[Federal Register: January 15, 2009 (Volume 74, Number 10)]
[Rules and Regulations]
[Page 2337-2340]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja09-3]
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DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1274a
[EOIR No. 166I; AG Order No. 3031-2009]
RIN 1125-AA64
Reorganization of Regulations on Control of Employment of Aliens
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Interim rule with request for comments.
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SUMMARY: The Homeland Security Act of 2002, as amended, transferred the
functions of the former Immigration and Naturalization Service (INS)
from the Department of Justice to the Department of Homeland Security
(DHS); however, it retained within the Department of Justice the
functions of the Executive Office for Immigration Review (EOIR), a
separate agency within the Department of Justice. Because the existing
regulations often intermingled the responsibilities of the former INS
and EOIR, this transfer required a reorganization of title 8 of the
Code of Federal Regulations (CFR) in February 2003, including the
establishment of a new chapter V in 8 CFR pertaining to EOIR. As part
of this reorganization, a number of regulations pertaining to the
responsibilities of DHS intentionally were duplicated in the new
chapter V because of shared responsibilities. The Department of Justice
now has determined that most of the duplicated regulations in part
1274a pertain to functions that are DHS's responsibility and do not
need to be reproduced in EOIR's regulations in chapter V. This interim
rule, therefore, deletes unnecessary regulations in part 1274a and
makes appropriate reference to the applicable DHS regulations.
DATES: Effective Date: This rule is effective January 15, 2009.
Comments: Comments on this rule must be received by March 16, 2009.
ADDRESSES: Comments may be mailed to John N. Blum, Acting General
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2600, Falls Church, Virginia 22041. To ensure proper handling,
please reference EOIR Docket No. 166I on your correspondence. You may
submit comments electronically or view an electronic version of this
interim rule at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: John N. Blum, Acting General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2600, Falls Church, Virginia 22041, telephone (703) 305-0470.
SUPPLEMENTARY INFORMATION:
I. Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at http:/
/www.regulations.gov. Such information includes personal identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You also must
locate all the personal identifying information you do not want posted
online in the first paragraph of your comment and identify what
information you want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
http://www.regulations.gov.
Personal identifying information and confidential business
information identified and located as set forth above will be placed in
the agency's public docket file, but not posted online. To inspect the
agency's public docket file in person, you must make an appointment
with agency counsel. Please see the ``For Further Information Contact''
paragraph below for agency counsel's contact information.
II. Background
The Homeland Security Act of 2002, as amended (HSA), transferred
the functions of the former Immigration and Naturalization Service (INS
or the Service) to the Department of Homeland Security (DHS). Public
Law 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25,
2002), as amended. The HSA, however, retained the functions of the
Executive Office for Immigration Review (EOIR) within the Department of
Justice, under the direction of the Attorney General. 6 U.S.C. 521; 8
U.S.C. 1103(g); see generally Matter of D-J-, 23 I&N Dec. 572 (A.G.
2003).
EOIR was created by the Attorney General in 1983 to combine the
functions performed by INS special inquiry officers (now immigration
judges) and the Board of Immigration Appeals (Board) into a single
administrative agency within the Department of Justice, separate from
the former INS. 48 FR 8038 (Feb. 25, 1983). This administrative
structure separated the administrative adjudication functions from the
enforcement and service functions of the former INS, both for
administrative efficiency and to foster independent judgment in
adjudication. The Office of the Chief Administrative Hearing Officer
(OCAHO) and its administrative law judges (ALJs) were added to EOIR in
1987, following enactment of section 274A of the Immigration and
Nationality Act (INA), 8 U.S.C. 1324a. See 52 FR 44971 (Nov. 24, 1987).
[[Page 2338]]
Because both INS and EOIR were agencies within the Department of
Justice at that time, the regulations affecting these agencies were
included in the same chapter (chapter I). Most of the immigration
regulations were organized by subject, which often resulted in
provisions relating to the former INS and to EOIR being intermingled in
the same parts and sections.
III. Rationale
The enactment of the HSA and its transfer of functions of the
former INS to DHS, however, required the creation of a new chapter for
the regulations pertaining to EOIR, separate from the DHS regulations.
Accordingly, the Attorney General published a rule transferring certain
provisions that related to the jurisdiction and procedures of EOIR to a
new chapter V of 8 CFR. 68 FR 9823 (Feb. 28, 2003). When the transfer
of authority from the former INS to DHS took place in March 2003, the
time available did not permit a thorough review of each of the
provisions of the regulations where EOIR's and the former INS's
responsibilities were intermingled in the same sections. As a result,
the Department's rule duplicated in chapter V certain parts and
sections of the regulations that related to the responsibilities of
both the former INS and EOIR, respectively. The rule also made a number
of technical amendments to chapters I and V to ensure that the
authorities existing in the former INS and EOIR regulations prior to
the transfer of functions to DHS remained in effect.
In particular, 8 CFR part 274a (Control of Employment of Aliens)
contained definitional, substantive, and procedural material relevant
to both the former INS and the Special Counsel for Immigration-Related
Unfair Employment Practices of the Department's Civil Rights Division
under 28 CFR 0.53, as well as the predicates to civil penalty
proceedings before OCAHO. It was for this reason and out of an
abundance of caution that, in 2003, the Attorney General duplicated the
existing portions of part 274a, found in chapter I of the regulations,
into a new part 1274a, located in chapter V.
The Department had intended to address over time the regulatory
overlaps resulting from the 2003 rule by eliminating or substantially
reducing any duplicative parts and sections that intermingled EOIR's
and the former INS's authority. The expectation was that DHS would
revise the regulations in chapter I of 8 CFR by eliminating provisions
exclusively relating to the immigration judges', the Board's, and the
OCAHO ALJs' respective authorities (since those provisions are properly
codified in the regulations governing EOIR), and that the Department
would revise the regulations pertaining to EOIR in chapter V by
eliminating the duplicative provisions that did not relate exclusively
to EOIR's authority.
Based on experience acquired since the transfer of the former INS's
substantive immigration authority to DHS, it is apparent that most of
the duplicative provisions in part 1274a pertain to matters that are
the responsibility of DHS. Accordingly, there is no reason or need for
those provisions of part 274a to be reproduced in a separate part
1274a.
Moreover, DHS has begun to implement substantive revisions to part
274a, making clear that the existing duplicative regulatory provisions
in part 1274a are not only unnecessary but potentially confusing.
Recently, after notice and public comment, DHS is revising 8 CFR
274a.1(l) with respect to an employer's response to receiving notices
from the Social Security Administration (SSA) indicating that certain
employees' social security numbers as reflected in the employer's
records do not match SSA's records. Safe-Harbor Procedures for
Employers Who Receive a No-Match Letter, 72 FR 45611 (Aug. 15, 2007)
(final rule); 73 FR 15944 (Mar. 26, 2008) (supplemental proposed rule).
These regulatory revisions are within DHS' statutory authority under
sections 103 and 274A of the INA, and are properly codified in the DHS
regulations in 8 CFR part 274a. However, because they do not relate
directly to EOIR's authority, these changes would not be incorporated
into the provisions of 8 CFR part 1274a.
In addition, the Secretary of Homeland Security and the Attorney
General recently published final rules to implement inflation
adjustments in the amounts of civil penalties to be imposed under
section 274A of the INA. 73 FR 10130 (Feb. 26, 2008).
In order to remove unnecessary redundancies, and to avoid any
possible confusion based on changes to part 274a that are not also
codified in part 1274a, the Department is removing all but a few
provisions in the current part 1274a. This rule also adds a new general
provision to section 1274a.1, noting that the substantive and
procedural regulations relating to the implementation of the employment
verification provisions of section 274A of the INA are contained in 8
CFR part 274a, and that the procedures for hearings before an ALJ
relating to civil penalties sought by DHS under section 274A are
contained in 28 CFR part 68. This new provision also states that, to
the extent they are relevant, the provisions of 8 CFR part 274a are
applicable in any adjudicatory proceedings before EOIR.
The only provisions remaining in part 1274a, therefore, are those
that may have a direct impact on the authority of the OCAHO ALJs:
Section 1274a.9(e) and (f) relating to the time allowed
for seeking an ALJ hearing to challenge a DHS civil penalty and the
consequences for failure to request an ALJ hearing; and
Section 1274a.10 relating to the penalties to be imposed
by an ALJ in a case arising under section 274A of the INA.
This rule revises Sec. 1274a.9(e) and (f) to replace references to
the former INS or the Service with references to DHS. This rule also
slightly revises the existing language of Sec. 1274a.9(f) for clarity;
that is, the rule now expressly states that respondents who fail to
make a timely request for a hearing are not entitled to a hearing
before an ALJ. The change to Sec. 1274a.10 has already been
implemented in the rules published on February 26, 2008.
IV. Effect
This action is not a substantive change and does not alter any
interpretation of the provisions of the INA or affect the legal rights
of any person. The existing regulations codified in 8 CFR part 274a are
unaffected by this rule, and the removal of entirely duplicative
provisions in part 1274a does not alter the legal status quo.
The substantive and procedural regulations in part 274a and in
other parts of the immigration regulations are within the Secretary's
authority to promulgate and revise, pursuant to section 103 of the INA,
except to the extent that some remaining provisions of the DHS
regulations deal directly with the authority of EOIR adjudicators (an
overlap that DHS and the Department are working to eliminate as
discussed above). As noted, regulatory provisions that go to the
powers, procedures, and authority of the immigration judges, the Board,
or the ALJs in EOIR are within the Attorney General's exclusive
authority. For example, regulatory provisions granting or limiting
EOIR's jurisdiction, authorizing EOIR adjudicators to exercise specific
authorities, or directing EOIR adjudicators to act in a certain way are
properly within the Attorney General's authority to promulgate, rather
than DHS's. However, Congress has vested in DHS the authority to
[[Page 2339]]
promulgate regulations interpreting and applying the provisions of the
INA--except insofar as the INA confers authority on the President, the
Attorney General, or the Secretary of State--and has vested in the
Attorney General the authority to issue binding interpretations on all
questions of law pursuant to section 103(a)(1) of the INA.
The premise of this rule that the provisions of part 274a are
properly applicable in adjudicatory proceedings before EOIR is not new.
The Department previously has made clear that the Attorney General need
not personally promulgate immigration regulations in order for those
regulations to be applicable in proceedings before EOIR; Attorney
General Ashcroft addressed similar issues at the time of the adoption
of the rule to reform the Board's adjudicatory processes in 2002, 67 FR
54878 (Aug. 26, 2002). \1\ As with any such regulation adopted by an
administrative agency pursuant to delegated statutory authority, the
substantive or ``legislative'' regulations adopted by DHS (or by the
former INS) within the scope of its delegated authority under the INA
are properly deemed to have the ``force and effect of law.'' Thus, the
DHS legislative regulations are properly treated as part of the
governing law, not merely as ``guidance'' or recommendations for EOIR
adjudicators to consider.\2\
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\1\ See 67 FR at 54884 (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. 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. 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 language of this rule makes explicit
what was implicit in the current version of Sec. 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. * * * [T]he
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.
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.
\2\ To the extent that an EOIR adjudicator may believe that an
applicable regulation may not be consistent with the statute, the
decisions of the ALJs or the Chief Administrative Hearing Officer in
cases arising under sections 274A and 274C of the INA are subject to
review by the Attorney General, as are the decisions of the Board,
see 28 CFR 68.55, 8 CFR 1003.1(h)(1), and the Attorney General can
decide when and how to exercise his ultimate authority to determine
all questions of law with respect to matters arising under the INA.
See, e.g., Matter of Ponce de Leon-Ruiz, 21 I&N Dec. 154 (BIA 1996;
A.G. 1997) (the Board adhered to the regulatory interpretation in
its decision but referred the case to the Attorney General for
review in light of the Board's concern that the regulatory provision
was not consistent with the statutory language); section 103(a)(1)
and (g)(1), 8 U.S.C. 1103(a)(1) and (g)(1).
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V. Conclusion
In summary, this interim rule deletes certain unnecessary
duplicative provisions in part 1274a and revises the remaining
provisions in a way that references applicable regulations in part
274a. The Department and DHS plan to review other duplicated provisions
of the immigration regulations in the future to determine whether
additional provisions in different parts of the regulations also should
be deleted to simplify the Code of Federal Regulations.
Administrative Procedure Act
The Department of Justice finds that good cause exists for adopting
this rule as an interim rule with provision for post-promulgation
public comment under 5 U.S.C. 553 because this rule only makes
technical amendments to the organization, procedures, and practices of
the Department of Justice to improve the organization of the Department
regulations and reflects the transfer of functions contemplated by the
Homeland Security Act of 2002. Similarly, because this interim rule
makes changes in internal delegations and procedures, and is a
recodification of existing regulations, this interim rule is not
subject to the effective date limitation of 5 U.S.C. 553(d).
Regulatory Flexibility Act
Because no notice of proposed rule-making is required for this rule
under the Administrative Procedure Act (5 U.S.C. 553), the provisions
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.
Paperwork Reduction Act
The provisions of the Paperwork Reduction Act of 1995, Public Law
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR
part 1320, do not apply to this interim rule because there are no new
or revised recordkeeping or reporting requirements.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Congressional Review Act
This action pertains to agency organization, procedures, and
practices and does not substantially affect the rights or obligations
of non-agency parties and, accordingly, is not a ``rule'' as that term
is used by the Congressional Review Act (Subtitle E of the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
Executive Order 12866
This rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department has determined that this rule is not a ``significant
regulatory action'' under section 3(f) of Executive Order 12866,
Regulatory Planning and Review and accordingly this rule has not been
reviewed by the Office of Management and Budget (OMB).
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the
[[Page 2340]]
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
13132, the Department of Justice has determined that this rule does not
have sufficient federalism implications to warrant a federalism summary
impact statement.
Executive Order 12988
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.
List of Subjects in Part 1274a
Administrative practice and procedure, Immigration.
0
Accordingly, for the foregoing reasons, part 1274a of chapter V of
title 8 of the Code of Federal Regulations is amended as follows:
PART 1274a--CONTROL OF EMPLOYMENT OF ALIENS
0
1. The authority citation for part 1274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a.
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2. Revise Sec. 1274a.1 to read as follows:
Sec. 1274a.1 Employer requirements.
(a) Applicable regulations. The regulations of the Department of
Homeland Security (DHS) relating to the implementation of the
employment eligibility and verification provisions of section 274A of
the Immigration and Nationality Act (Act) are contained in 8 CFR part
274a.
(b) Adjudication of civil penalty proceedings. The procedures for
hearings before an administrative law judge relating to civil penalties
sought by DHS under section 274A of the Act are contained in 28 CFR
part 68. The regulations governing employment eligibility and
verification in 8 CFR part 274a are applicable to hearings before an
administrative law judge and, to the extent relevant, to cases before
an immigration judge or the Board of Immigration Appeals.
Sec. Sec. 1274a.2, 1274a.3, 1274a.4, 1274a.5, 1274a.6, 1274a.7 and
1274a.8 [Removed]
0
3. Remove sections 1274a.2 through 1274a.8.
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4. Section 1274a.9 is amended by:
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a. Removing and reserving paragraphs (a) through (d);
0
b. Amending paragraph (e) by removing the terms ``the INS'' and ``the
Service'' and adding in their place the term ``DHS''; and by
0
c. Revising paragraph (f), to read as follows:
Sec. 1274a.9 Enforcement procedures.
* * * * *
(f) Failure to file a request for a hearing. If the respondent does
not file a request for a hearing in writing within thirty days of the
date of service of a Notice of Intent to Fine (thirty-five days if
served by ordinary mail), the final order issued by DHS shall not be
subject to a hearing before an administrative law judge under 28 CFR
part 68.
Subpart B [Removed and reserved]
0
5. Remove and reserve subpart B.
Dated: January 7, 2009.
Michael B. Mukasey,
Attorney General.
[FR Doc. E9-526 Filed 1-14-09; 8:45 am]
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