For immediate release:       
Monday, August 26, 2002   

Contact:
Amanda Carufel, (202) 216-2404

Ashcroft Changes to BIA: A Slap in the Face to Immigrants

Washington, D.C. – The Attorney General today issued a final regulation that will negatively impact how the Board of Immigration Appeals (BIA) functions by severely compromising due process and the independence of the immigration court system. These changes join others the Bush Administration has issued in the past year that fail to balance our enhanced security needs with this nation of immigrants’ Constitutional guarantees.  As the highest administrative appeals body for immigrants that reviews decisions made by immigration judges and INS officials in individual cases, BIA members make decisions that ultimately can determine whether someone who has been persecuted and tortured for his beliefs will live or die and whether U.S. families will be united or divided. 

“The BIA often is the court of last resort for the vast majority of people seeking review of decisions by immigration judges.  It is vitally important that the BIA remain a robust and vigorous review body,” said Jeanne Butterfield, Executive Director of the American Immigration Lawyers Association (AILA).  “It is troubling that the Bush Administration talks about reaching out to immigrants on the one hand, but pulls the appellate rug out from under them with the other.”

Despite voluminous comments from numerous organizations raising issues of critical concern, the final regulations are nearly identical to the regulations proposed last February, and go in the wrong direction. Immigration laws are incredibly complex and often unclear, Congressional intent is often ambiguous, and the INS itself frequently argues positions that courts later hold are contrary to congressional intent. Yet the Administration’s changes seem to assume that the appeals before the Board do not involve complex questions of law.

“AILA fully shares the Attorney General’s concern that the Board achieve timely and efficient adjudications and backlog reductions.  But the Administration’s  regulations, issued in the guise of achieving efficiency, will sacrifice justice in the name of expediency,” said Ms. Butterfield.  AILA, along with dozens of our coalition partners, called on the Attorney General in a February 11 letter to bring together interested constituencies to recommend proposals to improve administrative review in a way that will affirm the independence and impartiality of the BIA, facilitate immigrants’ access to the BIA, enhance due process, and promote an efficient adjudications system.  The Attorney General never responded to that call. 

The new regulations, slated to go into effect on September 25, 2002, ignore the fact that changes the BIA recently initiated already had begun to show results by increasing efficiency and reducing the backlog, without sacrificing due process.  These regulations run counter to these proven changes by reducing the size of the Board to a mere 11 members, mandating review by single Board members instead of panels of three, imposing extraordinarily tight briefing schedules (detained persons must submit their appeal briefs within 21 days, simultaneously with the government’s brief and without the chance to see the government’s arguments), and severely circumscribing the discretion of BIA Members to review the facts of the case before them.

Immigration courts must be independent, impartial, and include meaningful checks and balances.  To that end, AILA advocates the creation of a separate and independent immigration court and appellate system. These and other issues are detailed in testimony AILA presented before the House Immigration Subcommittee during a February 6, 2002 hearing, and are currently under consideration by the Senate in the context of the debate on the creation of a Department of Homeland Security.  “The time has come for an independent court,” concluded Ms. Butterfield.

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Founded in 1946, AILA is a nonpartisan, nonprofit organization that provides its Members with continuing legal education, information, professional services and expertise through its 35 chapters and over 75 national committees. AILA also advocates before Congress and the Administration, as well as providing liaison with the INS and other government agencies in support of pro-immigration initiatives. AILA is an Affiliated Organization of the American Bar Association and is represented in the ABA House of Delegates.

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