Cite as "AILA InfoNet Doc. No. 01030206 (posted Mar. 2, 2001)"
February 26, 2001
Adkins-Blanch, General Counsel
Executive Office for Immigration Review
5107 Leesburg Pike
Falls Church, VA 22041
65 Fed. Reg. 81434 (12/26/00), Authorities Delegated to the Director of the
Executive Office for Immigration Review, the Chairman of the Board of
Immigration Appeals, and the Chief Immigration Judge
American Immigration Lawyers Association (AILA) is writing to comment
on proposed regulations published in the Federal Register on December 26, 2000.
The American Immigration Lawyers Association (“AILA”) is a voluntary
bar association of approximately 7,000 attorneys and law professors practicing
and teaching in the field of immigration and nationality law. AILA’s members
represent and advocate on behalf of thousands of aliens each year, and AILA
remains committed to justice and fairness in the proceedings to which those
aliens may become subject.
is very concerned about section 3.0(b)(ii) of the proposed regulation, which
would grant the Director the authority to, among other things, “Direct…the
efficient disposition of all pending cases, including the power, in his
discretion, to set priorities or time frames for the resolution of cases….”
This provision would appear to grant the Director plenary power to set
specific time frames in which cases must be adjudicated.
However, individual cases cannot be re-shaped to fit
externally-determined time frames. Only the litigants involved in trying the case can know how
much time is necessary to fully present the evidence required to ensure that the
Immigration Judge can accurately evaluate the credibility of the witnesses and
make a fully informed decision. Especially
in the context of an asylum claim, where a traumatized witness’ testimony must
be carefully and often slowly elicited, externally-imposed time limitations
would undermine the capacity of the immigration court to fully and fairly
develop all the relevant facts. Indeed,
AILA would be troubled if an IJ attempted to impose an arbitrary time limit on
proceedings: we are doubly
disturbed by the authorization of someone outside the courtroom to impose such a
3.0(b)(2) only increases our concern over this provision.
This subsection allows the Director to delegate the authority to impose
time limits to “any other EOIR employee.”
It is bad enough that someone outside the immediate courtroom be able to
impose time limits on proceedings. It
is unconscionable that such limits might be imposed by just anyone, including
someone who may be concerned more with “case completion numbers” than with
concerns with these provisions are only exacerbated by section 3.0(c), which
rightly indicates that the Director cannot direct the result of an adjudication,
but then states that “nothing in this part shall be construed to limit the
authority of the Director under paragraph (b) of this section.”
The result is that the prohibition against the Director’s involvement
in individual determinations is superseded by the Director’s (or his
designee’s) ability to impose time limits.
Unfortunately, such a time limit can, and often will, negatively impact a
case if insufficient time is allowed for both sides to fully present the
evidence and cross-examine witnesses.
sum, AILA regards this proposal as a threat to due process and to the fairness
of proceedings. We urge that the
language in section 3.0(b)(1)(ii) granting the Director discretion “to set
priorities or time frames for the resolution of cases” be deleted.
you for your consideration.
IMMIGRATION LAWYERS ASSOCIATION