Daily Rules, Proposed Rules, and Notices of the Federal Government
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As part of the review, each agency must determine whether any regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving its regulatory objectives.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.
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.
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.
The purpose of this Notice is to provide advance notice to the public that the Department is considering
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.
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,
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).
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.
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.
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.
Therefore, as part of the Department's ongoing effort to ensure that its regulations are clear, effective, non-duplicative, and up-to-date, the Department will be reviewing 8 CFR parts 1003, 1103, 1211, 1212, 1215, 1216, and 1235 during this first two-year 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.
The following is a summary of the amendments that the Department is currently considering during this round of the retrospective review:
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.
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,
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,”
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
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 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.
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 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 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.
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.
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.
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.
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.
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
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.
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.
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.
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.