S.Amdt. 3362

1. Adds TITLE VII--IMMIGRATION LITIGATION REDUCTION at the end of the bill

   Adds a title

   In S. 2454 · Placed on Calendar Senate

   The Attorney General, in consultation with the Secretary, shall, as soon as practicable but not later than 90 days after the date of the enactment of this Act, submit to Congress a draft of any technical and conforming changes in the Immigration and Nationality Act which are necessary to reflect the changes in the substantive provisions of law made by the Homeland Security Act of 2002, this Act, or any other provision of law.

   Inserted: TITLE VII--IMMIGRATION LITIGATION REDUCTION

   Inserted: Subtitle A--Appeals and Review SEC. 701. ADDITIONAL IMMIGRATION PERSONNEL.

   Inserted: (a) Department of Homeland Security.--

   Inserted: (1) Trial attorneys.--In each of fiscal years 2007 through 2011, the Secretary shall, subject to the availability of appropriations for such purpose, increase the number of positions for attorneys in the Office of General Counsel of the Department who represent the Department in immigration matters by not less than 100 above the number of such positions for which funds were made available during each preceding fiscal year.

   Inserted: (2) Authorization of appropriations.--There are authorized to be appropriated to the Secretary for each of fiscal years 2007 through 2011 such sums as may be necessary to carry out this subsection.

   Inserted: (b) Department of Justice.--

   Inserted: (1) Litigation attorneys.--In each of fiscal years 2007 through 2011, the Attorney General shall, subject to the availability of appropriations for such purpose, increase by not less than 50 the number of positions for attorneys in the Office of Immigration Litigation of the Department of Justice.

   Inserted: (2) United states attorneys.--In each of fiscal years 2007 through 2011, the Attorney General shall, subject to the availability of appropriations for such purpose, increase by not less than 50 the number of attorneys in the United States Attorneys' office to litigate immigration cases in the Federal courts.

   Inserted: (3) Immigration judges.--In each of fiscal years 2007 through 2011, the Attorney General shall, subject to the availability of appropriations for such purpose--

   Inserted: (A) increase by not less than 20 the number of full-time immigration judges compared to the number of such positions for which funds were made available during the preceding fiscal year; and

   Inserted: (B) increase by not less than 80 the number of positions for personnel to support the immigration judges described in subparagraph (A) compared to the number of such positions for which funds were made available during the preceding fiscal year.

   Inserted: (4) Staff attorneys.--In each of fiscal years 2007 through 2011, the Attorney General shall, subject to the availability of appropriations for such purpose--

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   Inserted: (A) increase by not less than 10 the number of positions for full-time staff attorneys in the Board of Immigration Appeals compared to the number of such positions for which funds were made available during the preceding fiscal year; and

   Inserted: (B) increase by not less than 10 the number of positions for personnel to support the staff attorneys described in subparagraph (A) compared to the number of such positions for which funds were made available during the preceding fiscal year

   Inserted: (5) Authorization of appropriations.--There are authorized to be appropriated to the Attorney General for each of the fiscal years 2007 through 2011 such sums as may be necessary to carry out this subsection, including the hiring of necessary support staff.

   Inserted: (c) Administrative Office of the United States Courts.--In each of the fiscal years 2007 through 2011, the Director of the Administrative Office of the United States Courts shall, subject to the availability of appropriations, increase by not less than 50 the number of attorneys in the Federal Defenders Program who litigate criminal immigration cases in the Federal courts.

   Inserted: Subtitle B--Immigration Review Reform SEC. 711. DIRECTOR OF THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW.

   Inserted: Notwithstanding any other provision of law or regulation, the Director of the Executive Office for Immigration Review of the Department of Justice described in section 1003.0 of title 8, Code of Federal Regulations (or any corresponding similar regulation) shall be appointed by the President with the advice and consent of the Senate.

   Inserted: SEC. 712. BOARD OF IMMIGRATION APPEALS.

   Inserted: (a) Composition and Appointment.--Notwithstanding any other provision of law or regulation, the Board of Immigration Appeals of the Department of Justice described in section 1003.1 of title 8, Code of Federal Regulations (or any corresponding similar regulation) (referred to in this section as the "Board"), shall be composed of a Chair and 22 other immigration appeals judges, appointed by the Director of the Executive Office for Immigration Review, in consultation with the Attorney General.

   Inserted: (b) Term of Appointment.--The term of appointment of each member of the Board shall be 6 years from the date upon which such person was appointed and qualified. Upon the expiration of a term of office, a Board member may continue to act until a successor has been appointed and qualified.

   Inserted: (c) Current Members.--Each individual who is serving as a member of the Board on the date of the enactment of this Act shall be appointed to the Board utilizing a system of staggered terms of appointment based on seniority.

   Inserted: (d) Qualifications.--Each member of the Board, including the Chair, shall--

   Inserted: (1) be an attorney in good standing of a bar of a State or the District of Columbia;

   Inserted: (2) have at least--

   Inserted: (A) 7 years of professional, legal expertise; or

   Inserted: (B) 5 years of professional, legal expertise in immigration and nationality law; and

   Inserted: (3) meet the minimum qualification requirements of an administrative law judge under title 5, United States Code.

   Inserted: (e) Duties of the Chair.--The Chair of the Board, subject to the supervision of the Director, shall--

   Inserted: (1) be responsible, on behalf of the Board, for the administrative operations of the Board and shall have the power to appoint such administrative assistants, attorneys, clerks, and other personnel as may be needed for that purpose;

   Inserted: (2) direct, supervise, and establish internal operating procedures and policies of the Board;

   Inserted: (3) designate a member of the Board to act as Chair if the Chair is absent or unavailable;

   Inserted: (4) adjudicate cases as a member of the Board;

   Inserted: (5) form 3-member panels as provided by subsection (i);

   Inserted: (6) direct that a case be heard en banc as provided by subsection (j); and

   Inserted: (7) exercise such other authorities as the Director may provide.

   Inserted: (f) Board Members Duties.--In deciding a case before the Board, the Board--

   Inserted: (1) shall exercise independent judgment and discretion; and

   Inserted: (2) may take any action that is appropriate and necessary for the disposition of such case that is consistent with the authority provided in this section and any regulations established in accordance with this section.

   Inserted: (g) Jurisdiction.--

   Inserted: (1) In general.--The Board shall have jurisdiction to hear appeals described in section 1003.1(b) of title 8, Code of Federal Regulations (or any corresponding similar regulation).

   Inserted: (2) Limitation.--The Board shall not have jurisdiction to hear an appeal of a decision of an immigration judge for an order of removal entered in absentia.

   Inserted: (h) Scope of Review.--

   Inserted: (1) Findings or fact.--The Board shall--

   Inserted: (A) accept findings of fact determined by an immigration judge, including findings as to the credibility of testimony, unless the findings are clearly erroneous; and

   Inserted: (B) give due deference to an immigration judge's application of the law to the facts.

   Inserted: (2) Questions of law.--The Board shall review de novo questions of law, discretion, and judgment, and all other issues in appeals from decisions of immigration judges.

   Inserted: (3) Appeals from officers' decisions.--The Board shall review de novo all questions arising in appeals from decisions issued by officers of the Department.

   Inserted: (4)(A) Prohibition on fact finding.--Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board may not engage in fact-finding in the course of deciding appeals.

   Inserted: (B) Remand.--A party asserting that the Board cannot properly resolve an appeal without further fact-finding shall file a motion for remand. If further fact-finding is needed in a case, the Board shall remand the proceeding to the immigration judge or, as appropriate, to the Secretary.

   Inserted: (i) Panels.--

   Inserted: (1) In general.--Except as provided in paragraph (5) all cases shall be subject to review by a 3-member panel. The Chair shall divide the Board into 3-member panels and designate a presiding member.

   Inserted: (2) Authority.--Each panel may exercise the appropriate authority of the Board that is necessary for the adjudication of cases before it.

   Inserted: (3) Quorum.--Two members appointed to a panel shall constitute a quorum for such panel.

   Inserted: (4) Changes in composition.--The Chair may from time to time make changes in the composition of a panel and of the presiding member of a panel.

   Inserted: (5) Presiding member decisions.--The presiding member of a panel may act alone on any motion as provided in paragraphs (3) and (4) of subsection (k) and may not otherwise dismiss or determine an appeal as a single Board member.

   Inserted: (j) En Banc Process.--

   Inserted: (1) In general.--The Board may on its own motion, by a majority vote of the Board members, or by direction of the Chair--

   Inserted: (A) consider any case as the full Board en banc; or

   Inserted: (B) reconsider as the full Board en banc any case that has been considered or decided by a 3-member panel or by a limited en banc panel.

   Inserted: (2) Quorum.--A majority of the Board members shall constitute a quorum of the Board sitting en banc.

   Inserted: (k) Decisions of the Board.--

   Inserted: (1) Binding decisions.--

   Inserted: (A) In general.--A precedent decision of the Board shall be binding on the Secretary and the immigration judges unless such decision is modified or reversed by the Court of Appeals for the Federal Circuit or by the United States Supreme Court.

   Inserted: (B) Appeal by the secretary.--The Secretary, with the concurrence of the Attorney General, may appeal a decision of the Board under this section to the Court of Appeals for the Federal Circuit.

   Inserted: (2) Affirmance without opinion.--Upon individualized review of a case, the Board may affirm the decision of an immigration judge without opinion only if--

   Inserted: (A) the decision of the immigration judge resolved all issues in the case;

   Inserted: (B) the issue on appeal is squarely controlled by existing Board or Federal court precedent and does not involve the application of precedent to a novel fact situation;

   Inserted: (C) the factual and legal questions raised on appeal are so insubstantial that the case does not warrant the issuance of a written opinion in the case; and

   Inserted: (D) the Board approves both the result reached in the decision below and all of the reasoning of that decision.

   Inserted: (3) Summary dismissal of appeals.--The 3-member panel or the presiding member acting alone may summarily dismiss any appeal or portion of any appeal in any case which--

   Inserted: (A) the party seeking the appeal fails to specify the reasons for the appeal;

   Inserted: (B) the only reason for the appeal specified by such party involves a finding of fact or a conclusion of law that was conceded by that party at a prior proceeding;

   Inserted: (C) the appeal is from an order that granted such party the relief that had been requested;

   Inserted: (D) the appeal is determined to be filed for an improper purpose, such as to cause unnecessary delay; or

   Inserted: (E) the appeal lacks an arguable basis in fact or in law and is not supported by a good faith argument for extension, modification, or reversal of existing law.

   Inserted: (4) Unopposed dispositions.--The 3-member panel or the presiding member acting alone may--

   Inserted: (A) grant an unopposed motion or a motion to withdraw an appeal pending before the Board; or

   Inserted: (B) adjudicate a motion to remand any appeal--

   Inserted: (i) from the decision of an officer of the Department if the appropriate official of the Department requests that the matter be remanded back for further consideration;

   Inserted: (ii) if remand is required because of a defective or missing transcript; or

   Inserted: (iii) if remand is required for any other procedural or ministerial issue.

   Inserted: (5) Notice of right to appeal.--The decision by the Board shall include notice to the alien of the alien's right to file a petition for review in the United States Court of Appeals for the Federal Circuit within 30 days of the date of the decision.

   Inserted: SEC. 713. IMMIGRATION JUDGES.

   Inserted: (a) Appointment of Chief Immigration Judge.--Notwithstanding any other provision of law or regulation, the Chief Immigration Judge described in section 1003.9 of title 8, Code of Federal Regulations (or any corresponding similar regulation) shall be appointed by the Director of the Executive Officer for Immigration Review, in consultation with the Attorney General.

   Inserted: (b) Appointment of Immigration Judges.--

   Inserted: (1) In general.--Immigration judges shall be appointed by the Director of the Executive Office for Immigration Review, in consultation with the Chief Immigration Judge and the Chair of the Board of Immigration Appeals.

   Inserted: (2) Term of appointment.--The term of appointment of each immigration judge shall be 7 years from the date upon which such person was appointed and qualified. Upon the expiration of a term of office, the immigration judge may continue to act until a successor has been appointed and qualified.

   Inserted: (3) Current members.--Each individual who is serving as an immigration judge on the date of the enactment of this Act shall be appointed as an immigration judge utilizing a system of staggered terms of appointment based on seniority.

   Inserted: (4) Qualifications.--Each immigration judge, including the Chief Immigration Judge, shall be an attorney in good standing of a bar of a State or the District of Columbia and shall have at least 5 years of professional, legal expertise or at least 3 years professional or legal expertise in immigration and nationality law.

   Inserted: (c) Jurisdiction.--An Immigration judge shall have the authority to hear matters related to any removal proceeding pursuant to section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a) described in section 1240.1(a) of title 8, Code of Federal Regulations (or any corresponding similar regulation).

   Inserted: (d) Duties of Immigration Judges.--In deciding a case, an immigration judge--

   Inserted: (1) shall exercise independent judgment and discretion; and

   Inserted: (2) may take any action that is appropriate and necessary for the disposition of such case that is consistent with their authorities under this section and regulations established in accordance with this section.

   Inserted: (e) Review.--Decisions of immigration judges are subject to review by the Board of Immigration Appeals in any case in which the Board has jurisdiction.

   Inserted: SEC. 714. REMOVAL AND REVIEW OF JUDGES.

   Inserted: (a) In General.--Immigration judges and members of the Board of Immigration Appeals may be removed from office, subject to review by the Merit Systems Protection Board, only for good cause--

   Inserted: (1) by the Director of the Executive Office for Immigration Review, in consultation with the Chair of the Board, in the case of the removal of a member of the Board; or

   Inserted: (2) by the Director, in consultation with the Chief Immigration Judge, in the case of the removal of an immigration judge.

   Inserted: (b) Independent Judgment.--No immigration judge or member of the Board may be removed or otherwise subject to disciplinary or adverse action for their exercise of independent judgment and discretion as prescribed by this subtitle.

   Inserted: SEC. 715. LEGAL ORIENTATION PROGRAM.

   Inserted: (a) Continued Operation.--The Director of the Executive Office for Immigration Review shall continue to operate a legal orientation program to provide basic information about immigration court procedures for immigration detainees and shall expand the legal orientation program to provide such information on a nationwide basis.

   Inserted: (b) Authorization of Appropriations.--There are authorized to be appropriated such sums as may be necessary to carry out such legal orientation program.

   Inserted: SEC. 716. REGULATIONS.

   Inserted: Not later than 180 days after the date of the enactment of this Act, the Attorney General shall issue regulations to implement this subtitle.

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As printed