This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

59567 

Vol. 77, No. 189 

Friday, September 28, 2012 

DEPARTMENT OF JUSTICE 

Executive Office for Immigration 

Review 

8 CFR Parts 1003, 1103, 1208, 1211, 

1212, 1215, 1216, 1235 

[EOIR No. 178] 

RIN 1125–AA71 

Retrospective Regulatory Review 

Under E.O. 13563 

AGENCY: Executive Office for 

Immigration Review, Department of 

Justice. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: Following the issuance of 

Executive Order 13563, the Department 

of Justice (Department or DOJ) issued a 

Plan for Retrospective Analysis of 

Existing Rules (Plan) on August 22, 

2011, identifying several regulations 

that it plans to review during the next 

two years. Pursuant to that Plan, the 

Department is conducting a 

retrospective review of portions of the 

regulations of the Executive Office for 

Immigration Review (EOIR). The 

Department is considering proposing 

amendments to the EOIR regulations in 

parts 1003, 1103, 1208, 1211, 1212, 

1215, 1216, and 1235 of chapter V of 

title 8 of the Code of Federal 

Regulations (CFR). The purpose of this 

Notice is to provide the public with 

advance notice of that future rulemaking 

and to request the public’s input on 

potential amendments to the EOIR 

regulations. 

DATES: Written comments must be 

postmarked and electronic comments 

must be submitted on or before 

November 27, 2012. 

ADDRESSES: You may submit comments, 

identified by EOIR Docket No. 178, by 

one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Commenters should be aware that the 

electronic Federal Docket Management 

System will not accept comments after 

Midnight Eastern Time on the last day 

of the comment period. 

• Mail: Acting General Counsel, Jean 

King, Office of the General Counsel, 

Executive Office for Immigration 

Review, 5107 Leesburg Pike, Suite 2600, 

Falls Church, VA 22041. To ensure 

proper handling, please reference EOIR 

Docket No. 178 on your correspondence. 

This mailing address may also be used 

for paper, disk, or CD–ROM 

submissions. 

• Hand Delivery/Courier: Acting 

General Counsel, Jean King, Office of 

the General Counsel, Executive Office 

for Immigration Review, 5107 Leesburg 

Pike, Suite 2600, Falls Church, VA 

22041. Contact Telephone Number (703) 

305–0470 (not a toll-free call). 

FOR FURTHER INFORMATION CONTACT: 

Acting General Counsel, Jean King, 

Office of the General Counsel, Executive 

Office for Immigration Review, 5107 

Leesburg Pike, Suite 2600, Falls Church, 

Virginia 22041, telephone (703) 305– 

0470 (not a toll-free call). 

SUPPLEMENTARY INFORMATION: 

I. Executive Order 13563 

On January 18, 2011, President Barack 

Obama issued Executive Order (EO) 

13563 directing Federal agencies to 

institutionalize a culture of 

retrospective review and analysis 

through periodic review of existing 

significant regulations. As part of the 

review, each agency must determine 

whether any regulations should be 

modified, streamlined, expanded, or 

repealed so as to make the agency’s 

regulatory program more effective or 

less burdensome in achieving its 

regulatory objectives. Each agency must 

evaluate the costs and benefits of 

current regulatory approaches and 

consider available regulatory 

alternatives that maximize net benefits, 

including consideration of potential 

economic, environmental, public health, 

and safety effects, distributive impacts, 

and equity. The President further 

stressed the need for agencies to solicit 

public participation regularly as part of 

the rulemaking process. 

II. The Department’s Plan for 

Retrospective Analysis of Existing 

Rules 

In response to EO 13563, the 

Department published a Request for 

Information (RFI), entitled ‘‘Reducing 

Regulatory Burden; Retrospective 

Review Under E.O. 13563,’’ on March 1, 

2011, requesting the public’s input on 

the criteria for selecting regulations to 

be reviewed. See 76 FR 11163 (Mar. 1, 

2011). After review of comments 

received in response to the RFI and 

consultation with Departmental 

components, the Department issued its 

Plan identifying several regulations that 

it intends to review during the next two 

years. See ‘‘Plan for Retrospective 

Analysis of Existing Rules’’ (Plan), 

available online at http:// 

www.justice.gov/open/doj-rr-finalplan.pdf. Based upon the public 

comments received, the Department 

selected regulations for review that: Are 

ineffective in achieving a stated 

regulatory goal; require harmonization 

or modernization; have objectives that 

may be achieved through less 

burdensome regulatory alternatives; 

have actual costs and benefits that are 

different from those projected; are 

burdensome; create distributional 

inequities; and/or cause unintended 

effects. See Plan at 11–12, 14,–15, 18. 

In the Plan, the Department identified 

EOIR as one of the Department’s 

principal rulemaking components that 

would be featured in the first two-year 

round of retrospective review. See Plan 

at 2. The Department noted that, prior 

to the Plan’s issuance, EOIR had already 

undertaken a retrospective review of its 

existing and proposed regulations, and 

had withdrawn two pending proposed 

rules (‘‘Suspension of Deportation and 

Cancellation of Removal for Certain 

Battered Spouses and Children; Motions 

to Reopen for Certain Battered Spouses 

and Children,’’ RIN 1125–AA35, and 

‘‘Rules Governing Immigration 

Proceedings,’’ RIN 1125–AA53) that 

were no longer necessary as their 

intended purpose had been satisfied 

through other regulations, Board of 

Immigration Appeals (Board) precedent, 

and agency guidance documents. See 

Plan at 6. In the Plan, the Department 

also noted that EOIR has initiated a 

review of several of its regulations in 

response to petitions for rulemaking and 

meets regularly with affected parties to 

discuss a wide range of agency 

practices, including rulemaking. See 

Plan at 7. 

The purpose of this Notice is to 

provide advance notice to the public 

that the Department is considering 

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59568 Federal Register / Vol. 77, No. 189 / Friday, September 28, 2012 / Proposed Rules 

1 Information on a proposed rulemaking of the 

former Immigration and Naturalization Service 

(INS) addressing repapering for certain aliens 

rendered ineligible for relief from deportation can 

be found in the Fall 2000 edition of the Unified 

Agenda of Regulatory and Deregulatory Actions. 

See ‘‘Unified Agenda of Regulatory and 

Deregulatory Actions’’ (Unified Agenda), available 

online at http://www.reginfo.gov; see also 65 FR 

71273 (Nov. 30, 2000). 

2EOIR encourages the public to review the 

Unified Agenda to learn about and comment on 

pending EOIR rulemakings. See Unified Agenda, 

available online at http://www.reginfo.gov. 

3The ‘‘departure bar’’ is the regulatory provision 

at 8 CFR 1003.2(d) and 1003.23(b)(1) that prohibits 

an alien from filing a motion to reopen or 

reconsider with the Board or immigration courts 

after his or her departure from the United States. 

This regulatory provision also renders a motion to 

reopen or reconsider withdrawn if the alien departs 

the United States while the motion is pending. 

proposing amendments to the EOIR 

regulations in the upcoming year, and to 

solicit comments from the public about 

specific amendments being considered, 

as well as other amendments to meet the 

objectives of EO 13563’s retrospective 

analysis provisions. The Department has 

selected specific EOIR regulations to 

review during the first two-year round 

of retrospective review. The Department 

will be reviewing additional portions of 

the EOIR regulations in future 

rulemakings. The Department envisions 

that this future review will be a multiyear initiative to enhance the EOIR 

regulations. 

III. Retrospective Review of EOIR 

Regulations 

In response to the RFI, the 

Department received several public 

comments requesting review of the 

EOIR regulations addressing practices 

and procedures before the immigration 

judges and the Board. The commenters 

requested amendment or repeal of 

various provisions of the EOIR 

regulations at parts 1003, 1208, 1240, 

and 1241. The commenters also 

requested promulgation of regulations to 

address ineffective assistance of 

counsel, discovery in proceedings 

before EOIR, and procedures for 

‘‘repapering’’ (termination of 

deportation proceedings and 

reinstatement of proceedings as removal 

proceedings) for certain aliens rendered 

ineligible for relief from deportation.1

After review of these comments, the 

Department selected the specific 

regulations in chapter V of title 8 of the 

CFR that EOIR would review as part of 

the first two-year round of retrospective 

review. The Department selected for 

review the EOIR regulations at parts 

1003, 1103, 1211, 1212, 1215, 1216, and 

1235, and, for limited purposes, part 

1208. 

In response to the public’s comments, 

the Department will consider 

substantive amendments to the EOIR 

regulations at part 1003, including those 

addressing stays, telephonic or video 

hearings. In addition, the Department is 

considering other substantive 

amendments to the regulations at part 

1003, including those governing venue, 

bond proceedings, and the authority and 

jurisdiction of the immigration judges 

and the Board. In particular, the 

Department is considering regulatory 

amendments to part 1003 that may 

improve the efficiency and fairness of 

adjudications before EOIR. 

EOIR notes that, given the volume of 

substantive comments received, it will 

not be able to address during this round 

of retrospective review all regulatory 

provisions for which it received public 

comments. In particular, the Department 

received several substantive comments 

requesting review of certain regulatory 

provisions of part 1208, including the 

regulatory provisions addressing 

hearing notices, in absentia decisions, 

the one-year filing deadline for asylum 

applications, and filing procedures with 

the immigration courts. The Department 

also received several substantive 

comments requesting review of part 

1240, including the regulatory 

provisions addressing mental 

competency issues in proceedings 

before EOIR, voluntary departure, and 

jurisdiction over applications for relief 

filed pursuant to section 203 of the 

Nicaraguan Adjustment and Central 

American Relief Act (NACARA). The 

Department also received a comment 

requesting that the regulations at part 

1241 be revised to require that, in order 

for an alien to be removed, a functioning 

government must exist in the country to 

which the alien is ordered removed. 

During a future round of retrospective 

review, the Department will also review 

and consider amendments to the other 

regulatory provisions at parts 1208, 

1240, and 1241 for which it received 

public comments. 

EOIR further notes that several of the 

issues addressed by commenters are 

already the subject of separate pending 

rulemakings and/or petitions for 

rulemaking and may continue to be 

addressed through those separate 

rulemakings, rather than as part of this 

retrospective review. In particular, this 

Notice will not address the following 

issues that are currently under 

consideration in other pending 

rulemakings: regulatory provisions at 

part 1003 addressing the streamlining of 

Board adjudication (‘‘Board of 

Immigration Appeals: Affirmance 

Without Opinion, Referral for Panel 

Review, and Publication of Decisions as 

Precedents,’’ RIN 1125–AA58, EOIR No. 

159); and, regulatory provisions at parts 

1003 and 1208 addressing ineffective 

assistance of counsel (‘‘Motions to 

Reopen Removal, Deportation, or 

Exclusion Proceedings Based Upon a 

Claim of Ineffective Assistance of 

Counsel,’’ RIN 1125–AA68, EOIR No. 

170).2 The Department also plans to 

initiate a separate rulemaking 

proceeding to address the regulatory 

provision known as the ‘‘departure 

bar.’’ 3 In addition, the Department is 

considering whether to initiate a 

rulemaking proceeding addressing an 

alien’s mental competency in 

proceedings before EOIR. 

As provided in the Plan, this round of 

retrospective review will also focus on 

reviewing and amending the selected 

EOIR regulations to eliminate 

duplication, ensure consistency with 

the Department of Homeland Security’s 

(DHS) regulations in chapter I of title 8 

of the CFR, and delineate clearly the 

authority and jurisdiction of each 

agency. EOIR believes that such 

amendments to its regulations will 

improve the efficiency and fairness of 

adjudications before EOIR. Such 

regulatory amendments will reduce the 

likelihood of the public misfiling 

applications and petitions and the 

amount of time spent by immigration 

judges and agency personnel in 

explaining and assisting the public in 

navigating each agency’s authority and 

jurisdiction. In addition, by eliminating 

the duplication in regulations, the 

Department will no longer be required 

to pay for printing the duplicative 

regulations as part of the annual 

publication of the Code of Federal 

Regulations. Thus, such regulatory 

amendments will result in resource, 

time, and financial savings to EOIR, as 

well as streamline the adjudicatory 

process for individuals appearing before 

the agency. 

Currently, many EOIR regulations are 

duplicative of DHS regulations. The 

overlap in regulations occurred as a 

result of the Homeland Security Act of 

2002 (HSA), as amended, which 

transferred the functions of the former 

INS from the DOJ to DHS. However, the 

HSA retained under the authority of the 

Attorney General the functions of EOIR, 

a separate agency within the DOJ. As the 

existing regulations at that time often 

intermingled the responsibilities of the 

former INS and EOIR, this transfer 

required a reorganization of title 8 of the 

CFR in February 2003, including the 

establishment of a new chapter V in title 

8 of the CFR pertaining to EOIR. See 68 

FR 9824 (Feb. 28, 2003). The time 

available did not permit a thorough 

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Federal Register / Vol. 77, No. 189 / Friday, September 28, 2012 / Proposed Rules 59569 

4See discussion infra. 

5 During this round of retrospective review, the 

Department intends to review part 1208 for the 

limited purposes of standardizing citations and 

terms, and updating references. As noted above, the 

Department intends to consider other amendments 

to part 1208 during a future round of retrospective 

review. 

6Subpart D in 8 CFR part 1003 is currently 

reserved and, thus, not the subject of review. 

7See supra note 3. 

review of each provision where the 

responsibilities of EOIR and the former 

INS were intermingled. Therefore, a 

number of regulations pertaining to the 

responsibilities of DHS were 

intentionally duplicated in the new 

chapter V because those regulations also 

included provisions relating to the 

responsibilities of EOIR. Accordingly, 

chapter V contains many instances 

where the EOIR regulations duplicate 

the DHS regulations. 

The Department has already 

eliminated some of the duplication. For 

example, the Department revised the 

provisions in 8 CFR part 1274a that 

duplicate 8 CFR part 274a. See 74 FR 

2337, 2339 (Jan. 15, 2009); 76 FR 16525 

(Mar. 24, 2011). As these duplicative 

regulations principally pertained to 

DHS’ control of the employment of 

aliens, the Department removed the 

duplicative regulations in part 1274a 

and added a new section that crossreferences the DHS regulations at 8 CFR 

part 274a. See id. The Department 

similarly revised the provisions in 8 

CFR part 1280, which duplicated 8 CFR 

part 280. See 76 FR 74625, 74628–74629 

(Dec. 1, 2011). As these duplicative 

regulations principally pertained to the 

authority of DHS to impose fines and 

civil monetary penalties, the 

Department removed the duplicative 

provisions in part 1280 and added a 

new section that cross-references the 

DHS regulations at 8 CFR part 280 and 

the EOIR regulations governing the 

Board’s appellate authority at 8 CFR 

part 1003. See id. Most recently, the 

Department amended its regulations at 8 

CFR parts 1003 and 1292 governing the 

discipline of practitioners before EOIR 

and DHS, in part to remove unnecessary 

regulations pertaining to DHS’s 

responsibilities and to insert crossreferences to the appropriate DHS 

regulations. See 77 FR 2011, 2012–2013 

(Jan. 13, 2012). 

In addition, DHS has been revising 

some of its regulations, which has had 

the unintended result of creating 

inconsistencies between the revised 

versions of the DHS regulations and the 

DOJ regulations, which continue to 

track the earlier version of the DHS 

regulations. See 76 FR 53764 (Aug. 29, 

2011) (making extensive amendments to 

the DHS regulations at 8 CFR chapter I); 

76 FR 73475 (Nov. 29, 2011) (finalizing 

the 2011 amendments to the DHS 

regulations at 8 CFR chapter I); 73 FR 

18384 (Apr. 3, 2008) (revising 8 CFR 

parts 212 and 235). 

Therefore, as part of the Department’s 

ongoing effort to ensure that its 

regulations are clear, effective, nonduplicative, and up-to-date, the 

Department will be reviewing 8 CFR 

parts 1003, 1103, 1211, 1212, 1215, 

1216, and 1235 during this first twoyear round of retrospective review. The 

Department will amend these EOIR 

regulations to eliminate those 

provisions that are unnecessarily 

duplicative and, in some cases, 

inconsistent with DHS regulations, and 

to ensure that they make clear the 

distinct responsibilities of DHS and 

EOIR and, where appropriate, include 

cross-references to the applicable DHS 

regulations. In addition to the 

substantive amendments to part 1003 

discussed above, the Department will 

also consider substantive amendments 

to parts 1103, 1211, 1212, 1215, 1216, 

and 1235.4 As with part 1003, the 

Department is considering regulatory 

amendments to parts 1103, 1211, 1212, 

1215, 1216, and 1235 that may improve 

the efficiency and fairness of 

adjudications before EOIR. 

The following is a summary of the 

amendments that the Department is 

currently considering during this round 

of the retrospective review: 

Global Amendments 

For parts 1003, 1103, 1208, 1212, 

1215, 1216, and 1235, the Department 

intends to standardize citations and 

terms to ensure consistency within the 

EOIR regulations and with respect to the 

DHS regulations.5 The Department 

intends to amend the EOIR regulations 

to standardize the capitalization of 

terms such as ‘‘Immigration Court,’’ 

‘‘immigration judge,’’ ‘‘court 

administrator,’’ and ‘‘the Act,’’ 

standardize internal citations to titles 8 

of the CFR and the U.S. Code (U.S.C.), 

standardize references to the Board of 

Immigration Appeals, update references 

to DHS, such as revising the term ‘‘the 

Service’’ as ‘‘DHS’’ and the term ‘‘Office 

of the District Counsel’’ as ‘‘Office of the 

Chief Counsel,’’ and change, as 

appropriate, ‘‘shall’’ to ‘‘must’’ to 

indicate mandatory language. 

Part 1003 

Part 1003 addresses, in part, matters 

exclusively before EOIR, including 

procedures before the immigration 

judges and the Board. However, part 

1003 also contains provisions, such as 

those addressing the List of Free Legal 

Services Providers and the professional 

conduct of practitioners, which affect 

both EOIR and DHS. As a part of the 

retrospective review, the Department 

will only focus on the subparts in part 

1003 addressing matters exclusively 

before EOIR: subparts A (Board of 

Immigration Appeals), B (Office of the 

Chief Immigration Judge), and C 

(Immigration Court—Rules of 

Procedure). Subparts E and F will be 

addressed through two separate 

rulemakings: ‘‘List of Pro Bono Legal 

Service Providers for Aliens in 

Immigration Proceedings,’’ RIN 1125– 

AA62, EOIR No. 164P, see Unified 

Agenda, available online at http:// 

www.reginfo.gov, and ‘‘Reorganization 

of Regulations on the Adjudication of 

Department of Homeland Security 

Practitioner Disciplinary Cases,’’ see 77 

FR 2011 (Jan. 13, 2012).6

In response to the RFI, the 

Department received several public 

comments requesting substantive 

amendments to part 1003, including 

requests to review the regulatory 

provisions governing stays, telephonic 

or video hearings, the ‘‘departure bar,’’ 7

and procedures addressing the 

streamlining of Board adjudication and 

the review of custody/bond 

determinations for arriving aliens. In 

response to these comments, the 

Department is currently reviewing and 

considering amendments to the 

regulatory provisions in part 1003 

addressing motions and stays. See 8 

CFR 1003.19(i), 1003.23. The 

Department is also reviewing the 

regulatory provisions in part 1003 

addressing venue and telephonic and 

video hearings, which is the subject of 

a pending rulemaking (‘‘Jurisdiction and 

Venue in Removal Proceedings,’’ RIN 

1125–AA52, EOIR No. 147). See Unified 

Agenda, available online at http:// 

www.reginfo.gov; see also 8 CFR 

1003.20. In addition, the Department is 

currently evaluating whether to provide 

for separate appearances in bond 

proceedings. As discussed above, the 

Department is reviewing streamlining of 

Board adjudication through a separate 

rulemaking and plans to initiate a 

separate rulemaking proceeding 

addressing the ‘‘departure bar.’’ 

In addition to reviewing part 1003 in 

response to public comments, the 

Department is reviewing other 

provisions in part 1003 to ensure that 

the regulatory provisions appropriately 

and adequately address the authority 

and jurisdiction of the immigration 

judges and the Board. For example, the 

Department is currently reviewing the 

regulatory provisions addressing the 

Board’s appellate jurisdiction in section 

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59570 Federal Register / Vol. 77, No. 189 / Friday, September 28, 2012 / Proposed Rules 

8Note that the Department has already revised 8 

CFR 1212.5 to remove DHS-related regulatory 

provisions for the granting of parole. See 69 FR 

69490, 69497 (Nov. 29, 2004). 

1003.1(b). The Department is also 

considering revising part 1003 to reflect 

updated procedures related to forms, 

including, for example, the requirement 

in section 1003.15(d) that an alien must 

also file the Form EOIR–33, Alien’s 

Change of Address, if he or she has 

changed his or her phone number. 

The retrospective review of part 1003 

will also examine updates to the EOIR 

regulations to reflect current procedures 

and to eliminate duplicative and 

inconsistent provisions. In addition to 

the global amendments already 

discussed, the Department intends to 

change citations to the DHS regulations 

to the EOIR regulations where 

appropriate and update any incorrect or 

outdated citations. For example, in 

section 1003.1(b)(1), the Department is 

considering changing the citation to 8 

CFR part 240 to 8 CFR part 1240 and, 

in section 1003.1(f), changing part 292 

to part 1292. 

EOIR requests the public’s comments 

on the potential amendments to part 

1003 discussed in this Notice. For 

background information, EOIR 

encourages the public to review pending 

rulemakings affecting part 1003 in the 

Unified Agenda. EOIR also invites the 

public to provide any additional 

proposed amendments to part 1003. 

Part 1103 

Part 1103 addresses procedures before 

the DHS Administrative Appeals Unit 

(AAU) and is substantively duplicative 

of the DHS regulations at part 103. In 

addition, the duplicative EOIR 

regulations at part 1103 are no longer 

consistent with the DHS regulations at 

part 103, which were revised in 2011. 

See, e.g., 76 FR 53764, 53780. The 

Department anticipates proposing 

amendments to part 1103 that would 

remove the provisions that are 

duplicative of the DHS regulations at 

part 103, retaining the provisions 

addressing the Board’s jurisdiction and 

adding a cross-reference to the 

applicable DHS regulations at part 103. 

Part 1103 also contains provisions 

addressing the payment of fees to the 

Board. Part 1003, which addresses only 

procedures before EOIR, also contains 

provisions addressing the payment of 

fees to the Board. The Department is 

considering revising part 1103 by 

removing the regulatory provisions 

addressing the payment of fees to the 

Board and consolidating those 

provisions in part 1003. EOIR welcomes 

public comment on the potential 

reorganization of the provisions 

addressing the payment of fees to the 

Board, as well as other improvements to 

part 1103. 

Part 1208 

Part 1208 addresses procedures for 

asylum and withholding of removal. As 

discussed above, the Department will 

review and consider amendments to the 

regulatory provisions at part 1208 

during a future round of retrospective 

review. However, as noted above, the 

Department intends, during this round 

of retrospective review, to review part 

1208 for the limited purpose of 

standardizing citations and terms, and 

updating references. 

Part 1211 

Part 1211 addresses DHS’ waiver of 

the documentary requirements for 

returning legal permanent residents. 

While the EOIR regulations at part 1211 

focus on the alien’s ability to renew his 

or her waiver application before an 

immigration judge, the DHS regulations 

at part 211 contain detailed procedures 

addressing DHS’ initial adjudication of 

such waivers. The Department intends 

to amend the EOIR regulations to 

delineate further that the initial 

adjudication of such waivers is before 

DHS but that an alien may renew his or 

her waiver application before an 

immigration judge. In particular, similar 

to the amendments previously made to 

parts 1274a and 1280, the Department is 

contemplating amending part 1211 by 

adding a cross-reference to the 

applicable DHS regulations at part 211. 

See, e.g., 76 FR 16525 (addressing 

amendments to part 1274a); 74 FR 2337 

(finalizing amendments to part 1274a); 

76 FR 74625 (addressing amendments to 

part 1280). The Department will retain 

in part 1211 the regulatory provision 

addressing an alien’s ability to renew 

his or her waiver application before an 

immigration judge. 

Part 1212 

Part 1212 addresses DHS’ 

documentary requirements for 

nonimmigrants, including waivers of 

documentary requirements, admission 

of certain inadmissible aliens, and 

parole. Part 1212 is substantively 

duplicative of the DHS regulations at 

part 212. In addition, the duplicative 

EOIR regulations at part 1212 are no 

longer consistent with the DHS 

regulations at part 212, which were 

revised in 2008, 2009, and 2011. See, 

e.g., 73 FR 18384, 18415; 74 FR 55726, 

55734 (Oct. 28, 2009) (referring to the 

Department’s planned review of parts 

1212, 1215, and 1235); 76 FR 53764, 

53786. 

While part 1212 is substantively 

duplicative of the DHS regulations at 

part 212, several provisions in part 1212 

address matters under the authority and 

jurisdiction of EOIR. For example, part 

1212 includes regulatory provisions 

addressing the Board’s jurisdiction over 

waivers of inadmissibility for 

nonimmigrants under section 212(d)(3) 

of the Act. See, e.g., 8 CFR 1212.4(b); see 

also 8 CFR 1003.1(b)(6). The 

Department intends to amend part 1212 

to distinguish between the authority and 

jurisdiction of EOIR and DHS, removing 

any provisions that are no longer within 

the Attorney General’s jurisdiction and 

do not need to be restated in the EOIR 

regulations. See, e.g., 74 FR 55726, 

55734.8

Part 1215 

Part 1215 addresses DHS’ control of 

aliens departing from the United States 

and is duplicative of the DHS 

regulations at part 215. The Department 

intends to amend part 1215 to remove 

any provisions that are no longer within 

the Attorney General’s jurisdiction and 

do not need to be restated in the EOIR 

regulations. See, e.g., 74 FR 55726, 

55734. In particular, the Department 

will amend part 1215 by removing the 

provisions that are duplicative of the 

DHS regulations at part 215 and adding 

a cross-reference to the applicable DHS 

regulations at part 215. 

Part 1216 

Part 1216 addresses DHS’ procedures 

for adjudicating conditional lawful 

permanent resident status and is 

duplicative of the DHS regulations at 

part 216. The Department will amend 

part 1216 to remove any provisions that 

are no longer within the Attorney 

General’s jurisdiction and do not need 

to be restated in the EOIR regulations. 

See, e.g., Matter of Herrera Del Orden, 

25 I&N Dec. 589 (BIA 2011) (addressing 

the scope of an immigration judge’s 

authority under 8 CFR 1216.5(f) to 

review DHS’ denial of an alien’s petition 

for a waiver of the requirement to file 

a joint petition to remove the 

conditional basis of his or her 

permanent residence). In particular, the 

Department intends to amend part 1216 

by removing the provisions that are 

duplicative of the DHS regulations at 

part 216 and adding a cross-reference to 

the applicable DHS regulations at part 

216. 

Part 1235 

Part 1235 addresses DHS’ inspection 

of persons applying for admission to the 

United States and is substantively 

duplicative of the DHS regulations at 

part 235. In addition, the duplicative 

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Federal Register / Vol. 77, No. 189 / Friday, September 28, 2012 / Proposed Rules 59571 

9Comments received by DHS in response to 

‘‘Reducing Regulatory Burden; Retrospective 

Review Under Executive Order 13563’’ are available 

for viewing at http://www.regulations.gov and may 

be accessed with Docket No. DHS–2011–0015. 

EOIR regulations at part 1235 are no 

longer consistent with the DHS 

regulations at part 235, which were 

revised in 2008, 2009, and 2011. See, 

e.g., 73 FR 18384, 18416; 74 FR 55726, 

55739; 76 FR 53764, 53790. While part 

1235 is substantively duplicative of the 

DHS regulations at part 235, several 

provisions in part 1235 address matters 

under the authority and jurisdiction of 

EOIR. For example, part 1235 includes 

procedures for an alien in expedited 

removal proceedings under section 235 

of the Act, and who receives a positive 

credible fear finding from DHS, to 

request asylum before an immigration 

judge in regular removal proceedings 

under section 240 of the Act. See, e.g., 

8 CFR 1235.3(b)(4); see also 8 CFR 

1208.30(a). Similar to the other parts 

under review, the Department intends to 

amend part 1235 to distinguish between 

the authority and jurisdiction of EOIR 

and DHS, removing any provisions that 

are no longer within the Attorney 

General’s jurisdiction and do not need 

to be restated in the EOIR regulations. 

See, e.g., 74 FR 55726, 55734. In 

particular, the Department intends to 

amend part 1235 by removing the 

provisions that are duplicative of the 

DHS regulations at part 235 and adding 

a cross-reference to the applicable DHS 

regulations at part 235 and the 

applicable EOIR regulations at part 

1208. 

In addition to the comments that the 

Department received in response to the 

RFI, the Department is also reviewing a 

public comment that DHS received in 

response to its retrospective review 

recommending amendments to part 

1235. See ‘‘Reducing Regulatory 

Burden; Retrospective Review Under 

Executive Order 13563,’’ available 

online at http://edocket.access.gpo.gov/ 

2011/pdf/2011–5829.pdf; see also 

‘‘Preliminary Plan for Retrospective 

Review of Existing Regulations,’’ 

available online at http://www.gpo.gov/ 

fdsys/pkg/FR–2011–06–06/pdf/2011– 

13801.pdf.9 In particular, the 

commenter requested promulgation and 

amendment of DHS and EOIR 

regulations in order to delineate the 

authority and jurisdiction of each 

agency to review the U.S. citizenship 

claims of aliens in expedited removal 

proceedings. As a result, the Department 

is considering whether to amend the 

EOIR regulations addressing an 

immigration judge’s review of an alien’s 

claim to U.S. citizenship status if DHS 

places the alien in expedited removal 

proceedings. The Department notes that 

there is no current regulatory procedure 

for DHS or an alien in expedited 

removal proceedings to appeal to the 

Board for review of an immigration 

judge’s status determination for an alien 

claiming U.S. citizenship. See Matter of 

Lujan-Quintana, 25 I&N Dec. 53, 55–56 

(BIA 2009) (finding that the Board lacks 

jurisdiction to review an appeal by DHS 

of an immigration judge’s decision to 

vacate an expedited removal order after 

a claimed status review hearing 

pursuant to 8 CFR 1235.3(b)(5)(iv), at 

which the immigration judge 

determined the individual to be a U.S. 

citizen). 

The Department is considering 

amending the regulations at parts 1003 

and 1235 to address this issue. One 

approach that the Department is 

considering is providing for an appeal 

process to the Board of an immigration 

judge’s determination of status for an 

alien claiming U.S. citizenship in 

expedited removal proceedings. EOIR 

welcomes public comment on the need 

for addressing this issue, the proposed 

approach discussed in this Notice for 

addressing this issue, and any 

additional approaches. 

IV. Public Comments 

EOIR welcomes the public’s 

comments on the proposed amendments 

to parts 1003, 1103, 1211, 1212, 1215, 

1216, and 1235 summarized in this 

Notice. EOIR is particularly interested 

in receiving examples of where the 

EOIR regulations should be amended to 

distinguish more effectively between the 

authority and jurisdiction of EOIR and 

DHS. See, e.g., Matter of Herrera Del 

Orden, supra. EOIR is also particularly 

interested in regulatory amendments 

that may improve the efficiency and 

fairness of adjudications before EOIR. 

The potential amendments to parts 

1003, 1103, 1211, 1212, 1215, 1216, and 

1235 discussed in this Notice are not 

exhaustive. EOIR invites the public to 

provide any additional proposed 

amendments to these regulatory 

provisions, including opportunities for 

eliminating unnecessary or duplicative 

provisions, revising confusing or 

outdated language, and updating 

statutory or regulatory citations. EOIR 

also invites commenters to provide 

information about the effects of 

proposed amendments, including 

information to assist the Department in 

monetizing or quantifying the benefits 

and costs of amendments, as well as 

identifying qualitative benefits and 

costs. For example, EOIR welcomes data 

from the public on whether and by how 

many hours—actual or billable—these 

regulatory amendments may reduce the 

time spent by aliens and practitioners in 

determining how or where to file 

applications and/or petitions with each 

agency. EOIR further welcomes data on 

how much time and money aliens and 

practitioners spend in redrafting and/or 

resending applications and petitions 

that were misfiled and returned to the 

sender. 

This round of the retrospective review 

is focused, at this point, only on parts 

1003, 1103, 1211, 1212, 1215, 1216, and 

1235, as well as, for limited purposes, 

on part 1208. As noted, the Department 

intends to review additional portions of 

the EOIR regulations in the future. In 

future rulemakings, the Department will 

also be considering amending the 

overall organization of the EOIR 

regulations so as to consolidate related 

regulatory provisions in one part. For 

example, the Department is considering 

consolidating all regulatory provisions 

related to representation and 

appearances in part 1292 by moving 

such provisions within part 1003 to part 

1292. In anticipation of this future 

review and potential reorganization, 

EOIR also requests the public’s 

comments on any additional 

amendments to its regulations, 

including opportunities for more 

effectively delineating the authority and 

jurisdiction of EOIR and DHS and 

improving the efficiency and fairness of 

adjudications before EOIR. 

Comments that will provide the most 

assistance to EOIR will reference a 

specific regulatory section, provide draft 

regulatory language, explain the reason 

for the recommended amendment, and 

include data, information, or authority 

that support the recommended 

amendment. EOIR encourages those 

members of the public submitting 

comments to review those comments 

described in the Department’s Plan. See 

http://www.regulations.gov. 

Dated: September 19, 2012. 

Juan P. Osuna, 

Director. 

[FR Doc. 2012–23874 Filed 9–27–12; 8:45 am] 

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