Rule2026-02882
Privacy Act of 1974; Implementation
Primary source
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Published
February 13, 2026
Effective
March 16, 2026
Issuing agencies
Justice Department
Abstract
The Executive Office for Immigration Review (EOIR), a component within the United States Department of Justice (DOJ or Department), is finalizing without changes its Privacy Act exemption regulations for the system of records titled, Adjudication and Appeal Records of the Office of the Chief Immigration Judge and Board of Immigration Appeals, JUSTICE/EOIR-001, which were published as a Notice of Proposed Rulemaking (NPRM) on August 29, 2025. Specifically, the Department's regulations will exempt the records maintained in JUSTICE/ EOIR-001 from one or more provisions of the Privacy Act. The exemptions are necessary to protect properly classified information and law enforcement sensitive materials maintained in the system. The Department received one anonymous comment in support of this rulemaking in response to the NPRM.
Full Text
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<title>Federal Register, Volume 91 Issue 30 (Friday, February 13, 2026)</title>
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[Federal Register Volume 91, Number 30 (Friday, February 13, 2026)]
[Rules and Regulations]
[Pages 6757-6760]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02882]
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DEPARTMENT OF JUSTICE
28 CFR Part 16
[CPCLO Order No. 01-2026]
Privacy Act of 1974; Implementation
AGENCY: Executive Office for Immigration Review, United States
Department of Justice.
ACTION: Final rule.
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SUMMARY: The Executive Office for Immigration Review (EOIR), a
component within the United States Department of Justice (DOJ or
Department), is finalizing without changes its Privacy Act exemption
regulations for the system of records titled, Adjudication and Appeal
Records of the Office of the Chief Immigration Judge and Board of
Immigration Appeals, JUSTICE/EOIR-001, which were published as a Notice
of Proposed Rulemaking (NPRM) on August 29, 2025. Specifically, the
Department's regulations will exempt the records maintained in JUSTICE/
EOIR-001 from one or more provisions of the Privacy
[[Page 6758]]
Act. The exemptions are necessary to protect properly classified
information and law enforcement sensitive materials maintained in the
system. The Department received one anonymous comment in support of
this rulemaking in response to the NPRM.
DATES: This final rule is effective March 16, 2026.
FOR FURTHER INFORMATION CONTACT: Justine Fuga, Senior Component
Official for Privacy, Office of the General Counsel; Executive Office
for Immigration Review, 900 Market Street, Suite 504 Annex,
Philadelphia, PA 19107; <a href="/cdn-cgi/l/email-protection#fcb6898f88959299d2ba899b9dbc898f989396d29b938a"><span class="__cf_email__" data-cfemail="99d3eceaedf0f7fcb7dfecfef8d9eceafdf6f3b7fef6ef">[email protected]</span></a>;
<a href="/cdn-cgi/l/email-protection#c782888e95e997b5aeb1a6a4bee98ea9b3a6aca287b2b4a3a8ade9a0a8b1"><span class="__cf_email__" data-cfemail="b5f0fafce79be5c7dcc3d4d6cc9bfcdbc1d4ded0f5c0c6d1dadf9bd2dac3">[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 is updating 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, by means of a rulemaking
proceeding pursuant to 5 U.S.C. 553(b)(1)-(3), (c), and (e).
The Department is modifying 28 CFR part 16 to amend the Privacy Act
exemptions for 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 EOIR'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 records in the
system are subject to exemption pursuant to 5 U.S.C. 552a(k)(1) and
(2).
(b) Exemption from the subsections set forth below is 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 6759]]
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. 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 records in this
system of records are subject to the exemptions in 5 U.S.C. 552a(k)(1)
and (k)(2). To the extent that 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.
The Department received one supportive comment from an anonymous
submitter in response to the NPRM for JUSTICE/EOIR-001 (90 FR 42148
(Aug. 29, 2925)) and now finalizes this rule without changes.
Executive Orders 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b),
Principles of Regulation, and Executive Order 13563 ``Improving
Regulation and Regulatory Review'' section 1(b), General Principles of
Regulation. 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 regulation 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 regulation 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 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 regulation 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 regulation 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 amends 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.
Subpart E--Exemption of Records Systems Under the Privacy Act
0
2. Amend Sec. 16.83 by revising and republishing paragraph (a) to read
as follows:
Sec. 16.83 Exemption of the Executive Office for Immigration Review
System--limited access.
(a) The following system of records is exempt from 5 U.S.C.
552a(d):
[[Page 6760]]
(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).
(2) These exemptions apply only to the extent that records in the
system are 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: February 10, 2026.
Peter Winn,
Acting Chief Privacy and Civil Liberties Officer, United States
Department of Justice.
[FR Doc. 2026-02882 Filed 2-12-26; 8:45 am]
BILLING CODE 4410-30-P
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