Rule2026-08484
Office of the Chief Administrative Hearing Officer, Chief Administrative Law Judge
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
April 30, 2026
Effective
April 30, 2026
Issuing agencies
Justice Department
Abstract
On October 7, 2020, the Department of Justice ("Department") published an interim final rule ("IFR") amending the regulations governing the Office of the Chief Administrative Hearing Officer ("OCAHO"). The amendments reflected changes related to the creation of the position of the Chief Administrative Law Judge ("CALJ") and made additional related technical changes. This final rule adopts the provisions of the IFR with minor technical corrections.
Full Text
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<title>Federal Register, Volume 91 Issue 83 (Thursday, April 30, 2026)</title>
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[Federal Register Volume 91, Number 83 (Thursday, April 30, 2026)]
[Rules and Regulations]
[Pages 23168-23170]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-08484]
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DEPARTMENT OF JUSTICE
28 CFR Part 68
[Docket No. 19-0312; Dir. Order No. 05-2026]
RIN 1125-AB06
Office of the Chief Administrative Hearing Officer, Chief
Administrative Law Judge
AGENCY: Executive Office for Immigration Review, Department of Justice.
ACTION: Final rule.
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SUMMARY: On October 7, 2020, the Department of Justice (``Department'')
published an interim final rule (``IFR'') amending the regulations
governing the Office of the Chief Administrative Hearing Officer
(``OCAHO''). The amendments reflected changes related to the creation
of the position of the Chief Administrative Law Judge (``CALJ'') and
made additional related technical changes. This final rule adopts the
provisions of the IFR with minor technical corrections.
DATES: This rule is effective April 30, 2026.
FOR FURTHER INFORMATION CONTACT: Jamee E. Comans, 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 is issuing this final rule pursuant to section
103(g) of the Immigration and Nationality Act (``INA'' or ``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). Under the
HSA, the Attorney General retains the 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, 116 Stat. at 2274 (codified at 8 U.S.C. 1103(g)(2)).
In Attorney General Order Number 6260-2025, pursuant to 28 U.S.C. 509
and 510, the Attorney General has delegated authority to issue
regulations related to immigration matters within the jurisdiction of
the Executive Office of Immigration Review (``EOIR'') to EOIR's
Director.
II. Summary of the IFR
On October 7, 2020, the Department published an IFR amending the
regulations governing OCAHO. Office of the Chief Administrative Hearing
Officer, Chief Administrative Law Judge, 85 FR 63204 (Oct. 7, 2020).
The IFR revised Sec. Sec. 68.2, 68.3, 68.8, 68.15, 68.26, 68.29,
68.30, 68.33, 68.55, and 68.57 in title 28 of the Code of Federal
Regulations (``CFR'').\1\
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\1\ The preamble to the IFR incorrectly stated that it included
an amendment to 28 CFR 68.23. See 85 FR 63205.
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A. Chief Administrative Law Judge
The IFR amended part 68 of chapter I of title 28 of the CFR to
reflect the creation of a CALJ position within OCAHO and to delineate
the responsibilities and authorities of the CALJ and the Chief
Administrative Hearing Officer (``CAHO''). See 85 FR 63205.
Specifically, the IFR provided that the CALJ will serve as an
Administrative Law Judge (``ALJ'') while also serving as the direct
supervisor of the other OCAHO ALJs and ALJ support staff. Id. The CAHO,
in turn, will supervise the CALJ and the non-ALJ support staff. Id. In
addition, in order to avoid recusal issues resulting from OCAHO's
increasing size, the IFR directed that (1) if an ALJ is disqualified
from adjudicating a case, the CALJ will reassign the case to another
ALJ; (2) if the CALJ is disqualified from adjudicating a case, the CAHO
will reassign the case to another ALJ; (3) if the CAHO is disqualified
from reviewing an interlocutory order under 28 CFR 68.53 or a final
order under 28 CFR 68.54, the review will be reassigned to the EOIR
Director; and (4) the disqualification procedures for ALJs in 28 CFR
68.30 also apply to the CAHO conducting an administrative review under
28 CFR 68.53 or 68.54. See 28 CFR 68.30.
B. Technical Changes
The IFR also made a variety of related technical edits to 28 CFR
part 68.
First, the IFR amended various references to the ``Chief
Administrative Hearing Officer'' to read ``Chief Administrative Law
Judge'' in 28 CFR part 68 to reflect the division of responsibility
described above. See, e.g., 28 CFR 68.26, 68.29.
Second, the IFR made technical changes at 28 CFR 68.15, 68.33,
68.55, and 68.57 that replaced outdated references to the former
Immigration and Naturalization Service (``INS'') with references that
reflect the current agency organization in the Department of Homeland
Security (``DHS''). See HSA, Pub. L. 107-296, 116 Stat. 2135, as
amended.
Third, the IFR italicized defined terms in 28 CFR 68.2 to improve
clarity, made stylistic changes in 28 CFR 68.2, and amended a
typographical error in the cross-reference at 28 CFR
68.33(c)(3)(iv).\2\
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\2\ The preamble to the IFR incorrectly stated that the section
including the updated cross-reference was at 28 CFR 68.33(d)(iv).
See 85 FR 63205.
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III. Public Comments on the IFR
The Department received no comments from the public on the IFR.\3\
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\3\ The record reflects one comment received, but this comment
is a test comment submitted by the Department itself and not a
comment from the public.
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IV. Provisions of the Final Rule
After receiving no public comments, the Department adopts the
provisions of the IFR as final with minor technical corrections set
forth in this section of the preamble.
First, the final rule further amends the definition of ``pleading''
in 28 CFR 68.2. The IFR defined ``pleading'' to include the following
documents submitted to the ALJ or, when no judge is assigned, the CALJ:
the complaint, the answer, any motions (including any supplements or
amendments to the motions or amendments), and any permitted replies to
any of the aforementioned documents. 28 CFR 68.2. Upon further
consideration, the Department believes that the IFR's definition could
be interpreted as inconsistent with other provisions of 28 CFR part 68.
Certain provisions of 28 CFR part 68 require specific pleadings to
be filed with the CAHO rather than with an ALJ or CALJ, as set forth in
the IFR's
[[Page 23169]]
definition of ``pleading.'' For example, 28 CFR 68.6(a) provides that
``[a]n original and four copies of the complaint shall be filed with
the [CAHO].'' Moreover, 28 CFR 68.11(a) states that ``[t]he [CAHO] is
authorized to act on non-adjudicatory matters relating to a proceeding
prior to the appointment of an [ALJ].'' That provision explicitly
authorizes the CAHO to act upon all motions or other similar documents
related to non-adjudicatory matters, such as a motion to withdraw or
substitute counsel, which a party may file before the assignment of an
ALJ. Thus, logically, parties should file such documents with the CAHO,
not the CALJ.
Given those regulatory provisions, the final rule revises the
definition of ``pleading'' to reference the CAHO. This change will
account for the fact that some types of pleadings listed in 28 CFR 68.2
may be--and sometimes must be--submitted to the CAHO rather than to an
ALJ or the CALJ.
Second, the IFR revised the definition of ``complainant'' in 28 CFR
68.2, but this definition was inadvertently included in duplicate upon
publication in the CFR. Compare 85 FR 63206-207, with 28 CFR 68.2 (Oct.
7, 2020). Accordingly, this final rule amends 28 CFR 68.2 to remove the
second, superfluous entry for the definition of ``complainant.''
Third, the IFR inadvertently replaced ``Chief Administrative
Hearing Officer'' with ``Chief Administrative Law Judge'' in 28 CFR
68.29 instead of adding ``Chief Administrative Law Judge.'' Thus, this
final rule amends 28 CFR 68.29 to correct this error so that, in the
event of the CALJ's unavailability, the CAHO would have the authority
to reassign cases to another ALJ.
V. Regulatory Review Requirements
A. Administrative Procedure Act
As in the IFR, the Department has determined that this rule is not
subject to the general requirements of notice and comment and a 30-day
delay in the effective date. The requirements of 5 U.S.C. 553 do not
apply to the regulatory changes creating and defining the
responsibilities of the CALJ position because it is a ``matter relating
to agency management or personnel'' and a rule of ``agency
organization, procedure, or practice.'' 5 U.S.C. 553(a)(2), (b)(A). The
Department also finds good cause to issue the technical changes made in
this final rule without notice and comment or a delay in effective
date, as those procedures are unnecessary under 5 U.S.C. 553(b)(B),
(d)(3). These changes are non-substantive; they simply reflect the
current government organization as determined by Congress in 2002 and
follow other similar amendments by the Department to the regulations
governing EOIR. See, e.g., Retrospective Regulatory Review Under E.O.
13563, 77 FR 59567, 59568-69 (Sept. 28, 2012) (describing similar
updated references to DHS in chapter V of 8 CFR).
The Department nonetheless promulgated this rule as an IFR,
providing the public with opportunity for post-promulgation comment. 85
FR 63204. The Department received no comments and now issues this final
rule adopting the provisions of the IFR with four technical amendments.
This final rule is exempt from the 30-day delay in effective date for
the reasons described above that the IFR was exempt from notice and
comment requirements. 5 U.S.C 553(a)(2), (b)(A)-(B), (d)(3).
B. Regulatory Flexibility Act
The Department has reviewed this rule in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that
this final rule will not have a significant economic impact on a
substantial number of small entities as defined in 5 U.S.C. 601(6).
C. Unfunded Mandates Reform Act of 1995
This final 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 annually 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. Congressional Review Act
Reports to Congress and the Government Accountability Office
(``GAO'') specified by 5 U.S.C. 801 are not required for this rule.
This final rule does not fall under the definition of a ``major rule''
or ``rule'' as defined in section 804 of the Congressional Review Act.
5 U.S.C. 804(2)-(3). As discussed in Section V.C. of this preamble,
this rule will not result in an annual effect on the economy of $100
million or more and will not result in major cost or price increases or
have significant adverse effects on United States-based enterprises. 5
U.S.C. 804(2). Further, this action pertains to agency management or
personnel and is a rule of agency organization that does not
substantially affect the rights or obligations of non-agency parties. 5
U.S.C. 804(3). Accordingly, it is not a ``major rule'' or ``rule'' as
those terms are defined in 5 U.S.C. 804(2)-(3) and such reporting to
Congress and the GAO is not required.
E. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of using the best available
methods to quantify costs and benefits, and of reducing costs,
harmonizing rules, and promoting flexibility.
Because this final rule is limited to agency organization,
management, or personnel matters, it is not subject to review by the
Office of Management and Budget pursuant to section 3(d)(3) of
Executive Order 12866. Further, because this rule is one of internal
organization, management, or personnel, it is not subject to the
requirements of Executive Order 13563.
F. Executive Order 13132 (Federalism)
This final rule will not have substantial direct effects on the
States, on the relationship between the Federal 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, it is determined that 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 final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act of 1995
This rule does not propose a new collection or revisions to an
existing ``collection of information'' as that term is defined under
the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C.
chapter 35, and its implementing regulations, 5 CFR part 1320.
[[Page 23170]]
I. Executive Order 14219 (Ensuring Lawful Governance and Implementing
the President's `Department of Government Efficiency' Deregulatory
Initiative)
This final rule is ``an[ ] action related to a[n] . . .
immigration-related function of the United States'' and is therefore
exempt from the requirements of Executive Order 14219 under section
7(a) of that Order.
J. 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 to criminal
enforcement, the authorizing statutes, and the mens rea standard
applicable to each element of those offenses. This rule does not adopt
a criminal regulatory offense and is thus exempt from Executive Order
14924 requirements.
List of Subjects in 28 CFR Part 68
Administrative practice and procedure, Aliens, Citizenship and
naturalization, Civil rights, Employment, Equal employment opportunity,
Immigration.
Accordingly, the interim rule amending 28 CFR part 68 which was
published at 85 FR 63204 on October 7, 2020, is adopted as final with
the following change:
PART 68--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE
HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING
ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF ALIENS, UNFAIR IMMIGRATION-
RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD
0
1. The authority citation for part 68 is revised to read as follows:
Authority: 5 U.S.C. 301, 554, 557(b); 8 U.S.C. 1103, 1324a,
1324b, and 1324c; 28 U.S.C. 509, 510, and 2461 note; and Pub. L.
101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat.
1321.
0
2. Amend Sec. 68.2 by:
0
a. Removing the second entry for the definition of ``Complainant''; and
0
b. Revising the definition of ``Pleading''.
The revision reads as follows:
Sec. 68.2 Definitions.
* * * * *
Pleading means the complaint, the answer thereto, any motions, any
supplements or amendments to any motions or amendments, and any reply
that may be permitted to any answer, supplement, or amendment submitted
to the Administrative Law Judge or, when no judge is assigned, the
Chief Administrative Law Judge or the Chief Administrative Hearing
Officer;
* * * * *
0
3. Revise Sec. 68.29 to read as follows:
Sec. 68.29 Unavailability of Administrative Law Judge.
In the event the Administrative Law Judge designated to conduct the
hearing becomes unavailable, the Chief Administrative Law Judge or the
Chief Administrative Hearing Officer may designate another
Administrative Law Judge for the purpose of further hearing or other
appropriate action.
Daren K. Margolin,
Director, Executive Office for Immigration Review, Department of
Justice.
[FR Doc. 2026-08484 Filed 4-29-26; 8:45 am]
BILLING CODE 4410-30-P
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</html>Indexed from Federal Register on April 30, 2026.
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