Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 /Rules and Regulations 31889

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.

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 timeconsuming.

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 foreignbased companies in domestic and

export markets.

Executive Order 12866

This regulation has been drafted and

reviewed in accordance with Executive

Order 12866, § 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

§ 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.
31890 Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 /Rules and Regulations

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:

§ 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 threemember 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 threemember 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 threemember 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]

BILLING CODE 4410–30–M

DEPARTMENT OF JUSTICE

8 CFR Part 3

[EOIR No. 121P; AG Order No. 2162–98]

RIN 1125–AA23

Executive Office for Immigration

Review; Motion to Reopen:

Suspension of Deportation and

Cancellation of Removal

AGENCY: Executive Office for

Immigration Review, Justice.

ACTION: Interim rule with request for

comments.

SUMMARY: This rule amends the

regulations of the Executive Office for

Immigration Review (EOIR) by

establishing a special procedure for the

filing and adjudication of motions to

reopen to apply for suspension of

deportation and cancellation of removal

pursuant to section 203(c) of the

Nicaraguan Adjustment and Central

American Relief Act.

DATES: Effective date: This interim rule

is effective June 11, 1998.

Comment date: Written comments

must be submitted on or before July 13,

1998.

ADDRESSES: Please submit written

comments, in triplicate, to Margaret M.

Philbin, General Counsel, Executive

Office for Immigration Review, Suite

2400, 5107 Leesburg Pike, Falls Church,

Virginia 22041.

FOR FURTHER INFORMATION CONTACT:

Margaret M. Philbin, General Counsel,

Executive Office for Immigration

Review, Suite 2400, 5107 Leesburg Pike,

Falls Church, Virginia 22041, telephone

(703) 305–0470.

SUPPLEMENTARY INFORMATION: This

interim rule with request for comments

amends 8 CFR part 3 by creating new

§ 3.43.

Background

This regulation relates to a previous

notice, signed by the Attorney General