# Board of Immigration Appeals: Procedural Reforms To Improve Case Management > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A02-21545 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** August 26, 2002 - **Citation:** 67 FR 54878 ## Text DEPARTMENT OF JUSTICE Immigration and Naturalization Service 8 CFR Part 3 [EOIR No. 131; AG Order No. 2609-2002] RIN 1125-AA36 Board of Immigration Appeals: Procedural Reforms To Improve Case Management AGENCY: Executive Office for Immigration Review, Immigration and Naturalization Service, Department of Justice. ACTION: Final rule. SUMMARY: This final rule revises the structure and procedures of the Board of Immigration Appeals (Board), provides for an enhanced case management procedure, and expands the number of cases referred to a single Board member for disposition. These procedures are intended to reduce delays in the review process, enable the Board to keep up with its caseload and reduce the existing backlog of cases, and allow the Board to focus more attention on those cases presenting significant issues for resolution by a three-member panel. After a transition period to implement the new procedures in order to reduce the Board's backlog of pending cases, the size of the Board will be reduced to eleven. DATES: This final rule is effective September 25, 2002. FOR FURTHER INFORMATION CONTACT: Charles Adkins-Blanch, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470. SUPPLEMENTARY INFORMATION: I. Introduction A. The Problem Presented B. History of the Rulemaking C. 30-Day Notice and Comment Period II. Summary of the Revised Review System A. Description of the Department's Goals B. Summary of the Provisions of the Rule III. Comments on the Proposed Rule A. General Due Process Issues 1. The Respondent's Interest in the Individual Proceeding 2. The Government's Interest in the Immigration Adjudication Process 3. Balancing of Interests in the Adjudicatory Process B. General Comments Relating to the Role and Independence of the Board 1. The Attorney General's Authority 2. Independence of Administrative Adjudicators 3. Attorney General Opinions and Written Orders 4. The Effect of Regulations C. Expanded Single-Member Review 1. General Comments on the Adequacy of Single-Member Review 2. Summary Dismissals 3. Summary Affirmances Under Streamlining 4. Other Dispositions by a Single Board Member—Affirmances, Modifications, and Remands 5. Reversals and Terminations of Proceedings 6. Quality Assurance of Decisions 7. Single Board Member Participation in Reopening and Reconsideration of Own Decision D. Standards for Referral of Cases to Three-Member Panels 1. In General 2. Particular Classes of Cases 3. Clarification of Standards for Panel Review E. De novo Review and the Clearly Erroneous Standard 1. De novo and Clearly Erroneous Standards of Review of Factual Determinations by the Immigration Judges 2. “Correction” of Clearly Erroneous Factual Determinations 3. Clearly Erroneous Standard Applied 4. Harmless Error 5. Litigation Concerns 6. De novo Review by the Attorney General 7. Review of Service Decisions F. New Evidence and Taking Administrative Notice of Facts G. Reduction in Size of the Board 1. Quality of Board Member Personnel 2. Resource Requirement Concerns 3. Advantages of a Smaller Board H. Case Processing Issues 1. Simultaneous Briefing 2. Transcript Timing 3. Immigration Judge Time Limits To Review Decisions 4. 30-Day Notice of Appeal Filing Requirement 5. Decisional Time Limits 6. Holding Cases Pending Significant Changes in Law and Precedent I. Decisional Issues 1. Management of Decisions 2. Remand Motions 3. Rehearing en banc 4. Separate Opinions 5. Changes in the Notice of Appeal 6. Barring Oral Argument Before a Single Board Member 7. Location of Oral Argument 8. Summary Dismissal of Frivolous Appeals and Discipline 9. Mandatory Summary Dismissals 10. Finality of Decisions and Remands J. Applicability of Procedural Reforms to Pending Cases K. Transition Period and Reduction of the Backlog L. Administrative Fines Cases M. Miscellaneous and Technical Issues 1. The Board's Pro Bono Project 2. Fundamental Changes in Structure 3. Technical Amendments I. Introduction The Attorney General has delegated to the Board of Immigration Appeals (Board) broad jurisdiction over appeals from decisions of the immigration judges in exclusion, deportation, and removal proceedings, bond appeals, asylum-only cases, and other specific matters, and also the authority to review certain final decisions by district directors and other officials of the Immigration and Naturalization Service (Service). 1 See 8 CFR part 3, subpart A. Decisions of the Board are subject to review by the Attorney General as provided in 8 CFR 3.1(h). 1 In this SUPPLEMENTARY INFORMATION , the Department uses the term “removal,” and appropriate variations, to encompass all forms of proceedings before the Board. Similarly, the Department refers to all aliens in proceedings as “respondents,” whether they would be respondents or applicants. The use of these simplified terms is for the ease of the reader and should not be construed to imply any limitations on the scope of the final rule as it applies to matters within the jurisdiction of the Board. The Executive Office for Immigration Review (EOIR) was created by the Attorney General in 1983 to consolidate the adjudicatory process by placing the immigration judges and the Board in a single administrative unit separate and apart from the Service. 52 FR 2931 (Jan. 29, 1987). In 1987, the Attorney General also established the Office of the Chief Administrative Hearing Officer (OCAHO) within EOIR to adjudicate certain civil penalty issues. EOIR is an administrative component under the direction of the Attorney General, not a separate agency of the United States. It is, however, wholly separate from, and independent of, the Service. A. The Problem Presented The Attorney General is promulgating this rule to improve the adjudicatory process for the Board because, under the current process, the Board has been unable to adjudicate immigration appeals in removal proceedings effectively and efficiently. In 1992, the Board received 12,823 cases and decided 11,720 cases, including appeals from the immigration judges or the Service, and motions to reopen proceedings. At the end of FY1992, the Board had 18,054 pending cases. By 1997, the number of new cases rose to 29,913, dispositions rose to 23,099, and the pending caseload had grown to 47,295 cases. Most recently, in FY2001, the Board received 27,505 cases and decided 31,789 cases. The pending caseload on September 30, 2001, totaled 57,597 cases. To meet this demand, the number of Board members was increased from 5 positions to 12 positions in 1995, with further incremental increases in subsequent years to a total of 23 authorized Board member positions (with 19 members and four vacancies at present). It is now apparent that this substantial enlargement—more than quadrupling the size of the Board in less than seven years—has not succeeded in addressing the problem of effective and efficient administrative adjudication, and the Department declines to continue committing more resources to support the existing process. Rather, the Department believes that amendment of the adjudicatory process is a more effective approach to facilitate the ability of the Board to adjudicate the case backlog, as well as to provide meaningful guidance for immigration judges, the Service, attorneys and accredited representatives, and respondents. Until recently, three-member panels reviewed all cases, even cases that presented no colorable basis for appeal. However, beginning in 1999, the Attorney General instituted a mechanism for streamlining cases. See 64 FR 56135 (Oct. 18, 1999). The streamlining process permits a single Board member to summarily affirm the immigration judge's decision without opinion; the Chairman is authorized to designate the type of cases that could be “streamlined.” The streamlining process undertaken by the Board has provided the best opportunity to manage the Board's backlog. Over 58% of all new cases in 2001 were sent to be summarily decided by single Board member review through streamlining. Testimony of Kevin Rooney, Director, EOIR, Hearing before the Committee on the Judiciary, Subcommittee on Immigration and Claims, United States House of Representatives, Operations of the Executive Office for Immigration Review (EOIR) , 107th Cong., 2nd Sess. 23 (Feb. 6, 2002) (hereinafter “House Judiciary Subcommittee Hearing”). That initiative, allowing certain categories of appeals to be adjudicated by a single member, was recently assessed favorably by an external auditor. Arthur Andersen & Company, Board of Immigration Appeals (BIA) Streamlining Pilot Project Assessment Report (Dec. 13, 2001) (hereinafter “Streamlining Study”). Streamlining was the first disengagement from a “one size fits all” philosophy of using three member panels for all cases. The final rule continues that process. The Department agrees with the fundamental assessment that the Board's use of the streamlining process has been successful, and, in this rule, expands the single-member process to be the dominant method of adjudication for the large majority of cases before the Board. In particular, this rule removes the restriction that a single Board member is limited to affirming an immigration judge's decision “without opinion” in those cases where an affirmance is appropriate. While such dispositions are proper in a substantial number of cases, as the Board's experience to date with the streamlining process has demonstrated, there are many other cases that may require some explanation of the Board's rationale, for example, as to why the immigration judge's decision was the proper result, or why any asserted errors were harmless or immaterial. Under the existing streamlining procedures, any case that is not appropriate for summary affirmance without opinion must be referred to a three-member panel for disposition, even if the issues are not novel or complex. That process can be, and has been, cumbersome and time-consuming, and expends an excessive amount of resources. Where single Board members can resolve such appeals through issuance of a brief written opinion, the Board will be able to concentrate greater resources on the more complex cases that are appropriate for review by a three-member panel, and will also be able to focus greater attention on the issuance of precedent decisions that provide guidance to the immigration judges, the Service, attorneys and accredited representatives, and respondents. Finally, under the Board's existing processes, decisions have all too often been issued long after the Notice of Appeal. Cases have routinely remained pending before the Board for more than two years, and some cases have taken more than five years to resolve. There is reason for concern that many appeals have been filed precisely to take advantage of this delay. Moreover, the quality of precedent decisions has not improved and the number of precedent decisions has remained relatively constant despite substantial changes in the law. B. History of the Rulemaking The Department published a proposed rule in the Federal Register on February 19, 2002, 67 FR 7309, proposing procedural reforms to improve case management at the Board. A 30-day public comment period ended on March 21, 2002. In response to the proposed rulemaking, the Department received numerous comments from various nongovernmental organizations (NGOs), members of Congress, private attorneys, and other interested individuals. The Department received a total of 68 separate, timely submissions (with several NGOs submitting separate comments with attachments that were identical, and one set of NGO comments that attached lists of signatures totaling in excess of 900 individuals). Since many of the comments are similar and endorse the submissions of other commenters, the Department addresses the responses by topic rather than by referencing each specific commenter and comment. In addition, five comments were either postmarked and/or received by EOIR after the closing date for the comment period. None of the untimely submissions presented any comment that was not already addressed by an earlier commenter. In addition, the Department has considered the record of the House Judiciary Subcommittee Hearing, supra , because that hearing dealt with the same subject as the rule and because of the perceptive discussion before the Subcommittee. The Department also considered the evaluation of the streamlining project in the Streamlining Study. C. 30-Day Notice and Comment Period Several commenters objected to the 30-day comment period for the proposed rule and requested an extension. Some of the NGOs also requested a meeting with the Department. Notwithstanding the length of the comment period, 68 commenters submitted a variety of comments, many of which were thoughtful and extensive. The Department has reviewed and carefully considered all of the comments submitted and believes that the 30-day comment period has been sufficient. Additionally, the Department has decided against engaging in meetings with particular commenters since the written comments of all commenters as submitted are sufficient. The Department also notes that the Administrative Procedure Act (APA) provides that procedural rules may be issued without notice and opportunity for prior comment and may be effective upon publication. Rules which are arguably “substantive” require at least 30 days prior notice subject to certain exceptions. See 5 U.S.C. 553(b)(A), (d). Accordingly, the Department has fully complied with the APA, and no additional opportunity for comment is required or necessary considering the written comments already submitted. Furthermore, the 30-day comment period is in keeping with the Department's objectives, including eliminating unwarranted delay. II. Summary of the Revised Review System A. Description of the Department's Goals At the time this rule was proposed, the Attorney General laid out four important objectives in the disposition of administrative immigration appeals: (1) Eliminating the current backlog of cases pending before the Board; (2) eliminating unwarranted delays in the adjudication of administrative appeals; (3) utilizing the resources of the Board more efficiently; and (4) allowing more resources to be allocated to the resolution of those cases that present difficult or controversial legal questions—cases that are most appropriate for searching appellate review and that may be appropriate for the issuance of precedent decisions. This rule reflects a variety of necessary reforms to achieve these various objectives, in order to strengthen the review process, enhance the function of the Board in resolving issues, provide effective guidance regarding the implementation of the immigration laws, and improve the timeliness of the Board's review. The Board's decisions focus, for the most part, on the issue of whether a respondent has established eligibility for relief from removal from the United States and whether the Attorney General should affirmatively exercise discretion in the respondent's favor. Although the nature of the Board's caseload appears to be changing somewhat in light of changes in the law, the Board's caseload continues to focus heavily on relief from removal. Most respondents either concede removability before the immigration judge, or do not appeal the immigration judge's determination that the respondent is removable. Therefore, the dominant number of the Board's cases relate to the application of specific portions of the Act relating to relief from removal. Moreover, the Department agrees with the assessment of former Board member Michael Heilman, based on his review of over 100,000 appeals over some 15 years of service on the Board, that the “overwhelming percentage of immigration judge decisions * * * [are] legally and factually correct.” House Judiciary Subcommittee Hearing, supra , at 15. The Department disagrees with a view that suggests that “the factual records made in the majority of hearings * * * [are not] fully considered and assessed by either the Immigration Judge or the Board.” See Matter of A-S- , 21 I&N Dec. 1106, 1122 (BIA 1998) (Rosenberg, dissenting). Accordingly, the final rule continues to focus on the primacy of immigration judges as factfinders and determiners of the cases before them. The role of the Board is to identify clear errors of fact or errors of law in decisions under review, to provide guidance and direction to the immigration judges, and to issue precedential interpretations as an appellate body, not to serve as a second-tier trier of fact. In this adjudicatory process, the Department employs Board members to decide the merits of cases brought before the Board. That decisional process includes not only the individual case, but also the function of setting precedent to guide the immigration judges, the Service, attorneys and accredited representatives, and respondents. Historically, as the Attorney General's delegate, the Board's precedent decisions have been accorded appropriate deference under the Supreme Court's decisions in Chevron v. NRDC , 467 U.S. 837 (1984) (deference due agency interpretation of statutes within delegated authority); INS v. Aguirre-Aguirre , 526 U.S. 415, 425 (1999) (Attorney General, and hence the Board, accorded Chevron deference); INS v. Cardoza-Fonseca , 480 U.S. 421, 448-449 (1987) (same), as the primary interpreter of the Immigration and Nationality Act. The Attorney General's ultimate authority to decide the cases presented to the Board through his delegation has not changed over the years, although it has been exercised with varying frequency at different times of the Board's history. This precedent setting function recognizes that novel issues arise each and every time that the Act, or the regulations, change; complex issues arise because of the interrelationship of multiple provisions of law; and repetitive issues arise before different immigration judges because of the national nature of the immigration process. All of the participants in the immigration adjudication process deserve concise and useful guidance on how these novel, complex, and repetitive issues are best resolved. The rule of law guides Board members' adjudications; the Act and regulations provide the context for that adjudication. B. Summary of the Provisions of the Rule The Attorney General has determined that the rights of all respondents are better protected by restructuring the appeals process so that three-member panels may focus their attention on writing quality precedent-setting decisions, correcting clear errors of fact and interpreting the law, and providing guidance regarding the standards for the exercise of discretion, rather than reviewing appeals that involve routine questions of law or fact or that present no substantial basis for reversing the decision under appeal. In this regard, the Board is delegated authority to review questions of fact to determine whether they are clearly erroneous; all other questions, whether of law or discretion, may be reviewed by the Board de novo . A key element of this reform is that the Chairman will establish, and be responsible for, a case management screening system to review all incoming appeals and to provide for prompt and appropriate disposition—by a three-member panel in those instances where the merits of the case presented to the Board call for review by a three-member panel under § 3.1(e)(6) of the rule, and by a single Board member in every other case that does not meet those standards. The final rule establishes the primacy of the streamlining system for the majority of cases. These do not present novel or complex issues. A single Board member may issue a brief order where appropriate to affirm the decision of the immigration judge or dismiss the appeal on procedural grounds. A single Board member may issue a short order that explicates the reasons, for example, why an immigration judge's findings of fact are not clearly erroneous, or why the immigration judge's exercise of discretion was appropriate, or why the record should be remanded to the immigration judge for further proceedings. Under specific circumstances, the single Board member may refer the record for decision by a three-member panel. These more complex cases deserve closer attention. The Board's en banc process remains as currently devised to provide interpretation of the Act through precedent decisions, whether through affirmation of a decision of a three-member panel or through review by the entire Board. Both the three-member panel and the en banc Board should be used to develop concise interpretive guidance on the meaning of the Act and regulations. Thus, the Department expects the Board to be able to provide more precedential guidance to the immigration judges, the Service, attorneys and accredited representatives, and respondents. This process will resolve simple cases efficiently while reserving the Board's limited resources for more complex cases and the development of precedent to guide the immigration judges and the Service. The Department believes that this allocation of resources will better serve the respondents, the Service, the public, and the administration of justice. The final rule establishes the primacy of the immigration judges as factfinders by utilizing a clearly erroneous standard of review for all determinations of fact. The Board's historic rule, explained below, of not considering new evidence on appeal, is codified in this rule. Factfinding that may be required will be conducted by the immigration judge on remand. However, the rule retains de novo review both for questions of law and for questions of judgment (concerning whether to favorably exercise discretion in light of the facts and the applicable standards governing the exercise of such discretion). The rule contains a number of the time limits of the proposed rule. However, recognizing the concern of a number of commenters, the Department has decided to retain the current sequential briefing schedule for non-detained cases, but with shorter time limits. Under the final rule, detained cases will be briefed concurrently on a 21-day calendar and non-detained cases will be briefed consecutively on a 21-day calendar. Moreover, the Chairman is directed to undertake improvements in the transcription process to assist in the briefing process. Finally, the rule retains the reduction to 11 Board members after a transition period. The Department is unpersuaded by the arguments received, particularly in light of the objective evidence, that the reduction to 11 Board members should be changed. The Board should, under this rule, be able to reduce its backlog and keep current, as well as conduct the en banc proceedings necessary to provide precedent guidance to the immigration community. Given the scope of these changes to the Board's structure and revisions to current procedures, the Department will continuously review the effectiveness of the rule in achieving the aforementioned Departmental goals. III. Comments on the Proposed Rule The comments received on the proposed rule can generally be grouped into broad categories. In this analysis, we divide the comments and further discussion of the rule into specific subparts in order to provide a cohesive overview of the comments, the changes made in light of the comments, and the final rule. Many of the issues overlap and commenters treated the same issues in different ways. Accordingly, while all comments have been carefully reviewed, it may not be apparent from this discussion that a particular version of a comment has been directly addressed. To the extent practical, the Department has attempted to address the comments received as specifically as possible, but the duplication of comments, either by filing the same comment multiple times, or making minor adjustments in different submissions, makes it impossible to address each specific comment in a structured response. The Department received widely divergent comments that both supported and opposed the proposed rule. The Department appreciates the contributions of all the individuals and groups who submitted comments. The Department has given careful consideration to all of the comments received on the proposed rule, as indicated in the following discussion. The thoughtfulness of the public comments has contributed greatly to improvement in the final rule. As discussed below, the comments also included ideas and specific proposals that were beyond the scope of the proposed rule. Overall, most of the commenters supported at least some of the Department's objectives, especially the elimination of unwarranted delays and the current backlog of cases pending before the Board. As numerous commenters noted, languishing appeals do not serve the interests of justice. There are divergent views, though, regarding how these objectives should be accomplished. Some commenters generally supported the proposed rule, while many other commenters strongly opposed many or most of the specific provisions of the proposed rule. A. General Due Process Issues Some commenters argued in a general way that the proposed rule violates due process or that it is otherwise bad procedure. Initially, the Department notes that the due process clause of the Constitution does not confer a right to appeal, even in criminal prosecutions. See Ross v. Moffitt, 417 U.S. 600, 611 (1974) (“[W]hile no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant's consent, it is clear that the State need not provide any appeal at all.”); Griffin v. Illinois , 351 U.S. 12, 18 (1956) (plurality opinion) (noting that “a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all”) (citation omitted). Much as the Congress may dispense with the inferior federal courts by the same legislative stroke that created them, the Attorney General could dispense with the appellate review process in immigration proceedings, i.e. , the Board of Immigration Appeals. Some of the commenters argued specifically that the proposed rule violates a respondent's right to due process under the Supreme Court's balancing in Mathews v. Eldridge , 424 U.S. 319 (1976). The Department agrees that some form of hearing is appropriate and beneficial under the circumstances. See Wolff v. McDonnell , 418 U.S. 539, 557-58 (1974). However, due process is not “a technical conception with a fixed content unrelated to time, place and circumstances,” Cafeteria and Restaurant Workers v. McElroy , 367 U.S. 886, 895 (1961), but is “flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer , 408 U.S. 471, 481 (1972). Assuming that Mathews is the appropriate touchstone, the process that is due is determined by balancing the nature of the individual's interest, the fairness and reliability of the procedures, and the nature of the governmental interest. Many of the commenters focused on the nature of the interest of the individual, particularly in asylum and related cases where the respondents assert that the respondent will be persecuted, his or her life or freedom will be threatened, or that he or she will be tortured, if returned to his or her country of origin. 1. The Respondent's Interest in the Individual Proceeding First, and foremost, the vast majority of issues presented on appeal to the Board involve applications for relief from removal, not removal itself. Accordingly, the process that is due is not a process related to the government's efforts to remove the respondent from the United States. The process that is due is process relating to the respondent's request for amelioration of removal. Those cases where the respondent has a basis to contest a finding of removability would appear to be more amenable to review by a three-member panel under § 3.1(e)(6). Removability, and whether the Service has established clear and convincing evidence to support the charge, when disputed, may be more likely to involve novel or complex factual or legal issues because of the multitude of governing statutory provisions, such as divisible State criminal laws. Whether a single-member or three-member review is more efficacious is a question best decided by the Board under the standards of this rule. In most cases, the issues before the Board relate to whether the respondent has established eligibility for an application for relief from removal, or whether the Attorney General should exercise discretion in the respondent's favor. In these cases, the Service has established the government's interest in removal of the respondent. The burden of proof in these cases shifts to the respondent to establish eligibility for relief from removal and, in most cases, that the respondent deserves a favorable exercise of the Attorney General's discretion. The process due under the Constitution in determining removability is substantially higher than the process required by the Constitution in determining whether to grant relief from such an order of removal. 2. The Government's Interest in the Immigration Adjudication Process The interest of the government in effective and efficient adjudication of immigration matters, moreover, is substantially higher than an individual respondent's interest in his or her own proceeding. Congress is granted plenary authority under the Constitution in immigration matters and Congress has delegated broad authority to the Attorney General to administer the immigration laws. The authority is not merely one involving a discrete set of benefits and penalties, but implicates, in conjunction with the Secretary of State, the vast external realm of foreign relations. Not only does the removal process utilize reports and profiles of country conditions provided by the Department of State, the actual removal process implicates the relationships of the United States with other countries. INS v. Aguirre-Aguirre , 526 U.S. 415, 425 (1999); INS v. Abudu , 485 U.S. 94, 110 (1988). In this context, the Attorney General has substantially more authority to structure the administrative adjudicatory process than most administrative processes. Indeed, the Department questions whether Mathews is the appropriate touchstone in light of the unique nature of the Act as the tool for managing the intersection of foreign and domestic interests regarding aliens. Congress has provided almost no parameters for the exercise of the Attorney General's broad authority to manage immigration adjudications, and to the extent it has done so, has limited discretionary procedure available to respondents. See, e.g., INS v. Rios-Pineda , 471 U.S. 444, 446 (1985) (Attorney General's creation of motion to reopen, and delegation to the Board, by regulation), 8 U.S.C. 1229(c)(6) (motions to reopen in statutory removal proceedings specified by statute in 1996). Accordingly, more deference to the Attorney General is appropriate. Cf. Weiss v. United States , 510 U.S. 163, 176-79 (1994). 3. Balancing of Interests in the Adjudicatory Process Some commenters expressed concern that the expansion of the streamlining initiative, with its emphasis on single-member review of cases, will result in violations of the due process rights of respondents-appellants. Some commenters contended that three-member reviews of appeals provide more protection for due process rights than single-member reviews. The primary concern of the comments is a perceived inadequacy in the ability of a single Board member to decide an appeal in a way that protects the due process rights of appellants while maintaining administrative efficiency. The Department finds that single-member review under the final rule is both fair and reliable as a means of resolving the vast majority of non-controversial cases, while reserving three-member review for the much smaller number of cases in which there is a substantial factual or legal basis for contesting removability or in which an application for relief presents complex issues of law or fact. In this context, the Attorney General is free to tailor the scope and procedures of administrative review of immigration matters as a matter of discretion. Maka v. INS , 904 F.2d 1351 (9th Cir. 1990); see also Vermont Yankee Nuclear Power Corp. v. NRDC , 435 U.S. 519, 524-25 (1978), quoting FCC v. Pottsville Broadcasting Co. , 309 U.S. 134, 143 (1940) (“administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties' ”). See generally J. McKenna, L. Hooper & M. Clark, Federal Judicial Center, Case Management Procedures in the Federal Courts of Appeals (2000) (comparative compendium of innovations in circuit court case management systems). Each case varies according to the needs presented by the respondent and the issues. 2 In the typical case that reaches the appeal stage, the respondent makes an initial appearance and is advised of his or her rights, including the right to be represented by counsel or an accredited representative at no cost to the government, the right to inspect all evidence presented, and the right to present evidence and testimony, by the respondent and other witnesses, in the language the respondent understands. Pleadings are usually taken after a continuance, with a further hearing being held to determine whether the alien is deportable or inadmissible, if the respondent contests removability. If the immigration judge finds that the respondent is removable, the immigration judge informs the respondent of possible forms of relief, and further continuances may be granted to allow time for the respondent to prepare applications for relief and acquire additional evidence. A call-up date is established for filing the application and a deadline is set for filing additional evidence. Only then is the respondent expected to present his case for relief from removal. All of these proceedings are on the record and recorded verbatim. A transcript of proceedings has been prepared in all appeals, including any oral decision by the immigration judge. See, e.g. , 8 CFR 240.3-240.13 (procedure in removal cases). Accordingly, by the time a case reaches the Board on appeal, many, if not most, respondents have already had several hearings on the record before the immigration judge, been explained their rights, and been given more than one opportunity to ask questions and raise issues. 2 In recognition of the differences between appeals from the decision of an immigration judge and appeals from decisions by a district director or other Service official, this rule retains the de novo standard of review for appeals in the latter case, as discussed below. On appeal, the respondent is required under existing regulations to file a statement indicating the grounds for appeal, and has the right to file a more detailed brief. On this record, single Board members are well-equipped both to determine the legal quality and sufficiency of an immigration judge's decision and to determine if the appeal qualifies under 8 CFR 3.1(e)(6) for referral to a three-member panel. Each appeal will be fully reviewed and decided by the Board member within the law and regulations, precedent decisions, and federal court decisions. The Department is not persuaded that a single Board member review gives any less due process to an respondent's appeal that involves routine legal and factual bases than would a three-member panel considering the same appeal. B. General Comments Relating to the Role and Independence of the Board Some commenters argued that the provisions of this rule, either individually or in combination, would adversely affect the fairness or effectiveness of the Board's adjudications by limiting the independence and perceived impartiality of the Board. Some commenters criticized the provision in § 3.1(a)(1) of the proposed rule that the Board members act as the “delegates” of the Attorney General in adjudicating appeals, as well as the language in § 3.1(d)(1) of the proposed rule making clear that, in exercising their independent judgment and discretion in cases coming before them, the Board members are subject to the Act and the implementing regulations, and the direction of the Attorney General. 1. The Attorney General's Authority These arguments misapprehend the nature of the Board and the rule. The Board is an administrative body within the Department, and it is well within the Attorney General's discretion to develop the management and procedural reforms provided in this rule. 3 As one court has noted, the Attorney General could dispense with Board review entirely and delegate his power to the immigration judges, or could give the Board discretion to choose which cases to review. See Guentchev v. INS, 77 F.3d 1036, 1037 (7th Cir. 1996). 3 The Board was created by the Attorney General in 1940, after a transfer of functions from the Department of Labor. Reorg. Plan V (May 22, 1940); 3 CFR Comp. 1940, Supp. tit.3, 336. The Board is not a statutory body; it was created wholly by the Attorney General from the functions transferred. A.G. Order 3888, 5 FR 2454 (July 1, 1940); see Matter of L-, 1 I&N Dec. 1 (BIA; A.G. 1940). In Nash v. Bowen, 869 F.2d 675 (2nd Cir. 1989), the court of appeals addressed similar concerns by an administrative law judge (ALJ) challenging efforts by the Social Security Administration (SSA) to improve the ALJ's quality and efficiency. In an effort to reduce a backlog of 100,000 cases, the SSA instituted a series of reforms that included a monthly production quota, an appellate system or peer review program, and a reversal rate policy. The court rejected challenges to each of these reforms, explaining that “those concerns are more appropriately addressed by Congress or by courts through the usual channels of judicial review in Social Security cases. The bottom line in this case is that it was entirely within the Secretary's discretion to adopt reasonable administrative measures in order to improve the decision making process.” Id. at 681 (citations omitted). Similarly, the Attorney General has promulgated a final rule within his discretion intended to reduce delays in the review process, enable the Board to keep up with its caseload and reduce the existing backlog of cases, and allow the Board to focus more attention on those cases presenting significant issues for resolution by a three-member panel. The Department, in this final rule, does not go so far as did the SSA, nor does it intend to impinge on the intellectual independence of its adjudicators. 2. Independence of Administrative Adjudicators Several commenters argued that the independence and impartiality of immigration judges and immigration adjudicators must be affirmed. They asserted that the proposed rule would adversely affect the independence of the Board. Some of these same commenters expressed the view that immigration courts should be independent from the Department. These comments misapprehend the distinction between “independence” and “fundamental fairness.” The Constitution requires fundamental fairness, not that the adjudicator be “independent” of policy direction or management by the Executive. The Department agrees with the principle of independence of adjudicators within the individual adjudications, but notes that freedom to decide cases under the law and regulations should not be confused with managing the caseload and setting standards for review. The case management process that is established and delegated by the Attorney General to the Director of EOIR and the Chairman deals with management of the workload, not professional judgment in adjudicating any individual case. Similarly, establishing standards for review by rule is well within the Attorney General's authority to oversee and manage the Board; again, it is not related to the Board's professional judgment in adjudicating any individual case. The key to understanding here is that the Department employs Board members to make professional adjudicatory judgments in individual cases and to establish precedent subject to further review, but it is within the Attorney General's authority to manage the caseload and to set policy. The authority of the Attorney General to establish standards for the Board's adjudications, and to review the decisions of the Board, is well established. “[T]he Board acts on the Attorney General's behalf rather than as an independent body. The relationship between the Board and the Attorney General thus is analogous to an employee and his superior rather than to the relationship between an administrative agency and a reviewing court.” Matter of Hernandez-Casillas, 20 I&N Dec. 262, 289 n.9 (BIA 1990, A.G. 1991). The final rule does not obstruct the Board's judgment. As the Supreme Court has noted, “The Board is appointed by the Attorney General, serves at his pleasure, and operates under regulations [that provided] that “in considering and determining * * * appeals, the Board * * * shall exercise such discretion and power conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case. The decision of the Board * * * shall be final except in those cases reviewed by the Attorney General.” United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266 (1954). In that case, the Court initially found sufficient cause for a further hearing on whether the Attorney General had interfered with the authority that he had delegated to the Board, and concluded: “[A]s long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.” Id., at 267. However, after a formal hearing on the petition for habeas corpus and further review by the court of appeals, the Court ultimately concluded that no such violation of the regulation, adversely affecting the respondent, had occurred. Shaughnessy v. United States ex rel. Accardi, 349 U.S. 280 (1955). This case is important to understanding the final rule for two distinct reasons. First, the final rule amends the very rule under consideration by the Supreme Court in Accardi to structure the Board's procedures and scope of review in all cases. This is precisely the manner by which the law requires such changes to be made: amendment of the Board's regulations. Second, no portion of the final rule relates to any specific case or alien, or decides any such case, or implicates any alien. The actions here taken are those prescribed by the Court in Accardi. 3. Attorney General Opinions and Written Orders Several commenters objected to the new language in § 3.1(d)(3)(i) of the proposed rule that the Board is subject to legal opinions and written orders issued by the Attorney General, in addition to the Attorney General's review of individual Board decisions. The Department notes that the proposed rule, in this respect, is virtually identical to the proposed rule published by former Attorney General Janet Reno, and retains this provision without change. 65 FR 81435, 81437 (Dec. 26, 2000). The Attorney General is the principal legal advisor to the President and the Executive Branch. In particular, section 103(a) of the Immigration and Nationality Act (“Act”), 8 U.S.C. 1103(a), provides that the opinion of the Attorney General on legal issues is controlling. In addition, the role of the Department's Office of Legal Counsel in issuing legal opinions, on behalf of the Attorney General, that are binding on the Executive Branch, is well established. See e.g., Secretary of the Interior v. California, 464 U.S. 312, 320-21 n.6 (1984); Sea-Land Service, Inc. v. Department of Transportation, 137 F.3d 640, 643 (D.C. Cir. 1998). This rule makes clear that the Attorney General need not be strictly limited to the issuance of legal opinions and the direct review of individual Board opinions, and that the Attorney General may provide direction to the Board through written orders. 4 It may be appropriate for the Board to take account of the policy goals or priorities established by the Attorney General. Such actions by the Attorney General do not encroach on the decisional independence of Board members in particular cases before them. 4 The Board has expressly acknowledged, for example, that the Attorney General's determination of a legal issue in interpreting the Act is binding on the Board and the immigration judges, even if that determination is reflected in the SUPPLEMENTARY INFORMATION to a rule rather than in the text of a rule or in an Attorney General or OLC Opinion. See Matter of A-A-, 20 I&N Dec. 492, 502 (BIA 1992): ‘In the supplementary information published with the regulation, the Attorney General made clear that “under the prevailing intrepretation, the phrase “shall apply to admissions” as used in section 511(b) of the [1990 Act] refers to all applications for relief pursuant to section 212(c) of the Act submitted after November 29, 1990, whether at a port of entry or in subsequent proceedings before a district director or Immigration Judge.” 56 FR 50,033-34 (1991) ( SUPPLEMENTARY INFORMATION ). The Attorney General has thereby determined that the statutory bar to section 212(c) relief shall apply only to those applications submitted after November 29, 1990. We are therefore bound by his determination in this regard.'' 4. The Effect of Regulations Although not specifically raised in the public comments, the Department also notes that the language of § 3.1(d)(1) of the proposed rule states that the Board will resolve the issues before it in a manner that is “consistent with the Act and the regulations.” This language clarifies the role of regulations in administrative adjudications under the Act. The Board has long recognized that it is bound by the provisions of the Act, as well as by regulations adopted by the Attorney General. See Matter of Ponce de Leon-Ruiz, 21 I&N Dec. 154, 158 (BIA 1996) (“The Board is bound to uphold agency regulations * * * A regulation promulgated by the Attorney General has the force and effect of law as to this Board and Immigration Judges. Regulations in effect have the force and effect of law.”) (citations omitted). The immigration regulations, however, include not only those rules adopted personally by the Attorney General, but also substantive and procedural rules duly promulgated by the Commissioner of the Service, under an express delegation of rulemaking authority from Congress to the Attorney General and, in turn, from the Attorney General to the Commissioner. See 8 U.S.C. 1103; 8 CFR 2.1. The Department fully recognizes and reiterates, of course, that the Board and the immigration judges are independent of the Service (although some court opinions contain language that appears to blur this key distinction). For this reason, the Attorney General, and not the Commissioner, has consistently promulgated the regulations that govern the organization, procedures, or powers of the Board and the immigration judges and the conduct of immigration proceedings. See, e.g. , 8 CFR parts 3, 236, 240. Thus, for example, standards governing the availability of discretionary relief in immigration proceedings are properly adopted by the Attorney General, either by rule, e.g. , 8 CFR 240.58, or by written decision, e.g. , Matter of Jean , 23 I&N Dec. 373, 383-85 (A.G. 2002). See generally, Lopez v. Davis, 531 U.S. 230, 238-42 (2001). The authority delegated to the Commissioner to promulgate substantive or “legislative” rules does properly extend, however, to the interpretation of the general provisions of the Act. A regulation adopted pursuant to delegated statutory authority and pursuant to applicable rulemaking requirements under the Administrative Procedure Act has the “force and effect of law” as a substantive or legislative rule. The existing language in section 3.1(d)(1), which defines the broad general powers of the Board, specifies that the Board's authority in cases before it is “[s]ubject to any specific limitation prescribed by this chapter [constituting 8 CFR parts 1-499].” Necessarily, such limitations would include a regulatory provision that has given a specific legal interpretation to a provision of the Act. The language of this rule makes explicit what was implicit in the current version of § 3.1. A fundamental premise of the immigration enforcement process must be that the substantive regulations codified in title 8 of the Code of Federal Regulations are binding in all administrative settings, and this specifically includes substantive regulations interpreting and applying the provisions of the Act. Of course, the Service and the Board are bound by the decisions of the federal courts, see, e.g., Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989), but even the federal courts owe deference to authoritative agency interpretations of the substantive provisions of the Act, within the limits recognized by the Supreme Court. Chevron v. NRDC, supra (deference due agency's interpretation of statutes delegated for administration); INS v. Aguirre-Aguirre, supra (deference due administrative interpretations of the Act); cf., Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) ( en banc ) (same; different standard). In the absence of such controlling judicial interpretations, the respondents, the immigration judges, the Service, and the public at large should not be left to wonder whether the regulations interpreting and applying the substantive provisions of the Act will be binding in administrative proceedings under the Act. Cf. Matter of Rodriguez-Tejedor, 23 I&N Dec. 153, 156 (BIA 2001). Such regulations themselves, of course, are susceptible to interpretation and application of their regulatory language by the immigration judges and the Board. However, if a substantive rule clearly defines a statutory term, or reflects a legal interpretation of the statutory provisions, then the position set forth in the rule will govern both the actions of the Service and the adjudication of immigration proceedings before the immigration judges and the Board. The Department recognizes that the Board members, under § 3.1(a)(1) in the current regulations and under § 3.1(d)(1)(ii) as revised, “shall exercise their independent judgment and discretion in considering and determining the cases coming before the Board.” But such judgment and discretion must necessarily be exercised subject to the applicable standards. In turn, legislative rules that interpret and apply the provisions of the Act, and that are promulgated under rulemaking authority expressly delegated by the Attorney General have the “force and effect of law” and accordingly are part of the governing law. Accordingly, the Board members properly have decisional independence and discretion in interpreting and applying the law to the facts of particular cases and in exercising judgment in matters of discretionary action, but they are not independent from the governing regulatory standards that are otherwise binding and effective. 5 5 In any case where the Board believes that a particular regulation may conflict with the language of the Act, the Board can proceed as it did in Matter of Ponce de Leon by certifying the case to the Attorney General for consideration. In that case, the Attorney General ultimately dismissed the certification in light of an intervening amendment to the regulation at issue, 8 CFR 212.3(f)(2). See Ponce de Leon, 21 I&N Dec. at 184 (A.G. 1997); 61 FR 59824 (Nov. 25, 1996). C. Expanded Single-Member Review Many of the key features of the final rule are codified in the new provisions of 8 CFR 3.1(e), which directs the Chairman to establish a case management system with specific new standards for the efficient and expeditious resolution of all appeals coming before the Board. One of the primary components of the case management system is expanded single-member review. The current streamlining process permits a single Board member to affirm the decision of the immigration judge without opinion. 8 CFR 3.1(a)(7). The final rule retains this current practice intact, but expands upon this authority to permit a single Board member to affirm, modify, or remand the immigration judge's decision with a short explanation. The final rule also provides that the reviewing Board member may refer a case for disposition by a three-member panel only if the Board member determines, after a review of the case on the merits, that it satisfies one of the standards prescribed in § 3.1(e)(6). 1. General Comments on the Adequacy of Single-Member Review Many of the comments expressed the concern that single-member review of decisions by the immigration judges will mean that procedural failures in the record will be overlooked—that a single Board member's review will somehow be “cursory” or will give a “boilerplate stamp of approval” to the decision on appeal. Some commenters asserted that the single-member decisions that will be issued under this rule will be poorly considered and will not provide a sufficient basis for further review by district and circuit courts. The Department believes that the Board's experience with the streamlining initiative has proven that fears of procedural failures or substantive errors being overlooked are not well founded. Even single-member review is a multi-stage process involving review by Board staff and by a Board member assigned to the screening panel. Individual Board members are well-equipped to determine both the legal quality and sufficiency of an immigration judge's decision, and to determine if the appeal qualifies for referral to a three-member panel under § 3.1(e)(6). Each appeal will be fully reviewed and decided by the Board member, within the guidelines of current Board practice and legal precedent. Under the standards of § 3.1(e)(4) and (5) of this rule, it is only if the Board member finds that the record is complete and legally adequate, and the Board member agrees that the decision below is legally correct, that the Board member may affirm the decision of the immigration judge, either as a summary affirmance without opinion or in a short opinion. 2. Summary Dismissals The proposed rule included a provision that the screening panel, in those cases not summarily dismissed, would order the preparation of a transcript and set a briefing schedule. This provision presumed a review by the screening panel at the outset of the process based solely on the immigration judge's order and the Notice of Appeal to determine such fundamental matters as whether the appeal was timely filed, whether the Board had jurisdiction, or whether the Notice of Appeal facially provided sufficient reasons for an appeal to be lodged. Some commenters did not seem to grasp the distinction between these core “adjudicability” issues that could be dismissed without the preparation of the transcript and briefs, and those issues, such as whether a brief was filed, that inevitably must be decided only upon the completed record. Although this lack of understanding appears to the Department to require this further explanation, it does not appear to warrant any change in the rule. 3. Summary Affirmances Under Streamlining Many commenters expressed concerns about the general idea of authorizing a single Board member to issue a summary affirmance of an immigration judge's decision. A few commenters argued that decisions affirming an immigration judge's decision without further elaboration would not be considered by the public to be as legitimate as a more fully developed written decision. Other commenters suggested that such an affirmance would hinder a respondent's understanding of the rationale behind the decision. Some commenters also suggested that courts of appeals will return many of the single-member and summary affirmance decisions for a fuller written decision, thus negating any advances made in diminishing the Board's backlog and arriving at decisions more quickly. These concerns fail to consider the Board's experience under the existing streamlining process, which, since 1999, has authorized single Board members to summarily affirm a decision without opinion, in appropriate cases. Similar objections were raised regarding summary affirmance when the Department first proposed the “streamlining” initiative in 1998, see 64 FR 56135, 56137 (Oct. 18, 1999), but have not been borne out by the Board's experience since then. The streamlining initiative allowed for summary decisions by a single Board member in certain limited situations. In FY2001, the Board issued 15,372 decisions under the streamlining initiative, or approximately one-half of all decisions. The Streamlining Study has not noted an appreciable difference in the quality of the decisionmaking based on the experience of the participants. Although a complex study of the results of streamlining, by following a specific set of streamlined cases through judicial review, has been proposed, such a theoretically “objective” evaluation could take years. The Department may or may not undertake such a study, but the demands for fair, effective, and efficient adjudication of present cases do not permit the luxury of waiting for the results of such a study. Streamlining Study, 10-11 and Appendix C. Summary affirmances have not yet resulted in an overwhelming number of remands from Federal district and appeals courts. See 64 FR at 56138 (Oct. 18, 1999). Of the 23,224 streamlined decisions between 1999 and 2001, only 0.7% have resulted in judicial remands or reversals. Although this is not the full study envisioned by the Streamlining Report, cited above, it is, together with anecdotal evidence, sufficient evidence for the Department to proceed with an expansion of the single-member review process. The Department has concluded that streamlining has proven to be an effective procedure for managing an ever-increasing caseload and will significantly assist and promote fair and expeditious review of all pending and incoming appeals while maintaining a respondent's rights to a reasoned administrative decision. Furthermore, the Department has determined that, because a summary affirmance without opinion concludes that any error in the immigration judge's decision was harmless or immaterial, there is no basis for the contention that a respondent will be unable to discern the rationale behind a decision. The immigration judge's order provides the rationale, and thus the legitimacy, for the Board's summary affirmance. The Department, in this rule, agrees with the succinct summary of one court of appeals that, “if the Board's view is that the [immigration judge] ‘got it right,’ the law does not demand that the Board go through the idle motions of dressing the [immigration judge's] findings in its own prose.” Chen v. INS, 87 F.3d 5, 7 (1st Cir. 1996). The Department does not believe that there is any basis for believing that providing a regurgitation of the same facts and legal reasoning, albeit with citation to more legal precedent, will be beneficial to the respondent or the reviewing courts in most cases. Section 3.1(e)(4) of the final rule therefore continues to authorize a single Board member to issue an order with the same effect, an order affirming the immigration judge without opinion. Moreover, Service appeals are equally subject to summary affirmance. Although the Service appeals few immigration judge decisions terminating proceedings or granting relief from removal, there is no distinction between those appeals and appeals filed by respondents. 4. Other Dispositions by a Single Board Member—Affirmances, Modifications, and Remands Some commenters took the position that single Board members should not be permitted to affirm, modify, or remand the decision of an immigration judge in a short opinion. They argue that, if there are factual errors, a three-member panel should consider the entire record. This rule retains the existing “summary affirmance without opinion” process intact, but also authorizes single Board members to resolve other cases by issuance of a short order explaining the relevant issues in the case. At the outset, it should be noted that the Board has been allowed to summarily affirm decisions of the immigration judge “for the reasons stated therein” for many years before the streamlining initiative was begun. The Board was never prohibited from doing so. In reality, some panels of the Board have done so in the past with great success. However, there may be a number of instances where the reviewing Board member believes that the result of the case under review is essentially correct, but requires some further explanation or discussion in the disposition of the appeal. For example, an immigration judge may not have explained his or her evaluation of the facts or the law in the manner in which the respondent believes was appropriate. However, in those instances where there is no error that affects the outcome of the proceedings, there is also no point in expending substantial time and effort to “correct” such a record. Rather, a single Board member is authorized to issue a short order affirming the immigration judge's decision, but adding an additional explanation of discussion of the case in that Board member's view. 6 6 Individual panels at the Board have differed on the content of Board decisions in non-precedent cases over time. Some panels have included an introduction, a statement of issues present in the record, a full restatement of the proceedings before the immigration judge, a complete recitation of the established and controverted facts presented in the record, analysis of the applicable law, and the panel's conclusions and order. This is, in effect, de novo review of every case, notwithstanding the complexity of the issues presented. For cases in which there are no substantial factual or legal issues, this commitment of resources cannot be justified in light of the Board's current situation. Other panels, more recently, have developed orders that include an adoption of the immigration judge's decision, only a short statement of the issues presented on appeal, with a statement of relevant facts and controlling precedent, and the order. Typically, these decisions are to be read in conjunction with the immigration judge's decision. The Department believes that this more limited appellate review process, to determine whether the immigration judge has erred, is more appropriate for the majority of cases. The different approaches can also be understood on the basis of the way in which the decisions are reviewed. In the first example, a full de novo review results in a court of appeals review of the Board decision and does not extend to the immigration judge's decision. In the second example, a “clearly erroneous” standards will allow the courts of appeals to review the immigration judge's fact findings in conjunction with the Board's legal findings, thereby obviating the need for lengthy Board decisions that do little more than reiterate facts. The short orders of the Board already effectively utilize this methodology. This process adds nothing to the burden of the court of appeals on review and is a substantially more efficient allocation of resources within the administrative adjudicatory process. As discussed below, § 3.1(e)(5) also authorizes a single Board member to enter a decision that modifies the immigration judge's decision or remands the case to the immigration judge in any case that does not meet the standards for three-member panel review under § 3.1(e)(6). Such an opinion may properly begin with the opinion of the immigration judge and make specific modifications to that opinion. For example, a single-member opinion may state that the Board member “adopts the opinion of the immigration judge, except to note that” a particular issue is governed by intervening precedent, and to explain that the immigration judge's opinion would still be correct in light of the intervening precedent. Accordingly, such an opinion would conclude that the “immigration judge's opinion is affirmed for the reasons set forth therein and as set forth in this opinion.” In this instance, the parties and any reviewing court would be able to look to the combination of the immigration judge's opinion and the single-member decision to understand the conclusions reached in the adjudication. Similarly, the single-member review may result in a determination that the immigration judge clearly erred over a specific fact, but that the error did not prejudice the appealing party and was harmless. For example, an immigration judge might determine that the respondent had entered on a specific date based on conflicting evidence, but fail to note in the oral decision that a specific official government document indicated a slightly different date, such as a traffic violation in the United States some days prior to the date determined by the immigration judge. In this case, if neither date would satisfy a requirement for a period of continuous physical presence in the United States, the finding of fact might be both clearly erroneous and harmless. However, if the existence of the documented infraction, presented by the respondent, convinced the Board member that the respondent was being candid and warranted a favorable exercise of discretion in voluntary departure, which the immigration judge had also denied as a matter of discretion, the single Board member would have the option of modifying the order to grant voluntary departure. Finally, a single Board member would be authorized to grant a motion to remand the record for specific factfinding if the respondent provided new evidence that was not previously available under the standards of the regulations. Whether agreed upon by all of the parties or contested, this single member review process permits the more expeditious disposition of cases than a full three-member panel review. In each of these cases, the Department has no reason to believe that such decisions would be any less efficacious than the current decisions of the Board resulting from three-member panel review. The Department has noted that some language in this section and § 3.1(d)(2)(ii) could cause confusion over the finality of a decision by a single member. Accordingly, the language in these two provisions has been revised for clarity, and the provisions relating to finality of the Board's decisions have been consolidated in § 3.1(d)(6), as discussed in part I below. However, the provision authorizing a single Board member to affirm, modify, or remand a decision must be understood in light of the standards for three-member panel review. That is, this authority will apply only if the Board member has already determined, based on a review of the appeal on the merits, that the case should not be referred to a three-member panel—for example, because of factual determinations by the immigration judge that appear to be clearly erroneous, because the decision is not in conformity with applicable precedents, or because of the need to review the dispositions of similar issues by various immigration judges or to establish precedential guidance on matters of law or procedure. 5. Reversals and Terminations of Proceedings Several commenters raised issues regarding the propriety of a summary decision by a single Board member that reverses the decision of the immigration judge, with some suggesting that a single Board member should not be able to reverse a decision granting relief or terminating proceedings, while others suggested that a single Board member should not be able to reverse a decision denying relief. In general, if the single Board member believes that the decision of an immigration judge should be reversed because of a clearly erroneous factual determination or an error in law, or one of the other reasons specified in § 3.1(e)(6), the Board member should refer the case to a three-member panel. Under the terms of the proposed rule, it is reasonable to expect that most reversals would likely have been handled by a three-member panel rather than by single Board members. However, in order to avoid uncertainties as to how to proceed, this final rule adds an additional provision under the standards of § 3.1(e)(6) providing for referral of a case to a three-member panel where there is a need to reverse the decision of an immigration judge or the Service. However, the Department also recognizes that there may be cases where reversals may be required as a nondiscretionary matter. This would be particularly true where there has been an intervening change in the law, such as the publication of a Board precedent decision interpreting a statutory provision relating to eligibility or ineligibility for a form of relief, that mandates the reversal of immigration judge decisions in pending cases that were inconsistent. If the Board determines that relief should be granted in particular circumstances, and an immigration judge had denied relief in a case where the facts are indistinguishable, there is no reason why a single Board member cannot summarily vacate the immigration judge's order denying relief. On the other hand, if the factual record does not compel reversal under the precedent as applied to that case, the single Board member may then refer the case to a three-member panel or remand the record for further proceedings. This is typical of the implementation of precedent. 6. Quality Assurance of Decisions Other commenters questioned whether the Board would be able to assure that single Board members did not act arbitrarily or institute a mechanical, rather than thoughtful, approach to disposing of cases themselves or forwarding cases to three-member panels. In essence, these comments focus on both the individual thoroughness of review and the integrity of the review process among decisionmakers. The Department has carefully considered the argument that there are inadequate safeguards to protect the system and its participants from divergent decisions by single Board members, but has concluded that the provisions of this rule as written are adequate. As mentioned previously, concerns regarding the adequacy of summary affirmances were addressed in the streamlining regulations. This rule builds upon the streamlining process by providing for a case management screening process to review all cases coming before the Board initially, thus allowing the members of the screening panel to become familiar with the broad range of issues coming before the Board, and the processes for both single-member and panel dispositions of cases decided by the Board. The existing checks of three-member review of complex issues and other cases under the standards of § 3.1(d)(6), and of en banc Board review, remain in effect. Accordingly, the Department believes that a shift to predominantly single-member adjudication in the substantial majority of cases is a legitimate exercise of agency discretion and will not significantly increase judicial remands. However, the Department recognizes that any tribunal must be concerned with whether its members are adjudicating factually and legally similar claims in a similar fashion, a concern that is particularly apt given the large volume of cases being decided by the Board. See generally House Judiciary Subcommittee Hearing, at 10. These general concerns relating to this aspect of the Board's operation are important to the Department, to the immigration judges, to aliens in proceedings, and to the general public. These concerns are relevant whether applied to several different individual members' decisions in single-member cases, or to the results of the various three-member panel reviews that have been used in the past and will continue to be used in the future. The Board recently has taken further steps to review the disposition of Board decisions in light of the need to resolve issues and provide guidance through the issuance of precedent decisions. Exercising its authority under the existing rules and the revisions made by this rule, the Department expects the Board will be able to determine whether issues are developing appropriately and whether referral of similar cases to a three-member panel, or further adjudication of those issues by issuance of a precedent decision, may be appropriate. See generally J. McKenna, L. Hooper & M. Clark, Federal Judicial Center, Case Management Procedures in the Federal Courts of Appeals 163 (2000) (case weighting and issue tracking in the Ninth Circuit); see generally B. White, et al. , Commission on Structural Alternatives for the Federal Courts of Appeals: Final Report, at 39-40 (1998). 7. Single Board Member Participation in Reopening and Reconsideration of Own Decision One commenter suggested that a single Board member who made an initial decision should be recused from adjudication of the motion to reopen or reconsider. The Department disagrees that the single Board member who made the initial decision should be recused from adjudicating these types of motions. The long-standing practice of the Board has been to assign motions to reopen and reconsider to the original Board Members who considered the appeal if they are available. This permits some familiarity with the record and obviates the use of such a motion to merely seek a second panel review of a decision. Moreover, as with the initial notice of appeal, a party filing a motion to reopen or to reconsider can state in the motion any reasons why the motion should be referred to a three-member panel for adjudication, as provided in § 3.1(e)(6). D. Standards for Referral of Cases to Three-Member Panels 1. In General Some commenters suggested a modification to the rule to specify additional types of cases that would be referred to a three-member panel. This rule retains the basic provisions of the proposed rule, which provide for an initial review of each case by a single Board member, and allows for referral of cases to a three-member panel based upon the specific criteria of 8 CFR 3.1(e)(6). This review process for adjudicating the cases is both fair and efficient in meeting the Department's goals. However, as discussed below, the Department has made certain clarifications to these provisions based on the public comments. As noted above, an agency must have discretion to innovate and establish new procedures for administrative appeals. See Vermont Yankee, 435 U.S. at 525 (“[A]dministrative agencies and administrators will be familiar with the industries which they regulate and will be in a better position than federal courts * * * to design procedural rules adapted to the peculiarities of the industry and the tasks of the agency involved.”) (internal quotes omitted); cf. D. Meador & J. Bernstein, Appellate Courts in the United States 78-91 (1994) (differentiated internal decision tracks in federal courts of appeals, and other innovations). The criteria used in the final rule are similar to those used by the federal courts of appeals in deciding whether to hold oral argument or to publish an opinion. The Department believes that these criteria strike the proper balance between cases that do not present novel or complicated issues that may be decided by a single Board member, and those issues that are appropriate for review by a three-member panel. 2. Particular Classes of Cases Some commenters recommended that a full written decision by a three-member panel be required in cases denying asylum, withholding of removal, or Convention Against Torture relief. The Department does not agree that certain classes of cases, such as those facially raising an asylum issue, should routinely be referred to a three-member panel. While asylum cases can include complex issues of law and fact, an objective review of those cases indicates that many do not. Moreover, cases involving asylum and asylum-related relief appear to make up a substantial portion of cases pending before the Board, although there are currently no statistics captured on forms of relief sought. The Department has not found evidence to support a view that every such case is profoundly complicated. Of course, in those appeals that do raise novel or complex factual or legal issues in asylum or asylum-related cases, a respondent is permitted, even encouraged, under the provisions of this rule to state in the Notice of Appeal and elaborate in a brief, the reasons why the appeal merits review by a three-member panel under § 3.1(e)(6) of the rule. Such contentions will be reviewed in each case as part of the case management screening process. 3. Clarification of Standards for Panel Review In the proposed rule, the Department stipulated in § 3.1(e)(6) that a Board member “shall” refer specific classes of cases for three-member panel review. It was not the Department's intent, however, that this language might lead to judicial enforcement of three-member panel review. Rather, the Department believes that it is appropriate for the decision to refer a case for panel review to be made on a case-by-case basis according to the judgment of the reviewing Board member under the standards of this rule. Accordingly, the mandatory “shall” has been changed to “may only” to avoid this possibility. This change does not broaden the authority of a single Board member to decide these cases, but rather provides discretion to refer the cases to a three-member panel if appropriate. Section § 3.1(e)(6)(ii) of the proposed rule states that three-member panels have authority to review records if there is “[t]he need to establish a precedent to clarify ambiguous laws, regulations, or procedures.” The Department did not intend, by this language, to narrow the scope of panel review and decisionmaking to “ Chevron step II” issues— i.e. , “ambiguous” questions of statutory or regulatory construction. Chevron v. NRDC, supra. On further review, the Department has revised this language to make clear that three-member panels should be able to decide all precedential questions of first impression as to the interpretation of the provisions of the Act and its implementing regulations, regardless of whether the parties or the immigration judge believe that the meaning is “plain” or “ambiguous.” Accordingly, the Department has altered this language to permit three-member panels to adjudicate cases where there is a “need to establish precedent construing the meaning of laws, regulations, or procedure” encompassing both the Chevron step II interpretive issues as well as the initial Chevron step I interpretation of the statute or regulation to determine the scope and implementation of clear and plain statutory language. The Department has noted that § 3.1(e)(6)(iii) suggests that three-member review is appropriate if the error of law is “plain[].” This might give the impression that the Department is adopting the “plain error” standard of F.R. Crim. P., Rule 52(b), by which an appellate court may review errors of law that are “plain” even if not raised by a party. Under the context of this rule, such an interpretation would tend to limit the authority to refer cases to a three-member panel by suggesting that only “plain error” was referable. This was not the Department's intent and the word “plainly” has been deleted. If the single Board member believes that an error of law warrants three-member review, the single Board member may refer the case. E. De novo Review and the Clearly Erroneous Standard Many commenters expressed opposition to the provision in proposed § 3.1(d)(3), which provided that the Board would not engage in de novo review but would accept the factual findings of the immigration judges in decisions under review, including findings as to the credibility of testimony, unless the determinations are clearly erroneous. These commenters noted that the Board had asserted its authority to conduct de novo review of cases on appeal from the immigration judges in cases dating back to Matter of B -, 7 I&N Dec. 1 (BIA 1955; A.G. 1956), and as applied in many decisions since then. Several NGOs attached lists of case examples describing instances where the Board on appeal had rejected the factual determinations or the denial of relief from removal by an immigration judge. The Department has considered these comments very carefully. The final rule adopts the approach of proposed § 3.1(d)(3) by eliminating the Board's de novo appellate review of factual issues before an immigration judge, but with certain modifications. Guidance has been added to the rule to clarify the standard of review in light of comments received indicating confusion over the application of the clearly erroneous standard with respect to factual determinations. The Department is also concerned that some commenters did not have a clear understanding of the relationship between this change and the standard of review with respect to matters of law and discretionary determinations, and, accordingly, the final rule contains new language to clarify these important issues as well. Where the Board reviews what was previously called a mixed question of law and fact in the proposed rule, and is now referred to as a discretionary decision, the Board will defer to the factual findings of the immigration judge unless clearly erroneous, but the Board members will retain their “independent judgment and discretion,” subject to the applicable governing standards, regarding the review of pure questions of law and the application of the standard of law to those facts. (However, when an appeal is taken from a decision of a Service officer, the standard of review will remain de novo .) 1. De novo and Clearly Erroneous Standards of Review of Factual Determinations by the Immigration Judges The Department received a number of comments opposed to elimination of de novo appellate review of determinations of facts by the immigration judges and the substitution of a “clearly erroneous” standard of review. The commenters generally asserted that eliminating the Board's de novo appellate review of factual issues will result in an overall denial of due process. Commenters also expressed their opinions that, because immigration judges occasionally misstate or omit important facts, and country conditions change, substituting “clearly erroneous” review for de novo review of facts will compel the Board to perform a brief, cursory review of the record, resulting in decisions that do not accurately reflect the facts. The Department has determined that the proposed rule eliminating de novo review of facts by the Board and replacing it with “clearly erroneous” review should remain intact, with appropriate clarifications. The Department does not accept the suggestions that a clearly erroneous standard of review, as provided in this rule, will lead to decisions by the Board that “rubber stamp” the decisions of the immigration judges without thoughtful review or analysis, or that retaining de novo review by the Board is necessary in order to deal with erroneous decisions by immigration judges who are “antagonistic, biased and ignorant,” in the words of one commenter. A finding is “clearly erroneous” when, although there is evidence to support it, the reviewing Board member or panel is left with the definite and firm conviction that a mistake has been committed. A factfinding may not be overturned simply because the Board would have weighed the evidence differently or decided the facts differently had it been the factfinder. Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985). The “clearly erroneous” standard reflects the major role of immigration judges under the Act and implementing regulations as determiners of facts. In removal proceedings, it is the immigration judges, not the Board, who have been given authority to “administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.” 8 U.S.C. 1229a(b)(1). Moreover, immigration judges are generally in the best position to make determinations as to the credibility of witnesses. See Matter of A-S -, 21 I&N Dec. 1106 (BIA 1998); Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994). Immigration judges conducting the hearings are aware of variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said. See Wainwright v. Witt, 469 U.S. 412 (1985). Accordingly, even under its present authority to conduct de novo review of the facts, the Board gives “significant weight to the determinations of the immigration judge regarding the credibility of witnesses” as well as to “other findings of an immigration judge that are based upon his or her observance of witnesses.” Matter of Burbano, 20 I&N Dec. at 874 (citations omitted); see Matter of A-S -, 21 I&N Dec. at 1108-1112. The Department believes that this deference is appropriate. Indeed, as we have discussed above, the Board has long engaged in the practice of adopting and affirming the immigration judges' factual determinations and decisions, for the reasons stated in the immigration judges' decisions, and this is “not only common practice, but universally accepted.” Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997); see, e.g., Chen v. INS, supra; Prado-Gonzalez v. INS, 75 F.3d 631, 632 (11th Cir. 1996); Alaelue v. INS, 45 F.3d 1379, 1382 (9th Cir. 1995). Thus, for example, it is well established that, because the immigration judge has the advantage of observing the respondent as the respondent testifies, the Board already accords deference to the Immigration Judge's findings concerning credibility and credibility-related issues. See Matter of A-S -, 21 I&N Dec. at 1109-1112; Matter of Burbano, 20 I&N Dec. at 874; Matter of Pula, 19 I&N Dec. 467, 471-72 (BIA 1987); Matter of Kulle, 19 I&N Dec. 318, 331-32 (BIA 1985), aff'd, 825 F.2d 1188 (7th Cir. 1987), cert. denied, 484 U.S. 1042 (1988). Under certain circumstances, the Board may not accord deference to an immigration judge's credibility finding where that finding is not supported by the record. See, e.g., Matter of B -, 21 I&N Dec. 66, 70-71 (BIA 1995); Matter of B -, 7 I&N Dec. 1, 32 (BIA 1955; A.G. 1956). However, because an immigration judge has the ability to see and hear the respondent, which the Board and the courts of appeals do not, if the immigration judge's reasons for an adverse credibility finding are supported by specific and cogent reasons with respect to inconsistencies and omissions with respect to a respondent's claim, observations of the respondent's demeanor, and reasonable inferences from those indicia, the Board will not disturb an adverse credibility finding. Matter of A-S -, supra. In Matter of A-S -, the Board concluded that it would defer to the credibility findings of an immigration judge, but only if (1) the record reveals that the discrepancies and omissions described by the immigration judge are actually present; (2) the discrepancies and omissions provide specific and cogent reasons to conclude that the alien provided incredible testimony; and (3) the alien has not supplied a convincing explanation for the discrepancies and omissions. 21 I&N Dec. at 1109-1111. The Department believes that these standards offer some appropriate guidance, but should be applied to the broader factfinding process. That is, under this rule, the Board should start from the premise that it will accept the findings of fact made by the immigration judge, unless the Board identifies specific reasons, including the inverse of those stated in Matter of A-S -, for forming a definite and firm conviction that a mistake has been made. The rationale for changing to a “clearly erroneous” standard of review of fact findings is not limited to the consideration that immigration judges may be better positioned than the Board to decide factual issues, including issues of credibility. See generally Anderson, 470 U.S. at 574-75. As the Supreme Court has opined in another setting, the “clearly erroneous” standard rather than a de novo standard of review is appropriate for factfindings by trial courts because “[d]uplication of the trial judge's efforts [by an appellate body] would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.” Id. “[T]he parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one” and “requiring them to persuade three more judges at the appellate level is requiring too much.” Id. at 575. The “clearly erroneous” standard of review recognizes that an evidentiary hearing on the merits should be the “ ‘main event’ * * * rather than a ‘tryout on the road.’ ” Wainwright v. Sykes, 433 U.S. 72, 90 (1977). Just as the Supreme Court has concluded that on balance the “clearly erroneous” standard is an effective, reasonable, and efficient standard of appellate review of factual determinations by federal district courts, see Anderson, 470 U.S. at 574-75, and Fed. R. Civ. P. 52(a), the Department has concluded that the “clearly erroneous” standard is an effective, reasonable, and efficient standard for appellate administrative review of factual determinations by immigration judges. The “clearly erroneous” standard is duly protective of the Department's legitimate institutional interests in the effective adjudication of administrative appeals and eliminating the duplication of resources involved in successive de novo factual determinations, first by immigration judges and then the Board. At the same time, it allows for the correction of fact findings in the rare case where the Board is left with the definite and firm conviction that a mistake has been committed. See generally United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). Therefore, in the administrative immigration system, the Department has determined that the “clearly erroneous” standard of review—with its deference to the initial factfinder—should be “the rule, not the exception.” See generally Streamlining Study, supra . This is not a novel standard in the administrative process; rather, similar standards have been applied within agency review proceedings for many years. See, e.g. , 10 CFR 2.786 (Nuclear Regulatory Commission; domestic licensing proceedings; review of decisions of a presiding officer); 17 CFR 201.411 (Securities and Exchange Commission; consideration of initial decisions by hearing officers); 20 CFR 422.114 (Social Security Administration; annual wage reporting process); 29 CFR 1614.405 (EEOC; decisions on appeals); 40 CFR 124.19 (EPA; appeal of certain permits). The Department believes there is ample authority and experience to apply this standard to the agency review process in immigration proceedings. 2. “Correction” of Clearly Erroneous Factual Determinations The Department's adoption of the “clearly erroneous” standard encompasses the standards now commonly used by the federal courts with respect to appellate court review of findings of fact made by a trial court. See Dickinson v. Zurko, 527 U.S. 150, 153 (1999). Under this standard, an appellate tribunal merely has authority to reverse erroneous fact findings and no authority to correct them. See id. However, it has been pointed out that the word “correct” in proposed § 3.1(e)(6) might appear to give three-member panels authority to go beyond the traditional “clearly erroneous” standard used in such review and to engage in de novo factfinding to “correct” clearly erroneous facts. This was not the Department's intent and § 3.1(e)(6) has been revised. 3. Clearly Erroneous Standard Applied One of the more complicated contexts in which the clearly erroneous standard will be applied is in the area of asylum. For example, the Board has established standards for immigration judges to make credibility determinations. Matter of A-S -, supra. These standards involve several different types of findings: whether inconsistencies exist, whether omissions in an application indicate exaggeration in testimony, or whether a respondent has indicated through his or her demeanor that he or she is being less than truthful. The “clearly erroneous” standard will apply only to the factual findings by an immigration judge, including determinations as to the credibility of testimony, that form the factual basis for the decision under review. The “clearly erroneous” standard does not apply to determinations of matters of law, nor to the application of legal standards, in the exercise of judgment or discretion. This includes judgments as to whether the facts established by a particular alien amount to “past persecution” or a “well-founded fear of future persecution.” The distinction requires a more refined analytical approach to deciding cases, but focuses on the qualities of adjudication that best suit the different decisionmakers. Immigration judges are better positioned to discern credibility and assess the facts with the witnesses before them; the Board is better positioned to review the decisions from the perspective of legal standards and the exercise of discretion. For example, under section 208 of the Act, a respondent may establish eligibility for asylum by showing that he has been persecuted on account of a protected ground under section 101(a)(42) of the Act, e.g. , religion. See generally Matter of Chen, 20 I&N Dec. 16 (BIA 1989). The immigration judge's determination of “what happened” to the individual is a factual determination that will be reviewed under the clearly erroneous standard. The immigration judge's determinations of whether these facts demonstrate harm that rises to the level of “persecution,” and whether the harm inflicted was “on account of” a protected ground, are questions that will not be limited by the “clearly erroneous” standard. Similarly, in cancellation of removal, those facts that a respondent claims make up “exceptional and extremely unusual hardship” to a respondent's putative qualifying relative under section 240A(b)(1)(D) of the Act, and whether the putative qualifying relative is actually a qualifying relative, will be reviewed by the Board only to determine if the immigration judge's determination was clearly erroneous. Whether those facts, as determined by the immigration judge and found not to be clearly erroneous, amount to “exceptional and extremely unusual hardship” under the Act may be reviewed by the Board de novo. See, e.g., Matter of Andaloza-Rovas, 23 I&N Dec. 319 (BIA 2002) (evaluation of legal standard; de novo review leading to reversal of immigration judge's grant of relief); & id. at 330-331 n.1 (Osuna, dissenting, suggesting reliance on immigration judge's factfinding leads to a different evaluation); Matter of Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001) (evaluation of whether hardship to qualifying relatives is “substantially different from, or beyond, that which would normally be expected” from the removal of the respondent). Third, in both of these two examples, the underlying statutes grant the Attorney General discretion to grant relief. This “discretionary” determination can likewise be considered under this dichotomy. What have historically been referred to as “equities” are facts that the respondent establishes in his or her case, and these factual determinations by an immigration judge may be reviewed by the Board only to determine if they are clearly erroneous. However, the “discretion,” or judgment, exercised based on those findings of fact, and the weight accorded to individual factors, may be reviewed by the Board de novo. Thus, properly understood, the “clearly erroneous” standard will only apply to the specific findings of fact by the immigration judges, and will not limit the Board to reviewing discretionary determinations. Accordingly, in reviewing the various decisions of the immigration judges, the Board will still be able to consider and resolve instances where “differing decisions may be reached based on essentially identical facts.” Matter of Burbano, 20 I&N Dec. at 873. For these reasons, the Department does not agree with the comments suggesting that the “clearly erroneous” standard would “severely reduce” the Board's ability to act as a check against the wide disparities in discretionary decisions by the immigration judges to grant or deny relief in factually similar cases. 4. Harmless Error Several commenters expressed the view, in essence, that there exists a gap between review of all facts de novo and a “clearly erroneous” threshold. They argue that the immigration judges frequently misstate facts that require further review. The Department agrees that in some cases an immigration judge may misstate facts, but disagrees that in all such cases further adjudication of those facts is necessary. In many instances, such errors, or perceived errors, do not prejudice a respondent, and are, in effect, harmless errors. Section 3.1(e)(4) of the rule provides that summary affirmance is only appropriate if the single Board Member determines that “any errors in the decision under review were harmless or nonmaterial” and all other conditions apply. Thus, an affirmance without opinion signifies that any such error is considered to be harmless. Historically, many cases are appealed to the Board on the basis of perceived factual errors in an immigration judge's decision that are, in fact, harmless or immaterial. For example, an immigration judge's misstatement of a fact in evaluating whether a nonimmigrant respondent seeking cancellation of removal had established a particular element of “exceptional and extremely unusual hardship” under 8 U.S.C. 1229b(b)(1)(D) of the Act is not a harmful, prejudicial, or material error if the immigration judge also concluded that the respondent had not accrued the required 10 years of continuous physical presence under subsection (b)(1)(A). A single-member brief order may elaborate on why such an error is harmless and not prejudicial. By contrast, where a material finding of fact is clearly erroneous, the Board may review the record before a three-member panel under § 3.1(e)(6)(v). This is precisely the function of a three-member panel. 5. Litigation Concerns Some commenters were also of the opinion that if the Board reviews fact findings to determine if they are “clearly erroneous,” as opposed to deciding the facts de novo, courts will give less deference to the agency's decisions and more cases will be remanded to the immigration judges for further factfinding; they allege this to be true particularly in cases where an asylum applicant is alleging changed country conditions. Consequently, the commenters were of the opinion that by implementing a “clearly erroneous” standard of review for facts, the Board's appellate decisionmaking would become less, rather than more, timely and efficient. The Department disagrees with this evaluation. Under the Act, courts of appeals must apply a highly deferential “substantial evidence” standard in reviewing administrative factfinding in removal orders, including the findings made regarding asylum and changed country conditions. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (substantial evidence standard required for asylum determinations); 8 U.S.C. 1252(b)(4)(B) (“administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”). Where the Act precludes direct review in the courts of appeals, district courts have limited jurisdiction to review removal orders by means of habeas corpus, encompassing only purely legal challenges to removal orders. INS v. St. Cyr, 533 U.S. 289, 306, 314 n.38 (2001). Habeas review does not permit review of administrative factfinding, except perhaps to determine whether such facts are “unsupported by any evidence.” Id. at 306 n.27. Accordingly, the commenters' concerns that courts may choose to accord less deference to administrative factfinding and may reverse the Board more frequently if the Board reviews appeals under a “clearly erroneous” standard are not well founded. Such concerns overlook the courts' inability to alter the standard of review, and their obligation of deference to the Attorney General's factfinding (by whatever means such authority is exercised). The Department recognizes that increasingly, and particularly in asylum cases, some courts have failed to defer to administrative factfinding. See, e.g., Abovian v. INS, 257 F.3d 971 (9th Cir. 2001) (Kozinski, O'Scannlain, T.G. Nelson, Kleinfeld, Graber, Tallman, Rawlinson, JJ., dissenting from denial of rehearing en banc ); Agbuya v. INS , 219 F.3d 962, 967 (9th Cir. 2000) (Hall, J., dissenting); Briones v. INS , 175 F.3d 727, 730 (9th Cir. 1999) ( en banc ) (O'Scannlain, J., dissenting); Borja v. INS , 175 F.3d 732, 738 (9th Cir. 1999) ( en banc ) (O'Scannlain and Kleinfeld, JJ., dissenting); Mgoian v. INS , 184 F.3d 1029, 1037 (9th Cir. 1999) (Rymer, J., dissenting). The Department disagrees with such an approach, and therefore does not consider it appropriate to alter the nature of the Board's appellate review to conform to it. 6. De novo Review by the Attorney General Some commenters suggested that it was inappropriate for the Attorney General to adopt a “clearly erroneous” standard for the Board, but use a de novo standard himself in reviewing the Board's determination, such as in Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002). This suggestion misapprehends the different roles of the Attorney General and the Board. As discussed above, the Attorney General is charged not merely with adjudicating immigration matters, but with establishing policy and managing the immigration process. The Board, on the other hand, is delegated authority by the Attorney General to adjudicate cases before it, not make policy or manage the immigration process. It is appropriate for the Attorney General to exercise broader authority than he delegates to the Board. 7. Review of Service Decisions The comments on de novo review have raised an issue of the scope of review of factual determinations by officers of the Service in decisions under review by the Board. Review of decisions by the district director and other Service officers do not have the benefit of a full record of proceedings or, except in rare cases, a transcript of hearings before an independent adjudicating officer. Rather these decisions are made on applications and interviews, and other information available to the Service. In light of this difference, the Department has clarified the language of the final rule to retain de novo review of Service officer decisions, either by a single Board member or by a three-member panel. Accordingly, § 3.1(d)(3) has been revised to retain the Board's authority to review decisions of the Service de novo. The process for initial single Board member review will be retained, but the scope of review is broadened. The same standards for referral to a three-member panel will be applied. F. New Evidence and Taking Administrative Notice of Facts Section 3.1(d)(3) of the proposed rule also generally prohibits the introduction and consideration of new evidence in proceedings before the Board, except for taking administrative notice of commonly known facts such as current events, or the contents of official documents such as country condition reports prepared by the Department of State. Several commenters suggested that the rule would alter the Board's authority to administratively notice facts. Some commenters believed that a broadening of the authority to administratively notice facts was appropriate, while others argued that the Board should, in essence, not be able to take administrative notice of facts without providing a hearing. Where it is established that an appeal cannot be properly resolved without further findings of fact, other than those established by administrative notice, the Board will remand the proceeding to the immigration judge. The rule codifies existing Board precedent holding that new facts will not be considered on appeal. The “clearly erroneous” standard of review, in contrast to the de novo standard of review, is also consistent with the longstanding policy of the Board, now codified in § 3.1(d)(3), of not considering evidence filed on appeal. The Board reviews the record of proceedings made before the immigration judge. Matter of Fedorenko, 19 I&N Dec. 57, 73-4 & n.10 (BIA 1984); Matter of Haim, 19 I&N Dec. 641 (BIA 1988). Under existing practice, new evidence would be considered at the appeal stage through a motion to remand. See generally G. Hurwitz, Motions Practice Before the Board of Immigration Appeals, 20 San Diego L. Rev. 79, 91-2 (1982). See Matter of Coelho, 20 I&N Dec. 464, 471-2 (BIA 1992). See also 8 CFR 3.2(c) (2001). Contrary to the assertions of several commenters, this rule does not disturb the Board's authority to take administrative notice of commonly known facts. The Board may, and does, take administrative notice of commonly known facts such as agency documents and current events. See e.g. Matter of S-M-J-, 21 I&N Dec. 722, 733 n.2 (BIA 1997), disapproved on other grounds, Ladha v. INS, 215 F.3d 889 (9th Cir. 2000); Kaczmarczyk v. INS, 933 F.2d 588, 593 (7th Cir. 1991). The language of the regulation explicitly uses the phrase “commonly known facts” to describe the kinds of facts or matters of which the Board may take administrative notice, giving by way of example “current events” or “the contents of official documents.” The Department intends by use of this language to make clear that the Board may take administrative notice not only of current events but also of the contents of official documents such as the country condition reports prepared by the Department of State, including its foreign policy expertise, analysis, and opinion. The Department does note, however, that there is an intercircuit conflict over the degree to which the Board may take administrative notice of facts without first providing notice and an opportunity to respond. 7 After reviewing the comments, the Department agrees with those courts that have found post-decision motions to reconsider and reopen under 8 CFR 3.2, alleging a specific error of fact (the administratively noticed fact), to be sufficient to preserve a respondent's constitutional due process rights. 7 The First, Seventh, Ninth, and Tenth Circuits have held that it is a violation of due process for the board to take administrative notice of new facts on appeal without affording notice and an opportunity to respond. In the Ninth and Tenth Circuits the board must provide notice and an opportunity to respond before taking administrative notice. Kowalczyk v. INS, 245 F.3d 1143 (10th Cir. 2001); de la Llana-Castellon v. INS, 16 F.3d 1093, 1099-1100 (10th Cir. 1994); Castellon-Villagra v. INS, 972 F.2d 1017 (9th Cir. 1992) (motion to reopen does not provide adequate opportunity to rebut administrative notice of changed country conditions and due process requires BIA to give prior notice and opportunity to rebut). In other circuits a post-decision motion to reopen, or, more properly, a motion to reconsider, disputing the taking of administrative notice is a sufficient remedy. Gonzalez v. INS, 77 F.3d 1015, 1024 (7th Cir. 1996) (rejecting approach of 9th and 10th circuits and holding that “mechanism of the motion to reopen * * * ‘allows asylum petitioners an opportunity to introduce evidence rebutting officially noticed facts,’ [and] provides a sufficient opportunity to be heard to satisfy the requirements of due process”). Accord Gutierrez-Rogue v. INS, 954 F.2d 769, 773 (D.C. Cir. 1992); Rivera-Cruz v. INS, 948 F.2d 962, 968-69 (5th Cir. 1991), rehearing denied, 954 F.2d 723 (1992). The First Circuit initially adopted the position that a post-decision motion to reopen is sufficient to satisfy due process but may not continue to hold that view. Compare Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1993) (“We agree with the majority of those circuits which have addressed the question that [a post-decision] motion to reopen * * * can ordinarily satisfy the demands of due process.”) (emphasis added, citations omitted), with Fergiste v. INS, 138 F.3d 14, 19 n.4 (1st Cir. 1998) (declining to decide whether reliance on extra-record evidence of changed country conditions violated procedural due process without pre-decision notification, but reinterpreting Gebremichael to state that “[o]ur holding in that case was not * * * that a motion to reopen is always necessary and sufficient to protect an alien's rights [but] [r]ather * * * that ‘the demands of due process will, as always, ultimately depend on the circumstances’ ”). In immigration proceedings, the administrative notice of facts—usually relating to country conditions—revolves on issues that form the respondent's burden of proof for relief from removal. The most common facts about country conditions appropriate for administrative notice are those contained in country reports and profiles prepared by experienced foreign service officers in the Department of State who are experts on specific regions and countries. As the courts have recognized, they, the immigration judges, and the Board owe deference to the Department of State on such matters of foreign intelligence as assessments of conditions. 8 Some commenters relied upon the opinions expressed by NGOs in disputing the deference that should be given to Department of States reports and profiles, either directly or through administrative notice of facts and official documents. However, reports by NGOs are simply not as reliable as those of the Department of State because the mission of those organizations is to advocate specific ideas and views, their positions are often based on anecdotal experiences of identified and unidentified persons, and their opinions tend to lack the discernment and expertise of those provided by the Department of State. 8 See Sevoian v. Ashcroft, 290 F.3d 166, 176 (3rd Cir. 2002), quoting Kazlaukas v. INS, 46 F.3d 902, 906 (9th Cir. 1995); Gonahasa v. INS, 181 F.3d 538, 542 (4th Cir. 1999) (describing these reports as “highly probative evidence in a well-formed fear case”); Marcu v. INS, 147 F.3d 1078, 1081 (9th Cir. 1998) (reliance on reports “makes sense because this inquiry is directly within the expertise of the Department of State”); Gailius v. INS, 147 F.3d 34, 46 (1st Cir. 1998) (Department of State opinions “receive considerable weight in the courts because of the * * * Department's expertise”); Rojas v. INS, 937 F.2d 186, 190 n.1 (5th Cir. 1991) (Department of State a “relatively impeccable source[]” for information on political conditions in foreign countries); Koliada v. INS, 259 F.3d 482 (6th Cir. 2001) (deference due even though Department of State report reproduced for the Service in support of litigation); Mitev v. INS, 67 F.3d 1325, 1332 (7th Cir. 1995) (“we give great [deference] to [Department of State] opinions on matters within its area of expertise”). The important, complicated, delicate, and manifold problems of assessing conditions in a foreign country warrant deference to those whose expertise the United States tasks with that duty. It is the respondent's responsibility to present facts on the record that refute those assessments. The Department believes that, given this required deference, post hoc rebuttal of administratively noticed facts is appropriate and sufficient for due process purposes. Accordingly, the Department has not altered the final rule in response to these comments. Nonetheless, the Board is mindful of the limitations on the use of administrative notice in those circuits that have contrary precedents. In light of the intercircuit conflict and the deference that is due such Department of State reports and profiles, the Department believes that a compelling case is made for a liberal interpretation of the rule on reconsideration and reopening in cases in which the Board has administratively noticed facts such as a Department of State country report. Accordingly, the Department is of the view that in any case in which the Board takes administrative notice of a specific fact by reference to any documentary evidence, e.g. , a Department of State country report or profile published after the immigration judge's decision), not theretofore in the record of proceedings, either party may file as part of a motion to reopen any contradictory documentary evidence ( e.g. , a contradictory report by a third party such as Amnesty International), which shall be considered, for the purpose of this section, to have been not available and which could not have been discovered and presented at the former hearing. If administrative notice is taken of a fact, then the parties should have the opportunity to challenge that fact. The Department's interpretation is that the “not available” and “could not have been discovered” requirements of section 3.2(c) should not stand in the way of such a review and determination on the merits of the motion. If the motion has merit and additional factfinding is required, the Board may reconsider and vacate its decision, reopen proceedings, and remand the record to the immigration judge. G. Reduction in Size of the Board The proposed rule provided that, after the transition period of 180 days has elapsed, the final structural reform of the Board will occur. The number of Board members will be reduced to 11, with the Attorney General designating the membership of the Board. After reviewing the comments, the Department has determined to retain the reduction of the size of the Board to 11, as proposed. We note at the outset that two individuals who understand the Board well from their previous experience as Board members, and who testified before the House Judiciary Subcommittee, both agreed that the size of the Board should be reduced but differed over the proper reduction—one arguing for a reduction to no more than 9 while the other suggested 16. Testimony of M. Heilman and L. Mathon, House Judiciary Subcommittee Hearing, 10, 13, 18. The Department has determined that 11 Board members is the appropriate size for the Board based on judgments made about the historic capacity of appellate courts and administrative appellate bodies to adjudicate the law in a cohesive manner, the ability of individuals to reach consensus on legal issues, and the requirements of the existing and projected caseload. The Board is expected to function with two three-member panels and five Board members acting individually in deciding cases. The Department believes that this is a realistic evaluation of the resource needs, capacities and resources of the Board in adjudicating immigration issues. The Attorney General may reevaluate the staffing requirements of the Board in light of changing caseloads and legal requirements following implementation of the final rule. 1. Quality of Board Member Personnel Several commenters questioned how this reduction would occur. Commenters objected to the reduction stating generally that it raises constitutional issues, but without significant elaboration. These commenters either supported maintaining the current number of Board members or supported an increase in the number of Board members, staff, and resources. Comments concerned the transition period, in which the backlog of cases will be eliminated and the Board size reduced. A few commenters stated that the reduction could be perceived as part of a design to eliminate Board members with whom the Attorney General disagrees and noted that diverse Board member opinions are important. Several commenters asserted that, during the 180-day transition period, Board members would be “auditioning” to keep their jobs and that it would affect the perceived impartiality of current Board members given that it was announced before the backlog was reduced. The Department has already addressed, in part III.B above, the general comments asserting that reducing the number of Board members would adversely affect the due process of respondents by affecting the independence and perceived impartiality of the Board. The Department expects that the reduction in the number of Board member positions will be effectuated by the Attorney General from among the current Board Members, after consultation with the Director of the Executive Office for Immigration Review (EOIR) and the Board Chairman, but that determination remains one that is within the discretion of the Attorney General. As EOIR Director Rooney pointed out in testimony before a subcommittee of the House Judiciary Committee, the Attorney General generally looks to traditional factors that guide the selection of adjudicators, such as experience, judicial temperament, and efficiency, particularly in an experienced adjudicator. Testimony of K. Rooney, House Judiciary Subcommittee Hearing, 37-38. The Department expects that the final determinations will be made on factors including, but not limited to, integrity (including past adherence to professional standards), professional competence, and adjudicatorial temperament. Cf ., D. Meador, M. Rosenberg, & P. Carrington, eds., Appellate Courts: Structures, Functions, Processes and Personnel (1994), 671-681 (varying views on the qualifications of judges in the judicial setting rather than the administrative adjudication setting); D. Meador & J. Bernstein, Appellate Courts in the United States (1994), 94-99. In the end, however, it is not possible to establish guidelines or specific factors that will be considered, nor should the Attorney General limit his decisionmaking process. The decision as to the relative values and the weights given to those values belongs to the Attorney General. Each Board member is a Department of Justice attorney who is appointed by, and may be removed or reassigned by, the Attorney General. All attorneys in the Department are excepted employees, subject to removal by the Attorney General, and may be transferred from and to assignments as necessary to fulfill the Department's mission. Moreover, and of critical importance, the Department has not indicated that any of the existing Board members will be adversely affected by the reduction in the number of Board members. Until the Attorney General makes these personnel decisions, such comments are, at best, speculative. A few commenters supported reduction based solely on seniority. While seniority is an experience indicator, the Department does not believe that it should be considered a presumptive factor. Several commenters have suggested that the Attorney General must appoint individuals to the Board who are expert in immigration law. The Department believes that this argument rests on the faulty premise that immigration law is the only area of the law where Board members must have expertise. Although immigration law is a unique blend of foreign and domestic concerns, it is not so discrete and insular in nature. In reality, immigration law is part of the larger body, and requires a more global view, of federal law. The Board is no longer, and perhaps never has been, a body whose decisions relate only to the interpretation of the Act and regulations. More frequently now than ever before, the Board decides cases based on [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A02-21545. Public record. Not legal advice.