Letter from AILA to Attorney General Gonzales Regarding Due Process in Removal Proceedings

FAX: 202-783-7853

January 10, 2006

The Honorable Alberto R. Gonzales
Attorney General
Robert F. Kennedy Building
Washington, DC 20530

Dear Attorney General Gonzales:

During the discussion following your remarks at the Council of Foreign Affairs meeting in New York on December 1, I raised a concern with you about the continued use of the "Affirmance Without Opinion" (AWO) procedure employed by the Board of Immigration Appeals (BIA) in the light of increasing and severe criticism of this procedure by a number of U.S. Courts of Appeals. As the decisions from these courts demonstrate, the abbreviated AWO review carried out by a single member of the BIA has proven to be an inadequate check against even simple errors by Immigration Judges (IJs). As a result, seriously flawed IJ decisions are being elevated to the status of final agency decisions in removal proceedings. This result not only hurts the respondents involved in the individual cases, but also undermines public confidence in Department of Justice judges and processes. This letter provides you with additional information about and citations to relevant federal court decisions that illustrate this problem.

In July 2002, the Department of Justice adopted final regulations that restructured and streamlined the appeals process before the BIA, and included an enhanced "affirmance without opinion" procedure. See Board of Immigration Appeals; Procedural Rules to Improve Case Management; Final Rule, 67 Fed. Reg. 54878 (August 26, 2002). This procedure allows a single Board member to affirm an IJ decision without opinion. The regulations make clear that an AWO is not an affirmance of the reasoning of the IJ, but only of the result. In fact, although the Board Member may disagree with the IJ's reasons for the decision, the Board Member is prohibited by the regulation from explaining his or her own reasons. For purposes of federal court review, the AWO process elevates the IJ decision to the status of the final agency decision to be reviewed. Consequently, federal courts are now directly reviewing IJ decisions, where previously there would have been a BIA decision and rationale for the court to review.

Increasingly, courts are reversing immigration decisions due to seriously flawed IJ decisions. For example, the Seventh Circuit recently calculated that it reversed the Board in a "staggering 48%" of the petitions for review that were decided on the merits in the preceding twelve months. Noting that its criticisms of the BIA and the IJs have "frequently been severe," the Seventh Circuit also stated:

Th[e] tension between judicial and administrative adjudicators is not due to judicial hostility to the nation's immigration policies or to a misconception of the proper standard of judicial review of administrative decisions. It is due to the fact that the adjudication of [immigration] cases at the administrative level has fallen below the minimum standards of legal justice. … [I]t cannot be in the interest of the immigration authorities, the taxpayer, the federal judiciary, or citizens concerned with the effective enforcement of the nation's immigration laws for removal orders to be routinely nullified by the courts … [T]he power of correction lies in the Department of Homeland Security, which prosecutes removal cases, and the Department of Justice, which adjudicates them.

Benslimane v. Gonzales, __ F.3d __, 2005 U.S. App. LEXIS 26048, *3-4 (7th Cir. 2005) (emphasis added).

The Seventh Circuit is not alone in its criticisms, as a number of other courts also have expressed concern over the increasing number of below-standard decisions of IJs that they are now forced to review. See, e.g., Alarcon-Chavez v. Gonzales, 403 F.3d 343, 346 (5th Cir. 2005) (finding that the IJ exhibited "an arbitrary exercise of judicial fiat at the expense of a powerless alien whom the DHS had already found to have a credible fear of returning to Cuba"); Cao v. Gonzales, 407F.3d 146, 161 (3rd Cir. 2005) (finding that the IJ's credibility determination was based upon impermissible "personal notions," "untenable conclusions," and "speculation or conjecture"); Recinos de Leon v. Gonzales, 400 F.3d 1185, 1193-94 (9th Cir. 2005) ("By streamlining the case, the BIA offered no coherent alternative explanation for the decision not dependant on the IJ's deficient finding of facts. Instead, the BIA rested on the IJ's indecipherable explanation").

Attached you will find a list of additional cases in which the courts have reversed removal decisions because of basic errors by IJs. Were it not for the AWO procedure, these errors would likely have been remedied by the BIA when it issued its own decision in the case. We believe that these cases demonstrate that the AWO procedure is not working and that it should be abandoned. The BIA must carefully and thoroughly review administrative appeals.

AILA appreciates very much the new leadership you are bringing to the Department of Justice, and commends you especially for the strong statement you issued today about your expectations for immigration judges. We look forward to working with you as you further examine the work of the Executive Office for Immigration Review and the AWO process.

Sincerely yours,

Deborah J. Notkin
AILA President

Enclosure: Case citations

Cite as AILA Doc. No. 06011161.