Federal Register / Vol

81588 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations DEPARTMENT OF JUSTICE parts 1003 and 1240 to ensure that cases 2. Simultaneous Briefing heard at the BIA are adjudicated in a The rule adopts simultaneous briefing Executive Office for Immigration consistent and timely manner. schedules instead of consecutive Review B. Authority briefing schedules for all cases. 8 CFR 1003.3(c). Previously, the BIA used The Department issued this final rule 8 CFR Parts 1003 and 1240 consecutive briefing for cases involving pursuant to section 1103(g) of the aliens who are not in custody. The rule [Docket No. EOIR 19–0022; Dir. Order No. Immigration and Nationality Act (‘‘INA’’ does not affect the BIA’s ability to 05–2021] or ‘‘the Act,’’), 8 U.S.C. 1103(g). permit reply briefs in certain cases, but RIN 1125–AA96 C. Final Rule it does establish a 14-day deadline for Appellate Procedures and Decisional Following careful consideration of the their submission. Finality in Immigration Proceedings; public comments received, which are 3. BIA Remands for Identity, Law Administrative Closure discussed in detail below in section II, Enforcement, or Security Investigations the Department has determined to or Examinations AGENCY: Executive Office for publish the provisions of the proposed The rule revises 8 CFR 1003.1(d)(6)(ii) Immigration Review, Department of rule as final with the following changes to provide that, when a case before the Justice. as noted below in sections I.C.3, I.C.4, BIA requires completing or updating ACTION: Final rule. I.C.5, I.C.8, I.C.9, and I.C.11 below. The Department is also clarifying the identity, law enforcement, or security SUMMARY: On August 26, 2020, the generally prospective temporal investigations or examinations in order Department of Justice (‘‘Department’’) application of the rule.1 The provisions to complete adjudication of the appeal, published a notice of proposed of the rule applicable to appellate the exclusive course of action would be rulemaking (‘‘NPRM’’ or ‘‘proposed procedures and internal case processing for the BIA to place the case on hold rule’’) that would amend the regulations at the BIA apply only to appeals filed, while identity, law enforcement, or of the Executive Office for Immigration motions to reopen or reconsider filed, or security investigations or examinations Review (‘‘EOIR’’) regarding the handling cases remanded to the Board by a are being completed or updated, unless of appeals to the Board of Immigration Federal court on or after the effective DHS reports that identity, law Appeals (‘‘BIA’’ or ‘‘Board’’). date of the final rule. The provisions of enforcement, or security investigations The Department proposed multiple the rule related to the restrictions on sua or examinations are no longer necessary changes to the processing of appeals to sponte reopening authority are effective or until DHS does not timely report the ensure the consistency, efficiency, and for all cases, regardless of posture, on results of completed or updated quality of its adjudications. the effective date. The provisions of the identity, law enforcement, or security The Department also proposed to rule related to restrictions on the BIA’s investigations or examinations. Additionally, the rule authorizes the amend the regulations to make clear that certification authority are effective for BIA to deem an application abandoned there is no freestanding authority of line all cases in which an immigration judge when the applicant fails, after being immigration judges or BIA members to issues a decision on or after the effective notified by DHS, to comply with the administratively close cases. Finally, the date. The provisions of the rule requisite procedures for DHS to Department proposed to delete regarding administrative closure are complete the identity, law enforcement, inapplicable or unnecessary provisions applicable to all cases initiated by a or security investigations or regarding the forwarding of the record of charging document, reopened, or examinations within 90 days of the proceedings on appeal. This final rule recalendared after the effective date. BIA’s notice that the case is being responds to comments received in The rationale provided in the placed on hold for the completion of the response to the NPRM and adopts the background of the proposed rule identity, law enforcement, or security NPRM with minor changes as described remains valid. Accordingly, the major investigations or examinations. The rule below. provisions of the final rule are as follows: also retains from the NPRM the DATES: This rule is effective on January exception to abandonment when the 15, 2021. 1. Briefing Extensions immigration judge determines that the FOR FURTHER INFORMATION CONTACT: The final rule will reduce the alien demonstrates good cause for Lauren Alder Reid, Assistant Director, maximum allowable time for an exceeding the 90-day allowance. Upon Office of Policy, Executive Office for extension of the briefing schedule for such a good cause finding, the Immigration Review, 5107 Leesburg good cause shown from 90 days to 14 immigration judge may grant the alien Pike, Suite 2600, Falls Church, VA days. 8 CFR 1003.3(c). Consistent with no more than 30 days to comply with 22041, telephone (703) 305–0289. current BIA policy ‘‘not to grant second the requisite procedures. SUPPLEMENTARY INFORMATION: briefing extension requests,’’ the rule Following the review of public 2 expressly limits the parties to one comments received, the final rule I. Background possible extension. EOIR, Board of makes two changes from the proposed A. Proposed Rule Immigration Appeals Practice Manual, rule on this point. First, this rule contains an additional requirement that, On August 26, 2020, the Department Ch. 4.7(c) (hereinafter BIA Practice Manual) (last updated Oct. 5, 2020). if DHS is unable to independently published an NPRM that would amend update any required identity, law EOIR’s regulations regarding the BIA’s 1 The Department notes that the NPRM enforcement, or security investigations, handling of appeals. Appellate confusingly indicated that some changes would DHS shall provide a notice to the alien Procedures and Decisional Finality in apply ‘‘on or after the effective date of publication,’’ with appropriate instructions, as DHS Immigration Proceedings; 85 FR at 52498 even though the effective date is 30 does before the immigration courts Administrative Closure, 85 FR 52491 days after the date of publication. To correct any confusion from that statement and to provide under 8 CFR 1003.47(d), and (Aug. 26, 2020). Through the NPRM, the additional clarity, the Department offers a more Department proposed a number of delineated explanation of the temporal application 2 See section II.C.3.e for a summary and response changes to EOIR’s regulations in 8 CFR of this rule herein. to the comments received on this topic. VerDate Sep<11>2014 17:37 Dec 15, 2020 Jkt 253001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\16DER3.SGM 16DER3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 242 / Wednesday, December 16, 2020 / Rules and Regulations 81589 simultaneously serve a copy of the voluntary departure based on the record evidence of travel documentation notice with the BIA. Second, while the of proceedings. Additionally, the rule sufficient to assure lawful entry into the NPRM would have begun the alien’s 90- directly states that the BIA may not country to which the alien is day timeline for compliance with the remand a case to the immigration court departing—and the alien otherwise has biometrics update procedures began at solely to consider a request for both asserted a request for voluntary the time the Board provided notice to voluntary departure under section 240B departure and established eligibility the alien, the final rule aligns the 90-day of the Act, 8 U.S.C. 1229c. under the other requirements—the time period to begin running at the time The final rule makes three additional Board may nevertheless grant voluntary DHS submits the instructions notice to changes from the NPRM in response to for a period not to exceed 120 days, the alien, if such notice is applicable. public comments. First, in recognition subject to the condition that the alien The Department agrees with the of the fact that Board orders are within 60 days must secure such commenters’ concerns that without generally served by mail—unlike orders documentation. This additional these changes, the provisions of the of immigration judges which are provision is consistent with similar proposed rule could have resulted in frequently served in person—the final authority already contained in 8 CFR situations where the alien may be rule states that aliens will have 10 1240.26(b)(3)(ii).4 unable to effectively comply with the business days to post a voluntary 5. Prohibition on Consideration of New biometrics requirements due to possible departure bond if the Board’s order of Evidence, Limitations on Motions To delays by DHS or lack of sufficient voluntary departure was served by mail. Remand, Factfinding by the BIA, and notice. Further, as the Board is currently transitioning to an electronic filing the Standard of Review 4. Finality of BIA Decisions and system and expects to fully deploy that The rules make several changes to Voluntary Departure Authority system within the next year, the final clarify the BIA’s ability to take certain In addition, the rule amends 8 CFR rule retains a period of five business actions in adjudicating an appeal to 1003.1(d)(7) to provide further guidance days to post a voluntary departure bond ensure that appeals are adjudicated in a regarding the finality of BIA decisions. if the Board’s order is served timely fashion without undue remands To begin with, the rule adds a new electronically.

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