Proposed Rule2025-16648
Privacy Act of 1974; Implementation
Primary source
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Published
August 29, 2025
Issuing agencies
Justice Department
Abstract
In the Notice section of today's Federal Register, the Executive Office for Immigration Review (EOIR), a component within the United States Department of Justice (DOJ or Department), has published a notice of a modified system of records, Adjudication and Appeal Records of the Office of the Chief Immigration Judge and Board of Immigration Appeals, JUSTICE/EOIR-001. This system of records has been exempted from the access and amendment provisions of the Privacy Act of 1974, U.S.C. 552a(d), pursuant to 5 U.S.C. 552a(k)(1), and (k)(2). See 28 CFR 16.83. In this notice of proposed rulemaking, EOIR proposes to update 28 CFR 16.83 consistent with the system of records' modifications to exempt this system of records from certain provisions of the Privacy Act to protect properly classified information and law enforcement sensitive materials maintained in the system. For the reasons provided below, the Department proposes to update its Privacy Act regulations exempting records in this system from certain provisions of the Privacy Act. Public comment is invited.
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<title>Federal Register, Volume 90 Issue 166 (Friday, August 29, 2025)</title>
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[Federal Register Volume 90, Number 166 (Friday, August 29, 2025)]
[Proposed Rules]
[Pages 42148-42151]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-16648]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 004-2025]
Privacy Act of 1974; Implementation
AGENCY: Executive Office for Immigration Review, United States
Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In the Notice section of today's Federal Register, the
Executive Office for Immigration Review (EOIR), a component within the
United States Department of Justice (DOJ or Department), has published
a notice of a modified system of records, Adjudication and Appeal
Records of the Office of the Chief Immigration Judge and Board of
Immigration Appeals, JUSTICE/EOIR-001. This system of records has been
exempted from the access and amendment provisions of the Privacy Act of
1974, U.S.C. 552a(d), pursuant to 5 U.S.C. 552a(k)(1), and (k)(2). See
28 CFR 16.83. In this notice of proposed rulemaking, EOIR proposes to
update 28 CFR 16.83 consistent with the system of records'
modifications to exempt this system of records from certain provisions
of the Privacy Act to protect properly classified information and law
enforcement sensitive materials maintained in the system. For the
reasons provided below, the Department proposes to update its Privacy
Act regulations exempting records in this system from certain
provisions of the Privacy Act. Public comment is invited.
DATES: Comments must be received by September 29, 2025.
ADDRESSES: You may send comments by any of the following methods:
<bullet> Email: <a href="/cdn-cgi/l/email-protection#e393918a9582809acd808c8e938f8a828d8086a39690878c89cd848c95"><span class="__cf_email__" data-cfemail="3d4d4f544b5c5e44135e52504d51545c535e587d484e595257135a524b">[email protected]</span></a>. To ensure proper
handling, please reference the CPCLO Order No. in the subject line of
the message.
<bullet> Fax: 202-307-0693.
<bullet> Mail: United States Department of Justice, Office of
Privacy and Civil Liberties, ATTN: Privacy Analyst, Two Constitution
Square, 145 N St. NE, Suite 8W-300, Washington, DC 20530. All comments
sent via regular or express mail will be considered timely if
postmarked on the day the comment period closes. To ensure proper
handling, please reference the CPCLO Order No. in your correspondence.
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
When submitting comments electronically, you must include the CPCLO
Order No. in the subject box. Please note that the Department is
requesting that electronic comments be submitted before midnight
Eastern Daylight Savings Time on the day the comment period closes
because <a href="http://www.regulations.gov">http://www.regulations.gov</a> terminates the public's ability to
submit comments at that time. Commenters in time zones other than
Eastern Time may want to consider this so that their electronic
comments are received.
Posting of Public Comments: Please note that all comments received
are considered part of the public record and made available for public
inspection online at <a href="http://www.regulations.gov">http://www.regulations.gov</a> and in the Department's
public docket. Such information includes personally identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter. If you want to submit personal identifying information
(such as your name, address, etc.) as part of your comment, but do not
want it to be posted online or made available in the public docket, you
must include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the
first paragraph of your comment. You must also place all personal
identifying information that you do not want posted online or made
available in the public docket in the first paragraph of your comment
and identify what information you want redacted.
If you want to submit confidential business information as part of
your comment, but do not want it to be posted online or made available
in the public docket, you must include the phrase ``CONFIDENTIAL
BUSINESS INFORMATION'' in the first paragraph of your comment. You must
also prominently identify confidential business information to be
redacted within the comment. If a comment has so much confidential
business information that it cannot be effectively redacted, all or
part of that comment may not be posted online or made available in the
public docket.
Personal identifying information and confidential business
information identified and located as set forth above will be redacted
and the comment, in redacted form, may be posted online and placed in
the Department's public docket file. Please note that the Freedom of
Information Act applies to all comments received. If you wish to
inspect the agency's public docket file
[[Page 42149]]
in person by appointment, please see the FOR FURTHER INFORMATION
CONTACT paragraph, below.
FOR FURTHER INFORMATION CONTACT: Alexander Y. Hartman, Senior Component
Official for Privacy, Executive Office for Immigration Review, Office
of the General Counsel, 5107 Leesburg Pike, Suite 2600, Falls Church,
VA 22041, <a href="/cdn-cgi/l/email-protection#9edff2fbe6fff0fafbecb0d6ffeceaf3fff0deebedfaf1f4b0f9f1e8"><span class="__cf_email__" data-cfemail="9edff2fbe6fff0fafbecb0d6ffeceaf3fff0deebedfaf1f4b0f9f1e8">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#783d37312a56280a110e191b015631160c19131d380d0b1c1712561f170e"><span class="__cf_email__" data-cfemail="1a5f555348344a68736c7b79633453746e7b717f5a6f697e7570347d756c">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
Under delegated authority from the Attorney General, EOIR
interprets and administers Federal immigration laws by conducting
immigration court proceedings, appellate reviews, and administrative
hearings. Two of EOIR's adjudicating components include the Office of
the Chief Immigration Judge (OCIJ) and the Board of Immigration Appeals
(BIA or Board). OCIJ oversees the administration of the immigration
courts nationwide. 8 CFR 1003.9. Immigration judges are responsible for
conducting immigration court proceedings. 8 CFR 1003.10. Decisions of
immigration judges are subject to review by the BIA in any case in
which the BIA has jurisdiction. 8 CFR 1003.10(c). The BIA is the
highest administrative body for interpreting and applying immigration
laws. 8 CFR 1003.1. The BIA and its appellate immigration judges have
nationwide jurisdiction to review certain decisions rendered by
immigration judges, Adjudicating Officials in attorney discipline
cases, and district directors of the Department of Homeland Security
(DHS). 8 CFR 1003.1(b).
Parties to immigration proceedings may file documents with the
immigration court or the BIA by mail, hand delivery, or electronically.
8 CFR 1003.2(g), 1003.3(g), 1003.31. The official file containing the
documents relating to an individual's immigration case is the Record of
Proceeding (ROP), which may be paper or electronic. ROPs generally
contain the Notice to Appear (Form I-862), hearing notices, a
practitioner of record's entry of appearance form (Forms EOIR-27 or
EOIR-28) (if any), any change of address forms (Form EOIR-33),
applications for immigration relief, evidence, exhibits, motions,
briefs, and all written orders and decisions of the immigration judge
or appellate immigration judge(s). See 8 CFR 1240.9. When relevant to
the immigration relief sought, parties may also file documents and
materials pertaining to an individual's criminal history or terroristic
activities, and such materials are incorporated into the ROP. See 8
U.S.C. 1182 (describing grounds for inadmissibility to include
criminal- and security-related grounds). Such information may be
classified or law enforcement sensitive, filed under seal or per a
request for an in camera hearing. Immigration hearings are digitally
recorded, and hearings may be transcribed. 8 CFR 1240.9. Transcripts of
hearings may also be included in the ROP. 8 CFR 1240.9.
EOIR maintains a system of records used by OCIJ and the BIA to
process, track, and adjudicate immigration proceedings. EOIR is
modifying the system of records, Adjudication and Appeal Records of the
Office of the Chief Immigration Judge and Board of Immigration Appeals,
JUSTICE/EOIR-001, to account for changes in the scope, character and
format, and routine uses of records in this system that have occurred
since EOIR last published a complete system of records notice on May
11, 2004. See Records and Information Management System, JUSTICE/EOIR-
001, 68 FR 26179 (May 11, 2004). EOIR is modifying the system of
records in the following ways. First, EOIR is expanding the scope of
this system of records by consolidating it with another system of
records, Decisions of the Board of Immigration Appeals, JUSTICE/BIA-
001, 48 FR 5331 (Feb. 4, 1983). The records in both systems serve the
same purposes, are authorized by the same legal authorities, and have
similar routine uses. EOIR will rename JUSTICE/EOIR-001 from ``Records
and Management Information System'' to ``Adjudication and Appeal
Records of the Office of the Chief Immigration Judge and Board of
Immigration Appeals.'' Second, EOIR is modifying this system of records
to encompass electronic records used by OCIJ and the BIA to adjudicate
immigration proceedings. OCIJ and the BIA have incorporated digital
processes producing electronic records that are not currently captured
in EOIR's systems of records notices. Third, EOIR is updating some of
the routine uses of this system of records to clarify EOIR's current
information sharing practices. Because the system of records is being
modified, EOIR proposes to also update the Privacy Act exemptions
claimed for the system.
II. Privacy Act Exemptions
The Privacy Act allows Federal agencies to exempt eligible records
in a system of records from certain provisions of the Act, including
those that provide individuals with a right to request access to and
amendment of records about the individual. If an agency intends to
exempt a particular system of records, it must first issue a rulemaking
pursuant to 5 U.S.C. 553(b)(1)-(3), (c), and (e).
The Department proposes to modify the Privacy Act exemptions for
this system of records at 28 CFR part 16, to better reflect the
modified system of records, Adjudication and Appeal Records of the
Office of the Chief Immigration Judge and Board of Immigration Appeals,
JUSTICE/EOIR-001. The regulations at 28 CFR 16.83 codify the exemption
of the Executive Office for Immigration Review's Adjudication and
Appeal Records of the Office of the Chief Immigration Judge and Board
of Immigration Appeals, JUSTICE/EOIR-001, from 5 U.S.C. 552a(d)
pursuant to 5 U.S.C. 552a(k)(1), and from 5 U.S.C. 552a(d)(2), (3), and
(4) pursuant to 5 U.S.C. 552a(k)(2). The regulations at 28 CFR 16.84
codify the exemption of the Board of Immigration Appeals system of
records, JUSTICE/BIA-001, from 5 U.S.C. 552a(d)(2), (3), and (4)
pursuant to 5 U.S.C. 552a(k).
EOIR is consolidating these two systems of records. As such, the
Department proposes to remove and reserve 28 CFR 16.84 and to rename
the system as it appears in 28 CFR 16.83 to ``Adjudication and Appeal
Records of the Office of the Chief Immigration Judge and the Board of
Immigration Appeals.'' The Department is not proposing any other
changes to 28 CFR 16.83 as the exemptions from 5 U.S.C. 552a(d)
pursuant to 5 U.S.C. 552a(k)(1), and from 5 U.S.C. 552a(d)(2), (3), and
(4) pursuant to 5 U.S.C. 552a(k)(2), continue to apply to this
consolidated system of records for the reasons provided in the
regulations and restated here:
(a) The following system of records is exempt from 5 U.S.C.
552a(d):
(1) The Executive Office for Immigration Review's Records and
Management Information System (JUSTICE/EOIR-001).
This exemption applies only to the extent that information in the
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(1) and (2).
(b) Exemption from the following subsections of the Privacy Act are
justified for the following reasons:
(1) From subsection (d) because access to information which has
been properly classified pursuant to an Executive Order could have an
adverse effect on the national security. In addition, from subsection
(d) because unauthorized access to certain investigatory material could
compromise ongoing or potential investigations; reveal the identity of
confidential informants; or constitute
[[Page 42150]]
unwarranted invasions of the personal privacy of third parties.
(2) From subsection (d) (2), (3), and (4) because the record of
proceeding constitutes an official record which includes transcripts of
quasi-judicial administrative proceedings, investigatory materials,
evidentiary materials such as exhibits, decisional memoranda, and other
case-related papers. Administrative due process could not be achieved
by the ex parte ``correction'' of such materials by the individual who
is the subject thereof.
28 CFR 16.83(a)-(b). The language in 28 CFR 16.84 with respect to
the exemption from 5 U.S.C. 552a(d)(2), (3), and (4) is duplicative of
28 CFR 16.83(b)(2), obviating the need for any modifications to the
regulations to account for the consolidation of the two systems.
These exemptions apply only to the extent that information in this
system of records is subject to an exemption pursuant to 5 U.S.C.
552a(k)(1) and (k)(2). To the extent that information in a record
pertaining to an individual does not relate to national defense or
foreign policy, official Federal investigations and/or law enforcement
matters, the exemption does not apply. In addition, where compliance
would not appear to interfere with or adversely affect the overall law
or regulatory enforcement process, the applicable exemption may be
waived by EOIR.
Executive Orders 12866 and 13563--Regulatory Review
In accordance with 5 U.S.C. 552a(k), this proposed action is
subject to formal rulemaking procedures by giving interested persons an
opportunity to participate in the rulemaking process ``through
submission of written data, views, or arguments,'' pursuant to 5 U.S.C.
553. The purpose of this proposed rule is to exempt certain records
within this system from the requirements of 5 U.S.C. 552a(d) for the
same reasons as currently stated at 28 CFR 16.83 and 16.84. This
proposed rule does not raise novel legal or policy issues, nor does it
adversely affect the economy, the budgetary impact of entitlements,
grants, user fees, loan programs, or the rights and obligations of
recipients thereof in a material way. The Department of Justice has
determined that this rule is not a ``significant regulatory action''
under Executive Order 12866, section 3(f), and accordingly this rule
has not been reviewed by the Office of Information and Regulatory
Affairs within the Office of Management and Budget pursuant to
Executive Order 12866.
Regulatory Flexibility Act
This proposed rule will only impact Privacy Act-protected records,
which are personal and generally do not apply to an individual's
entrepreneurial capacity, subject to limited exceptions. Accordingly,
the Chief Privacy and Civil Liberties Officer, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this
regulation and by approving it certifies that this regulation will not
have a significant economic impact on a substantial number of small
entities.
Small Business Regulatory Enforcement Fairness Act of 1996 (Subtitle
E--Congressional Review Act)
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996, 5 U.S.C. 801 et seq., requires the Department to comply with
small entity requests for information and advice about compliance with
statutes and regulations within the Department's jurisdiction. Any
small entity that has a question regarding this document may contact
the person listed in FOR FURTHER INFORMATION CONTACT paragraph, above.
Persons can obtain further information regarding SBREFA on the Small
Business Administration's web page at <a href="https://www.sba.gov/advocacy">https://www.sba.gov/advocacy</a>.
This proposed rule is not a major rule as defined by 5 U.S.C. 804 of
the Congressional Review Act.
Executive Order 13132--Federalism
This proposed rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988--Civil Justice Reform
This proposed regulation meets the applicable standards set forth
in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
drafting errors and ambiguity, minimize litigation, provide a clear
legal standard for affected conduct, and promote simplification and
burden reduction.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
This proposed rule will have no implications for Indian Tribal
governments. More specifically, it does not have substantial direct
effects on one or more Indian tribes, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal government and Indian tribes.
Therefore, the consultation requirements of Executive Order 13175 do
not apply.
Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local and Tribal governments, in the aggregate, or by the private
sector, of $100,000,000, as adjusted for inflation, or more in any one
year, 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.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires
the Department to consider the impact of paperwork and other
information collection burdens imposed on the public. This system of
records encompasses the official records of proceedings (ROPs) in
immigration cases before EOIR, which are comprised in part by EOIR and
DHS forms subject to the Paperwork Reduction Act. A list of active EOIR
forms and their OMB Control Numbers can be found on the EOIR website at
<a href="https://www.justice.gov/eoir/eoir-forms">https://www.justice.gov/eoir/eoir-forms</a>. A list of active DHS forms and
their OMB Control Numbers can be found on the DHS website at <a href="https://www.dhs.gov/find-dhs-forms">https://www.dhs.gov/find-dhs-forms</a>.
List of Subjects in 28 CFR Part 16
Administrative Practices and Procedures, Courts, Freedom of
Information, and the Privacy Act.
Pursuant to the authority vested in the Attorney General by 5
U.S.C. 552a and delegated by Attorney General Order 2940-2008, the
Department of Justice proposes to amend 28 CFR part 16 as follows:
PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
0
1. The authority citation for part 16 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510,
534; 31 U.S.C. 3717; 42 U.S.C. 405.
[[Page 42151]]
Subpart E--Exemption of Records Systems Under the Privacy Act
0
2. Amend Sec. 16.83 by revising paragraph (a)(1) to read as follows:
Sec. 16.83 Exemption of the Executive Office for Immigration Review
System--limited access.
(a) * * *
(1) The Executive Office for Immigration Review's Adjudication and
Appeal Records of the Office of the Chief Immigration Judge and Board
of Immigration Appeals (JUSTICE/EOIR-001).
This exemption applies only to the extent that information in the
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(1) and
(k)(2).
* * * * *
Sec. 16.84 [Removed and Reserved]
0
3. Remove and reserve Sec. 16.84
Dated: August 26, 2025.
Peter Winn,
Acting Chief Privacy and Civil Liberties Officer, United States
Department of Justice.
[FR Doc. 2025-16648 Filed 8-28-25; 8:45 am]
BILLING CODE 4410-30-P
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