justice





-----------------------------------------------------------------------



Immigration and Naturalization Service



-----------------------------------------------------------------------



8 CFR Part 3



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


[[Page 54878]]


-----------------------------------------------------------------------

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 Case 
Management

AGENCY: Executive Office for Immigration Review, Immigration and 
Naturalization Service, Department of Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule revises the structure and procedures of the 
Board of Immigration Appeals (Board), provides for an enhanced case 
management procedure, and expands the number of cases referred to a 
single Board member for disposition. These procedures are intended to 
reduce delays in the review process, enable the Board to keep up with 
its caseload and reduce the existing backlog of cases, and allow the 
Board to focus more attention on those cases presenting significant 
issues for resolution by a three-member panel. After a transition 
period to implement the new procedures in order to reduce the Board's 
backlog of pending cases, the size of the Board will be reduced to 
eleven.

DATES: This final rule is effective September 25, 2002.

FOR FURTHER INFORMATION CONTACT: Charles Adkins-Blanch, General 
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, 
Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION:
I. Introduction
    A. The Problem Presented
    B. History of the Rulemaking
    C. 30-Day Notice and Comment Period
II. Summary of the Revised Review System
    A. Description of the Department's Goals
    B. Summary of the Provisions of the Rule
III. Comments on the Proposed Rule
    A. General Due Process Issues
    1. The Respondent's Interest in the Individual Proceeding
    2. The Government's Interest in the Immigration Adjudication 
Process
    3. Balancing of Interests in the Adjudicatory Process
    B. General Comments Relating to the Role and Independence of the 
Board
    1. The Attorney General's Authority
    2. Independence of Administrative Adjudicators
    3. Attorney General Opinions and Written Orders
    4. The Effect of Regulations
    C. Expanded Single-Member Review
    1. General Comments on the Adequacy of Single-Member Review
    2. Summary Dismissals
    3. Summary Affirmances Under Streamlining
    4. Other Dispositions by a Single Board Member--Affirmances, 
Modifications, and Remands
    5. Reversals and Terminations of Proceedings
    6. Quality Assurance of Decisions
    7. Single Board Member Participation in Reopening and 
Reconsideration of Own Decision
    D. Standards for Referral of Cases to Three-Member Panels
    1. In General
    2. Particular Classes of Cases
    3. Clarification of Standards for Panel Review
    E. De novo Review and the Clearly Erroneous Standard
    1. De novo and Clearly Erroneous Standards of Review of Factual 
Determinations by the Immigration Judges
    2. ``Correction'' of Clearly Erroneous Factual Determinations
    3. Clearly Erroneous Standard Applied
    4. Harmless Error
    5. Litigation Concerns
    6. De novo Review by the Attorney General
    7. Review of Service Decisions
    F. New Evidence and Taking Administrative Notice of Facts
    G. Reduction in Size of the Board
    1. Quality of Board Member Personnel
    2. Resource Requirement Concerns
    3. Advantages of a Smaller Board
    H. Case Processing Issues
    1. Simultaneous Briefing
    2. Transcript Timing
    3. Immigration Judge Time Limits To Review Decisions
    4. 30-Day Notice of Appeal Filing Requirement
    5. Decisional Time Limits
    6. Holding Cases Pending Significant Changes in Law and 
Precedent
    I. Decisional Issues
    1. Management of Decisions
    2. Remand Motions
    3. Rehearing en banc
    4. Separate Opinions
    5. Changes in the Notice of Appeal
    6. Barring Oral Argument Before a Single Board Member
    7. Location of Oral Argument
    8. Summary Dismissal of Frivolous Appeals and Discipline
    9. Mandatory Summary Dismissals
    10. Finality of Decisions and Remands
    J. Applicability of Procedural Reforms to Pending Cases
    K. Transition Period and Reduction of the Backlog
    L. Administrative Fines Cases
    M. Miscellaneous and Technical Issues
    1. The Board's Pro Bono Project
    2. Fundamental Changes in Structure
    3. Technical Amendments

I. Introduction

    The Attorney General has delegated to the Board of Immigration 
Appeals (Board) broad jurisdiction over appeals from decisions of the 
immigration judges in exclusion, deportation, and removal proceedings, 
bond appeals, asylum-only cases, and other specific matters, and also 
the authority to review certain final decisions by district directors 
and other officials of the Immigration and Naturalization Service 
(Service).\1\ See 8 CFR part 3, subpart A. Decisions of the Board are 
subject to review by the Attorney General as provided in 8 CFR 3.1(h).
---------------------------------------------------------------------------

    \1\ In this SUPPLEMENTARY INFORMATION, the Department uses the 
term ``removal,'' and appropriate variations, to encompass all forms 
of proceedings before the Board. Similarly, the Department refers to 
all aliens in proceedings as ``respondents,'' whether they would be 
respondents or applicants. The use of these simplified terms is for 
the ease of the reader and should not be construed to imply any 
limitations on the scope of the final rule as it applies to matters 
within the jurisdiction of the Board.
---------------------------------------------------------------------------

    The Executive Office for Immigration Review (EOIR) was created by 
the Attorney General in 1983 to consolidate the adjudicatory process by 
placing the immigration judges and the Board in a single administrative 
unit separate and apart from the Service. 52 FR 2931 (Jan. 29, 1987). 
In 1987, the Attorney General also established the Office of the Chief 
Administrative Hearing Officer (OCAHO) within EOIR to adjudicate 
certain civil penalty issues. EOIR is an administrative component under 
the direction of the Attorney General, not a separate agency of the 
United States. It is, however, wholly separate from, and independent 
of, the Service.

A. The Problem Presented

    The Attorney General is promulgating this rule to improve the 
adjudicatory process for the Board because, under the current process, 
the Board has been unable to adjudicate immigration appeals in removal 
proceedings effectively and efficiently. In 1992, the Board received 
12,823 cases and decided 11,720 cases, including appeals from the 
immigration judges or the Service, and motions to reopen proceedings. 
At the end of FY1992, the Board had 18,054 pending cases. By 1997, the 
number of new cases rose to 29,913, dispositions rose to 23,099, and 
the pending caseload had grown to 47,295 cases. Most recently, in 
FY2001, the Board received 27,505 cases and decided 31,789 cases. The 
pending caseload on September 30, 2001, totaled 57,597 cases.
    To meet this demand, the number of Board members was increased from 
5 positions to 12 positions in 1995, with further incremental increases 
in subsequent years to a total of 23 authorized Board member positions 
(with 19 members and four vacancies at

[[Page 54879]]

present). It is now apparent that this substantial enlargement--more 
than quadrupling the size of the Board in less than seven years--has 
not succeeded in addressing the problem of effective and efficient 
administrative adjudication, and the Department declines to continue 
committing more resources to support the existing process. Rather, the 
Department believes that amendment of the adjudicatory process is a 
more effective approach to facilitate the ability of the Board to 
adjudicate the case backlog, as well as to provide meaningful guidance 
for immigration judges, the Service, attorneys and accredited 
representatives, and respondents.
    Until recently, three-member panels reviewed all cases, even cases 
that presented no colorable basis for appeal. However, beginning in 
1999, the Attorney General instituted a mechanism for streamlining 
cases. See 64 FR 56135 (Oct. 18, 1999). The streamlining process 
permits a single Board member to summarily affirm the immigration 
judge's decision without opinion; the Chairman is authorized to 
designate the type of cases that could be ``streamlined.''
    The streamlining process undertaken by the Board has provided the 
best opportunity to manage the Board's backlog. Over 58% of all new 
cases in 2001 were sent to be summarily decided by single Board member 
review through streamlining. Testimony of Kevin Rooney, Director, EOIR, 
Hearing before the Committee on the Judiciary, Subcommittee on 
Immigration and Claims, United States House of Representatives, 
Operations of the Executive Office for Immigration Review (EOIR), 107th 
Cong., 2nd Sess. 23 (Feb. 6, 2002) (hereinafter ``House Judiciary 
Subcommittee Hearing''). That initiative, allowing certain categories 
of appeals to be adjudicated by a single member, was recently assessed 
favorably by an external auditor. Arthur Andersen & Company, Board of 
Immigration Appeals (BIA) Streamlining Pilot Project Assessment Report 
(Dec. 13, 2001) (hereinafter ``Streamlining Study''). Streamlining was 
the first disengagement from a ``one size fits all'' philosophy of 
using three member panels for all cases. The final rule continues that 
process.
    The Department agrees with the fundamental assessment that the 
Board's use of the streamlining process has been successful, and, in 
this rule, expands the single-member process to be the dominant method 
of adjudication for the large majority of cases before the Board. In 
particular, this rule removes the restriction that a single Board 
member is limited to affirming an immigration judge's decision 
``without opinion'' in those cases where an affirmance is appropriate. 
While such dispositions are proper in a substantial number of cases, as 
the Board's experience to date with the streamlining process has 
demonstrated, there are many other cases that may require some 
explanation of the Board's rationale, for example, as to why the 
immigration judge's decision was the proper result, or why any asserted 
errors were harmless or immaterial.
    Under the existing streamlining procedures, any case that is not 
appropriate for summary affirmance without opinion must be referred to 
a three-member panel for disposition, even if the issues are not novel 
or complex. 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 through issuance of a brief 
written opinion, the Board will be able to concentrate greater 
resources on the more complex cases that are appropriate for review by 
a three-member panel, and will also be able to focus greater attention 
on the issuance of precedent decisions that provide guidance to the 
immigration judges, the Service, attorneys and accredited 
representatives, and respondents.
    Finally, under the Board's existing processes, decisions have all 
too often been issued long after the Notice of Appeal. Cases have 
routinely remained pending before the Board for more than two years, 
and some cases have taken more than five years to resolve. There is 
reason for concern that many appeals have been filed precisely to take 
advantage of this delay. Moreover, the quality of precedent decisions 
has not improved and the number of precedent decisions has remained 
relatively constant despite substantial changes in the law.

B. History of the Rulemaking

    The Department published a proposed rule in the Federal Register on 
February 19, 2002, 67 FR 7309, proposing procedural reforms to improve 
case management at the Board. A 30-day public comment period ended on 
March 21, 2002.
    In response to the proposed rulemaking, the Department received 
numerous comments from various nongovernmental organizations (NGOs), 
members of Congress, private attorneys, and other interested 
individuals. The Department received a total of 68 separate, timely 
submissions (with several NGOs submitting separate comments with 
attachments that were identical, and one set of NGO comments that 
attached lists of signatures totaling in excess of 900 individuals). 
Since many of the comments are similar and endorse the submissions of 
other commenters, the Department addresses the responses by topic 
rather than by referencing each specific commenter and comment. In 
addition, five comments were either postmarked and/or received by EOIR 
after the closing date for the comment period. None of the untimely 
submissions presented any comment that was not already addressed by an 
earlier commenter.
    In addition, the Department has considered the record of the House 
Judiciary Subcommittee Hearing, supra, because that hearing dealt with 
the same subject as the rule and because of the perceptive discussion 
before the Subcommittee. The Department also considered the evaluation 
of the streamlining project in the Streamlining Study.

C. 30-Day Notice and Comment Period

    Several commenters objected to the 30-day comment period for the 
proposed rule and requested an extension. Some of the NGOs also 
requested a meeting with the Department.
    Notwithstanding the length of the comment period, 68 commenters 
submitted a variety of comments, many of which were thoughtful and 
extensive. The Department has reviewed and carefully considered all of 
the comments submitted and believes that the 30-day comment period has 
been sufficient. Additionally, the Department has decided against 
engaging in meetings with particular commenters since the written 
comments of all commenters as submitted are sufficient. The Department 
also notes that the Administrative Procedure Act (APA) provides that 
procedural rules may be issued without notice and opportunity for prior 
comment and may be effective upon publication. Rules which are arguably 
``substantive'' require at least 30 days prior notice subject to 
certain exceptions. See 5 U.S.C. 553(b)(A), (d). Accordingly, the 
Department has fully complied with the APA, and no additional 
opportunity for comment is required or necessary considering the 
written comments already submitted. Furthermore, the 30-day comment 
period is in keeping with the Department's objectives, including 
eliminating unwarranted delay.

[[Page 54880]]

II. Summary of the Revised Review System

A. Description of the Department's Goals

    At the time this rule was proposed, the Attorney General laid out 
four important objectives in the disposition of administrative 
immigration appeals: (1) Eliminating the current backlog of cases 
pending before the Board; (2) eliminating unwarranted delays in the 
adjudication of administrative appeals; (3) utilizing the resources of 
the Board more efficiently; and (4) allowing more resources to be 
allocated to the resolution of those cases that present difficult or 
controversial legal questions--cases that are most appropriate for 
searching appellate review and that may be appropriate for the issuance 
of precedent decisions. This rule reflects a variety of necessary 
reforms to achieve these various objectives, in order to strengthen the 
review process, enhance the function of the Board in resolving issues, 
provide effective guidance regarding the implementation of the 
immigration laws, and improve the timeliness of the Board's review.
    The Board's decisions focus, for the most part, on the issue of 
whether a respondent has established eligibility for relief from 
removal from the United States and whether the Attorney General should 
affirmatively exercise discretion in the respondent's favor. Although 
the nature of the Board's caseload appears to be changing somewhat in 
light of changes in the law, the Board's caseload continues to focus 
heavily on relief from removal. Most respondents either concede 
removability before the immigration judge, or do not appeal the 
immigration judge's determination that the respondent is removable. 
Therefore, the dominant number of the Board's cases relate to the 
application of specific portions of the Act relating to relief from 
removal.
    Moreover, the Department agrees with the assessment of former Board 
member Michael Heilman, based on his review of 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 a view that suggests that ``the 
factual records made in the majority of hearings * * * [are not] fully 
considered and assessed 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 as factfinders and determiners of the 
cases before them. The role of the Board is to identify clear errors of 
fact or errors of law in decisions under review, to provide guidance 
and direction to the immigration judges, and to issue precedential 
interpretations as an appellate body, not to serve as a second-tier 
trier of fact.
    In this adjudicatory process, the Department employs Board members 
to decide the merits of cases brought before the Board. That decisional 
process includes not only the individual case, but also the function of 
setting precedent to guide the immigration judges, the Service, 
attorneys and accredited representatives, and respondents. 
Historically, as the Attorney General's delegate, the Board's precedent 
decisions have been accorded appropriate deference under the Supreme 
Court's decisions in Chevron v. NRDC, 467 U.S. 837 (1984) (deference 
due agency interpretation of statutes within delegated authority); INS 
v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (Attorney General, and 
hence the Board, accorded Chevron deference); INS v. Cardoza-Fonseca, 
480 U.S. 421, 448-449 (1987) (same), as the primary interpreter of the 
Immigration and Nationality Act. The Attorney General's ultimate 
authority to decide the cases presented to the Board through his 
delegation has not changed over the years, although it has been 
exercised with varying frequency at different times of the Board's 
history.
    This precedent setting function recognizes that novel issues arise 
each and every time that the Act, or the regulations, change; complex 
issues arise because of the interrelationship of multiple provisions of 
law; and repetitive issues arise before different immigration judges 
because of the national nature of the immigration process. All of the 
participants in the immigration adjudication process deserve concise 
and useful guidance on how these novel, complex, and repetitive issues 
are best resolved. The rule of law guides Board members' adjudications; 
the Act and regulations provide the context for that adjudication.

B. Summary of the Provisions of the Rule

    The Attorney General has determined that the rights of all 
respondents are better protected by restructuring the appeals process 
so that three-member panels may focus their attention on writing 
quality precedent-setting decisions, correcting clear errors of fact 
and interpreting the law, and providing guidance regarding the 
standards for the exercise of discretion, rather than reviewing appeals 
that involve routine questions of law or fact or that present no 
substantial basis for reversing the decision under appeal. In this 
regard, the Board is delegated authority to review questions of fact to 
determine whether they are clearly erroneous; all other questions, 
whether of law or discretion, may be reviewed by the Board de novo. A 
key element of this reform is that the Chairman will establish, and be 
responsible for, a case management screening system to review all 
incoming appeals and to provide for prompt and appropriate disposition-
-by a three-member panel in those instances where the merits of the 
case presented to the Board call for review by a three-member panel 
under Sec. 3.1(e)(6) of the rule, and by a single Board member in every 
other case that does not meet those standards.
    The final rule establishes the primacy of the streamlining system 
for the majority of cases. These do not present novel or complex 
issues. A single Board member may issue a brief order where appropriate 
to affirm the decision of the immigration judge or dismiss the appeal 
on procedural grounds. A single Board member may issue a short order 
that explicates the reasons, for example, why an immigration judge's 
findings of fact are not clearly erroneous, or why the immigration 
judge's exercise of discretion was appropriate, or why the record 
should be remanded to the immigration judge for further proceedings.
    Under specific circumstances, the single Board member may refer the 
record for decision by a three-member panel. These more complex cases 
deserve closer attention. The Board's en banc process remains as 
currently devised to provide interpretation of the Act through 
precedent decisions, whether through affirmation of a decision of a 
three-member panel or through review by the entire Board. Both the 
three-member panel and the en banc Board should be used to develop 
concise interpretive guidance on the meaning of the Act and 
regulations. Thus, the Department expects the Board to be able to 
provide more precedential guidance to the immigration judges, the 
Service, attorneys and accredited representatives, and respondents.
    This process will resolve simple cases efficiently while reserving 
the Board's limited resources for more complex cases and the 
development of precedent to guide the immigration judges and the 
Service. The Department believes that this allocation of resources will 
better serve the respondents, the Service, the

[[Page 54881]]

public, and the administration of justice.
    The final rule establishes the primacy of the immigration judges as 
factfinders by utilizing a clearly erroneous standard of review for all 
determinations of fact. The Board's historic rule, explained below, of 
not considering new evidence on appeal, is codified in this rule. 
Factfinding that may be required will be conducted by the immigration 
judge on remand.
    However, the rule retains de novo review both for questions of law 
and for questions of judgment (concerning whether to favorably exercise 
discretion in light of the facts and the applicable standards governing 
the exercise of such discretion).
    The rule contains a number of the time limits of the proposed rule. 
However, recognizing the concern of a number of commenters, the 
Department has decided to retain the current sequential briefing 
schedule for non-detained cases, but with shorter time limits. Under 
the final rule, detained cases will be briefed concurrently on a 21-day 
calendar and non-detained cases will be briefed consecutively on a 21-
day calendar. Moreover, the Chairman is directed to undertake 
improvements in the transcription process to assist in the briefing 
process.
    Finally, the rule retains the reduction to 11 Board members after a 
transition period. The Department is unpersuaded by the arguments 
received, particularly in light of the objective evidence, that the 
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 as conduct the en banc proceedings necessary to provide precedent 
guidance to the immigration community. Given the scope of these changes 
to the Board's structure and revisions to current procedures, the 
Department will continuously review the effectiveness of the rule in 
achieving the aforementioned Departmental goals.

III. Comments on the Proposed Rule

    The comments received on the proposed rule can generally be grouped 
into broad categories. In this analysis, we divide the comments and 
further discussion of the rule into specific subparts in order to 
provide a cohesive overview of the comments, the changes made in light 
of the comments, and the final rule. Many of the issues overlap and 
commenters treated the same issues in different ways. Accordingly, 
while all comments have been carefully reviewed, it may not be apparent 
from this discussion that a particular version of a comment has been 
directly addressed. To the extent practical, the Department has 
attempted to address the comments received as specifically as possible, 
but the duplication of comments, either by filing the same comment 
multiple times, or making minor adjustments in different submissions, 
makes it impossible to address each specific comment in a structured 
response.
    The Department received widely divergent comments that both 
supported and opposed the proposed rule. The Department appreciates the 
contributions of all the individuals and groups who submitted comments. 
The Department has given careful consideration to all of the comments 
received on the proposed rule, as indicated in the following 
discussion. The thoughtfulness of the public comments has contributed 
greatly to improvement in the final rule. As discussed below, the 
comments also included ideas and specific proposals that were beyond 
the scope of the proposed rule.
    Overall, most of the commenters supported at least some of the 
Department's objectives, especially the elimination of unwarranted 
delays and the current backlog of cases pending before the Board. As 
numerous commenters noted, languishing appeals do not serve the 
interests of justice. There are divergent views, though, regarding how 
these objectives should be accomplished. Some commenters generally 
supported the proposed rule, while many other commenters strongly 
opposed many or most of the specific provisions of the proposed rule.

A. General Due Process Issues

    Some commenters argued in a general way that the proposed rule 
violates due process or that it is otherwise bad procedure.
    Initially, the Department notes that the due process clause of the 
Constitution 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). 
Much as the Congress may dispense with the inferior federal courts by 
the same legislative stroke that created them, the Attorney General 
could dispense with the appellate review process in immigration 
proceedings, i.e., the Board of Immigration Appeals.
    Some of the commenters argued specifically that the proposed rule 
violates a respondent's right to due process under the Supreme Court's 
balancing in Mathews v. Eldridge, 424 U.S. 319 (1976). The Department 
agrees that 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 is not ``a technical conception with a fixed 
content unrelated to time, place and circumstances,'' Cafeteria and 
Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961), but is 
``flexible and calls for such procedural protections as the particular 
situation demands.'' Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
    Assuming that Mathews is the appropriate touchstone, the process 
that is due is determined by balancing the nature of the individual's 
interest, the fairness and reliability of the procedures, and the 
nature of the governmental interest. Many of the commenters focused on 
the nature of the interest of the individual, particularly in asylum 
and related cases where the respondents assert that the respondent will 
be persecuted, his or her 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 the Individual Proceeding
    First, and foremost, the vast majority of issues presented on 
appeal to the Board involve applications for relief from removal, not 
removal itself. Accordingly, the process that is due is not a process 
related to the government's efforts to remove the respondent from the 
United States. The process that is due is process relating to the 
respondent's request for amelioration of removal.
    Those cases where the respondent has a basis to contest a finding 
of removability would appear to be more amenable to review by a three-
member panel under Sec. 3.1(e)(6). Removability, and whether the 
Service has established clear and convincing evidence to support the 
charge, when disputed, may be more likely to involve novel or complex 
factual or legal issues because of the multitude of governing statutory 
provisions, such as divisible State criminal laws. Whether a single-
member or three-member review is more efficacious is a question best 
decided by the Board under the standards of this rule.
    In most cases, the issues before the Board relate to whether the 
respondent

[[Page 54882]]

has established eligibility for an application for relief from removal, 
or whether the Attorney General should exercise discretion in the 
respondent's favor. In these cases, the Service has established the 
government's interest in removal of the respondent. The burden of proof 
in these cases shifts to the respondent to establish eligibility for 
relief from removal and, in most cases, that the respondent deserves a 
favorable exercise of the Attorney General's discretion. The process 
due under the Constitution in determining removability is substantially 
higher than the process required by the Constitution in determining 
whether to grant relief from such an order of removal.
2. The Government's Interest in the Immigration Adjudication Process
    The interest of the government in effective and efficient 
adjudication of immigration matters, moreover, is substantially higher 
than an individual respondent's interest in his or her own proceeding. 
Congress is granted plenary authority under the Constitution in 
immigration matters and Congress has delegated broad authority to the 
Attorney General to administer the immigration laws. The authority is 
not merely one involving a discrete set of benefits and penalties, but 
implicates, in conjunction with the Secretary of State, the vast 
external realm of foreign relations. Not only does the removal process 
utilize reports and profiles of country conditions provided by the 
Department 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 Attorney General has substantially 
more authority to structure the administrative adjudicatory process 
than most administrative processes. Indeed, the Department questions 
whether Mathews is the appropriate touchstone in light of the unique 
nature of the Act as the tool for managing the intersection of foreign 
and domestic interests regarding aliens. Congress has provided almost 
no parameters for the exercise of the Attorney General's broad 
authority to manage immigration adjudications, and to the extent it has 
done so, has limited discretionary procedure available to respondents. 
See, e.g., INS v. Rios-Pineda, 471 U.S. 444, 446 (1985) (Attorney 
General's creation of motion to reopen, and delegation to the Board, by 
regulation), 8 U.S.C. 1229(c)(6) (motions to reopen in statutory 
removal proceedings specified by statute in 1996). Accordingly, more 
deference to the Attorney General is appropriate. Cf. Weiss v. United 
States, 510 U.S. 163, 176-79 (1994).
3. Balancing of Interests in the Adjudicatory Process
    Some commenters expressed concern that the expansion of the 
streamlining initiative, with its emphasis on single-member review of 
cases, will result in violations of the due process rights of 
respondents-appellants. Some commenters contended that three-member 
reviews of appeals provide more protection for due process rights than 
single-member reviews. The primary concern of the comments is a 
perceived inadequacy in the ability of a single Board member to decide 
an appeal in a way that protects the due process rights of appellants 
while maintaining 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 reserving three-member review for the 
much smaller number of cases in which there is a substantial factual or 
legal basis for contesting removability or in which an application for 
relief presents complex issues of law or fact. In this context, the 
Attorney General is free to tailor the scope and procedures of 
administrative review of immigration matters as a matter of discretion. 
Maka v. INS, 904 F.2d 1351 (9th Cir. 1990); see also Vermont 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 free to fashion their own rules of 
procedure and to pursue methods of inquiry capable of permitting them 
to discharge their multitudinous duties' ''). See generally J. McKenna, 
L. Hooper & M. Clark, Federal Judicial Center, Case Management 
Procedures in the Federal Courts of Appeals (2000) (comparative 
compendium of innovations in circuit court case management systems).
    Each case varies according to the needs presented by the respondent 
and the issues.\2\ In the typical case that reaches the appeal stage, 
the respondent makes an initial appearance and is advised of his or her 
rights, including the right to be represented by counsel or an 
accredited representative at no cost to the government, the right to 
inspect all evidence presented, and the right to present evidence and 
testimony, by the respondent and other witnesses, in the language the 
respondent understands. Pleadings are usually taken after a 
continuance, with a further hearing being held to determine whether the 
alien is deportable or inadmissible, if the respondent contests 
removability. If the immigration judge finds that the respondent is 
removable, the immigration judge informs the respondent of possible 
forms of relief, and further continuances may be granted to allow time 
for the respondent to prepare applications for relief and acquire 
additional evidence. A call-up date is established for filing the 
application and a deadline is set for filing additional evidence. Only 
then is the respondent expected to present his case for relief from 
removal. All of these proceedings are on the record and recorded 
verbatim. A transcript of proceedings has been prepared in all appeals, 
including any oral decision by the immigration judge. See, e.g., 8 CFR 
240.3-240.13 (procedure in removal cases). Accordingly, by the time a 
case reaches the Board on appeal, many, if not most, respondents have 
already had several hearings on the record before the immigration 
judge, been explained their rights, and been given more than one 
opportunity to ask questions and raise issues.
---------------------------------------------------------------------------

    \2\ In recognition of the differences between appeals from the 
decision of an immigration judge and appeals from decisions by a 
district director or other Service official, this rule retains the 
de novo standard of review for appeals in the latter case, as 
discussed below.
---------------------------------------------------------------------------

    On appeal, the respondent is required under existing regulations to 
file a statement indicating the grounds for appeal, and has the right 
to file a more detailed brief. On this record, single Board members are 
well-equipped both to determine the legal quality and sufficiency of an 
immigration judge's decision and to determine if the appeal qualifies 
under 8 CFR 3.1(e)(6) for referral to a three-member panel. Each appeal 
will be fully reviewed and decided by the Board member within the law 
and regulations, precedent decisions, and federal court decisions. The 
Department is not persuaded that a single Board member review gives any 
less due process to an respondent's appeal that involves routine legal 
and factual bases than would a three-member panel considering the same 
appeal.

B. General Comments Relating to the Role and Independence of the Board

    Some commenters argued that the provisions of this rule, either 
individually or in combination, would adversely affect the fairness or 
effectiveness of the Board's adjudications by limiting the independence 
and perceived impartiality of the Board. Some commenters criticized the 
provision in Sec. 3.1(a)(1) of the proposed rule that the

[[Page 54883]]

Board members act as the ``delegates'' of the Attorney General in 
adjudicating appeals, as well as the language in Sec. 3.1(d)(1) of the 
proposed rule making clear that, in exercising their independent 
judgment and discretion in cases coming before them, the Board members 
are subject to the Act and the implementing regulations, and the 
direction of the Attorney General.
1. The Attorney General's Authority
    These arguments misapprehend the nature of the Board and the rule. 
The Board is an administrative body within the Department, and it is 
well within the Attorney General's discretion to develop the management 
and procedural reforms provided in this rule.\3\ As one court has 
noted, the Attorney General could dispense with Board review entirely 
and delegate his power to the immigration judges, or could give the 
Board discretion to choose which cases to review. See Guentchev v. INS, 
77 F.3d 1036, 1037 (7th Cir. 1996).
---------------------------------------------------------------------------

    \3\ The Board was created by the Attorney General in 1940, after 
a transfer of functions from the Department of Labor. Reorg. Plan V 
(May 22, 1940); 3 CFR Comp. 1940, Supp. tit.3, 336. The Board is not 
a statutory body; it was created wholly by the Attorney General from 
the functions transferred. A.G. Order 3888, 5 FR 2454 (July 1, 
1940); see Matter of L-, 1 I&N Dec. 1 (BIA; A.G. 1940).
---------------------------------------------------------------------------

    In Nash v. Bowen, 869 F.2d 675 (2nd Cir. 1989), the court of 
appeals addressed similar concerns by an administrative law judge (ALJ) 
challenging efforts by the Social Security Administration (SSA) to 
improve the ALJ's quality and efficiency. In an effort to reduce a 
backlog of 100,000 cases, the SSA instituted a series of reforms that 
included a monthly production quota, an appellate system or peer review 
program, and a reversal rate policy. The court rejected challenges to 
each of these reforms, explaining that ``those concerns are more 
appropriately addressed by Congress or by courts through the usual 
channels of judicial review in Social Security cases. The bottom line 
in this case is that it was entirely within the Secretary's discretion 
to adopt reasonable administrative measures in order to improve the 
decision making process.'' Id. at 681 (citations omitted). Similarly, 
the Attorney General has promulgated a final rule within his discretion 
intended to reduce delays in the review process, enable the Board to 
keep up with its caseload and reduce the existing backlog of cases, and 
allow the Board to focus more attention on those cases presenting 
significant issues for resolution by a three-member panel. The 
Department, in this final rule, does not go so far as did the SSA, nor 
does it intend to impinge on the intellectual independence of its 
adjudicators.
2. Independence of Administrative Adjudicators
    Several commenters argued that the independence and impartiality of 
immigration judges and immigration adjudicators must be affirmed. They 
asserted that the proposed rule would adversely affect the independence 
of the Board. Some of these same commenters expressed the view that 
immigration courts should be independent from the Department.
    These comments misapprehend the distinction between 
``independence'' and ``fundamental fairness.'' The Constitution 
requires fundamental fairness, not that the adjudicator be 
``independent'' of policy direction or management by the Executive. The 
Department agrees with the principle of independence of adjudicators 
within the individual adjudications, but notes that freedom to decide 
cases under the law and regulations should not be confused with 
managing the caseload and setting standards for review. The case 
management process that is established and delegated by the Attorney 
General to the Director of EOIR and the Chairman deals with management 
of the workload, not professional judgment in adjudicating any 
individual case. Similarly, establishing standards for review by rule 
is well within the Attorney General's authority to oversee and manage 
the Board; again, it is not related to the Board's professional 
judgment in adjudicating any individual case. The key to understanding 
here is that the Department employs Board members to make professional 
adjudicatory judgments in individual cases and to establish precedent 
subject to further review, but it is within the Attorney General's 
authority to manage the caseload and to set policy.
    The authority of the Attorney General to establish standards for 
the Board's adjudications, and to review the decisions of the Board, is 
well established. ``[T]he Board acts on the Attorney General's behalf 
rather than as an independent body. The relationship between the Board 
and the Attorney General thus is analogous to an employee and his 
superior rather than to the relationship between an administrative 
agency and a reviewing court.'' Matter of Hernandez-Casillas, 20 I&N 
Dec. 262, 289 n.9 (BIA 1990, A.G. 1991).
    The final rule does not obstruct the Board's judgment. As the 
Supreme Court has noted, ``The Board is appointed by the Attorney 
General, serves at his pleasure, and operates under regulations [that 
provided] that ``in considering and determining * * * appeals, the 
Board * * * shall exercise such discretion and power conferred upon the 
Attorney General by law as is appropriate and necessary for the 
disposition of the case. The decision of the Board * * * shall be final 
except in those cases reviewed by the Attorney General.'' United States 
ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266 (1954). In that case, 
the Court initially found sufficient cause for a further hearing on 
whether the Attorney General had interfered with the authority that he 
had delegated to the Board, and concluded: ``[A]s long as the 
regulations remain operative, the Attorney General denies himself the 
right to sidestep the Board or dictate its decision in any manner.'' 
Id., at 267. However, after a formal hearing on the petition for habeas 
corpus and further review by the court of appeals, the Court ultimately 
concluded that no such violation of the regulation, adversely affecting 
the respondent, had occurred. Shaughnessy v. United States ex rel. 
Accardi, 349 U.S. 280 (1955).
    This case is important to understanding the final rule for two 
distinct reasons. First, the final rule amends the very rule under 
consideration by the Supreme Court in Accardi to structure the Board's 
procedures and scope of review in all cases. This is precisely the 
manner by which the law requires such changes to be made: amendment of 
the Board's regulations. Second, no portion of the final rule relates 
to any specific case or alien, or decides any such case, or implicates 
any alien. The actions here taken are those prescribed by the Court in 
Accardi.
3. Attorney General Opinions and Written Orders
    Several commenters objected to the new language in 
Sec. 3.1(d)(3)(i) of the proposed rule that the Board is subject to 
legal opinions and written orders issued by the Attorney General, in 
addition to the Attorney General's review of individual Board 
decisions. The Department notes that the proposed rule, in this 
respect, is virtually identical to the proposed rule published by 
former Attorney General Janet Reno, and retains this provision without 
change. 65 FR 81435, 81437 (Dec. 26, 2000).
    The Attorney General is the principal legal advisor to the 
President and the Executive Branch. In particular, section 103(a) of 
the Immigration and Nationality Act (``Act''), 8 U.S.C.

[[Page 54884]]

1103(a), provides that the opinion of the Attorney General on legal 
issues is controlling. In addition, the role of the Department's Office 
of Legal Counsel in issuing legal opinions, on behalf of the Attorney 
General, that are binding on the Executive Branch, is well established. 
See e.g., Secretary of the Interior v. California, 464 U.S. 312, 320-21 
n.6 (1984); Sea-Land Service, Inc. v. Department of Transportation, 137 
F.3d 640, 643 (D.C. Cir. 1998).
    This rule makes clear that the Attorney General need not be 
strictly limited to the issuance of legal opinions and the direct 
review of individual Board opinions, and that the Attorney General may 
provide direction to the Board through written orders.\4\ It may be 
appropriate for the Board to take account of the policy goals or 
priorities established by the Attorney General. Such actions by the 
Attorney General do not encroach on the decisional independence of 
Board members in particular cases before them.
---------------------------------------------------------------------------

    \4\ The Board has expressly acknowledged, for example, that the 
Attorney General's determination of a legal issue in interpreting 
the Act is binding on the Board and the immigration judges, even if 
that determination is reflected in the SUPPLEMENTARY INFORMATION to 
a rule rather than in the 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 information published with the regulation, the 
Attorney General made clear that ``under the prevailing 
intrepretation, the phrase ``shall apply to admissions'' as used in 
section 511(b) of the [1990 Act] refers to all applications for 
relief pursuant to section 212(c) of the Act submitted after 
November 29, 1990, whether at a port of entry or in subsequent 
proceedings before a district director or Immigration Judge.'' 56 FR 
50,033-34 (1991) (SUPPLEMENTARY INFORMATION). The Attorney General 
has thereby determined that the statutory bar to section 212(c) 
relief shall apply only to those applications submitted after 
November 29, 1990. We are therefore bound by his determination in 
this regard.''
---------------------------------------------------------------------------

4. The Effect of Regulations
    Although not specifically raised in the public comments, the 
Department also notes that the language of Sec. 3.1(d)(1) of the 
proposed rule states that the Board will resolve the issues before it 
in a manner that is ``consistent with the Act and the regulations.'' 
This language clarifies the role of regulations in administrative 
adjudications under the Act.
    The Board has long recognized that it is bound by the provisions of 
the Act, as well as by regulations adopted by the Attorney General. See 
Matter of Ponce de Leon-Ruiz, 21 I&N Dec. 154, 158 (BIA 1996) (``The 
Board is bound to uphold agency regulations * * * A regulation 
promulgated by the Attorney General has the force and effect of law as 
to this Board and Immigration Judges. Regulations in effect have the 
force and effect of law.'') (citations omitted).
    The immigration regulations, however, include not only those rules 
adopted personally by the Attorney General, but also substantive and 
procedural rules duly promulgated by the Commissioner of the Service, 
under an express delegation of rulemaking authority from Congress to 
the Attorney General and, in turn, from the Attorney General to the 
Commissioner. See 8 U.S.C. 1103; 8 CFR 2.1. The Department fully 
recognizes and reiterates, of course, that the Board and the 
immigration judges are independent of the Service (although some court 
opinions contain language that appears to blur this key distinction). 
For this reason, the Attorney General, and not the Commissioner, has 
consistently promulgated the regulations that govern the organization, 
procedures, or powers of the Board and the immigration judges and the 
conduct of immigration proceedings. See, e.g., 8 CFR parts 3, 236, 240. 
Thus, for example, standards governing the availability of 
discretionary relief in immigration proceedings are properly adopted by 
the Attorney General, either by rule, e.g., 8 CFR 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 the Commissioner to promulgate 
substantive or ``legislative'' rules does properly extend, however, to 
the interpretation of the general provisions of the Act. A regulation 
adopted pursuant to delegated statutory authority and pursuant to 
applicable rulemaking requirements under the Administrative Procedure 
Act has the ``force and effect of law'' as a substantive or legislative 
rule. The existing language in section 3.1(d)(1), which defines the 
broad general powers of the Board, specifies that the Board's authority 
in cases before it is ``[s]ubject to any specific limitation prescribed 
by this chapter [constituting 8 CFR parts 1-499].'' Necessarily, such 
limitations would include a regulatory provision that has given a 
specific legal interpretation to a provision of the Act. The language 
of this rule makes explicit what was implicit in the current version of 
Sec. 3.1.
    A fundamental premise of the immigration enforcement process must 
be that the substantive regulations codified in title 8 of the Code of 
Federal Regulations are binding in all administrative settings, and 
this specifically includes substantive regulations interpreting and 
applying the provisions of the Act. Of course, the Service and the 
Board are bound by the decisions of the federal courts, see, e.g., 
Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989), but even the federal 
courts owe deference to authoritative agency interpretations of the 
substantive provisions of the Act, within the limits recognized by the 
Supreme Court. Chevron v. NRDC, supra (deference due agency's 
interpretation of statutes delegated for administration); INS v. 
Aguirre-Aguirre, supra (deference due administrative interpretations of 
the Act); cf., Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en 
banc) (same; different standard). In the absence of such controlling 
judicial interpretations, the respondents, the immigration judges, the 
Service, and the public at large should not be left to wonder whether 
the regulations interpreting and applying the substantive provisions of 
the Act will be binding in administrative proceedings under the Act. 
Cf. Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 156 (BIA 2001).
    Such regulations themselves, of course, are susceptible to 
interpretation and application of their regulatory language by the 
immigration judges and the Board. However, if a substantive rule 
clearly defines a statutory term, or reflects a legal interpretation of 
the statutory provisions, then the position set forth in the rule will 
govern both the actions of the Service and the adjudication of 
immigration proceedings before the immigration judges and the Board. 
The Department recognizes that the Board members, under Sec. 3.1(a)(1) 
in the current regulations and under Sec. 3.1(d)(1)(ii) as revised, 
``shall exercise their independent judgment and discretion in 
considering and determining the cases coming before the Board.'' But 
such judgment and discretion must necessarily be exercised subject to 
the applicable standards. In turn, legislative rules that interpret and 
apply the provisions of the Act, and that are promulgated under 
rulemaking authority expressly delegated by the Attorney General have 
the ``force and effect of law'' and accordingly are part of the 
governing law. Accordingly, the Board members properly have decisional 
independence and discretion in interpreting and applying the law to the 
facts of particular cases and in exercising judgment in matters of 
discretionary action, but they are not independent from the governing 
regulatory standards that are otherwise binding and effective.\5\
---------------------------------------------------------------------------

    \5\ In any case where the Board believes that a particular 
regulation may conflict with the language of the Act, the Board can 
proceed as it did in Matter of Ponce de Leon by certifying the case 
to the Attorney General for consideration. In that case, the 
Attorney General ultimately dismissed the certification in light of 
an intervening amendment to the regulation at issue, 8 CFR 
212.3(f)(2). See Ponce de Leon, 21 I&N Dec. at 184 (A.G. 1997); 61 
FR 59824 (Nov. 25, 1996).

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[[Page 54885]]

C. Expanded Single-Member Review

    Many of the key features of the final rule are codified in the new 
provisions of 8 CFR 3.1(e), which directs the Chairman to establish a 
case management system with specific new standards for the efficient 
and expeditious resolution of all appeals coming before the Board. One 
of the primary components of the case management system is expanded 
single-member review. The current streamlining process permits a single 
Board member to affirm the decision of the immigration judge without 
opinion. 8 CFR 3.1(a)(7). The final rule retains this current practice 
intact, but expands upon this authority to permit a single Board member 
to affirm, modify, or remand the immigration judge's decision with a 
short explanation. The final rule also provides that the reviewing 
Board member may refer a case for disposition by a three-member panel 
only if the Board member determines, after a review of the case on the 
merits, that it satisfies one of the standards prescribed in 
Sec. 3.1(e)(6).
1. General Comments on the Adequacy of Single-Member Review
    Many of the comments expressed the concern that single-member 
review of decisions by the immigration judges will mean that procedural 
failures in the record will be overlooked--that a single Board member's 
review will somehow be ``cursory'' or will give a ``boilerplate stamp 
of approval'' to the decision on appeal. Some commenters asserted that 
the single-member decisions that will be issued under this rule will be 
poorly considered and will not provide a sufficient basis for further 
review by district and circuit courts.
    The Department believes that the Board's experience with the 
streamlining initiative has proven that fears of procedural failures or 
substantive errors being overlooked are not well founded. Even single-
member review is a multi-stage process involving review by Board staff 
and by a Board member assigned to the screening panel. Individual Board 
members are well-equipped to determine both the legal quality and 
sufficiency of an immigration judge's decision, and to determine if the 
appeal qualifies for referral to a three-member panel under 
Sec. 3.1(e)(6). Each appeal will be fully reviewed and decided by the 
Board member, within the guidelines of current Board practice and legal 
precedent. Under the standards of Sec. 3.1(e)(4) and (5) of this rule, 
it is only if the Board member finds that the record is complete and 
legally adequate, and the Board member agrees that the decision below 
is legally correct, that the Board member may affirm the decision of 
the immigration judge, either as a summary affirmance without opinion 
or in a short opinion.
2. Summary Dismissals
    The proposed rule included a provision that the screening panel, in 
those cases not summarily dismissed, would order the preparation of a 
transcript and set a briefing schedule. This provision presumed a 
review by the screening panel at the outset of the process based solely 
on the immigration judge's order and the Notice of Appeal to determine 
such fundamental matters as whether the appeal was timely filed, 
whether the Board had jurisdiction, or whether the Notice of Appeal 
facially provided sufficient reasons for an appeal to be lodged. Some 
commenters did not seem to grasp the distinction between these core 
``adjudicability'' issues that could be dismissed without the 
preparation of the transcript and briefs, and those issues, such as 
whether a brief was filed, that inevitably must be decided only upon 
the completed record. Although this lack of understanding appears to 
the Department to require this further explanation, it does not appear 
to warrant any change in the rule.
3. Summary Affirmances Under Streamlining
    Many commenters expressed concerns about the general idea of 
authorizing a single Board member to issue a summary affirmance of an 
immigration judge's decision. A few commenters argued that decisions 
affirming an immigration judge's decision without further elaboration 
would not be considered by the public to be as legitimate as a more 
fully developed written decision. Other commenters suggested that such 
an affirmance would hinder a respondent's understanding of the 
rationale behind the decision. Some commenters also suggested that 
courts of appeals will return many of the single-member and summary 
affirmance decisions for a fuller written decision, thus negating any 
advances made in diminishing the Board's backlog and arriving at 
decisions more quickly.
    These concerns fail to consider the Board's experience under the 
existing streamlining process, which, since 1999, has authorized single 
Board members to summarily affirm a decision without opinion, in 
appropriate cases. Similar objections were raised regarding summary 
affirmance when the Department first proposed the ``streamlining'' 
initiative in 1998, see 64 FR 56135, 56137 (Oct. 18, 1999), but have 
not been borne out by the Board's experience since then.
    The streamlining initiative allowed for summary decisions by a 
single Board member in certain limited situations. In FY2001, the Board 
issued 15,372 decisions under the streamlining initiative, or 
approximately one-half of all decisions. The Streamlining Study has not 
noted an appreciable difference in the quality of the decisionmaking 
based on the experience of the participants. Although a complex study 
of the results of streamlining, by following a specific set of 
streamlined cases through judicial review, has been proposed, such a 
theoretically ``objective'' evaluation could take years. The Department 
may or may not undertake such a study, but the demands for fair, 
effective, and efficient adjudication of present cases do not permit 
the luxury of waiting for the results of such a study. Streamlining 
Study, 10-11 and Appendix C. Summary affirmances have not yet resulted 
in an overwhelming number of remands from Federal district and appeals 
courts. See 64 FR at 56138 (Oct. 18, 1999). Of the 23,224 streamlined 
decisions between 1999 and 2001, only 0.7% have resulted in judicial 
remands or reversals. Although this is not the full study envisioned by 
the Streamlining Report, cited above, it is, together with anecdotal 
evidence, sufficient evidence for the Department to proceed with an 
expansion of the single-member review process. The Department has 
concluded that streamlining has proven to be an effective procedure for 
managing an ever-increasing caseload and will significantly assist and 
promote fair and expeditious review of all pending and incoming appeals 
while maintaining a respondent's rights to a reasoned administrative 
decision.
    Furthermore, the Department has determined that, because a summary 
affirmance without opinion concludes that any error in the immigration 
judge's decision was harmless or immaterial, there is no basis for the 
contention that a respondent will be unable to discern the rationale 
behind a decision. The immigration judge's order provides the 
rationale, and thus the legitimacy, for the Board's summary affirmance. 
The Department, in this rule, agrees with the succinct summary of one 
court of appeals that, ``if the Board's view is that

[[Page 54886]]

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.'' 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 regurgitation of the same facts and legal 
reasoning, albeit with citation to more legal precedent, will be 
beneficial to the respondent or the reviewing courts in most cases. 
Section 3.1(e)(4) of the final rule therefore continues to authorize a 
single Board member to issue an order with the same effect, an order 
affirming the immigration judge without opinion.
    Moreover, Service appeals are equally subject to summary 
affirmance. Although the Service appeals few immigration judge 
decisions terminating proceedings or granting relief from removal, 
there is no distinction between those appeals and appeals filed by 
respondents.
4. Other Dispositions by a Single Board Member--Affirmances, 
Modifications, and Remands
    Some commenters took the position that single Board members should 
not be permitted to affirm, modify, or remand the decision of an 
immigration judge in a short opinion. They argue that, if there are 
factual errors, a three-member panel should consider the entire record. 
This rule retains the existing ``summary affirmance without opinion'' 
process intact, but also authorizes single Board members to resolve 
other cases by issuance of a short order explaining the relevant issues 
in the case.
    At the outset, it should be noted that the Board has been allowed 
to summarily affirm decisions of the immigration judge ``for the 
reasons stated therein'' for many years before the streamlining 
initiative was begun. The Board was never prohibited from doing so. In 
reality, some panels of the Board have done so in the past with great 
success.
    However, there may be a number of instances where the reviewing 
Board member believes that the result of the case under review is 
essentially correct, but requires some further explanation or 
discussion in the disposition of the appeal. For example, an 
immigration judge may not have explained his or her evaluation of the 
facts or the law in the manner in which the respondent believes was 
appropriate. However, in those instances where there is no error that 
affects the outcome of the proceedings, there is also no point in 
expending substantial time and effort to ``correct'' such a record. 
Rather, a single Board member is authorized to issue a short order 
affirming the immigration judge's decision, but adding an additional 
explanation of discussion of the case in that Board member's view.\6\
---------------------------------------------------------------------------

    \6\ Individual panels at the Board have differed on the content 
of Board decisions in non-precedent cases over time. Some panels 
have included an introduction, a statement of issues present in the 
record, a full restatement of the proceedings before the immigration 
judge, a complete recitation of the established and controverted 
facts presented in the record, analysis of the applicable law, and 
the panel's conclusions and order. This is, in effect, de novo 
review of every case, notwithstanding the complexity of the issues 
presented. For cases in which there are no substantial factual or 
legal issues, this commitment of resources cannot be justified in 
light of the Board's current situation.
    Other panels, more recently, have developed orders that include 
an adoption of the immigration judge's decision, only a short 
statement of the issues presented on appeal, with a statement of 
relevant facts and controlling precedent, and the order. Typically, 
these decisions are to be read in conjunction with the immigration 
judge's decision. The Department believes that this more limited 
appellate review process, to determine whether the immigration judge 
has erred, is more appropriate for the majority of cases.
    The different approaches can also be understood on the basis of 
the way in which the decisions are reviewed. In the first example, a 
full de novo review results in a court of appeals review of the 
Board decision and does not extend to the immigration judge's 
decision. In the second example, a ``clearly erroneous'' standards 
will allow the courts of appeals to review the immigration judge's 
fact findings in conjunction with the Board's legal findings, 
thereby obviating the need for lengthy Board decisions that do 
little more than reiterate facts. The short orders of the Board 
already effectively utilize this methodology. This process adds 
nothing to the burden of the court of appeals on review and is a 
substantially more efficient allocation of resources within the 
administrative adjudicatory process.
---------------------------------------------------------------------------

    As discussed below, Sec. 3.1(e)(5) also authorizes a single Board 
member to enter a decision that modifies the immigration judge's 
decision or remands the case to the immigration judge in any case that 
does not meet the standards for three-member panel review under 
Sec. 3.1(e)(6). Such an opinion may properly begin with the opinion of 
the immigration judge and make specific modifications to that opinion. 
For example, a single-member opinion may state that the Board member 
``adopts the opinion of the immigration judge, except to note that'' a 
particular issue is governed by intervening precedent, and to explain 
that the immigration judge's opinion would still be correct in light of 
the intervening precedent. Accordingly, such an opinion would conclude 
that the ``immigration judge's opinion is affirmed for the reasons set 
forth therein and as set forth in this opinion.'' In this instance, the 
parties and any reviewing court would be able to look to the 
combination of the immigration judge's opinion and the single-member 
decision to understand the conclusions reached in the adjudication.
    Similarly, the single-member review may result in a determination 
that the immigration judge clearly erred over a specific fact, but that 
the error did not prejudice the appealing party and was harmless. For 
example, an immigration judge might determine that the respondent had 
entered on a specific date based on conflicting evidence, but fail to 
note in the oral decision that a specific official government document 
indicated a slightly different date, such as a traffic violation in the 
United States some days prior to the date determined by the immigration 
judge. In this case, if neither date would satisfy a requirement for a 
period of continuous physical presence in the United States, the 
finding of fact might be both clearly erroneous and harmless. However, 
if the existence of the documented infraction, presented by the 
respondent, convinced the Board member that the respondent was being 
candid and warranted a favorable exercise of discretion in voluntary 
departure, which the immigration judge had also denied as a matter of 
discretion, the single Board member would have the option of modifying 
the order to grant voluntary departure.
    Finally, a single Board member would be authorized to grant a 
motion to remand the record for specific factfinding if the respondent 
provided new evidence that was not previously available under the 
standards of the regulations. Whether agreed upon by all of the parties 
or contested, this single member review process permits the more 
expeditious disposition of cases than a full three-member panel review. 
In each of these cases, the Department has no reason to believe that 
such decisions would be any less efficacious than the current decisions 
of the Board resulting from three-member panel review.
    The Department has noted that some language in this section and 
Sec. 3.1(d)(2)(ii) could cause confusion over the finality of a 
decision by a single member. Accordingly, the language in these two 
provisions has been revised for clarity, and the provisions relating to 
finality of the Board's decisions have been consolidated in 
Sec. 3.1(d)(6), as discussed in part I below.
    However, the provision authorizing a single Board member to affirm, 
modify, or remand a decision must be understood in light of the 
standards for three-member panel review. That is, this authority will 
apply only if the Board member has already determined, based on a 
review of the appeal on the merits, that the case should not be 
referred to

[[Page 54887]]

a three-member panel--for example, because of factual determinations by 
the immigration judge that appear to be clearly erroneous, because the 
decision is not in conformity with applicable precedents, or because of 
the need to review the dispositions of similar issues by various 
immigration judges or to establish precedential guidance on matters of 
law or procedure.
5. Reversals and Terminations of Proceedings
    Several commenters raised issues regarding the propriety of a 
summary decision by a single Board member that reverses the decision of 
the immigration judge, with some suggesting that a single Board member 
should not be able to reverse a decision granting relief or terminating 
proceedings, while others suggested that a single Board member should 
not be able to reverse a decision denying relief.
    In general, if the single Board member believes that the decision 
of an immigration judge should be reversed because of a clearly 
erroneous factual determination or an error in law, or one of the other 
reasons specified in Sec. 3.1(e)(6), the Board member should refer the 
case to a three-member panel. Under the terms of the proposed rule, it 
is reasonable to expect that most reversals would likely have been 
handled by a three-member panel rather than by single Board members. 
However, in order to avoid uncertainties as to how to proceed, this 
final rule adds an additional provision under the standards of 
Sec. 3.1(e)(6) providing for referral of a case to a three-member panel 
where there is a need to reverse the decision of an immigration judge 
or the Service.
    However, the Department also recognizes that there may be cases 
where reversals may be required as a nondiscretionary matter. This 
would be particularly true where there has been an intervening change 
in the law, such as the publication of a Board precedent decision 
interpreting a statutory provision relating to eligibility or 
ineligibility for a form of relief, that mandates the reversal of 
immigration judge decisions in pending cases that were inconsistent. If 
the Board determines that relief should be granted in particular 
circumstances, and an immigration judge had denied relief in a case 
where the facts are indistinguishable, there is no reason why a single 
Board member cannot summarily vacate the immigration judge's order 
denying relief. On the other hand, if the factual record does not 
compel reversal under the precedent as applied to that case, the single 
Board member may then refer the case to a three-member panel or remand 
the record for further proceedings. This is typical of the 
implementation of precedent.
6. Quality Assurance of Decisions
    Other commenters questioned whether the Board would be able to 
assure that single Board members did not act arbitrarily or institute a 
mechanical, rather than thoughtful, approach to disposing of cases 
themselves or forwarding cases to three-member panels. In essence, 
these comments focus on both the individual thoroughness of review and 
the integrity of the review process among decisionmakers.
    The Department has carefully considered the argument that there are 
inadequate safeguards to protect the system and its participants from 
divergent decisions by single Board members, but has concluded that the 
provisions of this rule as written are adequate. As mentioned 
previously, concerns regarding the adequacy of summary affirmances were 
addressed in the streamlining regulations. This rule builds upon the 
streamlining process by providing for a case management screening 
process to review all cases coming before the Board initially, thus 
allowing the members of the screening panel to become familiar with the 
broad range of issues coming before the Board, and the processes for 
both single-member and panel dispositions of cases decided by the 
Board. The existing checks of three-member review of complex issues and 
other cases under the standards of Sec. 3.1(d)(6), and of en banc Board 
review, remain in effect. Accordingly, the Department believes that a 
shift to predominantly single-member adjudication in the substantial 
majority of cases is a legitimate exercise of agency discretion and 
will not significantly increase judicial remands.
    However, the Department recognizes that any tribunal must be 
concerned with whether its members are adjudicating factually and 
legally similar claims in a similar fashion, a concern that is 
particularly apt given the large volume of cases being decided by the 
Board. See generally House Judiciary Subcommittee Hearing, at 10. These 
general concerns relating to this aspect of the Board's operation are 
important to the Department, to the immigration judges, to aliens in 
proceedings, and to the general public. These concerns are relevant 
whether applied to several different individual members' decisions in 
single-member cases, or to the results of the various three-member 
panel reviews that have been used in the past and will continue to be 
used in the future.
    The Board recently has taken further steps to review the 
disposition of Board decisions in light of the need to resolve issues 
and provide guidance through the issuance of precedent decisions. 
Exercising its authority under the existing rules and the revisions 
made by this rule, the Department expects the Board will be able to 
determine whether issues are developing appropriately and whether 
referral of similar cases to a three-member panel, or further 
adjudication of those issues by issuance of a precedent decision, may 
be appropriate. See generally J. McKenna, L. Hooper & M. Clark, Federal 
Judicial Center, Case Management Procedures in the Federal Courts of 
Appeals 163 (2000) (case weighting and issue tracking in the Ninth 
Circuit); see generally B. White, et al., Commission on Structural 
Alternatives for the Federal Courts of Appeals: Final Report, at 39-40 
(1998).
7. Single Board Member Participation in Reopening and Reconsideration 
of Own Decision
    One commenter suggested that a single Board member who made an 
initial decision should be recused from adjudication of the motion to 
reopen or reconsider. The Department disagrees that the single Board 
member who made the initial decision should be recused from 
adjudicating these types of motions. The long-standing practice of the 
Board has been to assign motions to reopen and reconsider to the 
original Board Members who considered the appeal if they are available. 
This permits some familiarity with the record and obviates the use of 
such a motion to merely seek a second panel review of a decision. 
Moreover, as with the initial notice of appeal, a party filing a motion 
to reopen or to reconsider can state in the motion any reasons why the 
motion should be referred to a three-member panel for adjudication, as 
provided in Sec. 3.1(e)(6).

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

1. In General
    Some commenters suggested a modification to the rule to specify 
additional types of cases that would be referred to a three-member 
panel. This rule retains the basic provisions of the proposed rule, 
which provide for an initial review of each case by a single Board 
member, and allows for referral of cases to a three-member panel based 
upon the specific criteria of 8 CFR 3.1(e)(6). This review process for

[[Page 54888]]

adjudicating the cases is both fair and efficient in meeting the 
Department's goals. However, as discussed below, the Department has 
made certain clarifications to these provisions based on the public 
comments.
    As noted above, an agency must have discretion to innovate and 
establish new procedures for administrative appeals. See Vermont 
Yankee, 435 U.S. at 525 (``[A]dministrative agencies and administrators 
will be familiar with the industries which they regulate and will be in 
a better position than federal courts * * * to design procedural rules 
adapted to the peculiarities of the industry and the tasks of the 
agency involved.'') (internal quotes omitted); cf. D. Meador & J. 
Bernstein, Appellate Courts in the United States 78-91 (1994) 
(differentiated internal decision tracks in federal courts of appeals, 
and other innovations).
    The criteria used in the final rule are similar to those used by 
the federal courts of appeals in deciding whether to hold oral argument 
or to publish an opinion. The Department believes that these criteria 
strike the proper balance between cases that do not present novel or 
complicated issues that may be decided by a single Board member, and 
those issues that are appropriate for review by a three-member panel.
2. Particular Classes of Cases
    Some commenters recommended that a full written decision by a 
three-member panel be required in cases denying asylum, withholding of 
removal, or Convention Against Torture relief.
    The Department does not agree that certain classes of cases, such 
as those facially raising an asylum issue, should routinely be referred 
to a three-member panel. While asylum cases can include complex issues 
of law and fact, an objective review of those cases indicates that many 
do not. Moreover, cases involving asylum and asylum-related relief 
appear to make up a substantial portion of cases pending before the 
Board, although there are currently no statistics captured on forms of 
relief sought. The Department has not found evidence to support a view 
that every such case is profoundly complicated.
    Of course, in those appeals that do raise novel or complex factual 
or legal issues in asylum or asylum-related cases, a respondent is 
permitted, even encouraged, under the provisions of this rule to state 
in the Notice of Appeal and elaborate in a brief, the reasons why the 
appeal merits review by a three-member panel under Sec. 3.1(e)(6) of 
the rule. Such contentions will be reviewed in each case as part of the 
case management screening process.
3. Clarification of Standards for Panel Review
    In the proposed rule, the Department stipulated in Sec. 3.1(e)(6) 
that a Board member ``shall'' refer specific classes of cases for 
three-member panel review. It was not the Department's intent, however, 
that this language might lead to judicial enforcement of three-member 
panel review. Rather, the Department believes that it is appropriate 
for the decision to refer a case for panel review to be made on a case-
by-case basis according to the judgment of the reviewing Board member 
under the standards of this rule. Accordingly, the mandatory ``shall'' 
has been changed to ``may only'' to avoid this possibility. This change 
does not broaden the authority of a single Board member to decide these 
cases, but rather provides discretion to refer the cases to a three-
member panel if appropriate.
    Section Sec. 3.1(e)(6)(ii) of the proposed rule states that three-
member panels have authority to review records if there is ``[t]he need 
to establish a precedent to clarify ambiguous laws, regulations, or 
procedures.'' The Department did not intend, by this language, to 
narrow the scope of panel review and decisionmaking to ``Chevron step 
II'' issues--i.e., ``ambiguous'' questions of statutory or regulatory 
construction. Chevron v. NRDC, supra. On further review, the Department 
has revised this language to make clear that three-member panels should 
be able to decide all precedential questions of first impression as to 
the interpretation of the provisions of the Act and its implementing 
regulations, regardless of whether the parties or the immigration judge 
believe that the meaning is ``plain'' or ``ambiguous.'' Accordingly, 
the Department has altered this language to permit three-member panels 
to adjudicate cases where there is a ``need to establish precedent 
construing the meaning of laws, regulations, or procedure'' 
encompassing both the Chevron step II interpretive issues as well as 
the initial Chevron step I interpretation of the statute or regulation 
to determine the scope and implementation of clear and plain statutory 
language.
    The Department has noted that Sec. 3.1(e)(6)(iii) suggests that 
three-member review is appropriate if the error of law is ``plain[].'' 
This might give the impression that the Department is adopting the 
``plain error'' standard of F.R. Crim. P., Rule 52(b), by which an 
appellate court may review errors of law that are ``plain'' even if not 
raised by a party. Under the context of this rule, such an 
interpretation would tend to limit the authority to refer cases to a 
three-member panel by suggesting that only ``plain error'' was 
referable. This was not the Department's intent and the word 
``plainly'' has been deleted. If the single Board member believes that 
an error of law warrants three-member review, the single Board member 
may refer the case.

E. De novo Review and the Clearly Erroneous Standard

    Many commenters expressed opposition to the provision in proposed 
Sec. 3.1(d)(3), which provided that the Board would not engage in de 
novo review but would accept the factual findings of the immigration 
judges in decisions under review, including findings as to the 
credibility of testimony, unless the determinations are clearly 
erroneous. These commenters noted that the Board had asserted its 
authority to conduct de novo review of cases on appeal from the 
immigration judges in cases dating back to Matter of B-, 7 I&N Dec. 1 
(BIA 1955; A.G. 1956), and as applied in many decisions since then. 
Several NGOs attached lists of case examples describing instances where 
the Board on appeal had rejected the factual determinations or the 
denial of relief from removal by an immigration judge.
    The Department has considered these comments very carefully. The 
final rule adopts the approach of proposed Sec. 3.1(d)(3) by 
eliminating the Board's de novo appellate review of factual issues 
before an immigration judge, but with certain modifications. Guidance 
has been added to the rule to clarify the standard of review in light 
of comments received indicating confusion over the application of the 
clearly erroneous standard with respect to factual determinations.
    The Department is also concerned that some commenters did not have 
a clear understanding of the relationship between this change and the 
standard of review with respect to matters of law and discretionary 
determinations, and, accordingly, the final rule contains new language 
to clarify these important issues as well. Where the Board reviews what 
was previously called a mixed question of law and fact in the proposed 
rule, and is now referred to as a discretionary decision, the Board 
will defer to the factual findings of the immigration judge unless 
clearly erroneous, but the Board members will retain their 
``independent judgment and discretion,'' subject to the applicable 
governing standards, regarding the review of pure questions of law and 
the

[[Page 54889]]

application of the standard of law to those facts. (However, when an 
appeal is taken from a decision of a Service officer, the standard of 
review will remain de novo.)
1. De novo and Clearly Erroneous Standards of Review of Factual 
Determinations by the Immigration Judges
    The Department received a number of comments opposed to elimination 
of de novo appellate review of determinations of facts by the 
immigration judges and the substitution of a ``clearly erroneous'' 
standard of review. The commenters generally asserted that eliminating 
the Board's de novo appellate review of factual issues will result in 
an overall denial of due process. Commenters also expressed their 
opinions that, because immigration judges occasionally misstate or omit 
important facts, and country conditions change, substituting ``clearly 
erroneous'' review for de novo review of facts will compel the Board to 
perform a brief, cursory review of the record, resulting in decisions 
that do not accurately reflect the facts.
    The Department has determined that the proposed rule eliminating de 
novo review of facts by the Board and replacing it with ``clearly 
erroneous'' review should remain intact, with appropriate 
clarifications. The Department does not accept the suggestions that a 
clearly erroneous standard of review, as provided in this rule, will 
lead to decisions by the Board that ``rubber stamp'' the decisions of 
the immigration judges without thoughtful review or analysis, or that 
retaining de novo review by the Board is necessary in order to deal 
with erroneous decisions by immigration judges who are ``antagonistic, 
biased and ignorant,'' in the words of one commenter.
    A finding is ``clearly erroneous'' when, although there is evidence 
to support it, the reviewing Board member or panel is left with the 
definite and firm conviction that a mistake has been committed. A 
factfinding may not be overturned simply because the Board would have 
weighed the evidence differently or decided the facts differently had 
it been the factfinder. Anderson v. City of Bessemer, 470 U.S. 564, 573 
(1985).
    The ``clearly erroneous'' standard reflects the major role of 
immigration judges under the Act and implementing regulations as 
determiners of facts. In removal proceedings, it is the immigration 
judges, not the Board, who have 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 as to the credibility of witnesses. See Matter of A-S-, 
21 I&N Dec. 1106 (BIA 1998); Matter of Burbano, 20 I&N Dec. 872, 874 
(BIA 1994). Immigration judges conducting the hearings are aware of 
variations in demeanor and tone of voice that bear so heavily on the 
listener's understanding of and belief in what is said. See Wainwright 
v. Witt, 469 U.S. 412 (1985).
    Accordingly, even under its present authority to conduct de novo 
review of the facts, the Board gives ``significant weight to the 
determinations of the immigration judge regarding the credibility of 
witnesses'' as well as to ``other findings of an immigration judge that 
are based upon his or her observance of witnesses.'' Matter of Burbano, 
20 I&N Dec. at 874 (citations omitted); see Matter of A-S-, 21 I&N Dec. 
at 1108-1112. The Department believes that this deference is 
appropriate. Indeed, as we have discussed above, the Board has long 
engaged in the practice of adopting and affirming the immigration 
judges' factual determinations and decisions, for the reasons stated in 
the immigration judges' decisions, and this is ``not only common 
practice, but universally accepted.'' Giday v. INS, 113 F.3d 230, 234 
(D.C. Cir. 1997); see, e.g., Chen v. INS, supra; Prado-Gonzalez v. INS, 
75 F.3d 631, 632 (11th Cir. 1996); Alaelue v. INS, 45 F.3d 1379, 1382 
(9th Cir. 1995).
    Thus, for example, it is well established that, because the 
immigration judge has the advantage of observing the respondent as the 
respondent testifies, the Board already accords deference to the 
Immigration Judge's findings concerning credibility and credibility-
related issues. See Matter of A-S-, 21 I&N Dec. at 1109-1112; Matter of 
Burbano, 20 I&N Dec. at 874; Matter of Pula, 19 I&N Dec. 467, 471-72 
(BIA 1987); Matter of Kulle, 19 I&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 may not accord deference to an 
immigration judge's credibility finding where that finding 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&N Dec. 1, 32 (BIA 1955; A.G. 1956). 
However, because an immigration judge has the ability to see and hear 
the respondent, which the Board and the courts of appeals do not, if 
the immigration judge's reasons for an adverse credibility finding are 
supported by specific and cogent reasons with respect to 
inconsistencies and omissions with respect to a respondent's claim, 
observations of the respondent's demeanor, and reasonable inferences 
from those indicia, the Board will not disturb an adverse credibility 
finding. Matter of A-S-, supra.
    In Matter of A-S-, the Board concluded that it would defer to the 
credibility findings of an immigration judge, but only if (1) the 
record reveals that the discrepancies and omissions described by the 
immigration judge are actually present; (2) the discrepancies and 
omissions provide specific and cogent reasons to conclude that the 
alien provided incredible testimony; and (3) the alien has not supplied 
a convincing explanation for the discrepancies and omissions. 21 I&N 
Dec. at 1109-1111. The Department believes that these standards offer 
some appropriate guidance, but should be applied to the broader 
factfinding process. That is, under this rule, the Board should start 
from the premise that it will accept the findings of fact made by the 
immigration judge, unless the Board identifies specific reasons, 
including the inverse of those stated in Matter of A-S-, for forming a 
definite and firm conviction that a mistake has been made.
    The rationale for changing to a ``clearly erroneous'' standard of 
review of fact findings is not limited to the consideration that 
immigration judges may be better positioned than the Board to decide 
factual issues, including issues of credibility. See generally 
Anderson, 470 U.S. at 574-75. As the Supreme Court has opined in 
another setting, the ``clearly erroneous'' standard rather than a de 
novo standard of review is appropriate for factfindings by trial courts 
because ``[d]uplication of the trial judge's efforts [by an appellate 
body] would very likely contribute only negligibly to the accuracy of 
fact determination at a huge cost in diversion of judicial resources.'' 
Id. ``[T]he parties to a case on appeal have already been forced to 
concentrate their energies and resources on persuading the trial judge 
that their account of the facts is the correct one'' and ``requiring 
them to persuade three more judges at the appellate level is requiring 
too much.'' Id. at 575. The ``clearly erroneous'' standard of review 
recognizes that an evidentiary hearing on the merits should be the `` 
`main event' * * * rather than a `tryout on the road.' '' Wainwright v. 
Sykes, 433 U.S. 72, 90 (1977).
    Just as the Supreme Court has concluded that on balance the 
``clearly erroneous'' standard is an effective, reasonable, and 
efficient standard of

[[Page 54890]]

appellate review of factual determinations by federal district courts, 
see Anderson, 470 U.S. at 574-75, and Fed. R. Civ. P. 52(a), the 
Department has concluded that the ``clearly erroneous'' standard is an 
effective, reasonable, and efficient standard for appellate 
administrative review of factual determinations by immigration judges. 
The ``clearly erroneous'' standard is duly protective of the 
Department's legitimate institutional interests in the effective 
adjudication of administrative appeals and eliminating the duplication 
of resources involved in successive de novo factual determinations, 
first by immigration judges and then the Board. At the same time, it 
allows for the correction of fact findings in the rare case where the 
Board is left with the definite and firm conviction that a mistake has 
been committed. See generally United States v. United States Gypsum 
Co., 333 U.S. 364, 395 (1948). Therefore, in the administrative 
immigration system, the Department has determined that the ``clearly 
erroneous'' standard of review--with its deference to the initial 
factfinder--should be ``the rule, not the exception.'' See generally 
Streamlining Study, supra.
    This is not a novel standard in the administrative process; rather, 
similar standards have been applied within agency review proceedings 
for many years. See, e.g., 10 CFR 2.786 (Nuclear Regulatory Commission; 
domestic licensing proceedings; review of decisions of a presiding 
officer); 17 CFR 201.411 (Securities and Exchange Commission; 
consideration of initial decisions by hearing officers); 20 CFR 422.114 
(Social Security Administration; annual wage reporting process); 29 CFR 
1614.405 (EEOC; decisions on appeals); 40 CFR 124.19 (EPA; appeal of 
certain permits). The Department believes there is ample authority and 
experience to apply this standard to the agency review process in 
immigration proceedings.
2. ``Correction'' of Clearly Erroneous Factual Determinations
    The Department's adoption of the ``clearly erroneous'' standard 
encompasses the standards now commonly used by the federal courts with 
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, an appellate tribunal merely has authority to reverse 
erroneous fact findings and no authority to correct them. See id. 
However, it has been pointed out that the word ``correct'' in proposed 
Sec. 3.1(e)(6) might appear to give three-member panels authority to go 
beyond the traditional ``clearly erroneous'' standard used in such 
review and to engage in de novo factfinding to ``correct'' clearly 
erroneous facts. This was not the Department's intent and 
Sec. 3.1(e)(6) has been revised.
3. Clearly Erroneous Standard Applied
    One of the more complicated contexts in which the clearly erroneous 
standard will be applied is in the area of asylum. For example, the 
Board has established standards for immigration judges to make 
credibility determinations. Matter of A-S-, supra. These standards 
involve several different types of findings: whether inconsistencies 
exist, whether omissions in an application indicate exaggeration in 
testimony, or whether a respondent has indicated through his or her 
demeanor that he or she is being less than truthful.
    The ``clearly erroneous'' standard will apply only to the factual 
findings by an immigration judge, including determinations as to the 
credibility of testimony, that form the factual basis for the decision 
under review. The ``clearly erroneous'' standard does not apply to 
determinations of matters of law, nor to the application of legal 
standards, in the exercise of judgment or discretion. This includes 
judgments as to whether the facts established by a particular alien 
amount to ``past persecution'' or a ``well-founded fear of future 
persecution.''
    The distinction requires a more refined analytical approach to 
deciding cases, but focuses on the qualities of adjudication that best 
suit the different decisionmakers. Immigration judges are better 
positioned to discern credibility and assess the facts with the 
witnesses before them; the Board is better positioned to review the 
decisions from the perspective of legal standards and the exercise of 
discretion.
    For example, under section 208 of the Act, a respondent may 
establish eligibility for asylum by showing that he has been persecuted 
on account of a protected ground under section 101(a)(42) of the Act, 
e.g., religion. See generally Matter of Chen, 20 I&N Dec. 16 (BIA 
1989). The immigration judge's determination of ``what happened'' to 
the individual is a factual determination that will be reviewed under 
the clearly erroneous standard. The immigration judge's determinations 
of whether these facts demonstrate harm that rises to the level of 
``persecution,'' and whether the harm inflicted was ``on account of'' a 
protected ground, are questions that will not be limited by the 
``clearly erroneous'' standard.
    Similarly, in cancellation of removal, those facts that a 
respondent claims make up ``exceptional and extremely unusual 
hardship'' to a respondent's putative qualifying relative under section 
240A(b)(1)(D) of the Act, and whether the putative qualifying relative 
is actually a qualifying relative, will be reviewed by the Board only 
to determine if the immigration judge's determination was clearly 
erroneous. Whether those facts, as determined by the immigration judge 
and found not to be clearly erroneous, amount to ``exceptional and 
extremely unusual hardship'' under the Act may be reviewed by the Board 
de novo. See, e.g., Matter of Andaloza-Rovas, 23 I&N Dec. 319 (BIA 
2002) (evaluation of legal standard; de novo review leading to reversal 
of immigration judge's grant of relief); & id. at 330-331 n.1 (Osuna, 
dissenting, suggesting reliance on immigration judge's factfinding 
leads to a different evaluation); Matter of Monreal-Aguinaga, 23 I&N 
Dec. 56 (BIA 2001) (evaluation of whether hardship to qualifying 
relatives is ``substantially different from, or beyond, that which 
would normally be expected'' from the removal of the respondent).
    Third, in both of these two examples, the underlying statutes grant 
the Attorney General discretion to grant relief. This ``discretionary'' 
determination can likewise be considered under this dichotomy. What 
have historically been referred to as ``equities'' are facts that the 
respondent establishes in his or her case, and these factual 
determinations by an immigration judge may be reviewed by the Board 
only to determine if they are clearly erroneous. However, the 
``discretion,'' or judgment, exercised based on those findings of fact, 
and the weight accorded to individual factors, may be reviewed by the 
Board de novo.
    Thus, properly understood, the ``clearly erroneous'' standard will 
only apply to the specific findings of fact by the immigration judges, 
and will not limit the Board to reviewing discretionary determinations. 
Accordingly, in reviewing the various decisions of the immigration 
judges, the Board will still be able to consider and resolve instances 
where ``differing decisions may be reached based on essentially 
identical facts.'' Matter of Burbano, 20 I&N Dec. at 873. For these 
reasons, the Department does not agree with the comments suggesting 
that the ``clearly erroneous'' standard would ``severely reduce'' the 
Board's ability to act as a check against the wide disparities in 
discretionary decisions by the immigration judges to grant or deny 
relief in factually similar cases.

[[Page 54891]]

4. Harmless Error
    Several commenters expressed the view, in essence, that there 
exists a gap between review of all facts de novo and a ``clearly 
erroneous'' threshold. They argue that the immigration judges 
frequently misstate facts that require further review.
    The Department agrees that in some cases an immigration judge may 
misstate facts, but disagrees that in all such cases further 
adjudication of those facts is necessary. In many instances, such 
errors, or perceived errors, do not prejudice a respondent, and are, in 
effect, harmless errors. Section 3.1(e)(4) of the rule provides that 
summary affirmance is only appropriate if the single Board Member 
determines that ``any errors in the decision under review were harmless 
or nonmaterial'' and all other conditions apply. Thus, an affirmance 
without opinion signifies that any such error is considered to be 
harmless. Historically, many cases are appealed to the Board on the 
basis of perceived factual errors in an immigration judge's decision 
that are, in fact, harmless or immaterial. For example, an immigration 
judge's misstatement of a fact in evaluating whether a nonimmigrant 
respondent seeking cancellation of removal had established a particular 
element of ``exceptional and extremely unusual hardship'' under 8 
U.S.C. 1229b(b)(1)(D) of the Act is not a harmful, prejudicial, or 
material error if the immigration judge also concluded that the 
respondent had not accrued the required 10 years of continuous physical 
presence under subsection (b)(1)(A). A single-member brief order may 
elaborate on why such an error is harmless and not prejudicial.
    By contrast, where a material finding of fact is clearly erroneous, 
the Board may review the record before a three-member panel under 
Sec. 3.1(e)(6)(v). This is precisely the function of a three-member 
panel.
5. Litigation Concerns
    Some commenters were also of the opinion that if the Board reviews 
fact findings to determine if they are ``clearly erroneous,'' as 
opposed to deciding the facts de novo, courts will give less deference 
to the agency's decisions and more cases will be remanded to the 
immigration judges for further factfinding; they allege this to be true 
particularly in cases where an asylum applicant is alleging changed 
country conditions. Consequently, the commenters were of the opinion 
that by implementing a ``clearly erroneous'' standard of review for 
facts, the Board's appellate decisionmaking would become less, rather 
than more, timely and efficient.
    The Department disagrees with this evaluation. Under the Act, 
courts of appeals must apply a highly deferential ``substantial 
evidence'' standard in reviewing administrative factfinding in removal 
orders, including the findings made regarding asylum and changed 
country conditions. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) 
(substantial evidence standard required for asylum determinations); 8 
U.S.C. 1252(b)(4)(B) (``administrative findings of fact are conclusive 
unless any reasonable adjudicator would be compelled to conclude to the 
contrary''). Where the Act precludes direct review in the courts of 
appeals, district courts have limited jurisdiction to review removal 
orders by means of habeas corpus, encompassing only purely legal 
challenges to removal orders. INS v. St. Cyr, 533 U.S. 289, 306, 314 
n.38 (2001). Habeas review does not permit review of administrative 
factfinding, except perhaps to determine whether such facts are 
``unsupported by any evidence.'' Id. at 306 n.27.
    Accordingly, the commenters' concerns that courts may choose to 
accord less deference to administrative factfinding and may reverse the 
Board more frequently if the Board reviews appeals under a ``clearly 
erroneous'' standard are not well founded. Such concerns overlook the 
courts' inability to alter the standard of review, and their obligation 
of deference to the Attorney General's factfinding (by whatever means 
such authority is exercised).
    The Department recognizes that increasingly, and particularly in 
asylum cases, some courts have failed to defer to 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, 219 F.3d 962, 967 (9th Cir. 2000) (Hall, J., dissenting); Briones 
v. INS, 175 F.3d 727, 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.3d 
1029, 1037 (9th Cir. 1999) (Rymer, J., dissenting). The Department 
disagrees with such an approach, and therefore does not consider it 
appropriate to alter the nature of the Board's appellate review to 
conform to it.
6. De novo Review by the Attorney General
    Some commenters suggested that it was inappropriate for the 
Attorney General to adopt a ``clearly erroneous'' standard for the 
Board, but use a de novo standard himself in reviewing the Board's 
determination, such as in Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002). 
This suggestion misapprehends the different roles of the Attorney 
General and the Board. As discussed above, the Attorney General is 
charged not merely with adjudicating immigration matters, but with 
establishing policy and managing the immigration process. The Board, on 
the other hand, is delegated authority by the Attorney General to 
adjudicate cases before it, not make policy or manage the immigration 
process. It is appropriate for the Attorney General to exercise broader 
authority than he delegates to the Board.
7. Review of Service Decisions
    The comments on de novo review have raised an issue of the scope of 
review of factual determinations by officers of the Service in 
decisions under review by the Board. Review of decisions by the 
district director and other Service officers do not have the benefit of 
a full record of proceedings or, except in rare cases, a transcript of 
hearings before an independent adjudicating officer. Rather these 
decisions are made on applications and interviews, and other 
information available to the Service.
    In light of this difference, the Department has clarified the 
language of the final rule to retain de novo review of Service officer 
decisions, either by a single Board member or by a three-member panel. 
Accordingly, Sec. 3.1(d)(3) has been revised to retain the Board's 
authority to review decisions of the Service de novo. The process for 
initial single Board member review will be retained, but the scope of 
review is broadened. The same standards for referral to a three-member 
panel will be applied.

F. New Evidence and Taking Administrative Notice of Facts

    Section 3.1(d)(3) of the proposed rule also generally prohibits the 
introduction and consideration of new evidence in proceedings before 
the Board, except for taking administrative notice of commonly known 
facts such as current events, or the contents of official documents 
such as country condition reports prepared by the Department of State.
    Several commenters suggested that the rule would alter the Board's 
authority to administratively notice facts. Some commenters believed 
that a broadening of the authority to administratively notice facts was 
appropriate, while others argued that

[[Page 54892]]

the Board should, in essence, not be able to take administrative notice 
of facts without providing a hearing. Where it is established that an 
appeal cannot be properly resolved without further findings of fact, 
other than those established by administrative notice, the Board will 
remand the proceeding to the immigration judge.
    The rule codifies existing Board precedent holding that new facts 
will not be considered on appeal. The ``clearly erroneous'' standard of 
review, in contrast to the de novo standard of review, is also 
consistent with the longstanding policy of the Board, now codified in 
Sec. 3.1(d)(3), of not considering evidence filed on appeal. The Board 
reviews the record of proceedings made before the immigration 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, new evidence 
would be considered at the appeal stage through a motion to remand. 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 (BIA 1992). See also 8 CFR 3.2(c) (2001).
    Contrary to the assertions of several commenters, this rule does 
not disturb the Board's authority to take administrative notice of 
commonly known facts. The Board may, and does, take administrative 
notice of commonly known facts such as agency documents and current 
events. See e.g. Matter of S-M-J-, 21 I&N Dec. 722, 733 n.2 (BIA 1997), 
disapproved on other grounds, Ladha v. INS, 215 F.3d 889 (9th Cir. 
2000); Kaczmarczyk v. INS, 933 F.2d 588, 593 (7th Cir. 1991). The 
language of the regulation explicitly uses the phrase ``commonly known 
facts'' to describe the kinds of facts or matters of which the Board 
may take administrative notice, giving by way of example ``current 
events'' or ``the contents of official documents.'' The Department 
intends by use of this language to make clear that the Board may take 
administrative notice not only of current events but also of the 
contents of official documents such as the country condition reports 
prepared by the Department of State, including its foreign policy 
expertise, analysis, and opinion.
    The Department does note, however, that there is an intercircuit 
conflict over the degree to which the Board may take administrative 
notice of facts without first providing notice and an opportunity to 
respond.\7\ After reviewing the comments, the Department agrees with 
those courts that have found post-decision motions to reconsider and 
reopen under 8 CFR 3.2, alleging a specific error of fact (the 
administratively noticed fact), to be sufficient to preserve a 
respondent's constitutional due process rights.
---------------------------------------------------------------------------

    \7\ The First, Seventh, Ninth, and Tenth Circuits have held that 
it is a violation of due process for the board to take 
administrative notice of new facts on appeal without affording 
notice and an opportunity to respond. In the Ninth and Tenth 
Circuits the board must provide notice and an opportunity to respond 
before taking administrative notice. 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 to reopen does not provide adequate opportunity 
to rebut administrative notice of changed country conditions and due 
process requires BIA to give prior notice and opportunity to rebut). 
In other circuits a post-decision motion to reopen, or, more 
properly, a motion to reconsider, disputing the taking of 
administrative notice is a sufficient remedy. Gonzalez v. INS, 77 
F.3d 1015, 1024 (7th Cir. 1996) (rejecting approach of 9th and 10th 
circuits and holding that ``mechanism of the motion to reopen * * * 
`allows asylum petitioners an opportunity to introduce evidence 
rebutting officially noticed facts,' [and] provides a sufficient 
opportunity to be heard to satisfy the requirements of 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), rehearing denied, 954 F.2d 723 (1992). The First Circuit 
initially adopted the position that a post-decision motion to reopen 
is sufficient to satisfy due process but may not continue to hold 
that view. Compare Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1993) 
(``We agree with the majority of those circuits which have addressed 
the question that [a post-decision] motion to reopen * * * can 
ordinarily satisfy the demands of due process.'') (emphasis added, 
citations omitted), with Fergiste v. INS, 138 F.3d 14, 19 n.4 (1st 
Cir. 1998) (declining to decide whether reliance on extra-record 
evidence of changed country conditions violated procedural due 
process without pre-decision notification, but reinterpreting 
Gebremichael to state that ``[o]ur holding in that case was not * * 
* that a motion to reopen is always necessary and sufficient to 
protect an alien's rights [but] [r]ather * * * that `the demands of 
due process will, as always, ultimately depend on the circumstances' 
'').
---------------------------------------------------------------------------

    In immigration proceedings, the administrative notice of facts--
usually relating to country conditions--revolves on issues that form 
the respondent's burden of proof for relief from removal. The most 
common facts about country conditions appropriate for administrative 
notice are those contained in country reports and profiles prepared by 
experienced foreign service officers in the Department of State who are 
experts on specific regions and countries. As the courts have 
recognized, they, the immigration judges, and the Board owe deference 
to the Department of State on such matters of foreign intelligence as 
assessments of conditions.\8\ Some commenters relied upon the opinions 
expressed by NGOs in disputing the deference that should be given to 
Department of States reports and profiles, either directly or through 
administrative notice of facts and official documents. However, reports 
by NGOs are simply not as reliable as those of the Department of State 
because the mission of those organizations is to advocate specific 
ideas and views, their positions are often based on anecdotal 
experiences of identified and unidentified persons, and their opinions 
tend to lack the discernment and expertise of those provided by the 
Department of State.
---------------------------------------------------------------------------

    \8\ See Sevoian v. Ashcroft, 290 F.3d 166, 176 (3rd Cir. 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 because this inquiry is directly within the expertise 
of the Department of State''); Gailius v. INS, 147 F.3d 34, 46 (1st 
Cir. 1998) (Department of State opinions ``receive considerable 
weight in the courts because of the * * * Department's expertise''); 
Rojas v. INS, 937 F.2d 186, 190 n.1 (5th Cir. 1991) (Department of 
State a ``relatively impeccable source[]'' for information on 
political conditions in foreign countries); Koliada v. INS, 259 F.3d 
482 (6th Cir. 2001) (deference due even though Department of State 
report reproduced for the Service in support of litigation); Mitev 
v. INS, 67 F.3d 1325, 1332 (7th Cir. 1995) (``we give great 
[deference] to [Department of State] opinions on matters within its 
area of expertise'').
---------------------------------------------------------------------------

    The important, complicated, delicate, and manifold problems of 
assessing conditions in a foreign country warrant deference to those 
whose expertise the United States tasks with that duty. It is the 
respondent's responsibility to present facts on the record that refute 
those assessments. The Department believes that, given this required 
deference, post hoc rebuttal of administratively noticed facts is 
appropriate and sufficient for due process purposes. Accordingly, the 
Department has not altered the final rule in response to these 
comments. Nonetheless, the Board is mindful of the limitations on the 
use of administrative notice in those circuits that have contrary 
precedents.
    In light of the intercircuit conflict and the deference that is due 
such Department of State reports and profiles, the Department believes 
that a compelling case is made for a liberal interpretation of the rule 
on reconsideration and reopening in cases in which the Board has 
administratively noticed facts such as a Department of State country 
report. Accordingly, the Department is of the view that in any case in 
which the Board takes administrative notice of a specific fact by 
reference to any documentary evidence, e.g., a Department of State 
country report or profile published after the immigration judge's 
decision), not

[[Page 54893]]

theretofore in the record of proceedings, either party may file as part 
of a motion to reopen any contradictory documentary evidence (e.g., a 
contradictory report by a third party such as Amnesty International), 
which shall be considered, for the purpose of this section, to have 
been not available and which could not have been discovered and 
presented at the former hearing. If administrative notice is taken of a 
fact, then the parties should have the opportunity to challenge that 
fact. The Department's interpretation is that the ``not available'' and 
``could not have been discovered'' requirements of section 3.2(c) 
should not stand in the way of such a review and determination on the 
merits of the motion. If the motion has merit and additional 
factfinding is required, the Board may reconsider and vacate its 
decision, reopen proceedings, and remand the record to the immigration 
judge.

G. Reduction in Size of the Board

    The proposed rule provided that, after the transition period of 180 
days has elapsed, the final structural reform of the Board will occur. 
The number of Board members will be reduced to 11, with the Attorney 
General designating the membership of the Board. After reviewing the 
comments, the Department has determined to retain the reduction of the 
size of the Board to 11, as proposed.
    We note at the outset that two individuals who understand the Board 
well from their previous experience as Board members, and who testified 
before the House Judiciary Subcommittee, both agreed that the size of 
the Board should be reduced but differed over the proper reduction--one 
arguing for a reduction to no more than 9 while the other suggested 16. 
Testimony of M. Heilman and L. Mathon, House Judiciary Subcommittee 
Hearing, 10, 13, 18.
    The Department has determined that 11 Board members is the 
appropriate size for the Board based on judgments made about the 
historic capacity of appellate courts and administrative appellate 
bodies to adjudicate the law in a cohesive manner, the ability of 
individuals to reach consensus on legal issues, and the requirements of 
the existing and projected caseload. The Board is expected to function 
with two three-member panels and five Board members acting individually 
in deciding cases. The Department believes that this is a realistic 
evaluation of the resource needs, capacities and resources of the Board 
in adjudicating immigration issues. The Attorney General may reevaluate 
the staffing requirements of the Board in light of changing caseloads 
and legal requirements following implementation of the final rule.
1. Quality of Board Member Personnel
    Several commenters questioned how this reduction would occur. 
Commenters objected to the reduction stating generally that it raises 
constitutional issues, but without significant elaboration. These 
commenters either supported maintaining the current number of Board 
members or supported an increase in the number of Board members, staff, 
and resources. Comments concerned the transition period, in which the 
backlog of cases will be eliminated and the Board size reduced.
    A few commenters stated that the reduction could be perceived as 
part of a design to eliminate Board members with whom the Attorney 
General disagrees and noted that diverse Board member opinions are 
important. Several commenters asserted that, during the 180-day 
transition period, Board members would be ``auditioning'' to keep their 
jobs and that it would affect the perceived impartiality of current 
Board members given that it was announced before the backlog was 
reduced.
    The Department has already addressed, in part III.B above, the 
general comments asserting that reducing the number of Board members 
would adversely affect the due process of respondents by affecting the 
independence and perceived impartiality of the Board.
    The Department expects that the reduction in the number of Board 
member positions will be effectuated by the Attorney General from among 
the current Board Members, after consultation with the Director of the 
Executive Office for Immigration Review (EOIR) and the Board Chairman, 
but that determination remains one that is within the discretion of the 
Attorney General. As EOIR Director Rooney pointed out in testimony 
before a subcommittee of the House Judiciary Committee, the Attorney 
General generally looks to traditional factors that guide the selection 
of adjudicators, such as experience, judicial temperament, and 
efficiency, particularly in an experienced adjudicator. Testimony of K. 
Rooney, House Judiciary Subcommittee Hearing, 37-38. The Department 
expects that the final determinations will be made on factors 
including, but not limited to, integrity (including past adherence to 
professional standards), professional competence, and adjudicatorial 
temperament. Cf., D. Meador, M. Rosenberg, & P. Carrington, eds., 
Appellate Courts: Structures, Functions, Processes and Personnel 
(1994), 671-681 (varying views on the qualifications of judges in the 
judicial setting rather than the administrative adjudication setting); 
D. Meador & J. Bernstein, Appellate Courts in the United States (1994), 
94-99.
    In the end, however, it is not possible to establish guidelines or 
specific factors that will be considered, nor should the Attorney 
General limit his decisionmaking process. The decision as to the 
relative values and the weights given to those values belongs to the 
Attorney General. Each Board member is a Department of Justice attorney 
who is appointed by, and may be removed or reassigned by, the Attorney 
General. All attorneys in the Department are excepted employees, 
subject to removal by the Attorney General, and may be transferred from 
and to assignments as necessary to fulfill the Department's mission. 
Moreover, and of critical importance, the Department has not indicated 
that any of the existing Board members will be adversely affected by 
the reduction in the number of Board members. Until the Attorney 
General makes these personnel decisions, such comments are, at best, 
speculative.
    A few commenters supported reduction based solely on seniority. 
While seniority is an experience indicator, the Department does not 
believe that it should be considered a presumptive factor.
    Several commenters have suggested that the Attorney General must 
appoint individuals to the Board who are expert in immigration law. The 
Department believes that this argument rests on the faulty premise that 
immigration law is the only area of the law where Board members must 
have expertise. Although immigration law is a unique blend of foreign 
and domestic concerns, it is not so discrete and insular in nature.
    In reality, immigration law is part of the larger body, and 
requires a more global view, of federal law. The Board is no longer, 
and perhaps never has been, a body whose decisions relate only to the 
interpretation of the Act and regulations. More frequently now than 
ever before, the Board decides cases based on the criminal law, and 
expertise in that area of the law is also required of the Board.\9\ 
Accordingly, it is not

[[Page 54894]]

merely expertise in immigration law that must guide the Attorney 
General's decisions on immigration law and policy, or to whom to 
delegate authority to make immigration decisions, but also expertise in 
the inextricably interrelated criminal law. By the same token, the 
Board's determinations under the Refugee Act of 1980, 8 U.S.C. 1158, 
and implementing regulations, 8 CFR part 208, necessarily include both 
facts and inferences from the expertise of the Department of State on 
matters of foreign conditions. INS v. Aguirre-Aguirre, 526 U.S. 415, 
425 (1999) (deference due Attorney General's, and hence Board's, role 
in foreign policy); INS v. Abudu, 485 U.S. 94, 110 (1988) (foreign 
policy considerations in immigration proceedings).
---------------------------------------------------------------------------

    \9\ The Board has interpreted, since its inception, what 
constitutes a ``crime involving moral turpitude.'' 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 number of recent 
Board decisions have focused on the interrelationship of provisions 
of the criminal Code, the United States Sentencing Guidelines, and 
the 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 States Sentencing Guidelines as the controlling 
definition for 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 an aggravated felony is defined by 18 
U.S.C. 16. ``Drug trafficking,'' another aggravated felony, is 
defined in 18 U.S.C. 924. The Board has, at times struggled with 
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 (BIA 2002) (whether conviction under state law constitutes drug 
trafficking under section 101(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 or foreign law may 
be classified as an aggravated felony 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 federal statute); 
Matter of Ramos, 23 I&N Dec. 336 (BIA 2002), overruling Matter of 
Puente-Salazar, 22 I&N Dec. 1006 (BIA 1999), and Matter of 
Magallanes-Garcia, 22 I&N Dec. 1 (BIA 1998) (whether driving while 
intoxicated under various state criminal laws constitutes crime of 
violence under 18 U.S.C. 16(b) and an aggravated felony under 
section 101(a)(43)(F) of the Act). This complex interrelationship of 
the immigration law and the criminal law has also lead to recent 
precedent decisions 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).
---------------------------------------------------------------------------

2. Resource Requirement Concerns
    A number of commenters expressed the view that the current case 
backlog reflects the need for more resources. In their view, increased 
attorney and paralegal staffing, as well as filling all existing Board 
member positions, would be a preferable method of reducing the backlog.
    As described above, beginning in 1995, the Department sought to aid 
the Board in reducing its burgeoning caseload by increasing its size 
from 5 to 23 Board members with increases in its attorney and support 
staff.\10\ It is now evident that the Board does not face a 
``personnel-budget'' problem but rather a fundamental systemic problem. 
The continued expansion of the Board has not effectively reduced the 
existing case backlog. The one element that has begun to help reduce 
the backlog--streamlining--is being expanded through this rule. By 
expanding the number of cases that can be resolved either through a 
summary affirmance without opinion, or by a short written order by a 
single Board member, this process will substantially free up the staff 
resources of the Board to focus on backlog reduction and the 
preparation of careful legal and factual analyses in cases meriting 
three-member panel review, including cases to be designated as 
precedent decisions.
---------------------------------------------------------------------------

    \10\ The Board currently has 19 members and 4 vacancies, which 
the Department has declined to fill in light of the fact that the 
expansion has not achieved the desired results based upon historical 
staffing levels.
---------------------------------------------------------------------------

3. Advantages of a Smaller Board
    The Department believes that the continued expansion of the Board 
has, indeed, had significant institutional costs including effects on 
the cohesiveness and collegiality of the Board's decision making 
process, and the Department's perception of the uniformity of its 
decisions, and an administrative and supervisory strain on the Board's 
staff. Cf. Commission on Revision of the Federal Court Appellate 
System, Structure and Internal Procedures: Recommendations for Change 
16-21 (1975). These costs have been magnified by substantial changes in 
the immigration laws and have resulted in unnecessary delays in issuing 
final agency decisions. This continued expansion has shifted the 
Board's attention away from providing nationwide guidance on those 
cases presenting difficult and repetitive or controversial legal 
questions. Testimony of M. Heilman, House Judiciary Subcommittee 
Hearings 13, 16. The institutional cost of unlimited expansion is not a 
new phenomenon, but one that has been experienced in the federal court 
system. See generally Structural Alternatives, at 29-57. At the same 
time, the Board's precedent decisions indicate an inability to reach 
consensus about even fundamental approaches to the law.
    Accordingly, the Department agrees with certain comments that the 
reduction in the number of Board members should increase the coherence 
of Board decisions and facilitate the en banc process, thereby 
improving the value of Board precedents.\11\ The Department believes 
that more and clearer precedent will be of greater assistance to the 
immigration judges, practitioners, and respondents.
---------------------------------------------------------------------------

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

    Another commenter argued that reducing the number of Board members 
combined with increasing single-member review will save American 
taxpayers money. It is not clear to the Department that the cost of 
operating the Board will substantially be reduced, nor does the 
Department plan to propose a substantial reduction in budget outlays. 
However, by further expediting the disposition of cases for aliens 
currently held in detention, the Department expects to realize savings 
in the costs of detaining such aliens pending their removal from the 
United States. In addition, the Department believes that following 
implementation of the streamlining process and this rule, maintaining 
the current number of Board members will be unnecessary. With greater 
efficiency, fewer Board members will be needed to adjudicate the 
caseload. A reduction to 11 Board members will allow for the most 
efficient use of resources to adjudicate administrative appeals on a 
timely basis.

H. Case Processing Issues

    Section 3.1(e)(8) of the proposed rule, as well as Secs. 3.3 and 
3.5, established new time limits for several elements of the appellate 
process while maintaining several aspects of current Board practice. 
Some commenters implied that these time limits could create justifiable 
rights. The Department disagrees. These internal management limitations 
are intended only to provide direction for the management of the Board, 
not establish any right or remedy in litigation. See United States v. 
Caceres, 440 U.S. 741 (1979).
    In response to the public comments, the Department has changed the 
briefing process, establishing a distinction between detained and non-
detained cases. For detained cases, the final rule establishes a 
simultaneous briefing process, with a time limit of 21 days for the 
filing of briefs by each party. For non-detained cases, the Department 
is retaining a sequential, but reduced, briefing schedule, allowing the 
appealing party 21 days in which to file a brief, and allowing the 
opposing party 21 days to respond. As in the proposed

[[Page 54895]]

rule, an immigration judge will have 14 days to review the transcript 
and approve a decision (or 7 days after returning from an absence from 
the court).\12\ Also as in the proposed rule, an appealing party 
asserting that a three-member review is warranted must do so in the 
Notice of Appeal within the period allowed for an appeal. Once the 
record is completed and ready for adjudication, single Board member 
decisions must generally be made within 90 days and three-member 
decisions must be made within 180 days. Provisions for discretionary 
extensions of time have been expanded. The Department has also retained 
the provisions of the proposed rule on rehearings en banc.
---------------------------------------------------------------------------

    \12\ The proposed rule provided that the immigration judge would 
have a set time to ``review and approve the transcript.'' This 
language may have given the impression that an immigration judge may 
alter a transcript when this authority clearly does not exist. An 
immigration judge should, of course, review the transcript of 
proceedings to ensure that it is complete, but there is no authority 
to ``amend'' the transcript. The immigration judge's oral decision, 
on the other hand, is subject to a small degree of modification and 
clarification necessitated by the fact that the decision is orally 
dictated and does not reflect inflection. An immigration judge may 
not, however, make substantive changes in the decision.
---------------------------------------------------------------------------

1. Simultaneous Briefing
    Several commenters expressed concern that the practice of 
simultaneous briefing, coupled with a shorter time frame, raises due 
process concerns because it would be unfairly burdensome to immigration 
practitioners and pro se litigants. Some commenters believe that, as a 
consequence of the compressed time frame, pro bono representation would 
decrease because of the difficulties associated with the new rule. Many 
commenters asserted that pro se respondents who are unfamiliar with 
English and the immigration laws will be unable to effectively 
articulate their position on appeal or to anticipate and rebut 
arguments presented by the Service. Furthermore, a few commenters 
argued that detained respondents will not even have the benefit of the 
21-day period due to systemic problems in receiving the transcripts and 
briefing schedules in a timely manner while they are either detained or 
being moved to other detention facilities. Finally, multiple commenters 
suggested that the reduced time frame would result in hastily drafted 
briefs that would be unhelpful to the Board in deciding appeals.
    After reviewing the comments received, the Department has decided 
to change the proposed regulation with respect to the simultaneous 
briefing process but otherwise maintain the time limits as proposed. 
The final rule modifies the existing 8 CFR 3.3(c) by creating a 
distinction between detained and non-detained cases. In detained cases, 
the Department maintains its position 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 
detained cases).
    In non-detained cases, the Department will retain the proposed 21-
day briefing schedule, but agrees with the commenters that this should 
be a sequential briefing schedule, which is currently the common 
practice in non-detained cases. Under existing regulations, parties are 
allowed 30 days each in which to file briefs (for a total of up to 60 
days). Under the final rule, for non-detained cases, after a transcript 
is made available, the Board will establish a 21-day sequential 
briefing schedule. The ability of either party to seek an extension of 
the period for filing a brief or reply brief up to 90 days for good 
cause shown remains from current Board practice. The Department 
approves of the Board's current practice of granting extensions of only 
21 days. Beyond that, the Board retains its discretion to consider 
briefs and reply briefs that are filed out of time. Furthermore, the 
parties also retain their ability to file motions to reconsider after 
the 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, an appellant might be 
unfairly surprised by its arrival and unable to prepare a brief within 
the time frame. Some commenters stated that, in their experience, it 
has sometimes taken a year or more for the preparation of transcripts 
after the filing of an appeal with the Board.
    The Department agrees that substantial delay in the production of 
transcripts in many cases has been a serious problem. The earlier a 
transcript is available, closer in time to the actual hearing and 
decision of the immigration judge, the more readily the respondent and 
the Service will be able to utilize that transcript. The longer a 
transcript is delayed, the more the events memorialized in that 
transcript may fade from the memories of the respondent, respondent's 
counsel, and the Service's trial attorney. The Department believes that 
fairness requires that the transcript be made available to all of the 
parties at the earliest possible time.
    The Department also recognizes that the Board has made substantial 
improvement in this area. For appeals filed in fiscal year 2001, the 
average time from the filing of the Notice of Appeal to setting the 
briefing schedule was 158 days. That statistic would appear to reflect 
the commenters' concerns. However, for fiscal year 2002 through June 
2002, the average time was 97 days. The Department is not satisfied 
with this delay and believes that a 60-day time-frame is possible and 
should be implemented. If necessary, the Board and the immigration 
courts should alter their internal operating procedures to ensure that 
transcripts can be provided within this time-frame.
    In response to this concern by the commenters, the Department has 
added a requirement in Sec. 3.5(a) that the Chairman and the Chief 
Immigration Judge take such steps as necessary to ensure that 
transcripts are produced as soon as practical after the filing of the 
Notice of Appeal. This will also assist the immigration judges in 
reviewing any oral decision in the transcript. The Chairman and the 
Chief Immigration Judge are expected to report on progress in this area 
regularly.
3. Immigration Judge Time Limits To Review Decisions
    Some commenters voiced a concern that the 14-day time limit for an 
immigration judge to review transcripts and any oral decision was 
unrealistic in high-volume jurisdictions. The Department disagrees. The 
Department recognizes that there will be some dislocation as the 
transcription process is accelerated and the immigration judges have a 
shorter period of time to review a number of transcripts to meet this 
deadline. However, once these processes are in place, that pressure 
will dissipate. The Department is confident that the immigration judges 
will be able to adjust their schedules to accommodate this 
implementation process.
4. 30-Day Notice of Appeal Filing Requirement
    Some commenters felt that the 30-day period within which an appeal 
must be filed was too short a period within which a party can be 
expected to articulate reasons for contending that three-member review 
is warranted. The Department disagrees. The filing time for a Notice of 
Appeal has not been changed by the proposed or final rule. The existing 
30-day period--a substantial increase in the 10-day limit

[[Page 54896]]

that formerly applied until recent years--appears to have worked well. 
As noted above, the parties are already familiar with the issues 
presented and should, in a short period of time, be able to articulate 
with some specificity the issues that they wish to raise on appeal. The 
transcript of hearings is not necessary for this process. The facts 
should be fresh in the parties' minds and the legal arguments should 
have been fleshed out before the immigration judge. The Department has 
found no reason to change this provision of the regulations.
5. Decisional Time Limits
    Some commenters also argued that the 90- and 180-day time limits 
for adjudication were unrealistic and would result in rushed and 
erroneous decisions. Other commenters, however, supported the new time 
limits, and a few suggested that a 90-day limit be placed on deciding 
all detained cases.
    The Department is not persuaded that the proposed time frames for 
deciding a case will hinder the quality of decisions made by either 
single Board members or three-member panels. The rule provides adequate 
time for the Board to decide the vast majority of cases before it, and 
in those rare cases where more time is needed, the rule provides a 
procedure for extending that time. The Department also believes that 8 
CFR 3.1(e)(8) sufficiently directs the Board to assign priority to 
deciding case appeals involving detained respondents, or bond appeals, 
which procedure is consistent with existing practice, without the need 
for separate time limits for those matters.
6. Holding Cases Pending Significant Changes in Law and Precedent
    A few commenters noted that proposed Sec. 3.1(e)(8)(iii) permits 
the Chairman to hold a case or cases pending resolution of issues 
pending before the United States Supreme Court or the courts of appeals 
that will substantially affect the outcome of the cases to be held. 
These comments suggested that the Chairman should also be authorized to 
hold cases that are directly affected by pending legislation, pending 
regulatory changes, and pending en banc decisions.
    The Department agrees with these comments in part, and has expanded 
8 CFR 3.1(e)(8)(iii) to cover pending Department regulations and 
pending en banc decisions. Because some issues will arise rapidly and 
in multiple cases, the Department expects that the Chairman, as a 
matter of discretion in managing the caseload, will be able to utilize 
the authority granted under this provision to group cases to determine 
which record provides the clearest issue for precedent decisions by the 
Board en banc. To facilitate the management of these case and case-
group holds with the legislative and regulatory programs of the 
Department, the Chairman is directed to inform the Director of EOIR and 
the Attorney General of all such holds.

I. Decisional Issues

1. Management of Decisions
    Several commenters expressed the view that the regulation granted 
too much authority to the Attorney General, the Director of EOIR, and 
the Chairman of the Board to manage the decision-making of individual 
Board members. Some of these commenters generally challenged the 
Attorney General's authority over the Board.
    These commenters misunderstand the nature of the Board. The Board 
is the creation of the Attorney General; it is not a statutory body. As 
discussed above, the Board's authority derives from a delegation of 
authority from the Attorney General. See Guentchev v. INS, supra; 
Matter of Hernandez-Casillas, supra, at 289 n.9. In this rule, the 
Department alters the process by which the caseload is managed, but 
does not dictate or determine the ultimate outcome in any case or group 
of cases. The Department expects the Board Members to continue to 
exercise independent judgment regarding the interpretation of the law, 
subject to applicable legal standards and review by the Attorney 
General, and in conformity with applicable judicial precedents.
2. Remand Motions
    One commenter stated that under proposed Sec. 3.1(e)(2), 
respondents should also be afforded the right to file a motion to 
remand on any substantive ground. The Department notes that this 
suggestion is outside the scope of the rulemaking and does not address 
that suggestion at this time. However, in the future, the Department 
may consider a more complete revision of the motions practice before 
the Board. At this time, the Department has changed Sec. 3.1(e)(2) to 
more closely reflect the authority currently codified in Sec. 3.1(a)(1) 
for a single Board member to make various procedural dispositions of 
cases. There is also no provision that bars a contested motion to 
remand the record; the Board has considered such motions for years.
3. Rehearing en banc
    One commenter stated that rehearing en banc is almost never done, 
and suggested that revising the Board's rehearing en banc authority is 
effectively meaningless. The Department believes that en banc review is 
a valuable process in the establishment of precedential guidance for 
immigration judges, and one of the results of decreasing the size of 
the Board is to increase its ability to provide such guidance in a 
meaningful way. However, en banc proceedings are very resource 
intensive and should not be readily undertaken. The Department believes 
that the Board's electronic en banc process has been successful and 
should be continued. Moreover, the Board can and does designate panel 
decisions as precedent decisions without the need to convene a full en 
banc proceeding by using the electronic en banc, and should continue 
that practice whenever possible. The proposed rule added a sentence in 
8 CFR 3.1(a)(5), taken from Federal Rules of Appellate Procedure Rule 
35(a), with respect to rehearing en banc in the courts of appeals, 
providing that en banc proceedings are disfavored and shall ordinarily 
be ordered only for questions of exceptional importance or to secure or 
maintain the uniformity of the Board's decisions. However, to avoid 
concerns that this language might unintentionally inhibit the Board's 
use of the en banc process, the final rule uses the term ``particular 
importance'' rather than ``exceptional'' importance. The Department 
disagrees with the suggestion of some commenters that this provision is 
effectively meaningless.
4. Separate Opinions
    One commenter suggested that the Department eliminate dissenting 
and concurring opinions for precedent decisions. This rule does not 
take a position on that suggestion. Dissenting and concurring opinions 
can serve a valuable purpose, within limits, in precedential decisions. 
Not all precedent decisions can resolve all aspects of an issue 
presented and there may be valuable disagreements that warrant further 
briefing in subsequent cases. The Department does not wish to limit the 
conversation that must occur to develop lines of precedent so long as 
the concurring and dissenting opinions are efficiently prepared.
    On the other hand, there is substantial reason to question the 
number of lengthy written dissents in unpublished, non-precedential 
decisions. Although the percentage of separate opinions may be 
relatively low, there is a serious question of the merits of committing 
substantial time and effort to writing separate opinions in a non-
precedential case. Accordingly, while the

[[Page 54897]]

Department recognizes that Board members may wish to file such 
opinions, the Department also believes that it is appropriate that such 
opinions not adversely affect the time and resources of the Board.
5. Changes in the Notice of Appeal
    Several commenters recognized that the Notice of Appeal forms must 
be modified to conform with the changes under the new rule. The 
Department agrees, and has made changes to Form EOIR-26 and Form EOIR-
29 to incorporate the final rule.
    Form EOIR-26 has generally been revised to include the new basis 
for summary dismissal and requires the respondent to identify the legal 
and factual bases for appeal when requesting review by a three-member 
panel. Form EOIR-29 also provides that a party appealing a decision of 
a Service officer (therein referred to as an ``INS officer'' for ease 
of understanding by the applicants) must file an appeal within 30 days 
of receiving the decision. The Department expects that these forms will 
be used upon the effective date of this regulation. We have attempted 
to make the requirements of the Notice of Appeal as clear as possible, 
taking into account the concerns expressed in cases such as Vargas-
Garcia v. INS, 287 F.3d 882 (9th Cir. 2002).
6. Barring Oral Argument Before a Single Board Member
    One commenter stated that eliminating oral argument in cases 
assigned to a single Board member for decision is a further erosion of 
a respondent's due process rights. Section 3.1(e)(7) reflects the 
current authority of the Board to grant or deny requests for oral 
argument, but it also makes clear that no oral argument will be 
available in any case assigned to a single Board Member for 
disposition. The Department disagrees that this provision is a further 
erosion of a respondent's due process rights, initially because there 
is no due process right to an oral argument before the Board. Moreover, 
oral argument is rarely granted even in cases that are heard by a 
three-member panel, and the Department believes that it is entirely 
appropriate to establish a general rule barring oral argument in a case 
that does not even meet any of the factors meriting review by a three-
member panel under Sec. 3.1(e)(6) of this rule.
7. Location of Oral Argument
    One commenter noted that the Board has held oral argument in other 
cities, sometimes without regard to whether the cases being argued were 
from those localities, thus imposing burdens on the parties and the 
Board. Accordingly, the commenter suggested limiting the location of 
oral argument to EOIR's headquarters. The Department agrees that it is 
generally unwarranted for the Board to hold oral argument other than in 
its own oral argument room, unless such other location is more 
convenient to the Board and the parties. Accordingly, the final rule 
directs the Chairman to hold oral argument at the EOIR's headquarters 
unless the Deputy Attorney General or his delegate specifically 
provides otherwise.
8. Summary Dismissal of Frivolous Appeals and Discipline
    The final rule in Sec. 3.1(d)(2)(i)(D) gives the Board the 
authority to summarily dismiss an appeal that the Board finds has been 
filed for an improper purpose, such as to cause unnecessary delay, or 
that lacks an arguable basis in fact or law, unless the appeal is 
supported by a good faith argument for extension, modification, or 
reversal of existing law. Attorneys who file appeals that are summarily 
dismissed under Sec. 3.1(d)(2)(i)(D) may be subject to a finding that 
they have engaged in frivolous behavior as defined in Sec. 3.102(j).
    Several commenters expressed the view that giving the Board the 
authority to dismiss an appeal because it has been deemed frivolous 
under the standards of paragraph (D) will have a chilling effect on 
attorneys, so as to reduce the number of attorneys who will file 
appeals before the Board. These commenters believe that, if 
disciplinary measures are strictly enforced, attorneys will be deterred 
from filing an appeal on behalf of indigent respondents. Several 
commenters stated that the necessity of Sec. 3.1(d)(2)(i)(D) has not 
been sufficiently explained and that this section is unnecessary since 
regulations already exist to impose disciplinary measures on attorneys. 
These commenters maintained that the line between an appeal that has 
been deemed frivolous and a bona fide legal argument is hard to 
distinguish. Therefore, they argue, it will be difficult for the Board 
to appropriately determine what actually constitutes an appeal that 
should be dismissed under this section.
    Several commenters expressed the view that this section will also 
deter attorneys from presenting arguments on appeal because the Board 
may deem them as frivolous. A few commenters maintained that the 
definition of ``frivolous'' that will be used by the Board in its 
determination should be consistent with the definition provided in 
prevailing law, common law, the Federal Rules of Civil Procedure, and 
the Canons of Professional Responsibility. Another comment contended 
that the definition of frivolous may change based on the state of 
immigration law.
    The Department has decided to retain the regulation as proposed. 
The primary concern stated in all of these comments is the effect this 
ground will have on the types and number of appeals filed. The Attorney 
General has the authority to instruct the Board to set criteria for 
which appeals may be dismissed. An appeal that is filed for an improper 
purpose is chief among those appeals that the Board should not be 
forced to review. The Department concludes that these appeals should be 
dismissed in order to give Board members more time to adjudicate 
meritorious appeals.
    The Board previously had the authority to dismiss frivolous 
appeals. See 47 FR 16771, 16772 (April 20, 1982) (giving the Board 
authority to summarily dismiss a frivolous appeal); 8 CFR 3.1(d)(1-
a)(iv) (1982). The Board has also dismissed frivolous appeals. See, 
e.g., Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972). There is no showing 
that, when these provisions were in effect, attorneys were deterred 
from filing appeals, or that the Board was actively dismissing appeals 
that truly had merit.
    The prior experience of the Board in dismissing frivolous appeals 
also serves to address the concern that there is no appropriate 
definition for what constitutes a frivolous appeal. The Board can rely 
on earlier precedent decisions to make such a finding. See e.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 (BIA 1990); Matter of Patel, 19 I&N Dec. 394 
(BIA 1986). Along with this case law, the Board can draw from the 
definition for frivolous behavior in 8 CFR 3.102(j) to determine what 
constitutes a frivolous appeal. The Department also expects the Board 
to be guided by other interpretations of what amounts to ``frivolous'' 
in implementing the rule, including the decisions of the United States 
courts under F. R. Civ. P. 11 and the American Bar Association's 
Standards of Professional Conduct. An attorney is clearly on notice as 
to the definition of frivolous behavior.
    The commenters also stated that this section is unnecessary because 
regulations already exist to impose disciplinary measures on attorneys. 
The Department disagrees and will retain the rule as proposed. Section 
3.1(d)(2)(iii) provides that filing an appeal that is summarily 
dismissed as frivolous may constitute grounds for disciplining an

[[Page 54898]]

attorney or representative under 8 CFR 3.102. The purpose of this 
provision is to invoke the disciplinary process, that is, to give the 
EOIR Office of the General Counsel an opportunity to consider whether a 
complaint should be filed under the existing disciplinary process. 
EOIR's General Counsel may commence the disciplinary process based on a 
referral by anyone. The process of a referral for review by EOIR's 
General Counsel, and the possibility of a hearing and determination, 
may be invoked if the Board member or panel believes such an inquiry is 
justified. Accordingly, the Department believes that there is no 
``chilling'' effect from the promulgation of this rule.
9. Mandatory Summary Dismissals
    Some commenters suggested that it was inappropriate to change the 
authority to summarily dismiss appeals from discretionary to mandatory, 
because respondents may not understand the requirements and the Board 
members should retain discretion.
    The Department has considered the views of the commenters, as well 
as judicial decisions such as Vargas-Garcia v. INS, 287 F.3d 882 (9th 
Cir. 2002), which have challenged summary dismissals by the Board. The 
Department has decided not to make this proposed change at the present 
time, but to defer consideration of these issues for possible action in 
the future. In the meantime, the Department notes that the grounds for 
summary dismissal in Sec. 3.1(d)(2)(i), including the restored ground 
relating to frivolous appeals, will remain available for the Board to 
utilize, in all appropriate cases, in the exercise of discretion by the 
Board member or panel to which an appeal is assigned.
    The rules have provided for years that an appeal may be dismissed 
if the appealing party ``fails to specify the reasons for the appeal on 
[the Notice of Appeal] or other document filed therewith.'' 8 CFR 
3.1(d)(2)(i)(A). See Toquero 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, 
799 F.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 the Board to continue to utilize this authority in appropriate 
cases and reiterates the view that these requirements are fundamentally 
sound and in conformity with due process.
10. Finality of Decisions and Remands
    The final rule also reinserts former 8 CFR 3.1(d)(3) (2000), 
without change, dealing with finality of decisions and remands, as new 
Sec. 3.1(d)(6). That provision had been part of the Board's regulations 
for many years but was inadvertently overwritten when unrelated changes 
in the regulations were made in 2000. Under the circumstances, the 
Department has determined that this preexisting provision may be 
reinserted in the Board's regulations without notice and comment under 
the Administrative Procedure Act.
    In 1999, as part of the streamlining rule, the Department amended 8 
CFR 3.1(d) to redesignate its paragraphs for clarity. 64 FR 56135 (Oct. 
18, 1999). The streamlining rule redesignated former paragraphs (d)(1-
a), (d)(2), and (d)(3) as new 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 remands was codified as 
Sec. 3.1(d)(3) (2000).
    However, this change was unintentionally disrupted by the 
subsequent final disciplinary rule in 2000. 65 FR 39513 (June 27, 
2000). The preamble and the regulatory text make clear the intent to 
update the specific regulatory citations of the summary dismissal 
grounds to reflect the new codification of the disciplinary grounds, 
and to revise the paragraph dealing with rules of practice and 
discipline, Sec. 3.1(d)(4) (2000). However, that final disciplinary 
rule incorrectly instructed the Federal Register to codify the revised 
paragraph dealing with rules of practice as paragraph (d)(3). The 
result of this error was effectively to overwrite the language of the 
preexisting paragraph (d)(3) on finality of decisions and remands, and 
to leave instead two different versions of the rules of practice 
provision in paragraphs (d)(3) and (d)(4).
    Operationally, the Board's practice has not changed despite this 
error in codification. Given the clearly unintended result of the 
erroneous 2000 regulatory instructions, the Department is reinserting 
the overwritten language without change, as a new paragraph (d)(6).

J. Applicability of Procedural Reforms to Pending Cases

    Many commenters raised concerns that the proposed rule would impose 
procedural obligations that would be impossible to meet for pending 
cases and would otherwise violate due process. The Department notes, 
however, that changes in procedural rules typically are made applicable 
to all cases pending as of the date the new procedural rules are 
promulgated. See, e.g., Order, 383 U.S. 1031 (1966) (transmitting 
amendments to the Federal Rules of Civil Procedure; including 
amendments to Fed. R. Civ. P. 12, 13, 19, 23); Landgraf v. USI Film 
Products, 511 U.S. 244, 275 n.29 (1994). The Department has determined 
that the final rule will apply to all pending cases, 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, 835-36 n.21 (1984); United 
States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801).
    Some commenters were of the opinion that all the pending cases, 
``approximately 40,000,'' would have to be re-briefed in a short time, 
affecting the quality of representation. A few commenters argued that 
re-briefing all the pending cases would have a significant impact on 
small entities and therefore implicate the Small Business Regulatory 
Enforcement Fairness Act of 1996 and the Unfunded Mandates Reform Act 
of 1995.
    After careful consideration of the public comments suggesting the 
need for an opportunity for those individuals with pending appeals at 
the Board to respond to the new screening criteria, the Department has 
adopted, in part, an approach suggested by some of the commenters. The 
final rule contains a notice provision at Sec. 3.3(f) providing that a 
party who has an appeal pending at the Board on August 26, 2002, may 
file a supplemental brief or statement on why the appeal meets the 
criteria for three-member review under Sec. 3.1(e)(6) of the final rule 
on or before September 25, 2002, or the due date for the party's brief, 
whichever is later. Following the effective date, the Board will apply 
the final rule to all appeals, with consideration given to any 
additional brief or statement filed in accordance with this provision. 
The filing of any such 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 what 
procedure will be used in determining whether to apply a single-member 
or three-member panel review.
    The Department disagrees with the notion that these cases cannot be 
reviewed under the standards specified in the rule for single-member 
and three-member panel review. Appellants do not have any vested right 
or entitlement to review by a three-member panel of the Board, or even 
an expectation that their case is more likely than not to be

[[Page 54899]]

referred to a three-member panel. At present, all pending cases are 
subject to review under the existing streamlining process under 
Sec. 3.1(a)(7) of the existing rules, and this new rule would retain 
that streamlining process under Sec. 3.1(e)(4). Even in FY 2001, long 
before the publication of the proposed rule to reform the Board's 
procedural rules, the Board already was resolving a clear majority of 
pending appeals by summary affirmance without opinion, issued by a 
single Board member, after determining that those cases meet the 
standards of the existing streamlining process. Under the new rule, all 
cases will be reviewed on the merits to determine if there are any 
factual or legal errors or other circumstances that meet the criteria 
for three-member review. The opportunity for those with pending cases 
to assert that an appeal warrants three-member review is not intended 
as a substitute for Board screening; rather, it is an additional 
opportunity to facilitate the screening process. The burden of 
administering this provision is quite limited. A party is not required 
to make any filing, but may do so. Regardless of whether a party files 
an optional brief or statement under Sec. 3.3(f) regarding a pending 
appeal, every case will still be reviewed under the standards of this 
rule to determine whether or not the case meets the standards of 
Sec. 3.1(e)(6).
    The Department also disagrees with the notion that the application 
of the case management system to pending appeals at the Board will have 
a significant impact on small entities and implicate the Unfunded 
Mandates Reform Act. In approximately one third of cases filed with the 
Board, the respondent is not represented. In a small percentage of 
cases, the Service has appealed. In those cases where the respondent 
has appealed through counsel or an accredited representative, it 
behooves the attorney or representative to review the case file to 
determine whether these standards warrant an additional filing. 
However, this does not mean, and the Department does not expect, that a 
large number of cases will warrant such an additional filing. This is 
not an open invitation to file a brief where a respondent has 
previously indicated that he or she would file a brief in the Notice of 
Appeal and has not done so. These cases may be subject to summary 
dismissal under existing standards or under the final rule. All cases 
are currently subject to the streamlining review and this rule does not 
appreciably change that review in any case where summary affirmance 
would be appropriate. Accordingly, while some individual attorneys or 
representatives may find a few cases that objectively warrant an 
additional filing, the Department does not expect the impact to be 
significant.
    Some commenters suggested that Landgraf v. USI Film Products bars 
the application of the revised standard of review in Sec. 3.1(d)(3) to 
pending cases. The Department believes that these rules are generally 
administrative and procedural in nature and do not implicate the 
retroactivity concerns expressed in INS v. St. Cyr, 533 U.S. 289 
(2001); Lindh v. Murphy, 521 U.S. 320, 327-28 (1997); and Landgraf v. 
USI Film Products, supra.
    The commenters' concerns seem to relate particularly to whether the 
clearly erroneous standard for review of an immigration judge's factual 
findings under Sec. 3.1(d)(3)(i) would prejudice an individual 
respondent. Section 3.1(d)(3)(i) of the rule establishes the scope of 
review for factual determinations of the immigration judge. However, 
the change in the standard would have no effect on any appeal where the 
decision is based on a question of law or the exercise of discretion 
based on established facts, or any appeal where a disputed fact is not 
material to the decision. The provision does not have any bearing on 
motions before the Board or appeals from decisions by Service officers. 
Thus, the Department believes that the number of such cases would be 
very small.
    In order for the application of the clearly erroneous standard to 
be prejudicial to the respondent in a pending case, the case must turn 
on an error of fact made by the immigration judge--a factual finding 
that is erroneous, but not clearly erroneous--and that is also material 
to the basis for the decision of the immigration judge and the Board.
    Even so, the Department recognizes that an application of the 
clearly erroneous standard to all pending cases would require the Board 
to review each case, on an individualized basis, to determine if such 
circumstances may be present. Rather than having the Board take the 
time to make these additional determinations in such pending appeals, 
the Department has determined that it would be more efficacious simply 
to continue the current scope of review standards for pending cases, 
and to apply the clearly erroneous standard only to the review of 
immigration judge decisions in those appeals filed on or after the 
effective date. Accordingly, Sec. 3.3(f) of the final rule provides 
that Sec. 3.1(d)(3)(i) will not apply with respect to pending cases 
filed with the Board prior to September 25, 2002.
    The Department notes that Sec. 3.1(d)(3)(iv), which prohibits 
additional factfinding by the Board on appeal, will apply to all cases 
pending as of the effective date of this rule. There can be no 
prejudice in the application of this rule to pending cases, because the 
rule provides for a remand for further factfinding in any case where 
the Board determines that additional factfinding is required in a 
particular case.

K. Transition Period and Reduction of the Backlog

    A number of commenters suggested that the period of time imposed 
within the proposed rule for the Board to meet the backlog reduction 
requirements was far too short. They argued that the sheer numbers of 
cases to be decided within that six-month period would reduce the 
amount of time available for each case, with some commenters offering 
calculations that this would be reduced to approximately 15 minutes.
    The Department disagrees with these comments and has not altered 
the time frame for eliminating the backlog of pending cases. Pure 
mathematical formulas in this area have the beauty of simplicity, but 
are deceptive. Calculating an average amount of time for a single Board 
member to decide one case overlooks the differences in cases themselves 
and the preparatory work that goes into decisions. For example, the 
Department expects that a clearly untimely appeal can be dispatched 
promptly by a Board member under the streamlining process. For each 
such simple case (and the Board's experience streamlining has shown 
there are many), more time is afforded for considering the issues to 
which the Board's time should be devoted.
    Moreover, the six-month time frame runs from the effective date of 
the rule, not the date on which it is published in the Federal 
Register. To say that the Board has not been on notice of this rule 
also disserves the Board. The Board has been diligently preparing for 
the implementation of this rule to reduce its backlog of pending cases 
since the Notice of Proposed Rulemaking was published on February 19, 
2002. The Board has increased its disposition rate dramatically. In 
2000, the first full year in which the Board utilized streamlining, the 
Board averaged 1800 dispositions per month. With the expanded use of 
streamlining, dispositions increased to an average of 2600 per month in 
2001. In February, 2002, when the proposed rule was published, the 
Board decided 3300

[[Page 54900]]

cases. In recent months, utilizing its authority under streamlining, 
the Board has increased dispositions to an average of over 5200 
dispositions per month. With the additional authority granted by this 
final rule, the Department believes that it is reasonable to expect the 
Board to bring the caseload backlog down to, or near, a current balance 
within the six-month transition period. The Department is aware, of 
course, that specific factors, such as the requirement that the Board 
improve on providing transcripts to the parties in a timely manner, may 
adversely impact the disposition rate against the number of cases 
available for disposition by accelerating the number of records that 
are available for disposition. The Department is convinced that the 
transition period is sufficient for the Board to reduce the backlog. 
Accordingly, the Department is unconvinced that this implementation 
period should be altered.

L. Administrative Fines Cases

    The Department has decided to address the transfer of 
administrative fines cases to the Office of the Chief Hearing Examiner 
(OCAHO) in a separate final rule because of a technical legal issue 
unrelated to the proposed rule and the comments received on the 
proposed rule. The Department plans to publish this separate final rule 
in the near future.

M. Miscellaneous and Technical Issues

1. The Board's Pro Bono Project
    Several commenters stated that the Department should not take any 
administrative actions that would disrupt the success of the Board's 
Pro Bono Project. Although these comments fall outside the scope of the 
proposed and final rule, the Department wishes to take this opportunity 
to assure the bench, bar, and public of its commitment to this process. 
On January 17, 2001, EOIR announced a Pro Bono Project that links 
volunteer representatives from around the country with detained 
immigrants who lack legal representation. The Department fully supports 
this partnership between the government and nonprofit organizations. 
The Department recognizes the value of representation for respondents 
in the removal process. Although respondents generally are able to 
present their points of view ably, often with the assistance of 
language translators, the availability of attorneys and representatives 
learned in the technical aspects of immigration law is useful both to 
guide the respondent and to conserve judicial resources of the 
immigration judges and the Board.
2. Fundamental Changes in Structure
    Other commenters have suggested substantial changes in the 
underlying structure of the administrative immigration adjudication 
system. For example, some suggested that respondents should be charged 
filing and transcript fees more commensurate with the actual costs of 
the proceedings. Another comment, as well as a proposal by a former 
Member of the House Judiciary Committee, was that the Department 
abolish automatic appeals (either generally or of denial of asylum by 
Service asylum officers) or that only a discretionary appeal to the 
Board be allowed. The Department believes that these proposals fall 
outside the scope of the present rule and will not consider such 
proposals at this time.
3. Technical Amendments
    The Department has changed the regulation in Sec. 3.1(a)(4) to 
permit administrative law judges (ALJs) retired from EOIR to serve as 
temporary Board members. Under the existing regulations, ALJs from 
OCAHO may participate in Board decisions as temporary members. 
Accordingly, the Department has determined that this technical change 
should be made in the final rule.
    Section 3.1(e), dealing with the case management system, begins by 
instructing the Chairman to establish a case management system to 
screen all ``appeals.'' The current streamlining process screens, and 
the proposed rule was designed to provide screening of, all cases filed 
with the Board, including motions as well as appeals. Accordingly, the 
term has been changed to reflect the existing practice and the intent 
behind the proposed rule.
    The Department has changed the rule in Sec. 3.1(e)(8) to eliminate 
the words ``denials of review as a matter of discretion'' because it 
has been suggested that these words imply that the Board has authority 
to deny review as a matter of discretion. This was not the Department's 
intent. To eliminate this concern, the text has been changed.
    The proposed rule in Sec. 3.1(e)(8)(ii) provides the Chairman with 
the authority, in exigent circumstances, to issue a decision where a 
panel is unable to meet the time limits. The Department has amended the 
rule to permit the Chairman the authority to delegate such decisions to 
a Vice-Chairman.

Regulatory Flexibility Act

    The Attorney General, in accordance with 5 U.S.C. 605(b), has 
reviewed this rule and, by approving it, certifies that it affects only 
Departmental employees, aliens, or their representatives who appear in 
proceedings before the Board of Immigration Appeals, and carriers who 
appeal decisions of Immigration and Naturalization Service (INS) 
officers. Therefore, this rule does not have a significant economic 
impact on a substantial number of small entities.

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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 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 rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this rule is a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866, Regulatory 
Planning and Review. Accordingly, this rule has been submitted to the 
Office of Management and Budget for review.

Executive Order 13132

    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, the Department of Justice has determined that 
this rule does not have sufficient federalism implications to warrant a 
federalism summary impact statement.

[[Page 54901]]

Executive Order 12988

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

Paperwork Reduction Act of 1995

    The Executive Office of Immigration Review has submitted the 
following information collection requests to the Office of Management 
and Budget for review and approval in accordance with the Paperwork 
Reduction Act of 1995. The proposed information collections are 
published to obtain comments from the public and affected agencies. 
Comments are encouraged and will be accepted for sixty days. This 
process is conducted in accordance with 5 CFR 1320.10.
    If you have comments on the estimated public burden or associated 
response time, suggestions, or need a copy of one of the proposed 
information collection instruments with instructions or additional 
information, please contact the Executive Office for Immigration Review 
as noted above. Written comments and suggestions from the public and 
affected agencies concerning the proposed collections of information 
are encouraged. Your comments should address one or more of the 
following four points: (1) Evaluate whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information will have practical 
utility; (2) evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used; (3) enhance the 
quality, utility, and clarity of the information to be collected; and 
(4) minimize the burden of the collection of information on those who 
are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    The first information collection, titled Notice of Appeal from a 
Decision of an Immigration Judge, is a revision of a currently approved 
collection. The agency form number is EOIR-26. The information 
collected will be sponsored by the Executive Office for Immigration 
Review for parties affected by a decision of an Immigration Judge who 
may appeal to the Board of Immigration Appeals, provided the Board has 
jurisdiction pursuant to 8 CFR 3.1(b). An appeal from an Immigration 
Judge's decision is taken by completing the form and submitting it to 
the Board. The collection will be distributed primarily to the Federal 
Government. It is estimated that 23,417 complainants will report one 
complaint, taking an average of 30 minutes to complete. This will 
result in 23,417 responses with an estimated total of 11,707 annual 
burden hours. This is a reduction of 1,791.5 in burden hours due to a 
decrease in the number of appeals filed with the Board since this form 
was last approved in 1999.
    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 a currently approved collection, occasioned by changes in 
the regulations. The agency form number is EOIR-29. The information 
collected will be sponsored by the Executive Office for Immigration 
Review for a party affected by a decision of a Service Officer who may 
appeal that decision to the Board of Immigration Appeals, provided the 
board has jurisdiction pursuant to 8 CFR 3.1(b). An appeal from a 
Service Officer's decision is taken by completing the form EOIR-29. It 
is then submitted to the Service office having administrative control 
over the record of proceedings. The collection will be distributed 
primarily to individuals and households. It is estimated that 3,156 
complainants will report one complaint, taking an average of 30 minutes 
to complete. This will result in 3,156 responses with an estimated 
total of 1,578 annual burden hours, which is the same as currently 
required.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Charles Adkins-Blanch, 
General Counsel, Executive Office for Immigration Review, 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 Federal Regulations is amended as 
follows:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

    Authority: 5 U.S.C. 301; 8 U.S.C. 1101 note, 1103, 1252 note, 
1252b, 1324b, 1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan 
No. 2 of 1950, 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. 
L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 
106-386; 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-
554, 114 Stat. 2763A-326 to -328.


    2. Amend Sec. 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) and adding paragraphs (d)(5) and 
(d)(6); and
    f. Revising paragraphs (e) and (g), to read as follows:


Sec. 3.1  Organization, jurisdiction, and powers of the Board of 
Immigration Appeals.

    (a)(1) Organization. There shall be in the Department of Justice a 
Board of Immigration Appeals, subject to the general supervision of the 
Director, Executive Office for Immigration Review (EOIR). The Board 
members shall be attorneys appointed by the Attorney General to act as 
the Attorney General's delegates in the cases that come before them. 
Within six months of the implementation of the case management 
screening system as provided in paragraph (e) of this section, or such 
other time as may be specified by the Attorney General, the Board shall 
be reduced to eleven members as designated by the Attorney General. A 
vacancy, or the absence or unavailability of a Board member, shall not 
impair the right of the remaining members to exercise all the powers of 
the Board.
    (2) Chairman. The Attorney General shall designate one of the Board 
members to serve as Chairman. The Attorney General may designate one or 
two Vice Chairmen to assist the Chairman in the performance of his 
duties and to exercise all of the powers and duties of the Chairman in 
the absence or unavailability of the Chairman.
    (i) The Chairman, subject to the supervision of the Director, shall 
direct, supervise, and establish internal operating procedures and 
policies of the Board. The Chairman shall have authority to:
    (A) Issue operational instructions and policy, including procedural 
instructions regarding the implementation of new statutory or 
regulatory authorities;

[[Page 54902]]

    (B) Provide for appropriate training of Board members and staff on 
the conduct of their powers and duties;
    (C) Direct the conduct of all employees assigned to the Board to 
ensure the efficient disposition of all pending cases, including the 
power, in his discretion, to set priorities or time frames for the 
resolution of cases; to direct that the adjudication of certain cases 
be deferred, to regulate the assignment of Board members to cases, and 
otherwise to manage the docket of matters to be decided by the Board;
    (D) Evaluate the performance of the Board by making appropriate 
reports and inspections, and take corrective action where needed;
    (E) Adjudicate cases as a Board member; and
    (F) Exercise such other authorities as the Director may provide.
    (ii) The Chairman shall have no authority to direct the result of 
an adjudication assigned to another Board member or to a panel; 
provided, however, that nothing in this section shall be construed to 
limit the management authority of the Chairman under paragraph 
(a)(2)(i) of this section.
    (3) Panels. The Chairman shall divide the Board into three-member 
panels and designate a presiding member of each panel if the Chairman 
or Vice Chairman is not assigned to the panel. The Chairman may from 
time to time make changes in the composition of such panels and of 
presiding members. Each three-member panel shall be empowered to decide 
cases by majority vote, and a majority of the Board members assigned to 
the panel shall constitute a quorum for such panel. In addition, the 
Chairman shall assign any number of Board members, as needed, to serve 
on the screening panel to implement the case management process as 
provided in paragraph (e) of this section.
    (4) Temporary Board members. The Director may in his discretion 
designate immigration judges, retired Board members, retired 
immigration judges, and administrative law judges employed within, or 
retired from, EOIR to act as temporary, additional Board members for 
terms not to exceed six months. A temporary Board member assigned to a 
case may continue to participate in the case to its normal conclusion, 
but shall have no role in the actions of the Board en banc.
    (5) En banc process. A majority of the permanent Board members 
shall constitute a quorum for purposes of convening the Board en banc. 
The Board may on its own motion by a majority vote of the permanent 
Board members, or by direction of the Chairman, consider any case en 
banc, or reconsider as the Board en banc any case that has been 
considered or decided by a three-member panel. En banc proceedings are 
not favored, and shall ordinarily be ordered only where necessary to 
address an issue of particular importance or to secure or maintain 
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 the Deputy Attorney General, 
upon recommendation of the Director, shall from time to time direct.
* * * * *
    (b) Appellate jurisdiction. Appeals may be filed with the Board of 
Immigration Appeals from the following:
    (d) Powers of the Board--(1) Generally. The Board shall function as 
an appellate body charged with the review of those administrative 
adjudications under the Act that the Attorney General may by regulation 
assign to it. The Board shall resolve the questions before it in a 
manner that is timely, impartial, and consistent with the Act and 
regulations. In addition, the Board, through precedent decisions, shall 
provide clear and uniform guidance to the Service, the immigration 
judges, and the general public on the proper interpretation and 
administration of the Act and its implementing regulations.
    (i) The Board shall be governed by the provisions and limitations 
prescribed by applicable law, regulations, and procedures, and by 
decisions of the Attorney General (through review of a decision of the 
Board, by written order, or by determination and ruling pursuant to 
section 103 of the Act).
    (ii) Subject to these governing standards, Board members shall 
exercise their independent judgment and discretion in considering and 
determining the cases coming before the Board, and a panel or Board 
member to whom a case is assigned may take any action consistent with 
their authorities under the Act and the regulations as is appropriate 
and necessary for the disposition of the case.
    (2) Summary dismissal of appeals--(i) Standards. A single Board 
member or panel may summarily dismiss any appeal or portion of any 
appeal in any case in which:
* * * * *
    (D) The 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 fact or in law 
unless the Board determines that it is supported by a good faith 
argument for extension, modification, or reversal of existing law;
* * * * *
    (ii) Action by the Board. The Board's case management screening 
plan shall promptly identify cases that are subject to summary 
dismissal pursuant to this paragraph. An order dismissing any appeal 
pursuant to this paragraph (d)(2) shall constitute the final decision 
of the Board.
    (iii) Disciplinary consequences. The filing by an attorney or 
representative accredited under Sec. 292.2(d) of this chapter of an 
appeal that is summarily dismissed under paragraph (d)(2)(i) of this 
section may constitute frivolous behavior under Sec. 3.102(j). Summary 
dismissal of an appeal under paragraph (d)(2)(i) of this section does 
not limit the other grounds and procedures for disciplinary action 
against attorneys or representatives.
    (3) Scope of review. (i) The Board will not engage in de novo 
review of findings of fact determined by an immigration judge. Facts 
determined by the immigration judge, including findings as to the 
credibility of testimony, shall be reviewed only to determine whether 
the findings of the immigration judge are clearly erroneous.
    (ii) The Board may review questions of law, discretion, and 
judgment and all other issues in appeals from decisions of immigration 
judges de novo.
    (iii) The Board may review all questions arising in appeals from 
decisions issued by Service officers de novo.
    (iv) Except for taking administrative notice of commonly known 
facts such as current events or the contents of official documents, the 
Board will not engage in factfinding in the course of deciding appeals. 
A party asserting that the Board cannot properly resolve an appeal 
without further factfinding must file a motion for remand. If further 
factfinding is needed in a particular case, the Board may remand the 
proceeding to the immigration judge or, as appropriate, to the Service.
    (4) Rules of practice. The Board shall have authority, with the 
approval of the Director, EOIR, to prescribe procedures governing 
proceedings before it.
    (5) Discipline of attorneys and representatives. The Board shall 
determine whether any organization or individual desiring to represent 
aliens in immigration proceedings meets the requirements as set forth 
in Sec. 292.2 of this chapter. It shall also determine whether any 
organization desiring representation is of a kind described in

[[Page 54903]]

Sec. 1.1(j) of this chapter, and shall regulate the conduct of 
attorneys, representatives of organizations, and others who appear in a 
representative capacity before the Board or the Service or any 
immigration judge.
    (6) Finality of decision. The decision of the Board shall be final 
except in those cases reviewed by the Attorney General in accordance 
with paragraph (h) of this section. The Board may return a case to the 
Service or an immigration judge for such further action as may be 
appropriate, without entering a final decision on the merits of the 
case.
    (e) Case management system. The Chairman shall establish a case 
management system to screen all cases and to manage the Board's 
caseload. Unless a case meets the standards for assignment to a three-
member panel under paragraph (e)(6) of this section, all cases shall be 
assigned to a single Board member for disposition. The Chairman, under 
the supervision of the Director, shall be responsible for the success 
of the case management system. The Chairman shall designate, from time 
to time, a screening panel comprising a sufficient number of Board 
members who are authorized, acting alone, to adjudicate appeals as 
provided in this paragraph.
    (1) Initial screening. All cases shall be referred to the screening 
panel for review. Appeals subject to summary dismissal as provided in 
paragraph (d)(2) of this section should be promptly dismissed.
    (2) Miscellaneous dispositions. A single Board member may grant an 
unopposed motion or a motion to withdraw an appeal pending before the 
Board. In addition, a single Board member may adjudicate a Service 
motion to remand any appeal from the decision of a Service officer 
where the Service 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 case management plan.
    (3) Merits review. In any case that has not been summarily 
dismissed, the case management system shall arrange for the prompt 
completion of the record of proceedings and transcript, and the 
issuance of a briefing schedule. A single Board member assigned under 
the case management system shall determine the appeal on the merits as 
provided in paragraph (e)(4) or (e)(5) of this section, unless the 
Board member determines that the case is appropriate for review and 
decision by a three-member panel under the standards of paragraph 
(e)(6) of this section. The Board member may summarily dismiss an 
appeal after completion of the record of proceeding.
    (4) Affirmance without opinion. (i) The Board member to whom a case 
is assigned shall 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 issues on appeal are squarely controlled by existing Board 
or federal court precedent and do not involve the application of 
precedent to a novel factual situation; or
    (B) The factual and legal issues raised on appeal are not so 
substantial that the case warrants the issuance of a written opinion in 
the case.
    (ii) 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(e)(4).'' 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.
    (5) Other decisions on the merits by single Board member. If the 
Board member to whom an appeal is assigned determines, upon 
consideration of the merits, that the decision is not appropriate for 
affirmance without opinion, the Board member shall issue a brief order 
affirming, modifying, or remanding the decision under review, unless 
the Board member designates the case for decision by a three-member 
panel under paragraph (e)(6) of this section under the standards of the 
case management plan. A single Board member may reverse the decision 
under review if such reversal is plainly consistent with and required 
by intervening Board or judicial precedent, by an intervening Act of 
Congress, or by an intervening final regulation. A motion to reconsider 
or to reopen a decision that was rendered by a single Board member may 
be adjudicated by that Board member unless the case is reassigned to a 
three-member panel as provided under the standards of the case 
management plan.
    (6) Panel decisions. Cases may only be assigned for review by a 
three-member panel if the case presents one of these circumstances:
    (i) The need to settle inconsistencies among the rulings of 
different immigration judges;
    (ii) The need to establish a precedent construing the meaning of 
laws, regulations, or procedures;
    (iii) The need to review a decision by an immigration judge or the 
Service that is not in conformity with the law or with applicable 
precedents;
    (iv) The need to resolve a case or controversy of major national 
import;
    (v) The need to review a clearly erroneous factual determination by 
an immigration judge; or
    (vi) The need to reverse the decision of an immigration judge or 
the Service, other than a reversal under Sec. 3.1(e)(5).
    (7) Oral argument. When an appeal has been taken, a request for 
oral argument if desired shall be included in the Notice of Appeal. A 
three-member panel or the Board en banc may hear oral argument, as a 
matter of discretion, at such date and time as is established under the 
Board's case management plan. Oral argument shall be held at the 
offices of the Board unless the Deputy Attorney General or his designee 
authorizes oral argument to be held elsewhere. The Service may be 
represented before the Board by an officer of the Service designated by 
the Service. No oral argument will be allowed in a case that is 
assigned for disposition by a single Board member.
    (8) Timeliness. As provided under the case management system, the 
Board shall promptly enter orders of summary dismissal, or other 
miscellaneous dispositions, in appropriate cases. In other cases, after 
completion of the record on appeal, including any briefs, motions, or 
other submissions on appeal, the Board member or panel to which the 
case is assigned shall issue a decision on the merits as soon as 
practicable, with a priority for cases or custody appeals involving 
detained aliens.
    (i) Except in exigent circumstances as determined by the Chairman, 
the Board shall dispose of all appeals assigned to a single Board 
member within 90 days of completion of the record on appeal, or within 
180 days after an appeal is assigned to a three-member panel (including 
any additional opinion by a member of the panel).
    (ii) In exigent circumstances, the Chairman may grant an extension 
in particular cases of up to 60 days as a matter of discretion. Except 
as provided in paragraph (e)(8)(iii) or (iv) of this section, in those 
cases where the panel

[[Page 54904]]

is unable to issue a decision within the established time limits, as 
extended, the Chairman shall either assign the case to himself or a 
Vice-Chairman for final decision within 14 days or shall refer the case 
to the Attorney General for decision. If a dissenting or concurring 
panel member fails to complete his or her 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 an impending decision by the 
United States Supreme Court or a United States Court of Appeals, or 
impending Department regulatory amendments, or an impending en banc 
Board decision may substantially determine the outcome of a case or 
group of cases pending before the Board, the Chairman may hold the case 
or cases until such decision is rendered, temporarily suspending the 
time limits described in this paragraph (e)(8).
    (iv) For any case ready for adjudication as of September 25, 2002, 
and that has not been completed within the established time lines, the 
Chairman may, as a matter of discretion, grant an extension of up to 
120 days.
    (v) The Chairman shall notify the Director of EOIR and the Attorney 
General if a Board member consistently fails to meet the assigned 
deadlines for the disposition of appeals, or otherwise fails to adhere 
to the standards of the case management system. The Chairman shall also 
prepare a report assessing the timeliness 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 the adjudication of appeals reflect an internal management 
directive in favor of timely dispositions, but do not affect the 
validity of any decision issued by the Board and do not, and shall not 
be interpreted to, create any substantive or procedural rights 
enforceable before any immigration judge or the Board, or in any court 
of law or equity.
* * * * *
    (g) Decisions of the Board as precedents. Except as they may be 
modified or overruled by the Board or the Attorney General, decisions 
of the Board shall be binding on all officers and employees of the 
Service or immigration judges in the administration of the Act. By 
majority vote of the permanent Board members, selected decisions of the 
Board rendered by a three-member panel or by the Board en banc may be 
designated to serve as precedents in all proceedings involving the same 
issue or issues.
* * * * *

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


Sec. 3.2  Reopening or reconsideration before the Board of Immigration 
Appeals.

* * * * *
    (i) * * * Any motion for reconsideration or reopening of a decision 
issued by a single Board member will be referred to the screening panel 
for disposition by a single Board member, unless the screening panel 
member determines, in the exercise of judgment, that the motion for 
reconsideration or reopening should be assigned to a three-member panel 
under the standards of Sec. 3.1(e)(6). * * *
* * * * *

    4. In Sec. 3.3, paragraphs (a) and (c) are revised, paragraph (b) 
is amended by adding a new sentence at the end thereof, and paragraph 
(f) is added, to read as follows:


Sec. 3.3  Notice of appeal.

    (a) Filing--(1) Appeal from decision of an immigration judge. A 
party affected by a decision of an immigration judge which may be 
appealed to the Board under this chapter shall be given notice of the 
opportunity for filing an appeal. An appeal from a decision of an 
immigration judge shall be taken by filing a Notice of Appeal from a 
Decision of an Immigration Judge (Form EOIR-26) directly with the 
Board, within the time specified in Sec. 3.38. The appealing parties 
are only those parties who are covered by the decision of an 
immigration judge and who are specifically named on the Notice of 
Appeal. The appeal must reflect proof of service of a copy of the 
appeal and all attachments on the opposing party. An appeal is not 
properly filed unless it is received at the Board, along with all 
required documents, fees or fee waiver requests, and proof of service, 
within the time specified in the governing sections of this chapter. A 
Notice of Appeal may not be filed by any party who has waived appeal 
pursuant to Sec. 3.39.
    (2) Appeal from decision of a Service officer. A party affected by 
a decision of a Service officer that may be appealed to the Board under 
this chapter shall be given notice of the opportunity to file an 
appeal. An appeal from a decision of a Service officer shall be taken 
by filing a Notice of Appeal to the Board of Immigration Appeals from a 
Decision of an INS Officer (Form EOIR-29) directly with the office of 
the Service having administrative control over the record of proceeding 
within 30 days of the service of the decision being appealed. An appeal 
is not properly filed until it is received at the appropriate office of 
the Service, together with all required documents, and the fee 
provisions of Sec. 3.8 are satisfied.
    (3) General requirements for all appeals. The appeal must be 
accompanied by a check, money order, or fee waiver request in 
satisfaction of the fee requirements of Sec. 3.8. If the respondent or 
applicant is represented, a Notice of Entry of Appearance as Attorney 
or Representative Before the Board (Form EOIR-27) must be filed with 
the Notice of Appeal. The appeal and all attachments must be in English 
or accompanied by a certified English translation.
    (b) * * * An appellant who asserts that the appeal may warrant 
review by a three-member panel under the standards of Sec. 3.1(e)(6) 
may identify in the Notice of Appeal the specific factual or legal 
basis for that contention.
* * * * *
    (c) Briefs--(1) Appeal from decision of an immigration judge. 
Briefs in support of or in opposition to an appeal from a decision of 
an immigration judge shall be filed directly with the Board. In those 
cases that are transcribed, the briefing schedule shall be set by the 
Board after the transcript is available. In cases involving aliens in 
custody, the parties shall be provided 21 days in which to file 
simultaneous briefs unless a shorter period is specified by the Board, 
and reply briefs shall be permitted only by leave of the Board. In 
cases involving aliens who are not in custody, the appellant shall be 
provided 21 days in which to file a brief, unless a shorter period is 
specified by the Board. The appellee shall have the same period of time 
in which to file a reply brief that was initially granted to the 
appellant to file his or her brief. The time to file a reply brief 
commences from the date upon which the appellant's brief was due, as 
originally set or extended by the Board. The Board, upon written 
motion, may extend the period for filing a brief or a reply brief for 
up to 90 days for good cause shown. In its discretion, the Board may 
consider a brief that has been filed out of time. All briefs, filings, 
and motions filed in conjunction with an appeal shall include proof of 
service on the opposing party.
    (2) Appeal from decision of a Service officer. Briefs in support of 
or in opposition to an appeal from a decision of a Service officer 
shall be filed directly with the office of the Service having 
administrative control over the file. The alien and the Service shall 
be provided 21 days in which to file a brief, unless a shorter period 
is specified by the Service officer from whose decision the

[[Page 54905]]

appeal is taken, and reply briefs shall be permitted only by leave of 
the Board. Upon written request of the alien, the Service officer from 
whose decision the appeal is taken or the Board may extend the period 
for filing a brief for good cause shown. The Board may authorize the 
filing of briefs directly with the Board. In its discretion, the Board 
may consider a brief that has been filed out of time. All briefs and 
other documents filed in conjunction with an appeal, unless filed by an 
alien directly with a Service office, shall include proof of service on 
the opposing party.
* * * * *
    (f) Application on effective date. All cases and motions pending on 
September 25, 2002, shall be adjudicated according to the rules in 
effect on or after that date, except that Sec. 3.1(d)(3)(i) shall not 
apply to appeals filed before September 25, 2002. A party to an appeal 
or motion pending on August 26, 2002, may, until September 25, 2002, or 
the expiration of any briefing schedule set by the Board, whichever is 
later, submit a brief or statement limited to explaining why the appeal 
or motion does or does not meet the criteria for three-member review 
under Sec. 3.1(e)(6).
* * * * *

    5. In Sec. 3.5, paragraph (a) is revised to read as follows:


Sec. 3.5  Forwarding of record on appeal.

    (a) Appeal from decision of an immigration judge. If an appeal is 
taken from a decision of an immigration judge, the record of proceeding 
shall be forwarded to the Board upon the request or the order of the 
Board. Where transcription of an oral decision is required, the 
immigration judge shall review the transcript and approve the decision 
within 14 days of receipt, or within 7 days after the immigration judge 
returns to his or her duty station if the immigration judge was on 
leave or detailed to another location. The Chairman and the Chief 
Immigration Judge shall determine the most effective and expeditious 
way to transcribe proceedings before the immigration judges, and take 
such steps as necessary to reduce the time required to produce 
transcripts of those proceedings and improve 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





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