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Arthrex Triggers OCAHO IFR (Advance Copy)

October 10, 2023 (1 min read)

EOIR - Sept. 30, 2023

"The Department of Justice ("Department") is revising its regulations to provide that the Attorney General may, in his discretion, review decisions and orders of Administrative
Law Judges ("ALJs") in the Office of the Chief Administrative Hearing Officer ("OCAHO") in cases arising under section 274B of the Immigration and Nationality Act ("INA" or ''the Act"). In the 2021 case United States v. Arthrex, Inc., the Supreme Court held that, under Article II of the Constitution, decisions issued by certain inferior officers exercising adjudicatory authority must be subject to review by a politically accountable official, such as an officer appointed by the President with the advice and consent of the Senate. Under current regulations, the decisions and orders issued by OCAHO ALJs in cases arising under section 274B of the INA are not expressly subject to further review by an officer appointed by the President with the advice and consent of the Senate. By contrast, current regulations expressly provide that decisions and orders issued by
OCAHO ALJs in cases arising under sections 274A and 274C of the INA are subject to review by the Attorney General. Accordingly, this revision will ensure that the adjudicatory process for section 274B cases is consistent with the Supreme Court's decision in Arthrex, and will align that process with similar processes for discretionary review of decisions by ALJs in OCAHO and throughout the Executive Branch. It will not limit or alter parties' right to seek judicial review of adverse decisions. DATES: Effective date: This rule is effective [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER]. Comments: Electronic comments must be submitted and written comments must be postmarked or otherwise indicate a shipping date on or before [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. The electronic Federal Docket Management System (FDMS) at https:/ will accept electronic comments until 11 :59 p.m. Eastern Time on that date."