Executive Office for Immigration Review; Rules of Practice and Procedure for Administrative Hearings Before Administrative Law Judges in Cases Involving Allegations of Unlawful Employment of Aliens and Unfair Immigration-Related Employment Practices

DEPARTMENT OF JUSTICE

28 CFR Part 68

[A.G. Order No. 1905-94]

Executive Office for Immigration Review; Rules of Practice and

Procedure for Administrative Hearings Before Administrative Law Judges

in Cases Involving Allegations of Unlawful Employment of Aliens and

Unfair Immigration-Related Employment Practices

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This final rule amends 28 CFR part 68, which contains the

rules of practice and procedure for administrative hearings conducted

to enforce sections 274A, 274B, and 274C of the Immigration and

Nationality Act (``INA''). These amendments are necessary to bring the

practices and provisions established in part 68 into conformity with

the provisions of the INA. Specifically, these amendments clarify the

amount of time a party has to appeal to the United States Court of

Appeals an Administrative Law Judge's order in a section 274A or a

section 274C proceeding.

EFFECTIVE DATE: This final rule is effective August 11, 1994.

FOR FURTHER INFORMATION CONTACT: Gerlad S. Hurwitz, Counsel to the

Director, Executive Office for Immigration Review, suite 2400, 5107

Leesburg Pike, Falls Church, Virginia 22041, (703) 305-0470.

SUPPLEMENTARY INFORMATION: Sections 274A, 274B, and 274C of the INA

require that hearings be held before Administrative Law Judges in cases

involving allegations that a person or other entity has:

(1) Hired, or recruited or referred for a fee, for employment in

the United States an alien knowing that the alien is unauthorized to

work in the United States; or has so hired or referred or recruited for

a fee, any individual when the hiring person or entity fails to comply

with the employment eligibility verification requirements (8 U.S.C.

1324a(a)(1));

(2) Continued to employ an alien in the United States knowing that

the alien is or has become unauthorized with respect to such employmnet

(8 U.S.C. 1324a(a)(2));

(3) Imposed, in the hiring, recruiting, or referring for employment

of any individual, any requirement that the individual post a bond or

security, pay or agree to pay any amount, or otherwise guarantee or

indemnify against any potential liability under 8 U.S.C. 1324a for

unlawful hiring, recruiting or referring of such individual (8 U.S.C.

1324a(g)(1));

(4) Engaged in unfair immigration-related employment practices (8

U.S.C. 1324b); or

(5) Knowingly participated in activities involving fraudulent

creation or use of documents for the purposes of satisfying, or

complying with, a requirement of the INA (8 U.S.C. 1324c).

On November 24, 1987, the Department of Justice published an

interim final rule establishing administrative practices and procedures

to implement sections 274A and 274B of the INA. 52 FR 44972. After

receiving comments, the Department published the final rule on November

24, 1989. 54 FR 48593. That rule governed all cases properly brought

before an Administrative Law Judge that complied with the requirements

of the INA. Then, on November 28, 1990, Congress enacted the

Immigration Act of 1990, which amended sections 274A and 274B of the

INA, and added section 274C. These amendments necessitated certain

revisions to the practices and procedures established by part 68, which

were set forth in an interim rule with request for comments, published

October 3, 1991. 56 FR 50049. After receiving comments, the Department

published the final rule on December 7, 1992. 57 FR 57669. The final

rule, however, did not distinguish between the time the Administrative

Law Judge issues an order and the time a final order is issued. This

distinction is critical in clarifying the amount of time a party has to

appeal a final agency order in a section 274A or a section 274C

proceeding to the United States Court of Appeals. A proposed rule

clarifying this time period was published in the Federal Register on

January 18, 1994. 59 FR 2548. Although comments were requested, none

were received. Based upon experience gained by the Office of the Chief

Administrative Hearing Officer in implementing the hearing procedures

and the statutory language regarding the Chief Administrative Hearing

Officer's review authority found at sections 274A(e)(7) and 274C(d)(4),

Sec. 68.2 paragraph (i) is revised to reflect the reference made to the

definition of ``entry'' in the revised definition of ``issued'' at

Sec. 68.2(k), and Sec. 68.2 paragraph (k) is amended to account for the

thirty (30) days the Chief Administrative Hearing Officer has to modify

or vacate an Administrative Law Judge's order in a section 274A or 274C

proceeding after the Administrative Law Judge enters the order.

This regulation has been drafted and reviewed in accordance with

Executive Order 12866, section 1(b). The Attorney General has

determined that this rule is not a significant regulatory action under

Executive Order 12866, section 3(f), and accordingly this rule has not

been reviewed by the Office of Management and Budget.

The Attorney General, in accordance with the Regulatory Flexibility

Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it

certifies that this regulation will not have a significant economic

impact on a substantial number of small entities.

This regulation will not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with section 6

of Executive Order 12612, it is determined that this rule does not have

sufficient federalism implications to warrant the preparation of a

Federalism Assessment.

List of Subjects in 28 CFR Part 68

Administrative practice and procedure, Aliens, Citizenship and

naturalization, Civil rights, Discrimination in employment, Employment,

Equal employment opportunity, Immigration, Nationality, Non-

discrimination.

For the reasons set forth in the preamble, 28 CFR part 68 is

amended as follows:

PART 68--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE

HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING

ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF ALIENS AND UNFAIR

IMMIGRATION-RELATED EMPLOYMENT PRACTICES

1. The authority citation for part 68 continues to read as follows:

Authority: 5 U.S.C. 301, 554; 8 U.S.C. 1103, 1324a, 1324b, and

1324c.

2. Section 68.2 paragraphs (i) and (k) are revised to read as

follows:

Sec. 68.2 Definitions.

* * * * *

(i) Entry as used in section 274B(i)(1) of the INA and Sec. 68.2(k)

means the date the Administrative Law Judge signs the order;

* * * * *

(k) Issued as used in section 274A(e)(8) and section 274C(d)(5) of

the INA means thirty (30) days subsequent to the entry of an order or,

if the Chief Administrative Hearing Officer vacates or modifies the

order, the date the Chief Administrative Hearing Officer signs such

vacation or modification.

* * * * *

Dated: July 26, 1994.

Janet Reno,

Attorney General.

[FR Doc. 94-19574 Filed 8-10-94; 8:45 am]

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