Rule2025-16573
Designation of Temporary Immigration Judges
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 28, 2025
Effective
August 28, 2025
Issuing agencies
Justice DepartmentExecutive Office for Immigration Review
Abstract
This final rule aligns the regulatory requirements for candidates for Temporary Immigration Judge ("TIJ") appointments to mirror the regulatory requirements for permanent Immigration Judge ("IJ") appointments, thus allowing the Attorney General and Director of EOIR to select TIJs from a larger pool of well-qualified candidates. Additionally, the Department of Justice ("the Department" or "DOJ") is making various technical and non-substantive changes to its regulations.
Full Text
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<title>Federal Register, Volume 90 Issue 165 (Thursday, August 28, 2025)</title>
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[Federal Register Volume 90, Number 165 (Thursday, August 28, 2025)]
[Rules and Regulations]
[Pages 41883-41889]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-16573]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 90, No. 165 / Thursday, August 28, 2025 /
Rules and Regulations
[[Page 41883]]
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1001, 1003, 1208, and 1240
[Dir. Order No. 02-2025]
RIN 1125-AA77
Designation of Temporary Immigration Judges
AGENCY: Executive Office of Immigration Review (``EOIR''), Department
of Justice.
ACTION: Final rule.
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SUMMARY: This final rule aligns the regulatory requirements for
candidates for Temporary Immigration Judge (``TIJ'') appointments to
mirror the regulatory requirements for permanent Immigration Judge
(``IJ'') appointments, thus allowing the Attorney General and Director
of EOIR to select TIJs from a larger pool of well-qualified candidates.
Additionally, the Department of Justice (``the Department'' or ``DOJ'')
is making various technical and non-substantive changes to its
regulations.
DATES: This rule is effective August 28, 2025.
FOR FURTHER INFORMATION CONTACT: Stephanie Gorman, Acting Assistant
Director, Office of Policy, Executive Office for Immigration Review,
5107 Leesburg Pike, Suite 2500, Falls Church, VA 22041; telephone (703)
305-0289.
SUPPLEMENTARY INFORMATION:
I. Legal Authority
The Department issues this rule pursuant to section 103(g) of the
Immigration and Nationality Act (``INA'' or ``the Act''), 8 U.S.C.
1103(g), as amended by the Homeland Security Act of 2002 (``HSA''),
Public Law 107-296, 116 Stat. 2135 (as amended). The HSA provides that
EOIR exists within the Department and that it shall be ``subject to the
direction and regulation of the Attorney General'' under section 103(g)
of the INA, 8 U.S.C. 1103(g). Further, under the HSA, the Attorney
General retains authority to ``establish such regulations, . . . issue
such instructions, review such administrative determinations in
immigration proceedings, delegate such authority, and perform such
other acts as the Attorney General determines to be necessary for
carrying out'' the Attorney General's authorities under the INA. HSA
1102(g)(2), 116 Stat. at 2274; INA 103(g)(2), 8 U.S.C. 1103(g)(2).
Those authorities include conducting removal proceedings under section
240 of the INA, 8 U.S.C. 1229a (``section 240 removal proceedings'').
Furthermore, in Attorney General Order Number 6260-2025, the Attorney
General has exercised her authority under 28 U.S.C. 509 and 510 to
delegate her authority to issue regulations related to immigration
matters within the jurisdiction of EOIR to EOIR's Director.
II. Background
EOIR administers the Nation's immigration court system. Cases
generally commence before an IJ after the Department of Homeland
Security (``DHS'') files a charging document with the immigration
court. See 8 CFR 1003.14(a). EOIR primarily decides whether aliens who
are charged by DHS with violating immigration law pursuant to the INA
should be ordered removed from the United States or should be granted
relief or protection from removal and be permitted to remain in the
United States. EOIR's Office of the Chief Immigration Judge administers
these adjudications in immigration courts nationwide.
Until 2025, the immigration court system faced an ever-growing
backlog of pending cases. A November 2024 report by the Congressional
Research Service found that this backlog ``has grown each year since
[fiscal year (``FY'')] 2006 and has ballooned in recent years,''
reaching ``1 million [pending cases] for the first time in FY2019'' and
``nearly 2.5 million at the end of FY2023.'' Holly Straut-Eppsteiner,
Cong. Rsch. Serv., IN12463, Immigration Courts: Decline in New Cases at
the End of FY2024 1 (2024). This backlog peaked at approximately 4.1
million cases in January 2025. See EOIR, Pending Cases, New Cases, and
Total Completions-Last 12 Months (Aug. 4, 2025), <a href="https://www.justice.gov/eoir/media/1344796/dl?inline">https://www.justice.gov/eoir/media/1344796/dl?inline</a> [<a href="https://perma.cc/2XYE-EG8R">https://perma.cc/2XYE-EG8R</a>].
Effective November 1, 2028, EOIR will be authorized to employ ``not
more than 800 immigration judges, along with the necessary support
staff.'' See One Big Beautiful Bill Act, Public Law 119-21, sec.
100054(1)(B), 139 Stat. 72 (2025).
To assist with the immigration courts' substantial caseload, the
EOIR Director (``Director''), with the approval of the Attorney
General, may designate or select TIJs, which have the authority of an
IJ to adjudicate assigned cases and administer immigration court
matters. 8 CFR 1003.10(e). Prior to this final rule, individuals
eligible to be designated as TIJs were limited to former IJs and
Appellate Immigration Judges, EOIR administrative law judges (``ALJs'')
\1\ or ALJs retired from EOIR, ALJs from other Executive Branch
agencies with the consent of their agencies, and Department attorneys
with at least 10 years of legal experience in the field of immigration
law. Id. The regulatory provision authorizing TIJs, 8 CFR 1003.10(e),
was added through an interim final rule (``IFR'') with a request for
comments in 2014. See Designation of Temporary Immigration Judges, 79
FR 39953 (July 11, 2014) (``2014 TIJ IFR''). The Department received 17
public comments on that IFR.
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\1\ EOIR's Office of the Chief Administrative Hearing Officer
currently employs four ALJs to hear cases arising under sections
274A, 274B, and 274C of the INA, 8 U.S.C. 1324a, 1324b, 1324c. See
EOIR, Meet the Administrative Law Judges (Oct. 10, 2023), <a href="https://www.justice.gov/eoir/meet-administrative-law-judges">https://www.justice.gov/eoir/meet-administrative-law-judges</a> [<a href="https://perma.cc/V4NU-H6LQ">https://perma.cc/V4NU-H6LQ</a>].
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On May 29, 2024, the Department finalized a proposed rule that
added a new regulatory definition of the term ``noncitizen'' to be used
in place of the statutory term ``alien'' and added a new regulatory
definition of the term ``unaccompanied child'' to be used in place of
the statutory term ``unaccompanied alien child,'' as defined at 6
U.S.C. 279(g)(2). See Efficient Case and Docket Management in
Immigration Proceedings, 89 FR 46742 (May 29, 2024) (``ECDM Final
Rule'').
III. Public Comments and Responses on the 2014 TIJ IFR
Comments received on the 2014 TIJ IFR are organized by topic below.
Most commenters were supportive of the IFR, stating, for example, that
appointing TIJs will greatly assist with managing
[[Page 41884]]
the border and lower the case loads of permanent IJs. In contrast,
commenters opposing the rule primarily raised concerns about the
ability of certain Department attorneys to be impartial or opposed
spending additional taxpayer money to hire more IJs. Commenters
generally provided proposals for types of attorneys that should or
should not be allowed to serve as TIJs and policies EOIR should adopt
with respect to training and compensation as well as the regulations
governing the use of other agencies' ALJs. The Department addresses
these comments below.
A. General Support
Comments: Many commenters generally supported the Department's
decision to allow for the appointment of TIJs, stating, for example,
that the appointment of TIJs ``will be of great help'' given that the
immigration courts have ``more cases before them than ever before.''
Commenters also asserted that appointing TIJs is not a substitute for
hiring more permanent IJs.
Response: The Department agrees with the goal of the 2014 TIJ IFR
but, as stated below in Section IV of this preamble, its requirements
for TIJs limited the IFR's effectiveness. The Department does not view
its authority to appoint TIJs as a substitute for hiring to fill
permanent IJ positions and continues to recruit candidates to fill
permanent IJ positions.
B. Proposed Regulatory Changes
Comments: Many commenters proposed changes to the regulation's
limitations on who may be appointed as a TIJ. Most such commenters
asserted that the requirements were too narrow and may restrict the
Department's ability to fill the TIJ positions with qualified
applicants. Commenters proposed various amendments to the provisions
setting forth the TIJ requirements, such as expanding the candidate
pool to non-DOJ attorneys with 7 years of immigration law experience,
to all former government employees with 10 years of immigration law
experience, to all Federal administrative judges regardless of years of
experience, or to all Department attorneys with 7, or even 5, years of
immigration law experience. Other commenters proposed narrowing the
pool, such as to former EOIR adjudicators, out of concern that those
without prior experience would drain training resources or by excluding
Department attorneys from specific offices the commenter viewed as
hostile to aliens.
Response: As explained in Section IV of this preamble, the
Department agrees with commenters that the 2014 TIJ IFR's requirements
for TIJs were too narrow and impeded the Department's ability to use
the TIJ authority to the extent needed. Rather than adopt different
benchmarks by regulation, the Department has decided to adopt the same
approach that it has long taken for permanent IJs--that is, require by
regulation that they be attorneys but leave the specific criteria to
internal policy.\2\ See 8 CFR 1003.10(a). This will allow the
Department flexibility in TIJ hiring choices similar to those the
Department has for hiring permanent IJs. To the extent commenters cast
doubt on the ability of Department attorneys to serve as neutral
arbiters and thus question whether they should be allowed to serve as
TIJs, the Department disagrees with such unsupported accusations.
Regardless, as explained in Section IV of this preamble, the Department
will consider each candidate on a case-by-case basis to determine their
fitness to serve as TIJs.
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\2\ Importantly, that approach mirrors the INA, which requires
only that IJs be ``attorney[s] whom the Attorney General appoints as
[ ] administrative judge[s] within [EOIR], qualified to conduct
specified classes of proceedings, including'' section 240 removal
proceedings and who ``shall be subject to such supervision and shall
perform such duties as the Attorney General shall prescribe, but
shall not be employed by the Immigration and Naturalization
Service.'' INA 101(b)(4), 8 U.S.C. 1101(b)(4).
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Comments: Commenters recommended changes to the IFR with respect to
its duration and scope. Commenters proposed placing a limit on the
total length of a TIJ's service, such as, for example, one year. Other
commenters proposed that the rule should sunset once the need for TIJs
abates. Commenters also proposed that the rule place a cap on the
number of allowable TIJs.
Response: The Department declines to adopt any limitations on the
number of extensions of the six-month periods or otherwise cap the
length of a temporary appointment. Other statutes and regulations
govern the duration of certain types of appointments as will home
agency preferences. Given the statutory and regulatory frameworks
within which the Department operates, the Department does not expect
TIJs to serve for extended periods necessitating any specific
limitation. Similarly, the Department declines to limit the number of
TIJs in the regulation or have the regulation sunset. Not only does the
Department believe it unwise to place a cap or adopt an expiration date
that could impede its ability to respond to unforeseen circumstances
requiring the use of TIJs, but EOIR's ability to appoint TIJs will be
limited by other forces, such as appropriations and other pre-
employment processing requirements. Accordingly, the Department does
not believe it prudent to arbitrarily limit by regulation its ability
to use TIJs.
Comments: Commenters recommended that the regulations state the
training required for TIJs and proposed that such training be in person
and that all TIJs be provided mentor judges. Commenters also stated
that TIJs should be required to have all the training required to be a
permanent IJ.
Response: The Department declines to adopt regulatory changes in
response to these comments. The training for permanent IJs is not
currently set by regulation. Like the experience requirements for TIJ
candidates, the Department prefers not to codify a specific training
program to ensure continued flexibility. Regardless, EOIR maintains a
dynamic training program for IJs that includes extensive classroom-
based training and on-the-job training. See EOIR, Fact Sheet: Executive
Office for Immigration Review Immigration Judge Training (June 2022),
<a href="https://www.justice.gov/eoir/page/file/1513996/dl?inline">https://www.justice.gov/eoir/page/file/1513996/dl?inline</a> [<a href="https://perma.cc/6GZS-EDRY">https://perma.cc/6GZS-EDRY</a>]. Moreover, TIJs will receive the same
``comprehensive, continuing training and support'' by EOIR. 8 CFR
1003.0(b)(1)(vii); see also 8 CFR 1003.10(e)(3) (``The Chief
Immigration Judge shall ensure that each [TIJ] has received a suitable
level of training to enable the [TIJ] to carry out the duties
assigned.'').
C. Other Comments
Comments: Many commenters discussed the use of ALJs from other
agencies. Commenters recommended that EOIR ensure that other-agency
ALJs retain their decisional independence upon return to their home
agencies, pay relocation costs and per diems, and assure that home
agencies do not prevent ALJs from serving as TIJs once selected.
Commenters recommended working with the Office of Personnel Management
in accordance with specific statutes and regulations when seeking the
assistance of other-agency ALJs. Commenters also recommended that the
Department clarify a statement in the preamble of the 2014 TIJ IFR that
``[t]he Assistant Chief Immigration Judge will be available as an
additional source of assistance and guidance, and will be responsible
for conducting periodic reviews of the temporary immigration judge's
performance and reporting his or her findings to the Chief Immigration
Judge.'' 79 FR 39955. Specifically, commenters recommended that the
Department remove that statement from the preamble or otherwise ensure
[[Page 41885]]
consistency with 5 CFR 930.206(a), which states that ``[a]n agency may
not rate the job performance of an administrative law judge.''
Commenters also recommended that ALJs be allowed to take on TIJ duties
on a part-time basis while continuing to adjudicate cases for their
home agency, reasoning that such an arrangement may make home agencies
more amenable to their ALJs' participation.
Response: The Department is amending 8 CFR 1003.10(e)(1) to add
that appointment as a TIJ will be ``subject to all applicable statutory
and regulatory limitations on the temporary service.'' The Department
has followed all applicable statutes and regulations regarding the use
of various types of attorneys as TIJs but nevertheless amends the
regulation to make such compliance explicit. Given the various ways
that candidates may be appointed to serve as TIJs--e.g., on detail from
within the Department, on detail from other Departments, as special
government employees under 18 U.S.C. 202(a)--and the various statutes
and regulations that may apply depending on a specific TIJ's
circumstances--such as the specific provisions governing ALJs discussed
by commenters--it is not practicable for the Department to set forth in
this rule every potentially applicable statute and regulation governing
all potential future situations. However, the Department will ensure
that all statutory and regulatory requirements applicable to a given
attorney are followed. Similarly, the Department will evaluate requests
for part-time appointments on a case-by-case basis to ensure
compatibility with applicable statutes and regulations and that such an
arrangement would be in the best interests of EOIR.
Comments: Commenters stated that the working conditions for
permanent IJs should not be negatively impacted by the hiring of TIJs
and provided as examples that the agency should consider the term of an
IJ when making location assignments, giving permanent IJs their desired
work location when possible. Commenters also proposed that the
Department study how support staff and technology resources may be
taxed by the hiring of TIJs and consider hiring additional staff,
detailing support staff from other components, or purchasing additional
technology to accommodate TIJs.
Response: The Department is committed to ensuring sufficient
resources for permanent IJs and TIJs to fulfill their duty of
adjudicating cases expeditiously and impartially, consistent with the
law. See EOIR, About the Office: EOIR Mission (May 29, 2025), <a href="https://www.justice.gov/eoir/about-office">https://www.justice.gov/eoir/about-office</a> [<a href="https://perma.cc/9XQ7-65DC">https://perma.cc/9XQ7-65DC</a>] (``The
primary mission of . . . EOIR[ ] is to adjudicate immigration cases by
fairly, expeditiously, and uniformly interpreting and administering the
Nation's immigration laws.''); EOIR Policy Manual, pt. I, ch. 1.2(a),
<a href="https://www.justice.gov/eoir/reference-materials/ic/chapter-1/2">https://www.justice.gov/eoir/reference-materials/ic/chapter-1/2</a>
[<a href="https://perma.cc/P9BG-R3UT">https://perma.cc/P9BG-R3UT</a>] (last visited Aug. 26, 2025)
(``Immigration Judges are tasked with resolving cases in a manner that
is timely, impartial, and consistent with the Immigration and
Nationality Act, federal regulations, and precedent decisions of the
Board of Immigration Appeals and federal appellate courts.''). EOIR's
process for determining available location assignments for permanent
IJs and TIJs is outside the scope of this rulemaking.
Comments: Commenters proposed that TIJs be rated more frequently
than every two years due to their presumed lack of experience and the
temporary nature of their positions.
Response: TIJs must be evaluated prior to any term extension.
Because a TIJ's term, whether initial or extended, may not exceed six
months, every TIJ will be evaluated at least every six months.
Comments: Commenters recommended that EOIR allow for public
analysis of the effectiveness of the rule and that EOIR should study
whether the net effect of choosing certain TIJs for re-appointment
increases the odds that an immigration court rules against aliens and
post the results of that study.
Response: EOIR has studied the effect of the 2014 TIJ IFR over the
past 10 years and has concluded that the IFR's restrictions on the
candidate pool prevented EOIR from using TIJs in the manner
contemplated. EOIR has used fewer than a dozen TIJs despite a
mushrooming backlog of cases, causing the Department to conclude that
the 2014 TIJ IFR was unnecessarily restrictive, reduced the potential
pool of TIJs too severely, and ultimately undermined the very purpose
of the IFR. See 79 FR 39954 (``The Department believes that the
designation of [TIJs] will provide an appropriate means of responding
to the increasing pending caseload in the immigration courts.''). The
Department will continue to evaluate the results of the TIJ appointment
process, as required by 8 CFR 1003.10(e)(3). Furthermore, interested
members of the public may analyze the effectiveness of the rule; EOIR
does not place any restrictions on the public's ability to do so.
Comments: Commenters proposed that the Department compensate TIJs
generously.
Response: TIJs are compensated in accordance with applicable
statutes and regulations.
IV. Amendments to Regulatory Requirements for TIJs
Having considered the comments received on the 2014 TIJ IFR and
EOIR's experience attempting to use TIJs under that IFR's provisions,
the Department has determined that amendments are necessary. Although
EOIR has begun to reduce the backlog of cases at the immigration court
level and will continue to hire permanent IJs up to its statutory cap
of 800, it recognizes that the sheer size of the backlog means that it
cannot be expeditiously resolved solely through new hiring. Rather,
EOIR must mobilize all available resources to ensure that cases are
adjudicated timely and impartially consistent with its statutory and
regulatory directives. See 8 CFR 1003.10(b) (``In all cases,
immigration judges shall seek to resolve the questions before them in a
timely and impartial manner consistent with the Act and
regulations.''). To that end, EOIR believes TIJs are an untapped
resource whose presence would assist in resolving more cases in a
timely and impartial manner, but whose availability is needlessly
limited by regulatory restrictions that are both somewhat inconsistent
and unnecessarily siloed in terms of relevant experience.
For example, under the current language of 8 CFR 1003.10(e), an ALJ
who works at a Federal agency unrelated to immigration law and who may
have fewer than 10 years of legal experience is eligible to serve as a
TIJ, while a military or veterans appeals judge with a distinguished
career, decades of legal experience, and a prior background in
immigration law is not. Similarly, attorneys at agencies other than DOJ
with many years of experience in immigration law are ineligible to
serve as a TIJ unless they are currently ALJs. Non-Federal employees
are categorically ineligible to serve as a TIJ, regardless of their
credentials and even if they may be otherwise temporarily hired as
special government employees under 18 U.S.C. 202(a). Given the
continued need for qualified IJs and EOIR's experience hiring
successful permanent IJs from a diverse array of backgrounds, the
Department has determined that the regulatory restrictions on selecting
TIJs in 8 CFR 1003.10(e) do not serve the interests of the agency and
needlessly restrict its
[[Page 41886]]
ability to retain superior temporary assistance in adjudicating
cases.\3\
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\3\ Although the Department spelled out the specific regulatory
restrictions in the 2014 TIJ IFR, it did not explain the basis for
choosing those restrictions. See 79 FR 39954. Moreover, despite
noting that EOIR ``will generally employ the same selection criteria
[for TIJs] . . . it applies with respect to the hiring of permanent
immigration judges,'' id., the IFR did not acknowledge that the TIJ
requirements--i.e., either being a current or retired particular
type of adjudicator or a Department attorney with 10 years of
experience in immigration law--were significantly stricter than
those for permanent IJs, for whom prior adjudicatory experience or
knowledge of immigration law are not absolute requirements.
Consequently, upon further consideration and with the benefit of
over 10 years of experience in which EOIR utilized fewer than a
dozen TIJs despite an increasing backlog of cases, the Department
has determined that the requirements imposed by the 2014 TIJ IFR
constrained the pool of potential TIJs too much to the point of
undermining the goal of the IFR. See id. (``The Department believes
that the designation of [TIJs] will provide an appropriate means of
responding to the increasing pending caseload in the immigration
courts.'').
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Consequently, to help further address its caseload and expand the
pool of potential candidates to be TIJs, the Department is amending the
applicable TIJ regulation to remove regulatory constraints that go
beyond the regulatory constraints on permanent IJ hiring. This rule
will enable the Director, with the approval of the Attorney General, to
staff the immigration courts with a sufficient number of well-trained
and highly qualified judges to further reduce and ultimately eliminate
the backlog of pending cases.
Specifically, the Department is amending the TIJ provisions at 8
CFR 1003.10(e)(1) to permit the Director, with the approval of the
Attorney General, to designate or select any attorney to serve as a TIJ
for a renewable term not to exceed six months, subject to all statutory
and regulatory limits on temporary service. This language matches the
only regulatory requirement the Department places on the hiring of
permanent IJs. See 8 CFR 1003.10(a) (``The immigration judges are
attorneys whom the Attorney General appoints as administrative judges
within the Office of the Chief Immigration Judge to conduct specified
classes of proceedings, including hearings under section 240 of the
Act.''); INA 101(b)(4), 8 U.S.C. 1101(b)(4). As with permanent IJ
hiring, such language will provide the Department flexibility in
setting the requirements for TIJ candidates.
The Department believes that the removal of categorical regulatory
prohibitions is prudent to ensure that the Director and Attorney
General may consider highly qualified candidates for TIJ appointments.
For current Federal employees, the amendment removes restrictions
limiting the availability of TIJ appointments to only certain types of
Federal administrative judges.\4\ The Department is no longer persuaded
that allowing ALJs to serve as TIJs, but not military judges or other
types of administrative judges who are not ALJs, is an appropriate
restriction, particularly when many administrative judges perform
similar functions--e.g., presiding over hearings, receiving evidence,
and making or recommending findings of fact and legal conclusions--
regardless of their particular label.
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\4\ EOIR's experience with its retired adjudicators, only a
handful of whom have indicated a willingness to return as either
TIJs or rehired annuitants with limited workloads since the 2014 TIJ
IFR was promulgated, indicates that pool is insufficient to address
its TIJ needs. Consequently, although retired EOIR adjudicators
remain eligible to serve as TIJs, the Department has removed the
specific identification of those individuals as potential TIJs in
the IFR.
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Similarly, the Department no longer believes the restriction of
TIJs to current Department employees with a threshold level of
immigration law experience serves EOIR's interests. Immigration law
experience is not always a strong predictor of success as an IJ, and
EOIR has hired individuals from other Federal agencies and Department
components without prior immigration experience who have become
successful and exemplary IJs. Further, there is no clear reason to
prohibit individuals at other Federal agencies with stellar
credentials--e.g., Supreme Court clerkships or significant experience
in high-salience, complex litigation--who are otherwise well-qualified
from serving as TIJs solely because they lack a certain level of
immigration experience or are not currently serving in the Department,
neither of which is even a prerequisite to serve as a permanent IJ.
Additionally, both TIJs and permanent IJs receive the same
``comprehensive, continuing training and support'' by EOIR. 8 CFR
1003.0(b)(1)(vii); see also 8 CFR 1003.10(e)(3) (``The Chief
Immigration Judge shall ensure that each [TIJ] has received a suitable
level of training to enable the [TIJ] to carry out the duties
assigned.''), making the distinction in selection criteria between the
two groups unnecessary.
In selecting TIJs, the Department will continue to look for the
most qualified individuals overall with primary weight given to an
applicant's education and employment history. Further factors may carry
additional weight, such as prior judicial or quasi-judicial service of
any kind, service in State or Federal government, including trial or
litigation experience, and immigration law experience. However, the
Director and Attorney General retain discretion to consider any other
factors deemed relevant and to make selections.
In short, the need for assistance in fairly and efficiently
adjudicating immigration cases has only increased since EOIR first
adopted a plan to utilize TIJs in 2014. However, that original plan has
proven largely ineffectual, requiring the agency to update it in order
to ensure a more robust applicant pool to provide the assistance EOIR
needs. The changes described above will provide the greatest degree of
flexibility to ensure EOIR will be able to utilize highly qualified
individuals as TIJs to meet its needs.
V. Other Amendments
This rule also rescinds certain non-substantive nomenclature
changes implemented by the ECDM Final Rule. Specifically, this rule
removes the defined terms ``noncitizen'' and ``unaccompanied child''
that were added by the ECDM Final Rule at Sec. 1001.1(gg) and (hh),
respectively. The ECDM Final Rule defined the term ``noncitizen'' to be
synonymous with and to hold the same definition as the statutory term
``alien'' as defined at section 101(a)(3) of the INA, 8 U.S.C.
1101(a)(3). 89 FR 46778. Additionally, the ECDM Final Rule defined the
term ``unaccompanied child'' to be synonymous with and hold the same
definition as the statutory term ``unaccompanied alien child'' as
defined at 6 U.S.C 279(g)(2). Id. at 46787.
The Department is now removing these definitions and the use of
these terms from its regulations to avoid the confusion generated by
introducing superfluous regulatory terms when there are statutory terms
with the same meaning. The notice of proposed rulemaking preceding the
ECDM Final Rule asserted that adding these terms would be ``more
consistent with current terminology usage.'' Appellate Procedures and
Decisional Finality in Immigration Proceedings; Administrative Closure,
88 FR 62242, 62273 (Sept. 8, 2023). To the contrary, the terms
``noncitizen'' and ``unaccompanied child'' are inconsistent with the
current terminology usage embraced by Congress, as evidenced by the
statutory terms defined in the INA and uniformly used throughout title
8 of the United States Code. See generally INA, 8 U.S.C. (using the
term ``alien'' throughout and no examples of the term ``noncitizen'').
Congress reinforced this in January 2025, when Congress passed a
bipartisan bill, signed into law by the President, which amends the INA
to address the detention of ``criminal aliens.'' See Laken Riley Act,
Public
[[Page 41887]]
Law 119-1, 139 Stat. 3 (2025); INA 236(c)(1)(E), 8 U.S.C.
1226(c)(1)(E).
Furthermore, the terms are also inconsistent with other Department-
sanctioned terminology and recent EOIR guidance. See EOIR PM 25-07,
Cancellation of Policy Memorandum 21-27 (Jan. 29, 2025), <a href="https://www.justice.gov/eoir/media/1387446/dl?inline">https://www.justice.gov/eoir/media/1387446/dl?inline</a> [<a href="https://perma.cc/HU2H-V2TF">https://perma.cc/HU2H-V2TF</a>]. For example, the Criminal Division and the U.S. Attorneys'
Offices continue to use template materials that use the word ``alien''
in indictments and complaints. Id. Additionally, the Department's
Justice Manual, the principal policy manual for the Department, broadly
continues to use the term ``alien'' instead of ``noncitizen'' and has
not provided a standard definition for the latter term.\5\ Moreover,
using the terms ``noncitizen'' and ``unaccompanied child'' adds
inconsistency even within EOIR's regulations, as chapter V of the 8 CFR
now sometimes refers to aliens as ``noncitizens'' and other times as
``aliens.'' The terms ``noncitizen'' and ``unaccompanied child'' are
also inconsistent with DHS regulations, which continue to use the term
``alien.'' See generally 8 CFR Ch. I.
---------------------------------------------------------------------------
\5\ See, e.g., DOJ, Just. Manual Sec. 9-21.410 (2025)
(``Illegal Aliens''), <a href="https://www.justice.gov/jm/jm-9-21000-witness-security#9-21.410">https://www.justice.gov/jm/jm-9-21000-witness-security#9-21.410</a> [<a href="https://perma.cc/WX8N-S4LV">https://perma.cc/WX8N-S4LV</a>].
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Further exacerbating the risk of confusion, the term ``noncitizen''
is not a precise synonym for the term ``alien.'' The INA defines the
term ``alien'' to mean a person who is neither a citizen nor a national
of the United States. INA 101(a)(3), 8 U.S.C. 1101(a)(3). The term
``noncitizen'' does not recognize the full scope of people who are
``aliens'' because the term ``noncitizen'' includes ``national[s] of
the United States,'' which are those ``who, though not [ ] citizen[s]
of the United States, owe[ ] permanent allegiance to the United
States.'' INA 101(a)(22), 8 U.S.C. 1101(a)(22). Thus, a plain language
understanding of the term ``noncitizen'' is incongruous with its given
definition in the ECDM Final Rule. Similarly, the term ``unaccompanied
alien child'' has a specific statutory definition, see 6 U.S.C.
279(g)(2), that is not fully captured by the term ``unaccompanied
child.'' Indeed, caselaw shows that these imprecise terms do not in
fact have a well-settled meaning, and their use risks creating
confusion through imprecision,\6\ in addition to improperly suggesting
that longstanding and well-defined statutory terms are imbued with
pejorative meaning. Avilez v. Garland, 69 F.4th 525, 544 (9th Cir.
2023) (Bea, J., concurring) (``Alien is a statutory word defining a
specific class of individuals. And when used in its statutory context,
it admits of its statutory definition[.]''); Khan v. Garland, 69 F.4th
265, 272 (5th Cir. 2023) (Ho, J., concurring) (``[I]n the context of
immigration law, we use `alien,' not to disparage one's character--or
to denote one's planetary origin--but to describe one's legal
status.'').
---------------------------------------------------------------------------
\6\ See EOIR PM 25-07, Cancellation of Policy Memorandum 21-27
(Jan. 29, 2025), <a href="https://www.justice.gov/eoir/media/1387446/dl?inline">https://www.justice.gov/eoir/media/1387446/dl?inline</a> [<a href="https://perma.cc/HU2H-V2TF">https://perma.cc/HU2H-V2TF</a>].
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By contrast, the term ``alien'' has a long-established usage and
settled understanding. Khan, 69 F.4th at 272 (Ho, J., concurring)
(describing the term ``alien'' as ``a centuries-old legal term found in
countless judicial decisions'' dating back to the 1800s). The legal
status of alienage is fundamental to EOIR's authority to exercise
jurisdiction over an individual and is at the core of all proceedings,
including findings of removability and orders of removal, as well as
forms of eligibility for relief and protection from removal. The
Department now determines that it is the most appropriate term to
ensure that EOIR's regulations are clear, consistent, and legally
precise.\7\
---------------------------------------------------------------------------
\7\ This view has similarly been recognized by an EOIR Policy
Memorandum. See EOIR PM 25-07, Cancellation of Policy Memorandum 21-
27 (Jan. 29, 2025), <a href="https://www.justice.gov/eoir/media/1387446/dl?inline">https://www.justice.gov/eoir/media/1387446/dl?inline</a> [<a href="https://perma.cc/HU2H-V2TF">https://perma.cc/HU2H-V2TF</a>].
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Lastly, the Department is replacing the term ``Chairman'' with
``Chief Appellate Immigration Judge'' and the term ``Vice Chairman''
with ``Deputy Chief Appellate Immigration Judge'' in 8 CFR 1003.1. This
change is consistent with 8 CFR 1003.1(a)(2) and aligns more closely
with the current terminology used by the Board of Immigration
Appeals.\8\
---------------------------------------------------------------------------
\8\ EOIR, Meet the Board of Immigration Appeals (July 8, 2025),
<a href="https://www.justice.gov/eoir/board-of-immigration-appeals#board">https://www.justice.gov/eoir/board-of-immigration-appeals#board</a>
[<a href="https://perma.cc/LHB8-PVDU">https://perma.cc/LHB8-PVDU</a>] (using the terms ``Chief Appellate
Immigration Judge'' and ``Deputy Chief Appellate Immigration
Judge'').
---------------------------------------------------------------------------
VI. Regulatory Requirements
A. Administrative Procedure Act
This final rule is exempt from the requirements of prior notice and
comment and a 30-day delay in effective date because it is a rule of
agency organization, procedure, or practice and relates to agency
management and personnel. See 5 U.S.C. 553(a)(2), (b)(A); 79 FR 39955
(stating that the 2014 TIJ IFR was exempt from 5 U.S.C. 553's notice-
and-comment and delayed-effective-date provisions).\9\ More
specifically, the rule directly addresses a key personnel matter, the
qualifications for appointment as a TIJ, as well as the agency's
practices and management regarding appropriate language to use in
conducting its day-to-day work. Additionally, there is good cause to
forgo both notice and comment and a delayed effective date as to the
terminology changes. Both are unnecessary because the rule merely
brings EOIR's regulations back into alignment with statutorily defined
terms.
---------------------------------------------------------------------------
\9\ Although it was also exempt from pre-promulgation notice-
and-comment requirements, EOIR nevertheless requested post-
promulgation comments in the 2014 TIJ IFR ``before the Department
issues a final rule on these matters.'' 79 FR 39955. And although
this final rule is similarly exempt from those notice-and-comment
requirements, this final rule responds to the post-promulgation
comments received on the 2014 TIJ IFR. See Section III of this
preamble.
---------------------------------------------------------------------------
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (``RFA''), a regulatory
flexibility analysis is not required when a rule is exempt from notice-
and-comment rulemaking under 5 U.S.C. 553(b) or other law. See 5 U.S.C.
603(a), 604(a). Because, for the reasons discussed in Section VI.A of
this preamble, this rule is exempt from notice-and-comment rulemaking,
no RFA analysis is required.
C. 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 (adjusted for inflation), 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, codified at 2 U.S.C. 1501 et seq.
D. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14192 (Unleashing
Prosperity Through Deregulation)
This rule is limited to agency organization, management, or
personnel matters and is therefore not subject to review by the Office
of Management and Budget pursuant to section 3(d)(3) of Executive Order
12866 and section 5(b) of Executive Order 14192.
E. Executive Order 14294 (Overcriminalization of Federal Regulations)
Executive Order 14294 requires agencies promulgating regulations
with criminal regulatory offenses potentially subject to criminal
enforcement to explicitly describe the conduct subject
[[Page 41888]]
to criminal enforcement, the authorizing statutes, and the mens rea
standard applicable to each element of those offenses. This rule does
not promulgate a regulation potentially subject to criminal enforcement
and is thus exempt from Executive Order 14924's requirements.
F. Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the 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, this rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
G. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
The Paperwork Reduction Act of 1995, Public Law 104-13, does not
apply to this rule because it does not impose new or revised
recordkeeping or reporting requirements.
I. Congressional Review Act
This is not a major rule as defined by 5 U.S.C. 804(2). This action
pertains to agency organization, management, and personnel and,
accordingly, is not a ``rule'' as that term is used in 5 U.S.C. 804(3).
Therefore, the reports to Congress and the Government Accountability
Office specified by 5 U.S.C. 801 are not required.
List of Subjects
8 CFR Parts 1001 and 1003
Administrative practice and procedure, Immigration.
8 CFR Part 1208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 1240
Administrative practice and procedure, Aliens.
Accordingly, for the reasons set forth in the preamble, and by the
authority vested in the Director, Executive Office for Immigration
Review, by the Attorney General Order Number 6260-2025, the Department
amends 8 CFR parts 1001, 1003, 1208, and 1240 as follows:
PART 1001--DEFINITIONS
0
1. The authority citation for part 1001 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107-296,
116 Stat. 2135; Title VII of Pub. L. 110-229.
Sec. 1001.1 [Amended]
0
2. Amend Sec. 1001.1 by removing paragraphs (gg) and (hh).
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
3. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
Sec. 1003.1 [Amended]
0
4. Amend Sec. 1003.1 by:
0
a. As shown in the following table, removing the words in the left
column and adding in their place the words in the right column wherever
they appear:
------------------------------------------------------------------------
------------------------------------------------------------------------
a noncitizen.............................. an alien.
The noncitizen............................ The alien.
the noncitizen............................ the alien.
a noncitizen's............................ an alien's.
the noncitizen's.......................... the alien's.
------------------------------------------------------------------------
0
b. As shown in the following table, removing the words in the left
column and adding in their place the words in the right column wherever
they appear in paragraphs (a)(3), (e), and (h):
------------------------------------------------------------------------
------------------------------------------------------------------------
Chairman.................................. Chief Appellate Immigration
Judge.
Vice Chairman............................. Deputy Chief Appellate
Immigration Judge.
------------------------------------------------------------------------
Sec. 1003.2 [Amended]
0
5. Amend Sec. 1003.2 by, as shown in the following table, removing the
words in the left column and adding in their place the words in the
right column wherever they appear:
------------------------------------------------------------------------
------------------------------------------------------------------------
a noncitizen.............................. an alien.
the noncitizen............................ the alien.
noncitizen's.............................. alien's.
------------------------------------------------------------------------
Sec. 1003.3 [Amended]
0
6. Amend Sec. 1003.3 by, as shown in the following table, removing the
words in the left column and adding in their place the words in the
right column wherever they appear:
------------------------------------------------------------------------
------------------------------------------------------------------------
a noncitizen.............................. an alien.
the noncitizen............................ the alien.
noncitizens............................... aliens.
------------------------------------------------------------------------
Sec. 1003.7 [Amended]
0
7. Amend Sec. 1003.7 by removing the word ``noncitizen'' and adding in
its place the word ``alien''.
0
8. Amend Sec. 1003.10 by:
0
a. In paragraph (b), removing the word ``noncitizens'' and adding in
its place the word ``aliens''; and
0
b. Revising paragraph (e)(1).
The revision reads as follows:
Sec. 1003.10 Immigration judges.
* * * * *
(e) * * *
(1) Designation. The Director, subject to the approval of the
Attorney General, is authorized to designate or select temporary
immigration judges as provided in this paragraph (e). The Director may
designate or select, with the approval of the Attorney General, any
attorney to serve as a temporary immigration judge for renewable terms
not to exceed six months, subject to all applicable statutory and
regulatory limitations on the temporary service.
* * * * *
Sec. 1003.23 [Amended]
0
9. Amend Sec. 1003.23 by, as shown in the following table, removing
the words in the left column and adding in their place the words in the
right column wherever they appear:
------------------------------------------------------------------------
------------------------------------------------------------------------
A noncitizen.............................. An alien.
the noncitizen............................ the alien.
the noncitizen's.......................... the alien's.
------------------------------------------------------------------------
Sec. 1003.42 [Amended]
0
10. Amend Sec. 1003.42 by, as shown in the following table, removing
the words in the left column and adding in their place the words in the
right column wherever they appear:
------------------------------------------------------------------------
------------------------------------------------------------------------
same noncitizen........................... same alien.
a noncitizen.............................. an alien.
the noncitizen............................ the alien.
Noncitizens............................... Aliens.
The noncitizen............................ The alien.
the noncitizen's.......................... the alien's.
------------------------------------------------------------------------
PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
11. The authority citation for part 1208 continues to read as follows:
[[Page 41889]]
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Pub. L. 110-229; Pub. L. 115-218.
Sec. 1208.13 [Amended]
0
12. Amend Sec. 1208.13(g) by removing the words ``a noncitizen'' and
adding in their place the words ``an alien''.
Sec. 1208.31 [Amended]
0
13. Amend Sec. 1208.31 by, as shown in the following table, removing
the words in the left column and adding in their place the words in the
right column wherever they appear:
------------------------------------------------------------------------
------------------------------------------------------------------------
any noncitizen............................ any alien.
a noncitizen.............................. an alien.
the noncitizen............................ the alien.
noncitizens............................... aliens.
the noncitizen's.......................... the alien's.
------------------------------------------------------------------------
Sec. 1208.33 [Amended]
0
14. Amend Sec. 1208.33 by, as shown in the following table, removing
the words in the left column and adding in their place the words in the
right column wherever they appear:
------------------------------------------------------------------------
------------------------------------------------------------------------
a noncitizen.............................. an alien.
the noncitizen............................ the alien.
the noncitizen's.......................... the alien's.
The noncitizen............................ The alien.
A noncitizen.............................. An alien.
unaccompanied child as defined in 8 CFR unaccompanied alien child as
1001.1(hh). defined in 6 U.S.C.
279(g)(2).
------------------------------------------------------------------------
Sec. 1208.35 [Amended]
0
15. Amend Sec. 1208.35 by, as shown in the following table, removing
the words in the left column and adding in their place the words in the
right column wherever they appear:
------------------------------------------------------------------------
------------------------------------------------------------------------
A noncitizen.............................. An alien.
a noncitizen.............................. an alien.
the noncitizen............................ the alien.
the noncitizen's.......................... the alien's.
------------------------------------------------------------------------
PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
0
16. The authority citation for part 1240 continues to read as follows:
Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226,
1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L.
105-277 (112 Stat. 2681).
0
17. The heading for part 1240 is revised to read as set forth above.
Sec. 1240.26 [Amended]
0
18. Amend Sec. 1240.26 by, as shown in the following table, removing
the words in the left column and adding in their place the words in the
right column wherever they appear:
------------------------------------------------------------------------
------------------------------------------------------------------------
A noncitizen.............................. An alien.
a noncitizen.............................. an alien.
the noncitizen............................ the alien.
noncitizen's.............................. alien's.
------------------------------------------------------------------------
Sirce E. Owen,
Acting Director, Executive Office for Immigration Review, Department of
Justice.
[FR Doc. 2025-16573 Filed 8-27-25; 8:45 am]
BILLING CODE 4410-30-P
</pre></body>
</html>Indexed from Federal Register on August 28, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.