Federal Register, Volume 79 Issue 133 (Friday, July 11, 2014)

[Federal Register Volume 79, Number 133 (Friday, July 11, 2014)]
[Rules and Regulations]
[Pages 39953-39956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16279]

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Rules and Regulations
Federal Register
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Federal Register / Vol. 79, No. 133 / Friday, July 11, 2014 / Rules
and Regulations

[[Page 39953]]

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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1003

[EOIR Docket No. 177; AG Order No. 3447-2014]
RIN 1125-AA77

Designation of Temporary Immigration Judges

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

ACTION: Interim rule with request for comments.

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SUMMARY: This rule amends the Executive Office for Immigration Review
(EOIR) regulations relating to the organization of the Office of the
Chief Immigration Judge (OCIJ) to allow the Director of EOIR to
designate or select, with the approval of the Attorney General,
temporary immigration judges.

DATES: Effective Date: This rule is effective July 11, 2014. Written
comments must be submitted on or before September 9, 2014. Comments
received by mail will be considered timely if they are postmarked on or
before that date. The electronic Federal Docket Management System
(FDMS) will accept comments until midnight eastern time at the end of
that day.

ADDRESSES: Please submit written comments to Jeff Rosenblum, General
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2600, Falls Church, Virginia 20530. To ensure proper handling,
please reference RIN No. 1125-AA77 or EOIR docket No. 177 on your
correspondence. You may submit comments electronically or view an
electronic version of this interim rule at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jeff Rosenblum, General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2600, Falls Church, Virginia 20530; telephone (703) 305-0470 (not a
toll-free call).

SUPPLEMENTARY INFORMATION:

I. Posting of Public Comments

Please note that all comments received are considered part of the
public record and made available for public inspection online at
www.regulations.gov. Such information includes personally identifiable
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personally identifiable information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONALLY
IDENTIFIABLE INFORMATION'' in the first paragraph of your comment. You
must also locate all the personally identifiable information you do not
want posted online in the first paragraph of your comment and identify
what information you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
http://www.regulations.gov.
Personally identifiable information identified and located as set
forth above will be placed in the agency's public docket file, but not
posted online. Confidential business information identified and located
as set forth above will not be placed in the public docket file. If you
wish to inspect the agency's public docket file in person by
appointment, please see the ``For Further Information Contact''
paragraph.

II. Background

The Executive Office for Immigration Review (EOIR) administers the
nation's immigration court system. EOIR primarily decides whether
foreign-born individuals who are charged by the Department of Homeland
Security (DHS) with violating immigration law pursuant to the
Immigration and Nationality Act (INA) should be ordered removed from
the United States, or should be granted relief or protection from
removal and be permitted to remain in the United States.\1\ EOIR is
also responsible for conducting other immigration-related
adjudications, including hearings regarding custody or bond
determinations made by DHS.
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\1\ Generally, cases commence before an immigration judge when
DHS files a charging document against an alien with the immigration
court. See 8 CFR 1003.14(a).
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To make these critical determinations, EOIR's Office of the Chief
Immigration Judge (OCIJ) has approximately 250 immigration judges who
conduct administrative court proceedings, in 59 immigration courts
nationwide. EOIR's appellate component, the Board of Immigration
Appeals (Board), primarily decides appeals of immigration judge
decisions. The Board is the highest administrative tribunal for
interpreting and applying U.S. immigration law. EOIR is a component of
the Department of Justice (DOJ or Department).
The immigration judges are attorneys appointed by the Attorney
General as administrative judges qualified to conduct the cases
assigned to them. They are subject to the supervision of the Attorney
General in performing their prescribed duties, but, subject to the
applicable governing standards, exercise independent judgment and
discretion in considering and determining the cases before them. See
INA sec. 101(b)(4) (8 U.S.C. 1101(b)(4)); 8 CFR 1003.10(b), (d).
Decisions of the immigration judges are subject to review by the Board
pursuant to 8 CFR 1003.1(a)(1) and (d)(1); in turn, the Board's
decisions can be reviewed by the Attorney General, as provided in 8 CFR
1003.1(g) and (h). Decisions of the Board and the Attorney General are
subject to judicial review.

III. Proposal for Designation of Temporary Immigration Judges

EOIR's mission is to adjudicate immigration cases by fairly,
expeditiously, and uniformly interpreting and administering the
Nation's immigration laws. In order to more efficiently accomplish the
agency's commitment to promptly

[[Page 39954]]

decide the large volume of immigration cases, this rule amends the
agency's regulations relating to the organization of OCIJ to allow the
Director of EOIR to designate or select, with the approval of the
Attorney General, one or more temporary immigration judges.
EOIR is currently managing the largest caseload the immigration
court system has ever seen. Due to attrition in the immigration judge
corps and continuing budgetary restrictions, the Department believes
that the designation of temporary immigration judges will provide an
appropriate means of flexibility in responding to the increased
challenges facing the immigration courts.
An issue of continuing concern to the Department is EOIR's pending
caseload in the immigration courts. At the end of FY 2013, there were
350,330 cases pending at the immigration courts, marking an increase of
22,901 cases pending above those at the end of FY 2012. See 2013 EOIR
Stat. Y.B. W1.\2\ Of those, 38 percent were received prior to FY 2012.
Id. As DHS continues its obligation to enforce the immigration laws of
the United States, EOIR anticipates that its caseload will continue to
increase, especially as DHS continues to use new technologies to
increase efficiencies in the identification, apprehension, detention,
and removal of aliens.
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\2\ EOIR's FY2013 Statistical Year Book, prepared by EOIR's
Office of Planning and Technology, is available at http://www.justice.gov/eoir/statspub/fy13syb.pdf.
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Even without a continually increasing caseload, the dockets
currently handled by the immigration judge corps are substantial. At
the end of FY 2013, 350,330 pending cases were being handled by
approximately 250 immigration judges, averaging 1,401 matters per
immigration judge.\3\ By comparison, a recent study indicated that
judges for the Board of Veterans' Appeals hear approximately 700 cases
each year per judge and Social Security Administration administrative
law judges decide approximately 500 cases each year per judge.\4\ There
is a particular need to assist EOIR's larger courts, namely New York,
NY; Los Angeles, CA; San Antonio, TX; San Francisco, CA; Pearsall, TX,
which received 43 percent of all asylum applications (15,661) filed
with the immigration courts in FY 2013. See 2013 EOIR Stat. Y.B. J3.
EOIR must be poised to handle not only its routine workload, but also
emergency or special situations, such as a sudden influx of asylum
seekers.
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\3\ This average does not take into account attrition in the
immigration judge corps during FY 2013 or the difference in docket
size geographically or by docket type (i.e., detained, non-detained,
juvenile, and institutional hearing program).
\4\ See American Bar Association Commission on Immigration,
Reforming the Immigration System: Proposals to Promote Independence,
Fairness, Efficiency, and Professionalism in Adjudication, at 2-37
(February 2010).
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In response to increases in immigration court workload and DOJ
priorities, EOIR undertook a major initiative that resulted in the
hiring of more than 50 new immigration judges during FY 2010 and
through the second quarter of FY 2011. However, as of June 2014,
attrition and budgetary restrictions resulted in a net increase of only
13 immigration judges since FY 2009. The Department believes that the
designation of temporary immigration judges will provide an appropriate
means of responding to the increasing pending caseload in the
immigration courts. While the designation of temporary immigration
judges is not a substitute for the ongoing need to hire additional
permanent immigration judges, designation of temporary immigration
judges should improve EOIR's ability to adjudicate cases in a timely
manner.
OCIJ provides overall program direction, articulates policies and
procedures, and establishes priorities for the immigration courts. The
Chief Immigration Judge will continue to monitor caseload volume,
trends, and geographic concentration and will adjust resources
accordingly. Where appropriate, temporary immigration judges could be
assigned to a discrete category of cases, such as motions and bond
proceedings, freeing up permanent immigration judge time to adjudicate
more complicated removal cases and increase the number of matters EOIR
could bring to a final disposition. From FY 2009 to FY 2013,
approximately 70 percent of the cases before the immigration courts
were completed without the alien applying for relief from removal.
Bond-related matters, however, have increased by 12 percent from FY
2009 (51,584) to FY 2013 (57,699), along with a 104 percent increase in
motions for change of venue and a 161 percent increase in case
transfers over the same period. See 2013 EOIR Stat. Y.B. 11, A7.
However, to ensure the flexibility necessary to address record
caseloads and to handle exigent circumstances, this rule would not
limit the assignment of temporary immigration judges in the type of
cases they may adjudicate, except as otherwise provided by the Chief
Immigration Judge, per the authority granted in 8 CFR 1003.9 and in
this interim rule. As discussed below, the Chief Immigration Judge will
be responsible for ensuring that each temporary immigration judge has
the necessary training, experience, and skills to properly adjudicate
the matters assigned.
This rule amends EOIR's regulations at 8 CFR 1003.10 by adding a
new paragraph (e). The amendments will allow the Director of EOIR to
designate or select, with the approval of the Attorney General, former
Board members, former immigration judges, administrative law judges
employed within or retired from EOIR, and administrative law judges
from other Executive Branch agencies to act as temporary immigration
judges for renewable six-month terms. Administrative law judges from
other agencies must have the consent of their agencies to be designated
as temporary immigration judges. In addition, the Director of EOIR will
be able to designate, with the approval of the Attorney General,
attorneys who have at least 10 years of legal experience in the field
of immigration law and are currently employed by the Department of
Justice to act as temporary immigration judges for renewable six-month
terms. The 10 years of experience must be gained after admission to the
bar and may be gained through employment by the federal, state, or
local government, the private sector, universities, non-governmental
organizations, or a combination of such experience. In order to allow
greater flexibility, the rule does not specify particular titles or job
descriptions for Department attorneys with 10 years of immigration law
experience. Accordingly, attorneys at the Department with 10 years of
immigration law experience may qualify for designation as temporary
immigration judges.
In evaluating candidates for designation as a temporary immigration
judge, EOIR anticipates that it will generally employ the same
selection criteria and process it applies with respect to the hiring of
permanent immigration judges. Characteristics that would qualify a
candidate for designation as a temporary immigration judge include the
ability to demonstrate the appropriate temperament to serve as a judge;
knowledge of immigration laws and procedures; substantial litigation
experience, preferably in a high-volume context; experience handling
complex legal issues; experience conducting administrative hearings;
and knowledge of practices and procedures. Designation of such
individuals will help ensure efficiency in the adjudication of removal
cases and preserve the integrity of the overall process, without
sacrificing

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fairness and due process. As is the case for all immigration judges,
EOIR provides a process for the filing and consideration of complaints.

IV. Training for Temporary Immigration Judges

Among EOIR's 2008-2013 strategic goals and objectives was the goal
to provide for a workforce that is skilled, diverse, and committed to
excellence, and that exhibits the highest standards of integrity. It is
important that those who appear before EOIR's tribunals have trust in
the agency and in the work that it does. EOIR is committed to providing
training to new and experienced immigration judges, including temporary
immigration judges.
EOIR will provide the training necessary for temporary immigration
judges to perform the assigned duties. The Chief Immigration Judge may
choose to specify particular types of matters for which each temporary
immigration judge will be assigned, consistent with the individual's
training and experience. Each judge will be supervised by the Assistant
Chief Immigration Judge assigned to the local immigration court where
the temporary immigration judge will be assigned. The Assistant Chief
Immigration Judge will be available as an additional source of
assistance and guidance, and will be responsible for conducting
periodic reviews of the temporary immigration judge's performance and
reporting his or her findings to the Chief Immigration Judge.
EOIR also ensures that immigration judges receive continuing
education. For instance, in addition to new immigration judge training,
EOIR held mandatory Immigration Judge Legal Training Conferences in
2009 and 2010 and Immigration Judge Legal Training Programs in 2011,
2012, and 2013. This training covered many substantive immigration
legal issues, including those relating to asylum, criminal matters,
bond, adjustment of status, and a variety of other topics. The training
also provided information on subjects ranging from immigration cases
involving unaccompanied alien children and respondents with mental
competency issues to immigration fraud and courtroom management.
Immigration Judge Legal Training Programs were recorded and will be
available to temporary immigration judges.
OCIJ maintains an Immigration Judge Benchbook. The Benchbook
includes scripts, introductory guides, checklists, worksheets, and
sample orders as well as links to a number of immigration-related legal
resources. OCIJ also maintains an Immigration Court Practice Manual, a
comprehensive guide that sets forth uniform procedures,
recommendations, and requirements for practice before the immigration
courts. Additional resources for immigration judges are available
through EOIR's virtual law library, which includes BIA decisions,
circuit court decisions, regulations, and country-specific information.
Given the many training options and resources available to
immigration judges, EOIR will provide training as necessary for the
performance of each temporary immigration judge's assigned duties.

V. Public Comments

This rule is exempt from the usual requirements of prior notice and
comment and a 30-day delay in effective date because, as an internal
delegation of authority, it relates to a matter of agency organization,
procedure, or practice. See 5 U.S.C. 553(b). The Department is
nonetheless promulgating this rule as an interim rule with opportunity
for post-promulgation comment. This will provide the public with an
opportunity for comment before the Department issues a final rule on
these matters.

VI. Regulatory Requirements

A. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), ``[w]henever an agency
is required by section 553 of [the RFA], or any other law, to publish
general notice of proposed rulemaking for any proposed rule . . . the
agency shall prepare and make available for public comment an initial
regulatory flexibility analysis.'' 8 U.S.C. 603(a). Such analysis is
not required when a rule is exempt from notice and comment rulemaking
under 5 U.S.C. 553(b). Because this is a rule of internal agency
organization and therefore is exempt from notice and comment
rulemaking, no RFA analysis under 5 U.S.C. 603 is required for this
rule.

B. 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.

C. 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 (SBREFA), 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
enterprises to compete with foreign-based enterprises in domestic and
export markets.

D. Executive Order 12866 and Executive Order 13563 (Regulatory Planning
and Review)

The Department has determined that this rule is not a ``significant
regulatory action'' under section 3(f) of Executive Order 12866,
Regulatory Planning and Review, and the Office of Management and Budget
has concurred in this determination. Nevertheless, the Department
certifies that this regulation has been drafted in accordance with the
principles of Executive Order 12866, section 1(b), and Executive Order
13563. Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits, including consideration of potential economic,
environmental, public health, and safety effects, distributive impacts,
and equity. The benefits of this interim rule include providing the
Department with an appropriate means of responding to current and
future increases or surges in the number, size, or type of immigration
court matters. The public will benefit from the designation of
temporary immigration judges because such designations will help EOIR
better accomplish its mission of adjudicating cases in a timely manner.
Temporary immigration judges will receive appropriate training and
supervision for this role. This rule will not have a substantial
economic impact on Department functions to the extent that individuals
who may act as temporary immigration judges are already employed by the
Department. The Department does not foresee any burdens to the public
or the Department.

E. Executive Order 13132 (Federalism)

This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the

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distribution of power and responsibilities among the various levels of
government. Therefore, in accordance with section 6 of Executive Order
13132, the Department has determined that this rule does not have
sufficient federalism implications to warrant preparation of a
federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

This rule has been prepared in accordance with the standards in
sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

The provisions of the Paperwork Reduction Act of 1995, Public Law
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR
part 1320, do not apply to this interim rule because there are no new
or revised recordkeeping or reporting requirements.

H. Congressional Review Act

This action pertains to agency management and personnel and,
accordingly, is not a ``rule'' as that term is used by the
Congressional Review Act (CRA) (Subtitle E of the Small Business
Regulatory Enforcement Fairness Act (SBREFA)), 5 U.S.C. 804(3).
Therefore, the reports to Congress and the Government Accountability
Office specified by 5 U.S.C. 801 are not required.

List of Subjects in 8 CFR Part 1003

Administrative practice and procedure, Aliens, Immigration, Legal
services, Organization and functions (Government agencies).
Accordingly, for the reasons stated in the preamble, the Attorney
General amends part 1003 of chapter V of title 8 of the Code of Federal
Regulations as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
1. The authority citation for part 1003 continues to read as follows:

Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 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.

0
2. Revise Sec. 1003.10 by adding a new paragraph (e), to read as
follows:

Sec. 1003.10 Immigration judges.

* * * * *
(e) Temporary immigration judges. (1) Designation. The Director is
authorized to designate or select temporary immigration judges as
provided in this paragraph (e).
(i) The Director may designate or select, with the approval of the
Attorney General, former Board members, former immigration judges,
administrative law judges employed within or retired from EOIR, and
administrative law judges from other Executive Branch agencies to serve
as temporary immigration judges for renewable terms not to exceed six
months. Administrative law judges from other Executive Branch agencies
must have the consent of their agencies to be designated as temporary
immigration judges.
(ii) In addition, the Director may designate, with the approval of
the Attorney General, Department of Justice attorneys with at least 10
years of legal experience in the field of immigration law to serve as
temporary immigration judges for renewable terms not to exceed six
months.
(2) Authority. A temporary immigration judge shall have the
authority of an immigration judge to adjudicate assigned cases and
administer immigration court matters, as provided in the immigration
laws and regulations, subject to paragraph (e)(3) of this section.
(3) Assignment of temporary immigration judges. The Chief
Immigration Judge is responsible for the overall oversight and
management of the utilization of temporary immigration judges and for
evaluating the results of the process. The Chief Immigration Judge
shall ensure that each temporary immigration judge has received a
suitable level of training to enable the temporary immigration judge to
carry out the duties assigned.

Dated: July 8, 2014.
James M. Cole,
Deputy Attorney General.
[FR Doc. 2014-16279 Filed 7-10-14; 8:45 am]
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