Executive Office for Immigration Review; Rules of Procedure Before Immigration Judges

DEPARTMENT OF JUSTICE

8 CFR Parts 3, 103, 242, and 292

[AG Order No. 1835-93]

Executive Office for Immigration Review; Rules of Procedure

Before Immigration Judges

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: The rules of administrative procedure that are followed in all

matters before the Immigration Judges were published in interim form on

April 6, 1992 at 57 FR 11568-11575. Following a period of public

comment, the rules of procedure were amended to reflect many of the

suggestions and comments that were received.

Changes adopted in the final rule clarify that an exception exists

to the standards for summary dismissal of an appeal when a ``good

faith'' argument is made for modification, extension or reversal of the

law. The specific language that was required for certification of

translation of a foreign language document has been deleted from the

final rule as too restrictive. To comply with statutory requirements

for notice of hearings to aliens in deportation proceedings, the final

rule amends the definition of ``service'' of a document.

The final rule also clarifies the authority of an Immigration Judge

to waive the appearance of minors and represented aliens at hearing,

and further distinguishes the requirements for proceeding in absentia

in deportation proceedings from those in exclusion hearings.

In addition to implementing the changes outlined above, the final

rule establishes the procedural requirements for custody hearings, pre-

hearing conferences, filing documents and applications, and public

access to hearings. The interim rule that established disciplinary

proceedings against attorneys for frivolous behavior has not been

amended, and will continue in interim form until further notice, to

allow further consideration of the comments received.

EFFECTIVE DATE: This final rule is effective January 13, 1994, except

for Sec. 292.3, which will continue in interim form.

FOR FURTHER INFORMATION CONTACT:

Gerald 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: The Department of Justice promulgated an

interim rule to implement provisions in sections 504, 545 and 701 of

the Immigration Act of 1990, Pub. L. 101-649 (``IMMACT''), and to

address procedural and administrative matters which arise in

immigration proceedings. The Executive Office for Immigration Review

(``EOIR'') received 53 comments from legal aid organizations and

attorneys nationwide. The comments concerned many of the interim rules,

and all were carefully considered in the adoption of the final rule.

What follows is a discussion of the issues raised in the comments, the

agency response to the comments, and the revisions to the interim rule.

1. Promulgation of the Rule

Several commenters objected to the promulgation of the rule in

interim form, which provided an opportunity for public comment only

after publication. Commenters suggested that by publishing the rule in

interim form without opportunity for pre-publication comment, the

agency did not comply with the Administrative Procedure Act (``APA'').

This conclusion is incorrect. Provisions in the interim rule are

procedural rules or interpretative rules. The APA provides that such

rules may be issued without notice and opportunity for prior comment

and may be effective upon publication. See 5 U.S.C. 553 (b)(A), (d).

Moreover, the interim rule provided that two provisions which arguably

contained ``substantive'' rules (Secs. 3.15, 3.26) would not be

effective until more than thirty days after the end of the comment

period specified in the interim rule, and more than sixty days after

the publication of the interim rule. Further, the interim rule invoked

the ``good cause'' exception to the APA's requirement that a rule be

published thirty days before its effective date. 57 FR at 11570.

Finally, although the final rule modifies the interim rule, it remains

a logical outgrowth of the interim rule. Accordingly, no additional

opportunity for comment on the final rule is required. For these

reasons, the interim rule could be promulgated without opportunity for

prior comment and with most of its provisions effective on the date of

publication, and this final rule can be effective on the date of

publication.

2. Section 3.1(d)(1-a) Summary Dismissal of Appeals

This rule received 33 comments. Some commenters objected to the

provision allowing dismissal of an appeal which lacks an arguable basis

in law or fact. Commenters suggested that this standard is too vague

and does not provide sufficient notice to the appealing party of the

Board of Immigration Appeals (``Board'') requirements for avoiding

summary dismissal. The commenters argued that an appeal should not be

dismissed if it is supported by a ``good faith argument for an

extension, modification or reversal of existing law''. The commenters

requested that the regulation incorporate this language so that

attorneys ``will not be deterred from bringing appeals to improve the

law''. This ``good faith exception'' language is found at

Sec. 292.3(a)(15)(i) but had not been included in the provision

concerning summary dismissal of an appeal in Sec. 3.1. The final rule

adds this exception to Sec. 3.1. This language will clarify the

exception to the grounds for summary dismissal, and will encourage

effective advocacy while still maintaining high standards for appellate

review.

Commenters further objected to dismissal of an appeal for which no

brief is filed, arguing that summary dismissal of an appeal without

review of the file is particularly harmful to a pro se alien who may

not realize the consequences of failing to file a brief. Summary

dismissal is not mandated under the final rule, but is within the

Board's discretion. The Board may review the record on the merits if it

so chooses.

In section 545(a) of IMMACT (8 U.S.C. 1252b(d)), Congress directed

the Attorney General to create regulations that would specify

circumstances under which an administrative appeal would be considered

frivolous and circumstances under which an appeal could be summarily

dismissed. The final rule clearly delineates such circumstances, and

reflects the Congressional mandate to limit frivolous appeals in

immigration proceedings.

3. Section 3.13 Definitions

Eighteen identical comments were received concerning the definition

of the word ``service''. Commenters noted that the definition of

``service'' did not reflect the requirements of section 242B of the

Immigration and Nationality Act as amended (``Act'') (8 U.S.C. 1252b)

which directs that notices of deportation hearings be served in person

or by certified mail. The commenters are correct, and the final rule is

changed to include reference to this provision. If the document to be

served is an Order to Show Cause (``OSC'') or a Notice of Deportation

Hearing, such document shall be served in person or by certified mail.

However, the definition of service found in the interim rule that

allows for first-class mailed service will be retained for documents

that are not subject to section 242B of the Act.

4. Section 3.14 Jurisdiction and Commencement of Proceedings

Twenty-seven comments were received concerning this part of the

rule. The commenters requested that the alien, as well as the

Immigration and Naturalization Service (``INS''), have an opportunity

to file the OSC to begin deportation proceedings. The commenters argued

that allowing the alien to file the OSC at the location of his or her

choice would permit the alien better access to witnesses and counsel.

Prior to the interim rule, EOIR had allowed the alien to file a copy of

the OSC, and the Board acknowledged that the regulation was silent

regarding which party could file the OSC. See Matter of Sanchez, ID

3139.

EOIR decided to terminate its practice of accepting OSCs from

aliens to begin deportation proceedings, because it is within the

discretion of the party bringing the charges, i.e., INS, to choose the

place of initial venue. It is particularly important in detained cases

that INS have the ability to begin deportation proceedings near where

the alien is detained. In some cases, aliens have arranged to have OSCs

filed in cities other than where the alien was located, causing the INS

to seek a change of venue in order to keep the alien detained. If an

alien can demonstrate need for change of venue, he or she may request a

change of venue from the Immigration Judge.

5. Section 3.15 Contents of the Order To Show Cause and Notification

of Change of Address

Twenty-six comments were received, many suggesting alternatives to

the requirement imposed on an alien to report his or her address to

EOIR within five days of service of the OSC or within five days after

any change in address. Some commenters requested that the reporting

period be lengthened and suggested extensions ranging from two weeks to

thirty days. However, the reporting requirement as incorporated by

Congress in section 242B of the Act used the term ``immediately''. The

agency interpreted this term to mean a very short duration, and

therefore set a period of five days for an alien to report any change

of address. The five-day period meets the statutory requirement, while

giving the public specific guidelines to follow. EOIR has created a

standard change of address form, the EOIR-33, which will allow the

alien to provide all the necessary information required under the rule.

The form is designed to be folded and mailed, and is addressed to the

Office of the Immigration Judge where the change of address should be

filed. INS distributes the EOIR-33 with each OSC, and EOIR provides

these forms with its Notices of Hearing. These procedures provide the

alien with an easy and uniform method of complying with the statutory

reporting requirement.

Commenters also raised concerns with the language in the

introductory phrase of Sec. 3.15(a), which stated that ``Omission of

any of these items (listed within the body of paragraph (a) of the

rule) shall not provide the alien with any substantive or procedural

rights''. The commenters suggested that if any of the administrative

information listed in Sec. 3.15(a) is missing from the OSC, the OSC

should be considered defective and set aside. EOIR disagrees. The

introductory phrase was added to the rule to distinguish those items in

Sec. 3.15(a) which are necessary to EOIR in the administration of case

processing, as distinguished from those items found in Sec. 3.15(b)

which are required to be included on the OSC by statute in section

242B(a)(1) of the Act (8 U.S.C. 1252b(a)(1)). EOIR requires INS to

include certain information on the OSC before accepting the document

for case processing. However, the alien has no statutory benefit or

right accruing from the omission of that information. Therefore, the

five-day reporting requirement, and the introductory phrase in

Sec. 3.15(a) are retained in the final rule.

6. Section 3.19 Custody/Bond

Twenty-four comments were received regarding this rule. Many

commenters expressed concern with the requirement that an alien who has

already had a bond redetermination must request a subsequent

redetermination in writing. The commenters argued that this requirement

would limit the number of bond redeterminations that an alien could

request. The rule, however, does not limit the number of bond

redeterminations. It does require an alien who has had a bond

redetermination to provide a written demonstration of a material change

in circumstances prior to another redetermination. Requiring the

respondent to set forth a showing of material change in circumstances

before appearing before the Immigration Judge will permit meritorious

cases to be heard more quickly, and will discourage frivolous requests

for multiple bond hearings. The rule has been continued in final form.

7. Section 3.20 Change of Venue

This rule received 18 identical comments requesting that venue be

set where the respondent resides, or where the acts which render the

alien deportable are committed. Venue is determined by INS at the time

the charging document is filed. When an alien has a fixed residence

and/or can demonstrate factors that warrant a change of venue, the

Immigration Judge has the authority to change venue to that location.

The interim rule did remove the authority of the Immigration Judge to

change venue on his or her own motion; venue may now be changed only

upon motion of either party. This change is retained in the final form.

8. Section 3.21 Pre-Hearing Conferences and Statements

Twenty-five comments were received. Many commenters objected to the

use of pre-hearing conferences for pro se aliens, arguing that the

process is too complex for unrepresented aliens to understand. One

commenter praised the idea of pre-hearing conferences, and suggested

that the process will be effective in handling complex cases. While the

rule concerning pre-hearing conferences existed prior to the interim

rule, the interim rule expanded the authority of the Immigration Judge

to order the parties to file statements of fact, stipulations, lists of

witnesses and exhibits, etc. that would assist in the processing of the

case. The pre-hearing conference will aid in identifying issues that

can be clarified by the parties outside the courtroom and help to

resolve issues about which there is little or no dispute. This

regulation encourages meetings between the parties prior to the hearing

to refine the case for ultimate presentation to the Immigration Judge.

Requirements of the pre-hearing conference are within the discretion of

the Immigration Judge, who can best evaluate the circumstances of a

particular case. The rule applies to all parties, including pro se

aliens. The Immigration Judge is best situated to determine whether a

pre-hearing conference is needed when a pro se alien is involved.

9. Section 3.26 In Absentia Hearings

Twenty-two comments were received. The commenters noted that the

language of the interim rule did not distinguish the requirements for

an in absentia hearing in deportation proceedings under section 242B

of the Act from the in absentia process followed in exclusion hearings.

Section 242B of the Act mandates an in absentia hearing in deportation

proceedings only under certain specific conditions that require

personal or certified mailed notice of the hearing to the alien. The

final rule includes language that accurately reflects these statutory

requirements in deportation proceedings.

In addition, the rule has been amended to clarify that the

Immigration Judge shall order the respondent deported in absentia if

the Service meets the requirements of section 242B(c)(1) of the Act and

establishes notice and deportability. This change follows the language

of the statute and leaves no ambiguity that a hearing held under

section 242B(c)(1) shall result in a deportation order if the Service

meets its burden of establishing notice and deportability. The

commenters noted that the regulation did not indicate that the burden

of proof in establishing notice and deportability lay with INS;

therefore this requirements has been expressed in the final rule.

Further, a provision has been added to clarify the circumstances in

which an Immigration Judge can proceed in absentia in exclusion

proceedings. The rule has been amended to specify that notice of the

time and place of the hearing on the charging document is sufficient

notice to proceed in absentia in exclusion proceedings.

Many commenters suggested that this rule eliminates an Immigration

Judge's discretionary authority to waive the presence of minors and

represented aliens at hearing under certain circumstances. The

Immigration Judge continues to have discretionary authority to waive

the presence of minors and represented aliens for good cause, as set

forth in the interim rule under redesignated Sec. 3.25. In addition,

Sec. 3.26 is amended to include language concerning the waiver

authority.

10. Section 3.27 Public Access to Hearing

Seven comments were received that raised concerns about the

adequacy of the rule in protecting battered spouses. Commenters

requested that certain INS forms, particularly the Waiver of Joint

Petition (I-751) and the application for work authorization (Form I-

765) provide that the information contained on these forms be treated

as confidential information. These forms are not EOIR forms and while

EOIR has no jurisdiction over these forms, EOIR has forwarded the

comments concerning this regulation to INS for its consideration.

In all EOIR proceedings concerning an abused spouse or child, the

proceedings and the record will be closed to the public, unless the

affected party requests otherwise. Commenters raised a question as to

who would prevail in the situation where a parent and child disagree as

to whether the hearing should be open to the public. In that instance,

the Immigration Judge is in the best position to determine the need for

confidentiality, and the decision to open the case will rest with the

Judge.

11. Sections 3.31 and 103.7 Filing Documents and Applications.

Thirty-three comments were received concerning pre-paying fees to

INS prior to filing documents with EOIR. Commenters note that some INS

field offices are not easily accessible, or are closed at certain times

during the workday. Many Commenters requested that EOIR reinstitute the

practice of collecting fees on behalf of INS for the convenience of the

parties or their attorneys. EOIR does not process fees, although in

certain locations EOIR did collect fees on behalf of INS. INS has the

administrative process in place to collect and process fees under

Sec. 103.7, which system includes fiscal requirements by the Department

of Treasury, personnel resources and equipment. A duplication of these

resources at this time is not warranted by the demand for such services

and the rule will not be modified.

12. Section 3.32 Service and Size of Documents

Eighteen comments were received. Commenters suggested amending this

rule to include reference to the requirements under section 242B of the

Act for notices of hearing. However, these requirements have been

included in the final version of Sec. 3.15, and therefore it would be

redundant to incorporate the notice requirements in this section.

In addition, some commenters suggested that all documents filed in

an in absentia case be served on the absent party. There is no

obligation to furnish an absent party with documents or records

received during the proceeding, and this suggestion will not be

adopted.

13. Section 3.33 Translation of Documents

Three comments requested that the rule be changed to allow the

translator to provide a generic certification of a foreign language

document, rather than one with the specific language set forth in the

interim regulation. The commenters noted that many documents are

translated overseas and arrive in this county without the specific

language of certification that was required in the interim rule. The

underlying necessity for a translator to certify to competency and

accuracy can be served by a generic certification. The final rule

reflects this change.

14. Section 3.37 Decisions

Nineteen comments were received. The commenters cited confusion

with the use of the phrases ``minute orders'' and ``memorandum of oral

decision''. In the supplementary information given with the publication

of the interim rule, these two expressions were used interchangeably,

although the language in the rule itself refers to the Immigration

Judge's order as a ``memorandum of oral decision''. Both expressions

refer to the same abbreviated order that the Immigration Judge issues

at the end of the proceeding, indicating the decision of the court.

The commenters argued that the memorandum summarizing the oral

decision does not adequately explain the reasons for the disposition of

the case, and should be expanded in order to form the basis of an

appeal. However, the memorandum of oral decision is not a substitute

for the actual reasoned decision of the Immigration Judge, which is

provided orally at the hearing and by transcript to the alien if the

case is ultimately appealed. The purpose of the memorandum order is to

serve as an efficient and expeditious method of summarizing the order

of the Immigration Judge immediately at hearing, and to provide a brief

record of the ultimate outcome of the hearing. It was not meant to

replace the oral decision, and expanding it to include reasonings and

citations of law would defeat its purpose.

In addition, a provision has been added to this section which

indicates that a written copy of the decision will not be sent to an

alien who has failed to provide an address. Section 242B of the Act has

placed upon the alien the requirement that he or she must provide a

written record of an address at which he or she may be contacted

respecting proceedings. Section 242B(c)(2) of the Act specifies that no

notice of hearing is required if the alien has failed to provide an

address. It therefore follows that there is no requirement that the

alien receive a copy of the decision, absent an address having been

provided.

In accordance with 5 U.S.C. 605(b), the Attorney General certifies

that this rule does not have a significant adverse economic impact on a

substantial number of small entities. This rule is not a major rule

within the meaning of section 1(b) of E.O. 12291, nor does this rule

have Federalism implications warranting the preparation of a Federalism

Assessment in accordance with E.O. 12612. The rule meets the applicable

standards provided in section 2(a) and 2(b)(2) of E.O. 12778.

List of Subjects

8 CFR Part 3

Administrative practice and procedure, Immigration, Organization

and functions (Government agencies).

8 CFR Part 103

Administrative practice and procedure, Authority delegations

(Government agencies), Freedom of information, Privacy, Reporting and

recordkeeping requirements, Surety bonds.

8 CFR Part 242

Administrative practice and procedure, Aliens.

8 CFR Part 292

Administrative practice and procedure, Immigration, Lawyers,

Reporting and recordkeeping requirements.

Accordingly, the interim rule amending 8 CFR chapter I which was

published at 57 FR 11568 on April 6, 1992, is adopted as a final rule

with the following changes set forth below, except for Sec. 292.3,

which shall continue in interim form:

PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

1. The authority citation for part 3 continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1103, 1252 note, 1252b, 1362;

28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950, 3 CFR,

1949-1953 Comp., p. 1002.

2. Section 3.1 is amended by revising paragraph (d)(1-a) to read as

follows:

Sec. 3.1 General authorities.

* * * * *

(d) * * *

(1-a) Summary dismissal of appeals. (i) Standards. The Board may

summarily dismiss any appeal or portion of any appeal in any case in

which:

(A) The party concerned fails to specify the reasons for the appeal

on Form EOIR-26 or Form EOIR-29 (Notices of Appeal) or other document

filed therewith;

(B) The only reason for the appeal specified by the party concerned

involves a finding of fact or a conclusion of law that was conceded by

that party at a prior proceeding;

(C) The appeal is from an order that granted the party concerned

the relief that had been requested;

(D) The Board is satisfied, from a review of the record, that the

appeal is filed for an improper purpose, such as to cause unnecessary

delay, or that the appeal lacks an arguable basis in law or fact unless

the Board determines that it is supported by a good faith argument for

extension, modification or reversal of existing law.

(E) The party concerned indicates on Form EOIR-26 or Form EOIR-29

that he or she will file a brief or statement in support of the appeal

and, thereafter, does not file such brief or statement, or reasonably

explain his or her failure to do so, within the time set for filing; or

(F) The appeal fails to meet essential statutory or regulatory

requirements or is expressly excluded by statute or regulation.

(ii) Disciplinary consequences. The filing by an attorney or

representative accredited under Sec. 292.2(d) of this chapter of an

appeal which is summarily dismissed under paragraph (d)(1-a)(i) of this

section may constitute frivolous behavior under Sec. 292.3(a)(15) of

this chapter. Summary dismissal of an appeal under paragraph (d)(1-

a)(i) of this section does not limit the other grounds and procedures

for disciplinary action against attorneys or representatives.

* * * * *

3. Section 3.13 is amended by revising the definition ``service''

to read as follows:

Sec. 3.13 Definitions.

* * * * *

Service means physically presenting or mailing a document to the

appropriate party or parties; however, if the document to be served is

the Order to Show Cause or the Notice of Deportation Hearing, such

document shall be served in person to the alien, or by certified mail

to the alien or the alien's attorney.

4. Sec. 3.26 is revised to read as follows:

Sec. 3.26 In absentia hearings.

(a) In any exclusion proceeding before an Immigration Judge in

which the applicant fails to appear, the Immigration Judge shall

conduct an in absentia hearing if the Immigration Judge is satisfied

that notice of the time and place of the proceeding was provided to the

applicant on the record at a prior hearing or by written notice to the

applicant or to the applicant's counsel of record on the charging

document or at the most recent address in the Record of Proceeding.

(b) In any deportation proceeding before an Immigration Judge in

which the respondent fails to appear, the Immigration Judge shall order

the respondent deported in absentia if: (1) The Service establishes by

clear, unequivocal and convincing evidence that the respondent is

deportable; and (2) the Immigration Judge is satisfied that written

notice of the time and place of the proceedings and written notice of

the consequences of failure to appear, as set forth in section 242B(c)

of the Act (8 U.S.C. 1252b(c)), were provided to the respondent in

person or were provided to the respondent or the respondent's counsel

of record, if any, by certified mail.

(c) Written notice to the respondent at the most recent address

contained in the Record of Proceeding shall be considered sufficient

for purposes of this section. If the respondent fails to provide his or

her address as required under Sec. 3.15(c), no written notice shall be

required for an Immigration Judge to proceed with an in absentia

hearing. This subsection shall not apply in the event that the

Immigration Judge waives the appearance of an alien under Sec. 3.25.

5. Sec. 3.33 is revised to read as follows:

Sec. 3.33 Translation of documents.

Any foreign language document offered by a party in a proceeding

shall be accompanied by an English language translation and a

certification signed by the translator that must be printed legibly or

typed. Such certification must include a statement that the translator

is competent to translate the document, and that the translation is

true and accurate to the best of the translator's abilities.

6. Sec. 3.37 is amended by adding paragraph (b) to read as follows:

Sec. 3.37 Decisions.

* * * * *

(b) A written copy of the decision will not be sent to an alien who

has failed to provide a written record of an address.

Dated: December 29, 1993.

Janet Reno,

Attorney General.

[FR Doc. 94-573 Filed 1-12-94; 8:45 am]

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