Efficient Case and Docket Management in Immigration Proceedings

<RULE> DEPARTMENT OF JUSTICE <SUBAGY>Executive Office for Immigration Review</SUBAGY> <CFR>8 CFR Parts 1001, 1003, 1239, and 1240</CFR> <DEPDOC>[Docket No. EOIR 021-0410; AG Order No. 5930-2024]</DEPDOC> <RIN>RIN 1125-AB18</RIN> <SUBJECT>Efficient Case and Docket Management in Immigration Proceedings</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Executive Office for Immigration Review, Department of Justice. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> On September 8, 2023, the Department of Justice (“Department”) published a notice of proposed rulemaking (“NPRM”) proposing to rescind an enjoined December 2020 rule (the “AA96 Final Rule”) that imposed novel limits on the authority of immigration judges and the Board of Immigration Appeals (“BIA” or “Board”) to efficiently dispose of cases. Because the AA96 Final Rule has been enjoined since shortly after its issuance, the proposed rule was designed to largely codify the currently operative status quo. After reviewing and considering the public comments received during the comment period, the Department is finalizing the proposed rule with the limited changes described in the preamble. The Department believes that this rule will promote the efficient and expeditious adjudication of cases, afford immigration judges and the Board flexibility to efficiently allocate their limited resources, and protect due process for parties before immigration judges and the Board. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective July 29, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Raechel Horowitz, Chief, Immigration Law Division, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041, telephone (703) 305-0289. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> On December 16, 2020, the Department published a final rule that amended Executive Office for Immigration Review (“EOIR”) regulations regarding the handling of appeals and motions before the Board, as well as the authority of immigration judges and Appellate Immigration Judges to administratively close cases. <E T="03">See</E> Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 FR 81588 (Dec. 16, 2020) (“AA96 Final Rule”). The AA96 Final Rule changes included: (1) implementing simultaneous briefing schedules at the Board for both detained and non-detained cases; (2) limiting adjudicators' freestanding authority to administratively close cases; (3) curtailing adjudicators' sua sponte authority to reopen or reconsider cases; (4) allowing for more expansive factfinding before the Board; (5) restricting the Board's authority to remand cases to the immigration judge; (6) modifying the background checks process at the Board; (7) implementing regulatory internal appeal processing deadlines at the Board; (8) providing the EOIR Director with authority to adjudicate cases in specific circumstances; and (9) allowing for quality case certifications from an immigration judge to the EOIR Director. The AA96 Final Rule's effective date was January 15, 2021, but the rule was preliminarily enjoined on March 10, 2021, and has not been in effect since that date. <E T="03">See Centro Legal de la Raza</E> v. <E T="03">Exec. Off. for Immigr. Rev.,</E> 524 F. Supp. 3d 919 (N.D. Cal. 2021). The United States District Court for the Northern District of California determined that the plaintiffs were likely to succeed on the merits of their challenge to the AA96 Final Rule. <E T="03">Id.</E> at 928. Specifically, the court concluded that plaintiffs were likely to succeed in claiming that (1) changes implemented by the rule were arbitrary and capricious; (2) the rule violated the Regulatory Flexibility Act; and (3) the rule's delegation of rulemaking authority to the EOIR Director violated the Administrative Procedure Act (“APA”). <E T="03">Id.</E> at 962-76. On September 8, 2023, after reconsidering the AA96 Final Rule, including the comments received during that rulemaking, and the issues identified in the <E T="03">Centro Legal de la Raza</E> litigation, the Department published an NPRM in the <E T="04">Federal Register</E> proposing to largely rescind the changes made by the AA96 Final Rule, as well as setting standards for administrative closure and the termination of proceedings. <E T="03">See</E> Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 88 FR 62242 (Sept. 8, 2023). The NPRM also proposed to retain, with modifications, a limited number of AA96 Final Rule changes, including: (1) allowing the Board to review voluntary departure issues de novo and to issue final decisions on voluntary departure requests in some instances, <E T="03">id.</E> at 62267; (2) allowing the Board to retain an appeal while background checks are pending, rather than remand to the immigration judge, <E T="03">id.</E> at 62270; (3) modifying the Board's 180-day adjudication timeline for three-member panels to begin running after completion of the record, <E T="03">id.</E> at 62270-71; and (4) retaining some technical changes from the AA96 Final Rule, <E T="03">id.</E> at 62273. Further, the NPRM also proposed adding definitions for the terms “noncitizen” and “unaccompanied child,” as well as proposed minor technical changes. <E T="03">Id.</E> at 62272-73. As explained more fully in the NPRM, the Department believes that rescinding the AA96 Final Rule will promote the efficient and expeditious adjudication of cases, afford immigration judges and the Board flexibility to efficiently allocate their limited resources, and protect due process for parties before immigration judges and the Board. <E T="03">See generally id.</E> at 62254-73 (explaining bases for each proposed change). The comment period for the NPRM opened on September 8, 2023, and closed on November 7, 2023, with 851 comments received. <SU>1</SU> <FTREF/> The Department summarizes and responds to the public comments in section III of this preamble, followed by a description of changes made to the NPRM in this final rule in section IV. <FTNT> <SU>1</SU>  Of these 851 comments, 849 comments were available on <E T="03">https://www.regulations.gov</E> for public inspection. The Department did not post one comment because it was a duplicate and withdrew another comment because it contained an inappropriate hyperlink. </FTNT> <HD SOURCE="HD1">II. Legal Authority</HD> The Department issues this rule pursuant to section 103(g) of the Immigration and Nationality Act (“INA” or “the Act”), 8 U.S.C. 1103(g), as amended by the Homeland Security Act of 2002 (“HSA”), Public Law 107-296, 116 Stat. 2135 (as amended). Under the HSA, the Attorney General retains authority to “establish such regulations, . . . issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out” the Attorney General's authorities under the INA. HSA 1102, 116 Stat. at 2273-74; INA 103(g)(2), 8 U.S.C. 1103(g)(2). <HD SOURCE="HD1">III. Public Comments and Responses</HD> Comments received on the NPRM are organized by topic below. Most commenters were supportive of the rule, stating, for example, that administrative closure and termination authority would provide adjudicators with needed flexibility to help manage overburdened immigration court dockets, and that rescinding the AA96 Final Rule's appeal-related provisions would help noncitizens more effectively present appeals. In contrast, commenters opposing the rule primarily raised concerns about the administrative closure and termination provisions, which these commenters believed would exacerbate the immigration court backlog, needlessly delay proceedings, and increase incentives for irregular immigration into the United States. The Department addresses these comments below. <HD SOURCE="HD2">A. Briefing Schedule Changes</HD> <E T="03">Comment:</E> Most commenters expressed support for the proposed rule's provisions rescinding the AA96 Final Rule's changes to briefing schedules before the Board and reinstating longstanding consecutive briefing schedules for noncitizens who are not detained and simultaneous briefing schedules for detained noncitizens. In doing so, some commenters also proposed a number of changes to briefing schedule procedures. First, commenters suggested increasing the opening briefing schedule from 21 days to 30, 40, or 45 days to provide noncitizens with additional time to submit their briefs. Second, for cases involving detained noncitizens, commenters proposed implementing consecutive rather than simultaneous briefing schedules or, alternatively, allowing reply briefs as a matter of right, rather than as permitted after the filing of a motion, to allow the parties to best address opposing arguments. Third, commenters recommended creating a presumption to automatically extend the brief filing period for pro se applicants to the full extended 90-day period. Fourth, commenters recommended removing the 90-day limit on briefing extensions, stating that there may be good cause for extending beyond that time limit, in up to 90-day increments. Lastly, commenters recommended modifying briefing extension timelines at the Board to ensure meaningful access to additional preparation time, including by relaxing the standards for granting second briefing extensions and using the EOIR Courts & Appeals System (“ECAS”) to streamline extension requests so that they may be granted more expediently. Commenters also recommended implementing a “mailbox rule” for paper filings at the immigration courts and the Board, ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 425k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━