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Historical perspective on administrative appeals REFORM 8 13-2011
 

Historical perspective on administrative appeals REFORM 8 13-2011

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    Historical perspective on administrative appeals REFORM 8 13-2011 Historical perspective on administrative appeals REFORM 8 13-2011 Presentation Transcript

    • Historical Perspective on Administrative Immigration Appeals Processing<br />A clear need for distinct procedures and streamlining of administrative appellate case handling along with clarifications on jurisdictional matters has been known for a long time. INS placed the matter on the agenda at least by 1995. The issue was specifically separated into two issues, one for the BIA and one for the AAO. The BIA has followed through and is enjoying the fruits of that effort. <br />The AAO agenda item languished for twelve (12) years without ever seeing the light of day until it was withdrawn in November 2007. Apparently someone actually worked on a rule at one point in the past and it was quoted in response to a CIS Ombudsman Inquiry but that was apparently all the exposure it saw. In conjunction with a Public Engagement on Oct. 20, 2010, USCIS announced that it would take up the matter again and was working on a rule, however nearly 10 months later and still nothing has been put forth. The matter is not on the current agenda. <br />The Current DHS “Preliminary Plan for Retrospective Review of Existing Regulations” of May 19, 2011, found at: http://www.slideshare.net/whitehouse/dhs-prelim-plan-for-retrosp-review-to-omb-51911-w-toc (the “Plan” was reactionary to an Executive Order and was required across government agencies) indicates that the “Requirements for Filing Motions and Administrative Appeals” relating to the streamlining of procedures before the Administrative Appeals Office (AAO) will be considered in reviewing existing regulations. ICE is not faring much better with regard to its School Appeals changes which came and went. At one point ICE was trying to centralize Bond Breach Appeals at the Debt Management Center but apparently was able to dump that on AAO.<br />DOJ/INS RIN: 1115-AD41 Publication ID: Fall 1995  <br />Title: Appellate Jurisdiction  Abstract: This regulation will redefine the appellate jurisdictional roles between the Office of Administrative Appeals and the Board of Immigration Appeals. This regulation provides a common-sense approach to appellate jurisdiction of the Office of Administrative Appeals and the Board of Immigration Appeals.  Agency: Department of Justice(DOJ)  Priority: Substantive, Nonsignificant  RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage  CFR Citation: 8 CFR 3; 8 CFR 103; 8 CFR 204; 8 CFR 212; 8 CFR 236; 8 CFR 280  Legal Authority: 5 USC 301; 8 USC 1103; 8 USC 1252 note; 8 USC 1252b; 8 USC 1362; 8 USC 1101; 8 USC 1201; 8 USC 1304; 8 USC 1356; 8 USC 1102; 8 USC 1182; 8 USC 1184; 8 USC 1225; 8 USC 1226; 8 USC 1228  <br />Timetable: ActionDateFR CiteNPRM 11/00/1995  <br />Additional Information: INS No. 1613-93 Regulatory Flexibility Analysis Required: No  Government Levels Affected: Federal  Included in the Regulatory Plan: No  Agency Contact:Terrance M. O'Reilly Director, Office of Administrative Appeals, Examinations Department of Justice Immigration and Naturalization Service 425 I Street NW, ULLB-3rd Floor, Washington, DC 20536 Phone:202 786-4256 <br />DOJ/EOIR RIN: 1125-AA01 Publication ID: Fall 1995  <br />Title: Motions and Appeals in Immigration Proceedings  Abstract: Proposed regulations were published in the Federal Register on June 7, 1994 (59 FR 29386) (hereinafter referred to as the June proposed rulemaking), concerning motions and appeals in immigration proceedings and on May 13, 1994 (59 FR 24977) (hereinafter referred to as the May proposed rulemaking), concerning fees. The June proposed rulemaking was promulgated to implement section 545 of the Immigration Act of 1990, Public Law 101-649, which requires both time and number limitations on motions to reopen and reconsider and changes in the substantive and procedural aspects of motion and appeal practice. The May proposed rulemaking was promulgated to establish an alternative procedure for filing proof of fee payments with the Board of Immigration Appeals (Board). Since the publication of these two proposed rules, the agency has further examined its current appeal procedures and has decided to establish a uniform central system for filing and tracking appeals before the Board. Under the proposed procedure, parties would file a notice of appeal from a decision of an Immigration Judge and remit the appeal fee or fee waiver petition with the notice of appeal directly to the Board. The rule would also require that motions to reopen and motions to reconsider decisions of the Board be filed directly with the Board accompanied by the appropriate fee or fee waiver petition. This rule would supersede the May and June proposed rulemakings. This proposed centralization of the appeals procedure is fundamentally interrelated to the proposed changes of both the May and June proposed rulemakings. Therefore, the agency has determined to merge these substantive and procedural proposals into one rule and to provide an opportunity for public comment on this merged rule. The June proposed rule has been changed to clarify certain provisions and to reflect many of the commentors' concerns. The single unified proposed rule is published herein and addresses both the language of section 545(d) of the Immigration Act of 1990 and new procedural changes to the filing of appeals, motions, and their concomitant fees with the Board.  Agency: Department of Justice(DOJ)  Priority: Substantive, Nonsignificant  RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage  CFR Citation: 8 CFR 1; 8 CFR 3; 8 CFR 103; 8 CFR 208; 8 CFR 212; 8 CFR 242  Legal Authority: 5 USC 301; 8 USC 1103; 8 USC 1252 note; 8 USC 1252b; 8 USC 1362; 28 USC 509; 28 USC 510; 28 USC 1746; Sec. 2, Reorg. Plan No. 2 of 1950; 3 CFR, 1949 to 1953 Comp, p 1002  <br />Legal Deadline: ActionSourceDescriptionDateNPRM Statutory  06/00/1991 Timetable: ActionDateFR CiteNPRM 06/07/1994 59 FR 29386 NPRM Comment Period End 08/08/1994  Second NPRM 05/09/1995 60 FR 24573 Final Action 11/00/1995  <br />Additional Information: EOIR-102P Regulatory Flexibility Analysis Required: No  Government Levels Affected: Federal  Included in the Regulatory Plan: No  Agency Contact:Margaret M. Philbin Deputy Director Department of Justice Executive Office for Immigration Review 5107 Leesburg Pike, Falls Church, VA 22041 Phone:703 305-0470 <br />DOJ/EOIR RIN: 1125-AA22 Publication ID: Spring 1999  <br />Title: Board of Immigration Appeals: Streamlining  Abstract: This proposed rule would establish a streamlined appellate review procedure for the Board of Immigration Appeals. The proposed rule is in response to the enormous and unprecedented increase in the number of appeals being filed with the Board. The rule recognizes that in a significant number of the cases the Board decides, the result reached by the adjudicator below is correct and will not be changed on appeal. In these cases, a single permanent Board Member will be given authority to review the record and affirm the result reached below without issuing an opinion in the case. This procedure will promote fairness by enabling the Board to render decisions in a more timely manner, whole allowing it to concentrate its resources primarily on those cases in which the decision below may be incorrect, or where a new or significant legal or procedural issue is presented. In addition, the proposed rule provides that a single Board Member or the Chief Attorney Examiner may adjudicate certain additional types of cases, motions, or other procedural or ministerial appeals, where the result is clearly dictated by the statute, regulations, or precedent decisions.  Agency: Department of Justice(DOJ)  Priority: Substantive, Nonsignificant  RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage  Major: No  Unfunded Mandates: No  CFR Citation: 8 CFR 3  Legal Authority: 5 USC 301; 8 USC 1103; 8 USC 1252 note; 8 USC 1252b; 8 USC 1324b; 8 USC 1362; 28 USC 509; 28 USC 510; 28 USC 1746; Reorg. Plan No. 2 of 1950, sec. 2; 3 CFR, 1949 to 1953, Comp, p 1002; PL 105-100, sec 203  <br />Timetable: ActionDateFR CiteNPRM 09/14/1998 63 FR 49043 NPRM Comment Period End 11/13/1998  Final Action 06/00/1999  <br />Regulatory Flexibility Analysis Required: No  Government Levels Affected: None  Small Entities Affected: No  Included in the Regulatory Plan: No  Agency Contact:Margaret M. Philbin Deputy Director Department of Justice Executive Office for Immigration Review 5107 Leesburg Pike, Falls Church, VA 22041 Phone:703 305-0470 <br />DOJ/EOIR RIN: 1125-AA36 Publication ID: Fall 2002  <br />Title: Board of Immigration Appeals; Procedural Reforms To Improve Case Management  Abstract: This final rule revises the structure and procedures of the Board of Immigration Appeals, 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 of Immigration Appeals 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 of Immigration Appeals' backlog of pending cases, the size of the Board will be reduced to eleven.  Agency: Department of Justice(DOJ)  Priority: Substantive, Nonsignificant  RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Completed Actions  Major: No  Unfunded Mandates: No  CFR Citation: 8 CFR 3; 8 CFR 280  Legal Authority: 5 USC 301; 8 USC 1103; 8 USC 1252 note; 8 USC 1252b; 8 USC 1324b; 8 USC 1362; 28 USC 509; 28 USC 510; 28 USC 1746; Reorg Plan No 2 of 1950 sec 2; 3 cfr 1949 to 1953 Comp, p.1002; 8 USC 1103; 8 USC 1221; 8 USC 1223; 8 USC 1227; 8 USC 1229; 8 USC 1253; 8 USC 1281; 8 USC 1283 to 1286; 8 USC 1322 to 1323; 8 USC 1330; 66 Stat 173; 66 Stat 195; 66 Stat 197; 66 Stat 201; 66 Stat 203; 66 Stat 212; 66 Stat 219; 66 Stat 221 to 223; 66 Stat 226 to 227; 66 Stat 230; PL 101-410, 104 stat 890 (amended); PL 104-134, 110 stat 1321  <br />Legal Deadline:  NoneTimetable: ActionDateFR CiteNPRM 02/19/2002 67 FR 7309 NPRM Comment Period End 03/21/2002  Final Rule 08/26/2002 67 FR 54878 Final Rule Effective 09/25/2002  <br />Regulatory Flexibility Analysis Required: No  Government Levels Affected: None  Federalism: No  Included in the Regulatory Plan: No  Agency Contact:Robin M. Stutman General Counsel Department of Justice Suite 2600, 5107 Leesburg Pike, Falls Church, VA 22041 Phone:703 305-0470 Email:  HYPERLINK "mailto:eoir.regs@usdoj.go" eoir.regs@usdoj.go<br />DHS/USCIS RIN: 1615-AB29 Publication ID: Fall 2007  <br />Title: Administrative Appeals Office: Procedural Reforms To Improve Efficiency  Abstract: This proposed rule revises the requirements and procedures for the filing of motions and appeals before the Department's U.S. Citizenship and Immigration Services Agency and the Administrative Appeals Office. The proposed changes are intended to streamline the existing processes for filing motions and appeals and will reduce delays in the review and appellate process. This rule also makes additional changes necessitated by the establishment of the Department of Homeland Security and its resulting Agencies.  Agency: Department of Homeland Security(DHS)  Priority: Other Significant  RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Completed Actions  Major: No  Unfunded Mandates: No  CFR Citation: 8 CFR 103; 8 CFR 204; 8 CFR 205; 8 CFR 210; 8 CFR 214; 8 CFR 245a; 8 CFR 320; ... (To search for a specific CFR, visit the Code of Federal Regulations.)  Legal Authority: 5 USC 301; 5 USC 552; 5 USC 552a; 8 USC 1101; 8 USC 1103; 8 USC 1304; ...  <br />Legal Deadline:  NoneTimetable: ActionDateFR CiteWithdrawn 11/07/2007  <br />Additional Information: CIS 2311-04 Regulatory Flexibility Analysis Required: No  Government Levels Affected: None  Small Entities Affected: No  Federalism: No  Included in the Regulatory Plan: No  RIN Data Printed in the FR: No  Agency Contact:Robert Wiemann Chief, Administrative Appeals Office Department of Homeland Security U.S. Citizenship and Immigration Services 3rd Floor, 20 Massachusetts Avenue NW., Washington, DC 20528 Phone:202 272-1212 Fax:202 272-1262 <br />DHS/USICE RIN: 1653-AA33 Publication ID: Fall 2008  <br />Title: School Appeals Process Regarding Adjudications by the Student and Exchange Visitor Program To Deny or Withdraw Department of Homeland Security Certification  Abstract: DHS amends its regulations to clarify its procedures for denial of applications by schools for approval to enroll nonimmigrant students. DHS also streamlines and aligns the withdrawal process with the denial and appeal process. Finally, DHS assumes the authority to suspend a school's approval to issue Forms I-20, Certificate of Eligibility for Nonimmigrant Status for Academic and Language Students, during denial or withdrawal proceedings.  Agency: Department of Homeland Security(DHS)  Priority: Other Significant  RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Completed Actions  Major: No  Unfunded Mandates: No  CFR Citation: 8 CFR 214  Legal Authority: 8 USC 1101 to 1103; 8 USC 1182; 8 USC 1184; ...  <br />Legal Deadline:  NoneTimetable: ActionDateFR CiteWithdrawn 08/12/2008  <br />Additional Information: CIS No. 2239-02 Transferred from RIN 1615-AA85 Regulatory Flexibility Analysis Required: No  Government Levels Affected: None  Small Entities Affected: No  Federalism: No  Included in the Regulatory Plan: No  RIN Data Printed in the FR: No  Agency Contact:Louis Farrell Director, Student and Exchange Visitor Program Department of Homeland Security U.S. Immigration and Customs Enforcement Potomac Center North, 500 12th Street SW., Washington, DC 20024-6121 Phone:703 603-3400 <br />