DHS and DOJ Move to Discard Irrelevant Regulations

Simple regulatory hygiene that's overdue, and a model for future deletions

By Andrew R. Arthur on July 1, 2020
  • DHS and DOJ propose to strike four regulations in a chapter of the Code of Federal Regulations that governs the duties and responsibilities of the immigration courts and the Board of Immigration Appeals. Those four regulations have minimal, if any, bearing on the operations of those entities.
  • The regulations in question were duplicated from regulatory provisions that governed the duties and responsibilities of the former Immigration and Naturalization Service. Those obligations were subsequently transferred to agencies within DHS.
  • The promulgation of the regulations in question was originally done in haste, to comply with the short timeframe between the creation of DHS in the Homeland Security Act (HSA) and the establishment of that department.
  • Despite this fact, and the fact that the duplication of those regulations was to "be understood as a temporary measure", it has taken 17 years for DHS and DOJ to even propose their deletion.
  • DHS and DOJ should undertake other similar regulatory amendments.

Two weeks ago, the Department of Justice (DOJ) and the Department of Homeland Security (DHS) issued a Joint Notice of Proposed Rulemaking (JNPR) to make various changes to the immigration regulations. Some of those are substantive, but at least one change removes four irrelevant regulations from the Code of Federal Regulations (CFR). It is a shame that the departments did not have time to do more trimming, but what they did do is a model for future deletions of irrelevant provisions.

Prior to 2003, the Immigration and Naturalization Service (INS) – a unified agency with jurisdiction over immigration enforcement and administrative adjudications – and the Executive Office for Immigration Review (EOIR) – the component with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA) – were both within DOJ.

The two components shared the same regulations, which are contained in title 8 of the CFR, titled "Aliens and Nationality." Those regulations implement the statutory provisions in the Immigration and Nationality Act (INA), which are codified at 8 U.S.C. § 1001, et seq. (also captioned, not coincidentally, "Aliens and Nationality").

Note that INS and EOIR did not share regulations because they were in the same department, but because they were each performing roles authorized by the INA. And, as U.S. Citizenship and Immigration Services (USCIS) notes: "The CFR is arranged by subject title and generally parallels the structure of the United States Code." Thus, for example, the regulations implementing the immigration-inspection provisions (section 235 of the INA, which includes expedited removal) are located in 8 C.F.R. §§ 235.1 to 235.13.

Subsequently, however, Congress abolished the INS on March 1, 2003, after DHS was established by Congress in the Homeland Security Act of 2002 (HSA). EOIR remained within DOJ, while INS's immigration administrative adjudication and enforcement responsibilities were eventually assigned to three different agencies within DHS: USCIS, U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP).

The immigration regulations (again in title 8 of the CFR) were accordingly reorganized and split into two. Chapter I of title 8 regulates DHS's roles and operations, while chapter V therein now governs the duties and responsibilities of DOJ and EOIR.

The Final Rule implementing these changes noted: "This rule duplicates certain parts and sections of the regulations that relate to proceedings before both the INS and EOIR in both chapter I and chapter V, respectively, i.e., shared provisions."

Well, that is how it was supposed to work. As that Final Rule, published on effective February 28, 2003, explained:

The Department of Justice has been guided by the principles of the HSA in duplicating only those provisions that directly affect the authority of EOIR, but has also necessarily duplicated some provisions that affect INS until a further and more detailed division can be accomplished in consultation with the Department of Homeland Security. In this sense, the rule is interim in nature in that further division and elimination of a substantial number of sections is expected in the near future. The inclusion of a section in this duplication process should be understood as a temporary measure to ensure continuity, not as a permanent disposition of authority in the Department of Justice. [Emphasis added.]

Consequently, some regulatory provisions were carried over to chapter V of title 8 in the CFR that have little or nothing to do with EOIR, the immigration courts, or the BIA. The JNPR focuses on a handful of those regulations relating to the admission of aliens (including expedited removal, one of the main focuses of the JNPR): 8 C.F.R. §§ 1235.1, 1235.2, 1235.3, 1235.4, 1235.5, and 1235.6.

As the February 28, 2003 Final Rule stated: "Part 235—Inspection of persons applying for admission, is duplicated in part 1235 because nearly all of the provisions of this part affect bond hearings before immigration judges." Except, four of those provisions don't.

Specifically, 8 C.F.R. §§ 1235.1 ("Scope of examination" in admissions), 1235.2 ("Parole for deferred inspections"), 1235.3 ("Inadmissible aliens and expedited removal") and 1235.5 ("Preinspection") have scant effect on the operations of DOJ (given the amendments in the HSA) or proceedings before the immigration courts, let alone bond. For that reason, the JNPR – appropriately – proposes to strike them in their entirety.

There is no reason, for example, for DOJ regulations to specify that: "An eligible applicant may apply for a Canadian Border Boat Landing Permit by completing the Form I-68 in triplicate." Nonetheless, 8 C.F.R. § 1235.1(e)(1) imposes that inapplicable regulation on IJs, despite the fact they are not collecting those forms, and that the collection of such documents (let alone in triplicate) would have little if any bearing on any immigration-court proceedings.

And, IJs have no jurisdiction to parole aliens under section 212(d)(5)(A) of the INA, and yet 8 C.F.R. § 1235.2 spells out the steps that DHS (which does have that authority) should follow in considering requests to do so. There are 12 references to IJs in 8 C.F.R. § 1235.3 ("Inadmissible aliens and expedited removal"), but each refers to specific IJ authorities set forth elsewhere. Finally, 8 C.F.R. § 1235.5 deals (as noted) with preinspection of aliens abroad, an extraterritorial subject over which IJs lack jurisdiction, period.

That said, to the degree that an IJ would have need to review DHS procedures, they remain in Chapter I. The removal of the aforementioned provisions in the JNPR is simply regulatory hygiene that will save paper and ink in future editions of title 8 in the CFR.

Under amendments proposed in the JNPR, 8 C.F.R. §§ 1235.4 ("Withdrawal of application for admission") and 1235.6 ("Referral to immigration judge") would, however, remain, as each is plainly relevant to the duties of the immigration court.

There are two general points to keep in mind: First, I was involved in the drafting of the HSA when I worked for the House Judiciary Committee, and even just before that bill was signed (on November 25, 2002), few, if any, in the INS ever believed that the agency would be abolished, let alone moved to a different department. Simply put, there was not a lot of planning for the move.

Second, that bill was effective 60 days after enactment, requiring a significant reshuffling to create what is, admittedly, a huge department (which now has more than 240,000 employees) with disparate missions. There was not a lot of time to read the regulations, let alone do more than cut and paste them.

Even given these facts, however, 17-plus years is a long time not to have made at least the changes to provisions that were "interim in nature" when promulgated, as is proposed in the JNPR. And, more could have been done. For example, the word "Service" appears hundreds, if not thousands of times in title 8 of the CFR, except, as noted, it has been almost two decades since the INS was an agency. As a consequence, figuring out who does what in immigration can be a puzzle for all except seasoned experts.

That said, these deletions are overdue. They should be a model for similar efforts in the future.