[Federal Register Volume 63, Number 112 (Thursday, June 11, 1998)]
[Rules and Regulations]
[Pages 31889-31890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15589]



[[Page 31889]]

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DEPARTMENT OF JUSTICE

8 CFR Part 3

[EOIR No. 120F; AG Order No. 2163-98]
RIN 125-AA21


Executive Office for Immigration Review; Board of Immigration 
Appeals: En Banc Procedures

AGENCY: Executive Office for Immigration Review; Department of Justice.

ACTION: Final rule.

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SUMMARY: This final rule amends 8 CFR part 3 by revising the en banc 
decision procedures of the Board of Immigration Appeals. This rule 
streamlines the Board's en banc process by permitting a majority of 
permanent Board Members or the Chairman to designate en banc cases to 
be heard by nine-member, limited en banc panels.

DATES: This final rule is effective June 11, 1998.

FOR FURTHER INFORMATION CONTACT: Margaret M. Philbin, General Counsel, 
Executive Office for Immigration Review, Suite 2400, 5107 Leesburg 
Pike, Falls Church, Virginia 22041, (703) 305-0470.

SUPPLEMENTARY INFORMATION: This regulation revises and streamlines the 
en banc procedures of the Board of Immigration Appeals. The current 
regulation requires that the entire 15-member Board decide each en banc 
case. While this system has served the Board well in the past by 
promoting thoughtful decision-making and permitting each Board Member 
to participate in important precedent setting decisions, with the 
expansion of the Board to 12 members and most recently to 15 members, 
this procedure has become cumbersome and time-consuming.
    This rule streamlines the Board's en banc process by permitting a 
majority of permanent Board Members or the Chairman to designate en 
banc cases to be heard by nine-members, limited en banc panels. Each 
limited en banc panel shall contain the Chairman or Vice Chairman (as 
decided by the Chairman). If the Chairman and Vice Chairman are both 
disqualified in a particular case, then the most senior remaining 
permanent Board Member who is not disqualified shall sit on the limited 
en banc panel as the Presiding Board Member. If the Chairman and Vice 
Chairman are both unavailable in a particular case for reasons other 
than disqualification, then the Chairman shall designate a Presiding 
Board Member to sit on the limited en banc panel. If the Chairman is 
unavailable and disqualified, then the Vice Chairman, if unavailable 
and not disqualified, shall designate a presiding Board Member to sit 
on the limited en banc panel. If the case was considered or decided by 
a three-member panel, the limited en banc panel shall also contain all 
available Board Members who considered or decided that case as part of 
a three-member panel. The remaining members of each limited en banc 
panel will be randomly selected from among the permanent Board Members. 
In light of the Board's increasing membership and caseload, these 
changes are necessary to maintain an effective, efficient system of 
appellate adjudication.
    Generally, each limited en banc panel would consider an individual 
case. However, the Chairman could refer a group of cases to the same 
limited en banc panel. It is expected that such authority would be used 
when the Board has a group of cases with related issues pending before 
it. To maintain consistency and uniformity among limited en banc panel 
decisions, the rule provides for referral of any limited en banc panel 
decision to the full Board en banc upon a majority vote of the 
permanent Board Members or by direction of the Chairman. This rule does 
not change the requirement of a majority vote of the permanent Board 
Members to designate a decision of the Board as a published precedent. 
The rule also makes certain technical and administrative changes, such 
as recognizing the existing position of Vice Chairman of the Board and 
designating retired Board Members, retired Immigration Judges, and 
Administrative Law Judges as persons eligible to serve as temporary 
Board Members. Currently, only sitting Immigration Judges can serve in 
this capacity. These temporary appointments are intended to assist the 
Board when extenuating circumstances arise, or in the absence of 
permanent Members or in other situations in which the temporary 
appointment of qualified and experienced adjudicators will allow the 
Board to efficiently and effectively handle its caseload.
    Compliance with 5 U.S.C. 553 as to notice of proposed rulemaking 
and delayed effective date is not necessary because this rule relates 
to internal agency procedure and practice.

Regulatory Flexibility Act

    In accordance with 5 U.S.C. 605(b), the Attorney General certifies 
that this rule affects only individuals in immigration proceedings 
before the Executive Office for Immigration Review whose appeals are 
decided by the Board of Immigration Appeals. 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 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. 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 regulation has been drafted and reviewed in accordance with 
Executive Order 12866, Sec. 1(b), Principles of Regulation. This rule 
falls within a category of actions that the Office of Management and 
Budget has determined not to constitute ``significant regulatory 
actions'' under Sec. 3(f) of Executive Order 12866, Regulatory Planning 
and Review, and, accordingly, it has not been reviewed by OMB.

Executive Order 12612

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 12612, the Department of Justice has determined that 
this rule does not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.

Executive Order 12988

    The rule meets the applicable standards provided in sections 3(a) 
and 3(b)(2) of Executive Order No. 12988.

[[Page 31890]]

List of Subjects in 8 CFR Part 3

    Administrative practice and procedure, Immigration, Lawyers, 
Organizations and functions (Government agencies), Reporting and 
recordkeeping requirements.

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

    Authority: 5 U.S.C. 301; 8 U.S.C. 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.

    2. Section 3.1 is amended by revising paragraph (a)(1) and adding 
paragraphs (a) (4), (5) and (6) to read as follows:


Sec. 3.1  General authorities.

    (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. The Board shall 
consist of a Chairman, a Vice Chairman, and thirteen other members. The 
Board Members shall exercise their independent judgment and discretion 
in the cases coming before the Board. 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. The Director 
may in his discretion designate Immigration Judges, retired Board 
Members, retired Immigration Judges, and Administrative Law Judges 
employed within EOIR to act as temporary, additional Board Members for 
terms not to exceed six months. The Chairman may divide the Board into 
three-member panels and designate a Presiding Member of each panel. The 
Chairman may from time to time make changes in the composition of such 
panels and of Presiding Members. Each panel shall be empowered to 
decide cases by majority vote. A majority of the number of Board 
Members authorized to constitute a panel shall constitute a quorum for 
such panel. Each three-member panel may exercise the appropriate 
authority of the Board as set out in part 3 that is necessary for the 
adjudication of cases before it. In the case of an unopposed motion or 
a motion to withdraw an appeal pending before the Board, a single Board 
Member or the Chief Attorney Examiner may exercise the appropriate 
authority of the Board as set out in part 3 that is necessary for the 
adjudication of such motions before it.
* * * * *
    (4) En banc Process--(i) Full Board en Banc. A majority of the 
permanent Board Members shall constitute a quorum of the Board for 
purposes of convening the full 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 as the full Board en banc, 
or reconsider as the full Board en banc any case that has been 
considered or decided by a three-member panel or by a limited en banc 
panel.
    (ii) Limited en banc panels. The Board may on its own motion, by a 
majority vote of the permanent Board Members, or by direction of the 
Chairman, assign a case or group of cases for consideration by a 
limited en banc panel, or assign a case that has been considered or 
decided by a three-member panel for reconsideration by a limited en 
banc panel. Each limited en banc panel shall consist of nine members. 
Each limited en banc panel shall contain the Chairman or Vice Chairman 
(as decided by the Chairman). If the Chairman and Vice Chairman are 
both disqualified in a particular case, then the most senior permanent 
Board Member who is not disqualified shall sit on the limited en banc 
panel as the Presiding Board Member. If the Chairman and Vice Chairman 
are both unavailable to hear a case that has been assigned to a limited 
en banc panel, but the Chairman is not disqualified, then the Chairman 
shall designate a Presiding Board Member to sit on the limited en banc 
panel. If the Chairman is unavailable and disqualified, then the Vice 
Chairman, if unavailable and not disqualified, shall designate a 
presiding Board Member to sit on the limited en banc panel. Where a 
case that has been considered or decided by a three-member panel is 
assigned for review by a limited en banc panel, the en banc panel shall 
contain all available permanent Board Members who considered or decided 
that case as part of a three-member panel. The remaining members of 
each limited en banc panel will be randomly selected from among the 
permanent Board Members. The decision reached by a limited en banc 
panel shall be considered as the final decision of the Board in the 
case, unless the Chairman or a majority of the permanent Board Members 
vote to decide to assign the case to a full en banc panel for 
reconsideration in accordance with paragraph (a)(4)(i) of this section.
    (5) Precedents. By majority vote of the permanent Board Members, a 
decision of the Board, whether rendered by a three-member panel, a 
limited en banc panel, or by the entire Board sitting en banc, may be 
designated to serve as a Board precedent pursuant to paragraph (g) of 
this section.
    (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.
* * * * *
    Dated: June 5, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-15589 Filed 6-10-98; 8:45 am]
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