Cite as "AILA InfoNet Doc. No. 02082644 (posted Aug. 26, 2002)"
For immediate release:
Amanda Carufel, (202) 216-2404
Ashcroft Changes to BIA: A Slap in the Face to
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
“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
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
“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.
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.