In just the last two weeks, congressional calls to #EndFamilyDetention have turned the tide of momentum significantly.
AILA Doc No. 02032031 | Dated March 20, 2002
March 20, 2002
Adkins-Blanch, General Counsel
Executive Office for
5107 Leesburg Pike,
Falls Church, VA
Board of Immigration Appeals: Procedural Reforms to Improve Case
67 Fed. Reg. 7309 (Feb. 19, 2002)
The American Immigration Lawyers Association (AILA)
submits the following comments on proposed regulations published in the Federal
Register in February 19, 2002 that would revise the structure and procedures of
the Board of Immigration Appeals (BIA). AILA is a voluntary bar association of more than 7,800
attorneys and law professors practicing and teaching in the field of immigration
and nationality law.
AILA takes a very broad view on immigration
matters because our member attorneys represent tens of thousands of U.S.
families who have applied for permanent residence for their spouses, children,
and other close relatives to lawfully enter and reside in the United States.
AILA members also represent thousands of U.S. businesses and industries
that sponsor highly skilled foreign professionals seeking to enter the United
States on a temporary basis or, having proved the unavailability of U.S.
workers, on a permanent basis. Our
members also represent asylum seekers, often on a pro bono basis, as well as
athletes, entertainers, and foreign students.
AILA appreciates this opportunity to comment on
the proposed regulations. Our
members frequently appear before the BIA and are vitally interested in that
body’s processes and procedures. While
AILA shares the concerns expressed by the Bush Administration and others about
both the backlogs at the BIA and the time taken to complete cases, we oppose the
bulk of the Administration’s proposed solutions. Namely, we fear that the Administration’s proposal would
tilt the balance in favor of expeditiousness, instead of fostering careful and
just adjudications, thereby impairing the due process rights of individuals
while undermining the Board's capacity to provide meaningful appellate review.
While it is vitally important to improve the
efficiency and effectiveness of immigration adjudications, any changes must
satisfy due process requirements. When
viewed in the aggregate, the proposed changes signal a drastic and unwarranted
move in the wrong direction—a direction that triggers substantial due process
alarms. As discussed below, there
are more appropriate options to achieving the goals set forth in the proposed
rule—options that comply with fundamental notions of fairness and due process.
We direct your attention to the following
specific comments on selected portions of the Administration’s proposed rule.
We also request an extension of the 30-day
deadline for submitting comments. Thirty
days offers insufficient time to comment on a complicated issue that has
enormous consequences for immigrant communities nationwide.
The February 19, 2002, proposed rule would make
a number of structural and procedural reforms at the BIA, including cutting the
number of Board Member positions from the current 23 permanent positions to 11.
The preamble to the proposed rule states that the proposed reforms are
intended to accomplish the following four objectives:
(1) eliminate the backlog of approximately 55,000 cases currently pending
before the Board; (2) eliminate unwarranted delays in the adjudication of
administrative appeals; (3) utilize the resources of the Board more efficiently;
and (4) allow more resources to be allocated to the resolution of those cases
that present difficult or controversial legal questions. Specific reforms set forth in the proposed rule include:
Review and New Criteria for Three-Member Panel Review. The proposed rule would mandate single-member review for all
cases except those falling within one
of five enumerated categories. Those
five categories include cases in which there is a need to: (1) settle
inconsistencies between the rulings of different immigration judges (IJs); (2)
clarify ambiguous laws, regulations, or procedures; (3) correct a decision by an
IJ or the Service decision that is plainly not in conformity with the law or
with applicable precedents; (4) resolve a case or controversy of “major
national import”; or (5) correct a clearly erroneous factual determination by
an IJ. Cases falling within one of
these categories would be adjudicated by a three-member panel,
as is the current practice.
Under the proposal, all cases would initially
go to a “screening panel,” on which single members would decide the majority
of cases. Each member of the panel
would individually screen cases and would either adjudicate the case him- or
herself, or determine that the case merits three-member panel review.
The BIA Chairman would have the discretion to allocate members to the
screening panel and three-member panels, as he or she “deems appropriate.”
De Novo Review. The proposed rule also would eliminate the BIA’s de novo review of
factual issues, requiring members to accept the factual findings of the IJ
unless they are “clearly erroneous.” The
proposed rule thus also would prohibit the introduction and consideration of new
evidence in proceedings before the Board. In
addition, the proposal would restore a regulatory provision that requires the
Board to dismiss summarily an appeal that is filed for an improper purpose, such
as to cause unnecessary delay.
The new rule also would establish a series of time limits geared toward
expediting the adjudication process. IJs
would have to complete their review of the decision transcripts within 14 days.
Parties would still have 30 days to file an appeal, but would have to
brief the case simultaneously within 21 days.
Current procedures allow each party 30 days in which to file their
respective briefs. The single
members of the new screening panel would have 90 days in which to either decide
the case or refer it for three-member panel review, and the three-member panels
normally would have to decide the case within 180 days.
If the Board Member drafting the opinion is
unable to meet the 180-day deadline, he or she could request from the BIA
Chairman an extension of up to 60 days. If
the decision of panel majority is still not completed at the end of the 60-day
period, the Chairman either would have to decide the case her- or himself,
within 14 days, or refer the case to the Attorney General for a decision.
If a dissenting or concurring panel member fails to complete his or her
opinion by the end of the 60-day extension period, the majority decision would
be rendered without that dissent or concurrence attached.
The Chairman would be required to notify the
Director of the EOIR or the Attorney General if any Board Member repeatedly
fails to meet assigned deadlines, and compliance with such deadlines would be
reported each year in annual performance reviews. The rule would provide an exception to these time limits in
cases where an impending decision by the U.S. Supreme Court or a court of
appeals would “substantially determine the outcome of a case or group of cases
pending before the Board.” In
such cases, the Chairman would have the discretion to hold the case until such
decision is rendered.
Case Management System, and Transfer of Some Cases to OCAHO.
The proposed rule also would require the Board to give priority to cases
involving detained persons, and would require the Chairman to establish a case
management system for the expeditious resolution of all appeals.
In addition, jurisdiction over appeals of INS decisions imposing
administrative fines would be transferred from the BIA to the Office of the
Chief Administrative Hearing Officer (OCAHO).
to be Implemented Immediately and Applied to the Backlog.
The new procedures outlined above would begin immediately upon the rule’s
effective date, and would apply both to incoming cases and retroactively to
cases currently pending in the backlog. The
rule envisions that the Board will have eliminated the backlog at the end of a
180-day “transition period,” with no case pending for longer than ten months
from the completion of the record on appeal.
Number of Board Members. At the conclusion of the 180-day "transition" period, the
rule would reduce the number of Board Members to 11, with the Attorney General
designating the membership. The
Chairman would allocate members to the new screening panel and to the
three-member panels as she or he deems appropriate.
II. GOALS AND CONSTITUTIONAL REQUIREMENTS BY WHICH
REFORMS MUST BE MEASURED
There are four goals of any administrative
review process: accuracy, efficiency, acceptability, and consistency. Accuracy reflects the need to determine the truth.
Efficiency encompasses minimizing the monetary costs to the parties and
to the public as well as the costs of the waiting time and the
decision-makers’ time. Acceptability
recognizes the importance of having a procedure that the litigants and the
general public perceive as fair. Consistency enhances stability and helps ensure equal
treatment of similarly situated litigants.
Consistency is undermined when the opinions of the administrative body
are of poor quality and are frequently overruled. Consistency also promotes the conservation of resources by
decreasing the need to reconsider questions of law that have been clearly
resolved, and by offering clear and uniform guidelines to those who enforce the
Any administrative review system must also
comply with the due process clause of the U.S. Constitution, which provides that
“no person shall…be deprived of life, liberty, or property, without due
process of law.” Due process is a fundamental principal of fairness in all
legal matters. In Mathews v. Eldridge,
the U.S. Supreme Court set forth a three-part balancing test to determine
whether administrative reforms will yield procedures that are constitutionally
sufficient. These factors are: (1)
the private interest that will be affected by the administrative action; (2) the
risk of an erroneous deprivation of such interest through the procedures used;
and (3) the government’s interest, including the fiscal and administrative
burdens, that new procedures would entail.
The Attorney General’s proposed reforms of the
immigration appeal function must be measured against the three-part test of Matthews
v. Eldridge, as well as satisfy the four goals of accuracy, efficiency,
acceptability, and consistency. If
the proposed reforms promoted accurate and consistent decisions and enhanced the
efficiency and acceptability of its operations, everyone would benefit.
Such reforms would yield high-quality opinions that would withstand
appeal, and the perception that the BIA provides justice would be strengthened.
In addition, uniformity in the interpretation of the law by judges,
enforcement of the law by the INS, and understanding of the law by the public
would be enhanced.
Unfortunately, the Attorney General’s
proposed rule would undermine rather than enhance the administrative appeals
process. As set forth in more
detail below, the proposed changes would thwart accuracy, diminish efficiency,
and undermine the acceptability and consistency of the BIA’s important work.
The proposed reforms also fail to ensure due process protections by
significantly increasing the risk of erroneous deprivation of private interests,
while doing little to decrease the government’s fiscal and administrative
III. THE BOARD ALREADY HAS IN PLACE PROCEDURES TO HANDLE ITS GROWING CASELOAD WITH PROVEN SUCCESS
Annual appeals filed with the BIA have increased
ten-fold since 1984. According to
statistics from the EOIR, in fiscal year (FY) 1984 the Board received fewer than
3,000 cases; in 1994, more than 14,000 cases; and in 2000, nearly 30,000 cases.
In addition, the BIA now
reviews the decisions of over 200 IJs, up from 69 judges in 1990 and 86 in
The BIA has grappled with
its burgeoning caseload in several ways. Since
1995, it has expanded the number of permanent Board Members on several
occasions, growing from five permanent positions to the current 23 Board Member
positions, four of which remain vacant. Significant
staff increases have accompanied the expansion of the Board.
On October 18, 1999, the EOIR published a final rule
in the Federal Register establishing a streamlined appellate review procedure
for certain categories of cases. This
streamlining procedure permits a single Board Member to issue affirmances
without opinion in cases where: (1) the result below was correct; (2) any errors
in the decision were harmless or immaterial; and (3) either the issue on appeal
is squarely controlled by existing BIA or federal court precedent or the factual
or legal issues raised are so insubstantial that three-member panel review is
not warranted. The streamlining
procedures also allow for single member disposal of certain motions, withdrawals
of appeals, summary remands, summary dismissals, and other procedural or
ministerial issues, as determined by the BIA Chairman.
The streamlining program is being implemented
in four phases. Phases I and II involved the conversion of certain categories of
cases to single member review. Building
upon those initial phases, Phase III (the Streamlining Pilot Project) began on
September 5, 2000, and incorporated for the first time the summary affirmance
procedures provided for in the regulation.
Phase IV will consist of the permanent implementation of the streamlining
An outside auditor recently conducted an independent assessment of the Streamlining Pilot Project to evaluate its effectiveness and to make recommendations to implement the project’s final phase. According to a summary of the audit, the assessment included an analysis to compare and contrast changes that have occurred as a result of streamlining, and the impact on the process and productivity of the Board’s non-streamlined aspects. The audit team concluded that the “overwhelming weight of both ‘objective’ and ‘subjective’ evidence gathered and analyzed indicated that the Streamlining Pilot Project has been an unqualified success.” Specifically, the report found that streamlining has “significantly improved” productivity, both in terms of the number of cases completed and the average number of days required for a case to be processed.
The report notes that although the efficiency
of streamlining is expected to eliminate the remainder of pending cases eligible
for streamlining within 20 months, the program should remain viable and can be
sustained based solely upon the incoming stream of cases. For example, the
report continues, the Board in FY 2001 received an average of 2,350 new cases
per month, approximately 35 percent of which were completed by the streamlining
panel. Assuming the continuation of
this trend, the report adds, streamlining should dispose of approximately 825
cases per month plus any additional cases made appropriate for streamlining by
changes in the statute, regulations, case law, or expansion of the streamlining
IV. THE PROPOSED REFORMS RAISE SIGNIFICANT DUE PROCESS CONCERNS AND WOULD ADVERSLY AFFECT INDIVIDUALS’ RIGHTS TO MEANINGFUL APPELLATE REVIEW
The many members of AILA who practice before
the BIA fully support the Attorney General’s goal of achieving timely and
efficient adjudications and backlog reduction.
It serves no one’s interest, not the attorney and certainly not the
foreign national respondent, to have appeals languishing while the respondent
either remains in detention or otherwise awaits a final decision that will
determine his or her fate.
It may have been the case in some instances in
the past that a person could achieve some benefit from delay.
Accrual of time toward qualifying for certain forms of relief from
deportation; the passage of time in which new changes in law provided new
benefits; higher court decisions that set new precedent that might determine the
outcome of certain cases: all of these factors potentially could benefit a
person awaiting BIA action on their case.
However, changes in our immigration laws
enacted by Congress in the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRAIRA)
largely eliminated any possible benefit of delay.
The “stop time” rule enacted in IIRAIRA § 309(c)(5) eliminated
accrual of time toward qualifying for relief.
And the uncertainty facing a respondent whose grant of relief is being
challenged by the INS is an incredibly stressful factor that every respondent
wants ended by a final adjudication by the administrative appellate body.
AILA has argued strenuously for timely
adjudications of petitions and applications for INS benefits, and supports the
INS Commissioner’s goal of achieving six-month adjudications for all
immigration cases. AILA also
strongly supports the Attorney General’s stated goal of having the BIA
complete adjudications within a six-month time period.
This time period should be much shorter for persons who are detained by
the INS during their appeal process. AILA
also fully supports the Attorney General’s goal of completely clearing the
current BIA backlog of 56,000 cases within a reasonable period of time.
However, AILA does not believe that the methods the
Attorney General has proposed for achieving timely adjudications and backlog
elimination will succeed, for the following reasons:
Existing Backlogs Are Not The Result Of Inefficiency But Reflect A Lack
Of Resources. A Reduction In The Number Of Board Members Does Not Genuinely
Serve The Interests Of Fairness Or Efficiency
Existing backlogs are not the result of inefficiency
but reflect a lack of resources. A reduction in the number of Board Members will
not genuinely promote efficiency because the Board will be unable to ensure
accurate, acceptable and consistent decisions. Although the BIA currently has 23 permanent positions, four
are vacant, and the four newest members of the Board had no prior expertise in
Contrary to the Attorney General’s assertion,
the Board does not take “an inordinately long time” to resolve cases.
under numerous statutory and regulatory changes, the still understaffed Board
has steadily increased its adjudications despite an increasingly complex
With the support of about 120 staff attorneys,
the Board is expected to adjudicate annually about 30,000 to 35,000 cases, many
of which must now reflect multiple changes in the immigration laws.
Where the original five-member Board adjudicated approximately 3,000
cases a year, the current 19 members are responsible for ten times the annual
caseload, as well as whittling away at a backlog of more than 56,000 cases.
Management initiatives, such as the
streamlining measures that took effect a little more than one year ago, have
begun to show results. Case
completions have increased from an average of about 20 per staff attorney per
month to about 40 to 50 per staff attorney per month.
The proposed reduction in the Board by more than half
would do little to alleviate the current backlog.
The proposal would require each of the 11 remaining Board Members to
complete an average of over 50 cases each week to keep current with incoming
receipts. Even presuming that nine
staff attorneys support each Board Member, the proposed workload is staggering.
We fear that Board Members would be forced to rubber-stamp IJ decisions
without thorough and thoughtful review and analysis.
The ability of the Board to provide a sound basis for circuit court
review would be compromised. The
fairness of the adjudicatory process would suffer.
Assuming that the Chairman exercised the option
of appointing temporary Board Members under proposed 8 CFR § 3.1(a)(4),
the learning curve facing this class of members would likely further impair
efficiency. Because their service
is limited to terms of six months or less, these itinerant adjudicators would
lack the expertise necessary to efficiently produce accurate and consistent
decisions. Further, the ability to
appoint an unlimited amount of temporary members would appear to defeat the
purpose of reducing the number of permanent Board Members.
It is counterintuitive to think
that eliminating Board Members while caseloads continue to increase will resolve
backlog problems. Speed is not efficiency.
Ironically, the Attorney General proposes applying any “savings” from
the implementation of this plan to address delays and backlogs at the INS.
The Department of Justice has experienced previous success in addressing
backlogs in asylum processing and naturalization cases, primarily through
increased personnel and other resources; it is disingenuous to expect the Board
to maintain the quality of its adjudications and increase its productivity in
the face of handicapping reductions in resources.
During the last several years, Congress
has provided for hundreds of additional Border Patrol and other INS officers to
enhance enforcement. As more INS
enforcement officers resulted in more apprehensions and created more deportation
and removal cases, Congress also provided substantial increases in funding for
more IJs to handle those cases. Now
that these increased efforts have produced a greater backlog at the BIA, the
Attorney General proposes to reduce this backlog not by increasing its staff but by cutting it in half.
Somebody is not doing it right—either Congress (and everybody else) is
wrong by increasing personnel to deal with workload, or the Attorney General is
wrong in imagining that more appeals can be handled faster by half the
The importance of the work of the members of
the BIA must not be underestimated. Board Members often make decisions that will
determine whether someone who has been persecuted and tortured will live or die,
whether a U.S. family will be divided, or whether a permanent resident who has
lived here for decades will be returned to a country where he/she has no ties.
Board Members have to make these decisions in a dynamic framework,
oftentimes against a backdrop of uneducated, unrepresented, frequently
traumatized foreign nationals, poor quality transcripts, and ill-trained IJs.
Country and political conditions also frequently change, further
affecting the decisions that Board Members must make.
Moreover, Congress has enacted important changes in our immigration laws
several times in the last five years, and ambiguities exist with regard to some
aspects of those changes.
The Board will be much more capable
of addressing difficult or controversial legal questions if there are a
sufficient number of Board Members to do the job. Each new Congress or
Administration has different ideas about immigration policy. It is constantly
changing. In the last 15 years there have been major overhauls of the
immigration laws in 1986, 1990, and 1996. In addition there have been several
significant technical amendments since that time. In addition, new changes in
the law or procedures relating to forms of relief, including for example NACARA,
Temporary Protected Status, ABC Settlement, the LIFE Act and most recently the
Supreme Court’s decision in INS v. St.
have created new legal issues for the Board. Each new change in the law brings
with it numerous and significant legal issues. Controversial and difficult legal
issues have therefore been the norm, not the exception. A cursory review of the
variety and number of perplexing legal questions faced by the Board since 1996
alone is proof of the difficulty of its task. For this reason, we
urge the Attorney General to expand, not cut, Board
The Administration’s proposal to reduce the number
of Board Members also raises troubling concerns about how the Attorney General
will determine who would stay on the Board and who would be dismissed.
If the dismissals are not based on seniority or some other objective and
defensible criterion, the Administration leaves itself open to the charge that
the Attorney General will have fired Board Members for other than merit-based
assessments. Even a determination based on seniority will adversely impact
the composition of the Board, eliminating the depth created in recent years by
the addition of Board Members from diverse backgrounds.
Equally troubling is the potential impact of
these future dismissals on the independent decision-making of all BIA Members
during the six- to nine-month transition period. The
proposal to have the BIA, acting as individual Board Members, dispose of the
entire existing backlog during a brief transitional period, after which the
Attorney General will reduce the BIA to approximately half its presently
authorized size, is bound to be perceived by some as political extortion.
It creates the perception that the Attorney General will, after reviewing
the Board Members’ efforts during the transition period, eliminate those more
independent-minded members. The
perception will be that, by eliminating independent-minded BIA Members, the
Attorney General seeks to create a BIA even more receptive to the legal
positions of the INS than is presently the case. Such a perception will insure litigation, more appeals and
generally detract from the public perception of impartiality necessary to
maintain the integrity of the removal process.
Furthermore, the proposed regulations
would require Board members, often single Board members, to adjudicate roughly
86,000 cases without the benefit of responsive briefing in an abbreviated period
of time, under a new judicial review standard. Clearly, the quality of decisions will be compromised. In
many cases Board members will “rubber stamp” decisions, knowing that their
failure to comply with the time limits imposed could result in sanctions.
Federal courts will be confronted with a deluge of appeals from poorly
reasoned and poorly drafted Board decisions. Many of these appeals may question
the retroactive change in the standard of review or the review process itself.
It is more likely than not that a plethora of these decisions will be
remanded to the Board, resulting in even more delay.
As stated above, the Board membership
should not be reduced. However, if
there is to be any change in the membership of the Board, such changes should
continue to maintain the diversity of backgrounds and opinion of the existing
Board. Failure to have a
cross-section of opinion on the Board will make it difficult, if not impossible,
to competently and fairly address novel and controversial issues. If the
Attorney General insists on reducing the membership, guidelines should be
outlined as to the qualifications sought for present (and future) Board Members.
The proposed regulations indicate that at least eight Board Members will
be removed. Except for the emphasis
on speedy adjudication, there is no indication of what qualities are to be
measured in determining the Board’s composition.
AILA urges that fairness, legal skills, understanding of immigration
laws, and accuracy be given equal consideration in the selection process.
B. Eliminating The BIA’s De Novo Factual Review Will Increase Dramatically Both The Number Of Cases Remanded And The Number Of Appeals Taken To The Federal Courts
Proposed new 8 CFR § 3.1(d)(3) would eliminate
de novo fact review, a power the Board has exercised for over 50 years.
AILA opposes this change as unnecessary and counterproductive, and
recommends this subparagraph be stricken.
Proposed subparagraph 3.1(d)(3) states:
of factual issues. The Board will
not engage in de novo review but will accept the determination of factual issues
by an immigration judge, including findings as to the credibility of testimony,
unless the determination is clearly erroneous.
Except for taking administrative notice of commonly known facts such as
current events or the contents of official documents, the Board will not engage
in fact-finding in the course of deciding appeals. A party asserting that the Board cannot properly resolve an
appeal without further fact-finding must file a motion for remand.
If further fact-finding is needed in a particular case, the Board may
remand the proceeding to the immigration judge or, as appropriate, to the
Service. This paragraph does not
preclude the Board from reviewing mixed questions of law and fact, including,
without limitation, whether an alien has established a well-founded fear of
persecution or has demonstrated extreme hardship, based on the findings of fact
made by the immigration judge.
The Supplementary Information to the proposed rule
proposed rule also adds a new Sec. 3.1(d)(3) to eliminate the Board’s de novo
review of factual issues. Under the proposed rule, the Board must accept the
factual findings of the immigration judges, disturbing them only if they are
“clearly erroneous.” This
provision also generally prohibits the introduction and consideration of new
evidence in proceedings before the Board, except for taking administrative
notice of current events or the contents of official documents such as country
condition reports prepared by the Department of State.
Where it is established that an appeal cannot be properly resolved
without further findings of fact, the Board will remand the proceeding to the
immigration judge or, where appropriate, the INS.
AILA opposes the inclusion of this subparagraph for
several related reasons, summarized as follows, and detailed below: no rationale
is given for the proposal; the proposal does not promote efficiency and will
create even more delay; the proposal undermines the traditions, stability and
authority of the Board; and the proposal will be as harmful to the INS as it
will be to other parties before the Board.
1. No rationale given
The Supplementary Information in the Federal Register
does not provide any reason for this sudden and 180-degree change in over 50
years of law and practice before the Board. The Supplementary Information does not allege that this
venerable rule has caused or contributed to delay, nor to unjust or inequitable
results. The change is simply
proposed with no justification whatsoever.
AILA is aware that the BIA is a creature of regulation, and that the
Attorney General may make such changes to it from time to time as he sees fit.
Nevertheless, completely reversing a 50-year-old practice for no stated
reason is puzzling, to say the least. (On
February 6, 2002, Attorney General Ashcroft gave a news conference during which
he made reference to the change, but his comments are not part of the rulemaking
process, and display a dismaying ignorance of administrative law.
For example, Mr. Ashcroft stated that the BIA “routinely ignores”
principles of appellate review, giving aliens an “advantage” over U.S.
citizens. It appears that Mr.
Ashcroft either was not aware of his predecessors’ explicit approval of de
novo fact review, discussed below, or he was deliberately attempting to
misinform or mislead the press. Further,
Mr. Ashcroft should be aware, as his delegates are, that many administrative
appellate bodies enjoy the same de novo fact review power as does the BIA; it is
not an uncommon practice in administrative law. Finally, Mr. Ashcroft should be aware, as his delegates are,
that all laws and regulations apply to all parties before the BIA alike: aliens
cannot enjoy any “advantage” over the INS or U.S. citizens in any way.)
2. Elimination of de novo
review is inefficient and will cause even more delay
A stated motivation behind the proposed rule is
efficiency and backlog reduction. A
moment’s reflection reveals that elimination of de novo fact review will
create mounting inefficiencies and cause even more delay. The parties will of necessity create an entirely new genre of
“satellite litigation” regarding the need for (or opposition to) remands for
fact-finding. The same will happen
with disputes over what is, or is not, a “mixed question of law or fact,”
which remains subject to review by the Board, and what findings by the IJs are,
or are not, “clearly erroneous.” And
these satellite disputes will carry over into judicial review of Board decisions
at the federal district court and circuit court levels, further burdening those
Making the BIA a “Court of Error” will force the
courts to re-evaluate standards of review that have long been employed.
Generally, the federal courts give substantial deference to the decisions
made by the BIA. That deference is
reflected in the standard of review applied to various factual and legal
determinations made by the Board. However,
the justification for this substantial deference has always been the traditional
de novo review employed by the BIA in its administrative review of the IJ
decisions. Because of the Board’s
authority to review the findings and conclusions of the IJ de novo, the courts
have assumed that any errors of the IJ were corrected by such review and that
the BIA’s decision constitutes the last, best decision of the Attorney
General. For this reason, the courts generally do not review the
decisions of the IJ but look only to the Board’s decision. The Fifth Circuit Court of Appeals, for example, certainly
one of the more deferential circuits, has noted that the “the BIA is not a
court of error” and “reviews the record de novo.”
Absent the curative effects of this de novo
review, however, even the deferential Fifth Circuit will scrutinize the IJ
decision and assume that any IJ errors not clearly corrected by the BIA have
infected the Board’s decision as well. In other words, where the BIA simply gives its “boilerplate
stamp of approval” to the IJ’s decision, without expressly correcting errors
in that decision, the courts may not apply the “substantial deference” to
the Board that has traditionally been the case.
A few years ago, questions arose concerning
whether the BIA was actually applying the de novo standard in reviewing IJ
decisions. The Board was harshly
criticized when the courts suspected that it was sometimes reviewing de novo,
and sometimes deferring to IJs without clearly enunciating the standard. The Board was forced to clarify its review policies in Matter
noting that, even where the Board elected to adopt the findings and conclusions
as stated by the IJ, its review of IJ decisions was de novo.
If the traditional de novo standard of review
is eliminated at the BIA level and replaced by a “clearly erroneous”
standard, it can hardly be expected that the federal courts will review BIA
decisions with the same deference traditionally employed.
Quite simply, the decision of one out of 220 IJs, reviewed by one BIA
member applying a “boilerplate stamp of approval” is not entitled to the
same deference as a BIA decision made by a panel engaging in de novo review.
New standards of review will have to be formulated by the district courts
and circuit courts of appeal, and the new standards will almost certainly be
less deferential than those now employed.
Eliminating de novo review will defeat uniformity.
Less deference in the courts means more scrutiny of the administrative
decisions. If the BIA will no
longer engage in de novo review of the IJ decisions, the courts will be
increasingly scrutinizing IJ decisions rather than those of the Board.
There are 12 circuit courts of appeal, which have jurisdiction to review
removal orders. In addition, under INS
v. St. Cyr,and
Calcano-Martinez v. INS,
many removal orders must be reviewed in federal district courts.
The result of eliminating de novo review by a BIA panel, then, will be
that 12 circuits and district courts across the United States will now be
reviewing findings and conclusions of 220 IJs, rather than a single Board of
Immigration Appeals. Instead of the
BIA imposing consistency and uniformity (which, as noted, is its primary
purpose), the INS and alien respondents will be confronted with conflicting
decisions from every circuit and district court in the country.
The resulting cacophony of decisions will then be cited as precedents to
those 220 IJs in new cases, with the result that no one will know what the law is.
Surely the Attorney General cannot have intended such a result.
De novo fact review is essential to fair and
accurate decision-making. As noted
almost 50 years ago, if the BIA were “precluded from overruling the special
inquiry officer on factual issues, the net result would be that the possibility
of a successful appeal on such issues would be reduced to the vanishing point
and such a course might well be considered as in conflict with the
constitutional requirement of procedural due process.” That case, Matter of
B-, bears close study: the INS asserted that the BIA should defer to the
factual findings of the IJ, and asserted that the BIA lacked de novo fact review
power. In a detailed and
well-supported decision, the Board noted that it had enjoyed such power since
the Board’s inception in the early 1940s.
Upon certification to the Attorney General, the Attorney General agreed
with the Board’s position. No
court decision, regulation, or Attorney General opinion has challenged this view
Moreover, the Attorney
General’s desire to remove de novo fact review authority from the Board is
simply not credible in light of his decision issued March 5, 2002, in Matter
of Y-L-. In
footnote one of that decision the Attorney General explicitly reserves to
himself the very power he seeks to deny the BIA: de novo fact review authority.
Keeping such power at the IJ level and the Attorney General level, but
not in-between at the BIA level, robs the BIA of all legitimacy as an
Under the proposed regulations, the BIA would
be denied the opportunity to review the facts and testimony of the underlying
case in making its decision unless they are “clearly erroneous.”
The result would be that the BIA would engage only in a cursory review of
matters that often rise or fall on the particular facts of a given case.
Although regulations require that immigration hearings be recorded, in
the vast majority of cases IJs render oral decisions immediately upon the
completion of testimony. They do
not review the recorded testimony, but instead rely on their memory and any
notes taken during the proceedings. As
a result, IJs will occasionally misstate or omit important factual information
in their decisions. The BIA should
have the opportunity to correct these errors when they affect the outcome of
An IJ faces numerous obstacles in
attempting to assess the facts, including:
huge caseloads and pressure to complete asylum cases within 180 days;
little or no legal support to assist in reviewing the evidence prior to the
hearing or during the decision-making process; extensive documentary records
which he or she must review, especially in the asylum area; a high percentage of
pro se applicants, often seeking asylum, and often with limited education and
ability to state their case clearly; a large percentage of asylum claims
frequently from countries where the political conditions are confusing or change
rapidly; and various discretionary factors which must be measured in granting
relief. All of the above factors
guarantee there will be factual errors in cases.
De novo review of credibility determinations is the
bulwark against removing the most vulnerable.
Many judges view testimony of noncitizens through the lens of their own
experience and biases. The people
IJs are most likely to find incredible are those who have suffered the most and
who differ from them the most. Asylum
seekers, victims of domestic violence, children, and women from cultures in
which norms of communication vary from the dominant culture in the United
States, all have suffered at the hands of ignorant and antagonistic judges.
These noncitizens often find it difficult to recount their harrowing
stories or explain them in a cultural framework unfamiliar to an IJ.
De novo review is the fastest way to remedy the harm done by such judges.
Remanding such cases to antagonistic, biased and ignorant judges undermines
efficiency as well as fairness and accuracy.
The examples in the attached Appendix illustrate the problems with IJ
credibility and factual assessments. They
are but the tip of a large iceberg of cases, including many pro se claimants who
never receive redress.
De novo review in the sensitive kinds of cases
noted above also is essential because the facts change. Even with a streamlined review process, the BIA must have the
flexibility to deal with changed country conditions and the development of new
facts that can have a decisive effect on the outcome of a case.
Where the outcome of a case can literally be a matter of life and death,
administrative burdens must be properly balanced against the need to review all
of the facts and circumstances surrounding the case.
Fifty-six percent of all people who appear
before an immigration judge do not have an attorney.
combined with the language barriers that many people face, immigration decisions
are sometimes based on confusion or on the innocent mistakes of an unrepresented
person. Our system strongly favors
a ruling on the true facts of a case, and the Board should continue to have the
opportunity to examine all aspects of the case.
Where factual errors, mistakes or confusion can be cleared up on appeal,
the Board should not be denied the opportunity to make the correct ruling simply
because of inability to meet the very difficult burden of proving that the
findings were “clearly erroneous.”
Any proposed reforms must be considered in
light of the balancing test set forth in Mathews
test assesses the private interest that will be affected by official action, the
risk of an erroneous deprivation of such interests through the procedures used
as well as the value of additional safeguards, and the nature of the
government’s interests. In
particular, the proposed elimination of the BIA’s de novo factual review
raises concerns vis-à-vis the Mathews
test, in that such elimination might raise significantly the risk of an
erroneous deprivation of due process. This
is particularly true for pro se respondents, for those who have no appeal to a
federal court, and for those for whom stakes are high: those fleeing torture,
death, rape, domestic violence and other serious harm.
3. The proposal is harmful
to the INS
While it is true that the INS files fewer
appeals at the BIA than do alien (and sometimes citizen) respondents, the number
of INS-filed appeals is not insignificant.
In those cases, the INS, no different from any party appellant, wants the
appellate body to exercise as much authority as possible to correct perceived
error. Stripping the BIA of de novo
fact review authority would hurt the INS in the very same ways it would hurt
In sum, removing de novo fact review power from the
Board risks significant unfairness to all litigants before the Board, will cause
further delays and inefficiencies, and undermines the very character of the
Board, a venerable institution with a long and proud history.
AILA recommends deleting proposed 8 CFR § 3.1(d)(3) completely.
C. The Proposed Single-Member Screening Process Would Violate Principles Of Accuracy, Efficiency, Acceptability, And Consistency
As noted above, proposed 8 CFR § 3.1(e)(6)
would mandate single-member review for all cases except those falling within one of five enumerated categories.
Those five categories include cases in which there is a need to: (1)
settle inconsistencies in the rulings of immigration judges (IJs); (2) clarify
ambiguous laws, regulations, or procedures; (3) correct an IJ’s decision that
does not comport with the law; (4) resolve a case or controversy of “major
national import”; or (5) correct a clearly erroneous factual determination by
an IJ. Cases falling within one of
these categories would be adjudicated by a three-member panel,
as is the current practice.
Under the proposal, all cases would initially
go to a “screening panel,” on which single Board Members would decide the
majority of cases. Each member of the panel would individually screen cases and
would either adjudicate the case him- or herself, or determine that the case
merits three-member panel review. The
BIA Chairman would have the discretion to allocate members to the screening
panel and three-member panels, as she or he deems appropriate.
To facilitate this new screening process,
proposed 8 CFR § 3.3(b) would require an appellant who asserts that an
appeal warrants review by a three-member panel to identify in the Notice of
Appeal (NOA) the specific factual or legal basis for that contention.
This proposed shift toward single-member review
appears to assume that the vast majority of BIA appeals do not involve complex
questions of law or legal interpretation. This
assumption, however, is erroneous. The
vast changes in our nation’s immigration laws since 1996 require much
interpretation. The law is not
crystal clear, congressional intent is often ambiguous, the INS itself often
argues positions that courts later hold are contrary to congressional intent,
complex interplays of transition rules and retroactivity provisions must be
sorted out, and circuit courts of appeals constantly review, refine, and even
overturn Board precedent.
a significant number (34 percent)of
BIA cases are brought pro se.
In these cases, the Board does not have the benefit of legal briefs to
assist it in analyzing the complex legal issues that may be presented.
In this ever-changing and challenging environment, the interplay of
diverse legal minds and opinions is important.
In fact, the
Department of Justice has taken important steps toward expanding the diversity
of the Board by recruiting members from academia, government service and private
practice. Such diversity disperses
any biases and permits the exchange and testing of ideas.
To allow one perspective to rule the outcome of a single case would limit
the value of the Department’s effort and increase the likelihood of an
on a single decision in the majority of cases also eliminates the opportunity
for written dissenting opinions. Dissenting
opinions are an important part of the appellate process and the evolutionary
nature of our laws. These opinions
help shape the legal arguments that are made in future cases, and enhance the
critical thinking that enriches our judicial system.
use of appellate panels and the filing of dissenting opinions also promote
efficiency when the decisions are subject to review by federal judges. Panels promote a full exploration of all aspects of a case,
and the existence of dissenting opinions offers proof that divergent views were
considered on appeal. This process
makes it less likely that a federal court will overturn or remand a decision for
failure to consider the proper facts and law. This promotes overall efficiency in the immigration review
criteria for referral to a three-member panel are illusory and would cause a
lack of consistency and a decrease in efficiency
As noted above, the proposed regulations provide that
each individual member of the screening panel would evaluate cases for referral
to three-member panels, employing five highly subjective criteria, and without
any internal review or coordination of the application of those criteria.
It is certain that one individual BIA
Member’s construction of these subjective criteria will vary from another’s,
yet the decision of whether to dispose of the case individually or refer it to a
panel is left to the unreviewed “judgment of the single Board Member on the
screening panel to whom the appeal is assigned.”
With no internal review or coordination, and no uniform standards for
applying the criteria, the inevitable result will be that many cases will be
decided by single Board Members even when, in the judgment of other Board
Members, they may meet the criteria for panel review.
determine whether a case meets the criteria for referral to a three-member
panel, the individual members of the screening panel would have to review fully
the case records and the corresponding law and precedents in the area.
If the case is then sent to a three-member panel, that panel will also
have to engage in a similar review, with the result being that much duplicative
work will occur under the proposal as currently drafted.
Hence, uniformity will be defeated and
efficiency impaired, rather than promoted.
example, the screening BIA Member is expected to refer to a three-member panel
cases where there is a “need to settle inconsistencies between the rulings of
different immigration judges.”
However, with the various members of the screening panel independently
reviewing decisions from 220 IJs, how will one BIA Member know that the IJ
ruling he or she is reviewing is inconsistent with that made by another IJ being
independently reviewed by a different member of the screening panel?
And if the individual BIA Member does not know about the inconsistency,
then the default rule of single-member review will be applied with the result
being that the inconsistencies go unaddressed.
By making independent, single-member review the rule, the process of
identifying and addressing inconsistencies between the 220 IJs across the United
States will be severely hampered. Since
the primary purpose of the BIA is to provide uniform, nationwide guidance to IJs,
this is an extremely serious flaw in the proposal.
In addition, the proposal provides that three-member
panel review is warranted where there is a “need to establish a precedent to
clarify ambiguous laws, regulations, or procedures.” What level of ambiguity, however, is sufficient to trigger
referral to a panel? It appears
that the individual Board Members on the screening panel would be empowered with
drawing that bright line. Moreover,
what ensures that one member of the screening panel will not find ambiguity
where another finds clarity?
Decisions by an IJ or the INS that are “plainly not
in conformity with the law or with applicable precedents” also would be
referred for panel review,
as would cases or controversies of “major national import.” Again, however, how will members of the screening panel
determine whether the decision below “plainly” fails to conform?
BIA Members sitting en banc often disagree on this very issue.
And how will there ever be a consensus among the individual members of
the screening panel as to what constitutes “major national import?”
Finally, the proposed regulations would mandate panel
review where there is a need “to correct a clearly erroneous factual
determination by an immigration judge.” As with the other categories of cases set forth above,
however, the decision as to what is erroneous, let alone “clearly”
erroneous, is amenable to broad interpretation.
When IJs misunderstand or ignore important facts, they necessarily
misapply the law to the facts. The
Appendix contains examples of asylum seekers and women and children harmed by
just such IJ decisions.
These decisions include wrongful findings that the respondents were
not credible, and misstatements of facts resulting in misapplication of the law.
In all these cases, three-member panel review prevented the wrongful
removal of victims of persecution and violence.
By raising the bar for factual review and placing that decision in the
hands of a single Board Member, the proposed regulations ensure that many
individuals in the same situation will be removed.
law keeps changing, as immigration lawyers know better than most.
As a result, even under the present structure, IJ’s are frequently
called upon to interpret statutes or regulations in new and unique
circumstances, or to construe new court decisions, without the guidance of BIA
or federal court precedent. The longer it takes the system to generate those precedents,
the longer the issues remain uncertain. Uncertainty
in interpreting the law encourages more appeals; the more appeals taken during
this period of uncertainty, the more cases that must ultimately be remanded when
the issues are resolved. In other words, uniformity is necessary to promote efficiency
and anything that impedes uniformity is therefore counterproductive to the goal
of efficiency. As noted above, the individual screening of cases by
independent BIA Members rather than panels will make it more difficult to
identify inconsistencies with the result that it will take longer to develop
uniformity and reduce uncertainty in the law.
single-member screening process fails to provide for meaningful checks against
abuse of discretion and would lead to impaired accuracy
It is a basic tenet of our professional and personal
lives that multiple viewers provide the best quality control.
The more viewers contributing their perspective, knowledge and experience
to analyzing a situation, the more likely the final vision will be accurate.
These regulations eliminate that quality control and proffer no other
mechanism for checking inaccurate screening.
Absent such a mechanism, inconsistent outcomes in similarly situated
cases will abound, raising the specter of arbitrary agency action. Under the proposed regulations, the individual members of the
screening panel would be making decisions regarding whether a given case falls
under the legal criteria for panel review, and that legal decision must be
consistent with other screening determinations in order to maintain consistent
national immigration law.
The proposed regulations also appear to allow
the same Board Member to review motions to reopen or reconsider his or her
incorrect decisions. If a member of the screening panel wrongfully denies a case,
a motion to reopen or reconsider is the only way to correct that decision in the
administrative system. Minimal due
process requires that a different person or group of people review whether the
individual screening member misapplied the law or the criteria for review.
Even if the case goes to a different Board Member on the screening panel
for the motion to reopen, that motion is still decided by a single adjudicator.
This is inadequate protection against wrongful removals and the attendant
violations of congressional will and international obligations.
The summary content of the decisions compounds the
problem. BIA decisions do not affect only the individual parties involved.
They correct inaccurate applications of the law by IJs, explain why
factual analyses are inadequate or inappropriately applied to the law, and
ensure that the law is applied uniformly nationwide.
They also examine and rectify INS errors and serve as a training
mechanism for INS personnel. Without
a clear articulation of the rationale behind a decision, these ameliorative
functions are lost.
In the immigration arena, the federal courts serve as the final arbiter of what is “acceptable” in an administrative process. A system so profoundly lacking in due process invites federal court intervention. Federal courts will find little of use to review in summary decisions, except the patent violation of due process posed by their summary nature. They are likely to routinely remand these cases to the BIA for further procedures and rationale articulation. This will decrease the Board’s efficiency; more importantly, it will help only noncitizens with the wherewithal to pay competent attorneys.
For those who lack such resources, the BIA is
the court of last resort. Some
applicants may be unable to access appellate review at all. For instance, since cancellation of removal for victims of
domestic violence involves showing extreme hardship and a favorable exercise of
it is not clear that a federal court would have reviewed the denials in the
cases set forth in the Appendix had they been made by a single BIA Member on a
screening panel. Fortunately, BIA
three-panel review prevented deportation in these cases.
As recently stated by two past INS General
Counsels, “[t]he Board plays a crucial role that has grown more important in
recent years. For most noncitizens
subject to removal proceedings, it serves as the supreme court of immigration
law….If this new proposal is adopted, it could mean that thousand of
immigrants will get no effective review of their cases, before either the Board
of Immigration Appeals or a federal court.”
In sum, instituting single-member screening based on
subjectivecriteria, while severely
curtailing de novo review of factual issues
contravenes the goals of administrative review set forth above: acceptability,
accuracy, consistency, and efficiency. Such
a broad screening mechanismwould
place enormous, and potentially unreviewable discretion in the hands of
individual Board Members to determine whether a three-member panel should review
cases. Since individual BIA Members
would be applying criteria amenable to subjective interpretation, uniform and
accurate application of the law would suffer.
Efficiency would decline because the screening process requires
duplicative record review and legal determinations. Traffic between the Board and the IJs would increase, as
cases the Board could adjudicate are remanded back to the IJ for further
proceedings. Federal courts would
become even more involved in reviewing and remanding cases because numerous
individuals whose cases are wrongfully denied by individual members of the
screening panel will seek relief for violations of their due process rights
under Mathews v. Eldridge. Since the decisions by individual Board Members may,
themselves, be summary, the federal courts will routinely remand cases to the
BIA for better articulation of its decisions.
3. The BIA has already successfully implemented procedures
that allow it to streamline and expedite cases
As noted earlier in these comments, the
current streamlining program has allowed the Board to allocate resources more
effectively and to adjudicate the growing caseload by concentrating on more
significant cases that may require greater deliberation or that may present
novel legal questions. For example, many appeals filed with the Board raise
complex issues of law arising from broad antiterrorism and immigration reform
legislation that was passed in 1996, as well as critical issues arising from
to the independent audit recently conducted, the pilot phase of the streamlining
program directly contributed to a 53 percent increase in the overall number of
BIA cases completed during its implementation period from September 2000 through
Specifically, between 1997 and 2001, the average number of BIA cases
completed in less than 90 days increased from 25 percent to 56 percent, while
the average number of cases that remained open 181 days or longer dramatically
decreased from 42 percent to 13 percent.
than implementing the overly broad and untested reforms envisioned in the
Attorney General’s proposal, the Board should continue to fine-tune the
current streamlining initiative, working within the existing framework to build
upon its proven success.
However, if streamlining is to be
expanded, bond decisions might be suitable for single-member Board decisions.
There is no transcript of testimony to review in such cases, and the
record is limited to the IJ’s memorandum of decision and the documentary
Three-member panels have provided
fairness and accuracy for decades in the review of immigration decisions.
The Attorney General’s proposal is radical in nature. The continued
fine-tuning of the existing streamlining process will carry forward the success
the Board has had in expediting review of appeals, while simultaneously
safeguarding due process.
D. The Proposed Rule’s Simultaneous Briefing Requirement And Other Time Limits Are Impractical And Would Further Impair Efficiency And Accuracy, While Leading To A Diminution Of Due Process
The BIA should retain its current briefing schedule
BIA procedures allow each party 30 days in which to file their respective
briefs. The proposed rule would require both appellant and appellee
to file their briefs simultaneously, within a 21-day briefing period, unless a
shorter period is specified by the Board, and reply briefs would be permitted
only by leave of the Board.
Generally, responsive briefing—whereby
the appealing party files a brief and the appellee responds with a brief due
some time afterwards—is the rule in the federal courts and has been the rule
before the BIA. Responsive briefing
allows the appellee to address the specific issues raised by the appellant with
the result that the appellate tribunal is provided with more direct and focused
legal argument. The proposed
rule’s institution of a 21-day simultaneous briefing schedule, together with
the provision for reply briefs only upon leave of the Board, will result in one
of two equally undesirable results.
If the briefs are, indeed, filed
simultaneously, the appellee will not have the benefit of having seen the
appellant’s brief and will be forced either to address every conceivable
argument that may be raised or risk missing the point of the appellant’s
arguments. Briefs, the purpose of
which should be to help the BIA resolve the issues on appeal by highlighting the
appropriate facts and law, will be considerably longer, and/or less helpful
because the appellee will not know which facts and what law is appropriate to
the appellant’s unseen arguments. In
either event, efficiency would again suffer.
To secure the benefits of responsive briefing,
appellees will be forced to seek leave of the Board to file reply briefs.
This means the Board Members will have to decide motions or requests for
leave to file reply briefs, as well as review the reply briefs themselves.
All of these additional motions, requests and briefs will consume
considerably more time at the BIA than could ever be saved by the proposed
simultaneous briefing requirement. Responsive
briefing should therefore be retained.
Thorough and responsive briefs are a
decision-maker’s “best friend,” enabling him or her to review thoroughly
and expeditiously the issues in a case. Such
briefs eliminate the need for the decision-maker to independently research the
issues. Courts provide for
responsive briefing to enable them to be better apprised of the various issues
and possible responses. The
requirement of simultaneous briefing will thus slow the appellate process by
requiring Board Members and their staff to research the issues themselves.
The regulations require briefing of cases appropriate for “merit
review.” Upon receiving the
brief, the Board Member to whom a case is assigned must affirm the decision of
the Service or IJ without opinion if the issues on appeal are squarely
controlled by precedent or if the factual and legal issues are not so
substantial as to warrant a written opinion. This is a great responsibility to
place upon a single Board Member without the benefit of responsive briefing.
How is the Board Member to know if the case is squarely controlled by
precedent or if legal and factual issues are so substantial as to require more
If the Board Member determines that a decision
is not appropriate for affirmance without opinion, he or she must issue a brief
order affirming, reversing, modifying, or remanding the decision unless the
Board Member designates the case for decision by a three-member panel.
Panel decisions are appropriate to settle inconsistencies between the
rulings of different judges, to establish a precedent or to clarify ambiguities,
to correct a decision that is not in conformity with law, to resolve a case of
major import, or to correct a clearly erroneous factual determination. Again,
simultaneous briefing would make it more difficult for Board Members to identify
the presence of these factors.
2. The proposed 14-day transcript schedule is unrealistic and would lead to a higher rate of error
Proposed 8 CFR § 3.5 would impose a 14-day
time limit within which IJs would have to review and approve the decision
transcripts. Currently, there is no
such time limit imposed on IJs.
Obviously, an accurate transcription of
the proceedings before the IJ is necessary for a fair and effective review.
By imposing a 14-day time limit on the IJ’s review of the transcript,
the accuracy of the transcription process will suffer.
IJ’s are already under tremendous time constraints, with several cases
scheduled daily and only a few hours reserved each week for all administrative
duties including deciding motions, preparing written decisions, scheduling
conferences and reviewing transcripts. Simply
requiring that the transcript review take no more than 14 days does not create
more hours in an IJ’s week. Imposing
a 14-day limit on review of transcripts insures one of two results, either of
which would be counterproductive to efficiency.
Either the IJ’s review of the transcripts will become less effective
and the transcripts will contain more errors, or the IJs will devote the same
attention to transcripts and be forced to prioritize transcript review to comply
with the deadlines. More errors in
the transcripts will impair effective and efficient review at the BIA level, and
generate more remands or other delays for clarification of matters that could
have been caught had the transcript been reviewed more thoroughly.
Prioritizing transcript review at the expense of the IJ’s other
administrative responsibilities will delay the adjudication of motions, issuance
of written decisions and other tasks necessary to keep pending cases moving in
the Immigration Court.
A better approach would be the
employment of professional transcribers who timely and accurately transcribe the
oral hearing. It is not unusual for it to take contract transcribers several
years for the preparation of transcripts from the time a decision is rendered.
The poor quality of transcription often renders it difficult if not
impossible for an IJ to review and approve a transcript in a timely manner.
Such quality control at the transcriber level would enable the IJs to
promptly review and edit accurately transcribed decisions, rather than rewriting
inaccurately and poorly transcribed decisions, and would not have the
detrimental impact on accuracy that the proposed rule’s 14-day deadline for IJ
transcript review would have.
3. The proposed time limits for
completion of cases should be guidelines, not mandates
Under proposed 8 CFR § 3.1(e)(8), the single members of the new screening panel would have 90 days in which to either decide the case or refer it for three-member panel review, and three-member panels would normally have to decide the case within 180 days.
While the proposed 90- and 180-day time
limits for completion of cases are a worthwhile objective on an experimental
basis, they should serve as a guideline, not as a mandate.
The proposed regulations imply that there will be some type of sanction
against Board Members who regularly fail to meet the proposed time limits.
Such implied threats are not helpful and should be removed.
Accuracy and fairness in the decision making process are as (or more)
essential than speed in determining appeals where an individuals safety, liberty
or life may be on the line.
Even if the Attorney General is
going to consider this type of monitoring of the speed with which the Board
adjudicates appeals, it should be postponed until it is determined whether the
90- and 180-day guidelines are realistic or workable.
It is very possible that in many cases they will not be.
They should be tried on a probationary basis at first.
The proposed regulations wisely add
that there may be cases where decisions may be delayed if there is pending or
anticipated litigation at the Supreme Court or court of appeals level.
The time limits may be suspended in these cases.
If the proposed rule’s time limits are to be implemented, this idea
should in turn be expanded. For
example, there may be other instances where the issue on appeal is sufficiently
complicated that the Board needs additional time to address it, and provision
for such an occurrence should be made in the regulations.
It makes no sense to place narrow time constraints on
the decision making process and, at the same time, eliminate the tools that
enable decision-makers to properly, accurately and efficiently render their
decisions. Taken together, the
proposed time limits, coupled with the elimination of responsive briefing, would
likely lead to poorly reasoned and poorly drafted decisions, and even lengthier
delays as such decisions are appealed and remanded and/or reversed.
The implied threat of sanctions against Board members who “fail to meet
assigned deadlines” should be eliminated
The proposed regulations contain ominous
language regarding implied or direct sanctions against Board Members who fail to
meet deadlines. That language is
not appropriate, especially when taken in context with other comments made in
the press about the Board’s need to be “on the same page” with the INS.
The Board has a difficult task and members are chosen based in part on
their knowledge and ability to complete difficult tasks. Board Members
understand the need for efficient and timely adjudications. There is no
provision in the proposed regulations for discipline or sanction of Board
Members who may have difficulty in performing other necessary functions relating
to legal accuracy or fairness, e.g., repeated legal errors resulting in frequent
motions to reconsider or judicial remands.
Hence, the regulations should not single out for sanctions Board Members
who fail to meet the proposed rule’s deadlines without also addressing
additional Board Member conduct, such as the rendering of fair and accurate
Retroactive Application Of The Proposed Rule Would Impinge Upon Individuals’
The Attorney General plans to take further actions
that will undermine the rights of individuals who have appealed their cases to
the Board. “The proposed rule
reflects the Attorney General’s direction that, once this rule is adopted in
final form, the Board will immediately
implement the procedural and structural changes described above with respect to
all appeals pending before the Board at the time this rule takes effect.” (Emphasis added).
As we have discussed throughout these Comments,
most of the proposed rules in this proceeding—if they become final
rules—will work tremendous hardships on individuals who seek relief from
removal from the BIA. However, to
add insult to injury, the Department of Justice plans to immediately apply the
rules to all cases pending in the BIA “pipeline” at the time of
implementation. This result cannot stand.
For example, the proposal requires that an
individual “who asserts that the appeal may warrant review by a three-member
panel under the standards of § 3.1(e)(6) must identify in the Notice of Appeal the specific factual or legal
basis for that contention.”  (Emphasis added). In
other words, the individual must affirmatively specify in his or her NOA at
least one of the five grounds that will appear in the revised rule § 3.1(e)(6).
AILA asserts that it is both nonsensical and
patently unfair to apply this requirement retroactively to all cases pending in
the Board pipeline as of the effective date of the final rules.
Individuals who filed their appeals before the effective date of the
final rules clearly have no way of knowing about such a requirement, and their
appeals should not be prejudiced by the retroactive application of this rule.
Instead, proposed § 3.3(b) should not be applied to any cases filed
before the effective date.
The Supreme Court has stated, in the context of
rulemaking, that “[r]etroactivity is not favored in the law.”
retroactive application of adjudicative decisions is sometimes appropriate.
In SEC v. Chenery
after deciding that an agency could proceed by adjudication at its discretion,
the Court declared that the fact that an adjudication “might have a
retroactive effect was not necessarily fatal to its validity. Every case of first impression has a retroactive effect,
whether the new principle is announced by a court or by an administrative
The Court then announced a balancing test to determine when adjudicative
decisions could apply retroactively: “such retroactivity must be balanced
against the mischief of producing a result which is contrary to a statutory
design or to legal and equitable principles.
If that mischief is greater than the ill effect of the retroactive
application of a new standard, it is not the type of retroactivity which is
condemned by law.”
This test has been fleshed out by the circuit
courts. Seven circuits use a
five-factor test, first announced by the D.C. Circuit in Retail, Wholesale & Department Store Union v. NLRB,
to determine whether the result of an adjudication could be applied
The D.C. Circuit’s analysis considers:
whether the particular case is one of first impression, (2) whether the new rule
represents an abrupt departure from well established practice or merely attempts
to fill a void in an unsettled area of law, (3) the extent to which the party
against whom the new rule is applied relied on the former rule, (4) the degree
of the burden which a retroactive order imposes on a party, and (5) the
statutory interest in applying a new rule despite the reliance of a party on the
Other circuits apply the Chenery retroactivity test on a case-by-case basis.
From its discussion of the validity of adjudication in Bell
Aerospace, the Supreme Court has also derived the doctrine that “an
administrative agency may not apply a new rule retroactively when to do so would
unduly intrude upon reasonable reliance interests.”
These tests, though not fully defined by the Supreme Court, offer some
guidance as to when an adjudicative decision may be applied retroactively.
Proposed Rule’s Replacement of the Provision For Discretionary Summary
Dismissal With Mandatory Summary Dismissal Language Would Violate The Due
Process Rights Of Respondents, Cause Further Backlogs, And Further Impair
8 CFR § 3.1(d)(2)(i) provides that the
Board “may summarily dismiss any appeal or portion of any appeal in any case
(A) The party concerned fails to specify the reasons for the appeal on Form EOIR-26 or Form EOIR-29 (Notices of Appeal) or other document filed therewith;
(B) The only reason for the appeal specified by the party concerned involves a finding of fact or a conclusion of law that was conceded by that party at a prior proceeding;
The appeal is from an order that granted the party concerned the relief that had
The party concerned indicates on Form EOIR–26 or Form EOIR–29 that he or she
will file a brief or statement in support of the appeal and, thereafter, does
not file such brief or statement, or reasonably explain his or her failure to do
so, within the time set for filing;
The appeal does not fall within the Board's jurisdiction, or lies with the
Immigration Judge rather than the Board;
The appeal is untimely, or barred by an affirmative waiver of the right of
appeal that is clear on the record; or
The appeal fails to meet essential statutory or regulatory requirements or is
expressly excluded by statute or regulation.”
Proposed 8 CFR § 3.1(d)(2)(i) would
remove completely the Board’s discretion with regard to these summary
dismissal provisions by replacing the current discretionary language (“the
Board may summarily dismiss”) with
new mandatory dismissal language (“a single Board member shall summarily dismiss”) (emphasis added).
AILA believes that such a removal of discretion will lead to unlawful
results in many cases, thus generating significant litigation in the federal
courts, attendant remands to the BIA, and impaired efficiency throughout the
immigration appeals process.
As an example, the proposed rule would preclude
the Board from considering the appeals of respondents who set forth their clear
eligibility for certain forms of discretionary relief on the Form EOIR–26,
“Notice of Appeal to the Board of Immigration Appeals of Decision of
Immigration Judge,” and who then fail to submit a brief or statement in
support of their appeal after having indicated an affirmative intent to do so on
the form. Such scenarios occur
regularly, particularly with respect to pro se litigants, and the Board
currently exercises its expertise and its discretion in deciding whether to
consider the merits of such an appeal. A
recent example of such a situation occurred after the June 25, 2001, Supreme Court decision in INS v. St. Cyr,
under which a large class of individuals suddenly became eligible for
discretionary relief under former INA § 212(c). Currently, the Board routinely remands back to the IJ appeals
that set forth the respondents’ eligibility for discretionary relief under St.
Cyr, even in the absence of a brief. Under
the proposed rule, Board Members would have no discretion to remand these cases
for consideration of INA § 212(c) relief, even where the respondent is clearly
eligible. Such a result would
likely spawn a new round of litigation for this class of individuals, once again
impairing the efficiency of the immigration appeals process.
AILA also reminds the Attorney General that it
would be unlawfulfor the Department
of Justice to implement the proposed regulations without first amending the Form
EOIR–26. As currently drafted,
the form warns respondents that “[t]he failure to specify the factual or legal
basis for the appeal may lead to
summary dismissal without further notice….” (emphasis added). Because proposed 8 CFR § 3.1(d)(2)(i) would
replace the Board’s discretionary ability to dismiss summarily certain
enumerated categories of appeals (or portions thereof) with mandatory
language requiring their dismissal, the Form EOIR–26, as currently drafted,
fails to provide adequate notice to respondents as to what they must specify in
their appeal to avoid mandatory summary dismissal thereof.
The federal courts have previously found that an earlier version of the
Form EOIR–26 provided insufficient notice to respondents of the possibility
that their appeals could be summarily dismissed.
Should the Justice Department now promulgate a final rule making such
summary dismissal mandatory, without first amending the Form EOIR-26 to provide
notice of this change, courts will undoubtedly find such failure to be an
unlawful deprivation of due process. Such
a finding would further impair the efficiency of the adjudicatory system by
resulting in a high volume of federal court appeals, and a concomitant number of
remands to the Board for consideration on the merits.
Proposed Restoration Of A Previously Deleted Summary Dismissal Provision Is
Unwarranted And Inefficient And, Coupled With The Other Proposed Changes, Would
Lead To An Increase In Erroneous Summary Dismissals
The proposed rule would also restore a
previously deleted provision mandating summary dismissal of appeals “that are
filed for an improper purpose or that lack an arguable basis in fact or law,”
unless the Board determines that such appeal is supported by a good faith
argument for extension, modification, or reversal of existing law. Cases are to be identified for summary dismissal, and any
matter so dismissed may constitute frivolous behavior under § 3.102(j).
The Supplementary Information to the proposed
rule notes that this provision was previously deleted based on the Board’s
acknowledgement that such authority was “virtually never used,” as well as
on concerns that the exercise of such authority would lead to confusion with
procedures for summary affirmance. In
2001, the EOIR promulgated detailed rules of professional conduct, including
sanctions for filing frivolous appeals or abuse of the appeals process for
improper purposes. See 8 CFR
§ 3.102(j). The sanctions
provision includes an exhaustive list of offending behaviors, and provides ample
opportunity for the Board to both identify and deter the rare offender.
The Department of Justice notes that the
existing sanction is “not actively enforced,” but wrongly speculates that
the reason is the lack of any mechanism to identify frivolous appeals.
The Department’s insistence on this provision, despite the Board’s
rejection of it as unnecessary and confusing, appears to be based on a
misconception of the removal and appeals process.
Starting from the erroneous assumption that there are rarely any real
issues regarding removability, and that questions of relief only turn on
established facts, the Justice Department faultily concludes that, because the
majority of appeals are unsuccessful, those filings obviously lacked any basis
in fact or law, or must have been filed for purposes of delay.
Perhaps the Department hopes that, given this additional sanction, the
Board may deter abuse of the system and further reduce its caseload.
The obvious, alternative explanation—that
such abuses are both rare and already addressed by existing rules of
professional conduct—begs the question of whether the provision has any value
other than confusion with the existing streamlining procedures.
While AILA strenuously opposes the filing of frivolous appeals, the proposed rule would provide insufficient protections to correctly determine whether summary dismissal under this provision was warranted. To accurately determine whether a case should be summarily dismissed and sanctions investigated requires more careful review than that envisioned as part of the case management and screening process. As a result, we will either continue to see few cases identified where sanctions might be warranted, or a stark increase in erroneous summary dismissals.
Moreover, the determination as to which appeals
should be considered “frivolous” is both highly subjective and ever
shifting. The immigration laws are
in a frequent state of flux, with the result being that an appeal which today
might seem frivolous could tomorrow be considered meritorious.
For example, in 1999, an appeal taken from a removal order based on a
conviction for driving under the influence (DUI) could have been considered by
some as frivolous, since the case law at the time held that a DUI conviction was
an “aggravated felony” for immigration purposes, thus rendering individuals
with such convictions ineligible for discretionary relief.
Today, however, an appeal from a removal order based on a DUI conviction
could certainly be considered meritorious, as several circuit courts have ruled
that such a conviction is not considered a “crime of violence” under 18 USC
§ 16(b), and hence, not an aggravated felony.
Again, the proposed rule’s provision for mandatory, single-member summary dismissal of frivolous appeals would generate substantial litigation in the federal courts, myriad remands back down to the BIA, and would further impair the efficiency of the immigration appeals process.
The proposed regulations correctly focus
on the need for timely and efficient adjudication of appeals, and the fourfold
objectives outlined by the Attorney General are appropriate objectives.
The proposed means of accomplishing these objectives, however, are not
only counterproductive, they are so drastic as to negate other appropriate goals
of the Board—namely, fairness, thoroughness, accuracy, and due process.
The Attorney General should focus
instead on fine-tuning the present system without eviscerating it.
BIA membership should be expanded, and political considerations that have
led to inadequate appointments must be eliminated.
The Board’s current structure and authority should be maintained, and
the already successful streamlining process should be continued as is. A well-developed record, in which issues and arguments are
thoroughly developed and briefed, enables the decision-maker to render accurate,
efficient, and consistent decisions. Briefs
must therefore be responsive and an adequate briefing time period must be
The Board of Immigration Appeals
has a long and successful history of adjudicating a high volume of cases in a
competent and efficient manner. As
former Board Chairman Maurice Roberts noted over 25 years ago:
expertise concentrated in the Board, with its relatively small staff, makes it
the ideal place for the formulation of what is now the definitive decision in
this highly complex field of law. In
terms of actual cost to the Government, good Board decisions are a bargain.
More opinions can be ground out, of course, in less time and with an even
more inadequate staff; but the resulting dilution in quality, while not only
unfair to the parties involved, would also cost much more in the long run.
Economies of this sort can only result in passing the buck to others with
less expertise. The slack would have to be taken up elsewhere in the Department;
if not, the already overburdened courts will have to confront the task, for
dilution in the quality of Board decisions can only cause greater recourse to
the courts for redress. If Service
errors are to be screened out and corrected, it is more efficient in the long
run that this be done by the Board.
We urge the Attorney General to revisit
these proposals in light of these comments.
 Department of Justice, Proposed Rule, “Board of Immigration Appeals: Procedural Reforms to Improve Case Management,” AG Order No. 2559–2002, RIN 1125–AA36, EOIR 131P, 67 Fed. Reg. 7309 (Feb. 19, 2002) (to be codified at 8 CFR Parts 3 & 280). AILA previously requested an extension of the comment period via a letter to Attorney General John Ashcroft, dated February 11, 2002, with a copy of that letter forwarded to the EOIR’s General Counsel on March 6. AILA received no response to its request.
 Interestingly, a fifth objective was set forth in an advance summary of the proposed rule circulated by the Department of Justice. That objective—enhancing the quality of BIA decisions—was dropped from the published version of the rule, perhaps out of a recognition that the proposed reforms would diminish rather than enhance the quality of decisions.
 See generally Stephen Legomsky, Forum Choices for the Review of Agency Adjudication: A Study of the Immigration Process, 71 Iowa L. Rev. 1297, 1313 (1986).
 U.S. Const. amend. V.
 Gerald Hill & Kathleen Hill, Real Life Dictionary of the Law (1995).
 Mathews v. Eldridge, 424 U.S. 319, 341–47 (1976).
 Legomsky, supra note 4, at 1316–17. U.S. Department of Justice, Executive Office for Immigration Review, “Board of Immigration Appeals Streamlining Pilot Project Assessment Report,” at 1 (hereinafter “Streamlining Report”).  Id. at 1–2.  Id. at 2.
 Pub. L. No. 104–208. Statement of Attorney General John Ashcroft at a February 6, 2002, news conference.  Department of Justice press release, “Department of Justice Unveils Administrative Rule Change to Board of Immigration appeals in Order to Eliminate Massive Backlog of More than 56,000 Cases,” Feb. 6, 2002.  Streamlining Report, supra note 10, at 5–6.  INS v. St. Cyr, 121 S. Ct. 2271 (June 25, 2001).
 The Administrative Office of the U.S. Courts reported on March 13, 2002, that appeals filed in federal courts continued a six-year surge to record levels in fiscal year (FY) 2001. The number of filings in the 12 circuit courts of appeals hit 57,464 in FY 2001, up five percent from FY 2000. Washington Post, Mar. 14, 2002, at A10.
 See, e.g., Balazoski v. INS, 932 F.2d 638 (7th Cir. 1991); Adebisi v. INS, 952 F.2d 910 (5th Cir. 1992); Yepes-Prado v. INS, 10 F.3d 1363, 1366 (9th Cir. 1993).
 Ghassan v. INS, 972 F.2d 631, 635 (5th Cir. 1992).
 Mikhael v. INS, 115 F.3d 299 (5th Cir. 1997).
 Id. at 306.
 See, e.g., Ortiz-Salas v. INS, 992 F.2d 105 (7th Cir. 1993); Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir. 1993).
 Matter of Burbano, 20 I&N Dec. 872 (BIA 1994).
 INS v. St. Cyr, 121 S. Ct. 2271 (2001).
 Calcano-Martinez v. INS, 121 S. Ct. 2268 (2001).
 Matter of B-, 7 I&N Dec. 1 (BIA, Comm’r 1955; A.G. 1956).
 Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002). U.S. Department of Justice, Executive Office for Immigration Review, “Statistical Desk Book,” Dec. 2001, at J1 (hereinafter “Statistical Deskbook”).
 424 U.S. 319, 335 (1976).
 Proposed 8 CFR § 3.1(e)(1).
 Statistical Desk Book, supra note 29, at K1.
 67 Fed. Reg. 7309, 7311 (Feb. 19, 2002).
 Proposed 8 CFR § 3.1(e)(6)(i).
 Proposed 8 CFR § 3.1(e)(6)(ii).
 Proposed 8 CFR § 3.1(e)(6)(iii).
 Proposed 8 CFR § 3.1(e)(6)(iv).
 Proposed 8 CFR § 3.1(e)(6)(v).
 See Davilo-Bardales v. INS, 27 F.3d 1, 5–6 (1st Cir. 1994) (even if unpublished BIA decisions are not “‘precedent’ in the technical sense, the prospect of a government agency treating virtually identical legal issues differently in different cases, without any semblance of a plausible explanation, raises precisely the kinds of concerns about arbitrary agency action that the consistency doctrine addresses (at least where the earlier decisions were not summary in nature…).”)
 See id.
 67 Fed. Reg. 7309, 7311 (Feb. 19, 2002) (amending 8 CFR § 3.2(i)).
 See previous discussion on the proposed elimination of de novo review of factual issues.
 INA § 240A(b)(2).
 Aleinikoff & Martin, “Ashcroft’s Immigration Threat,” Washington Post, Feb. 26, 2002, at 21.
 See discussion below.
 Mathews v. Eldridge, 424 U.S. at 341–47. Streamlining Report, supra note 10, at 5.  Id. at 7.
 See 8 CFR § 3.3(c)(1) and (2).
 Proposed 8 CFR § 3.3(c)(1).
 67 Fed. Reg. 7309, 7312 (Feb. 19, 2002).
 Id. at 7316, discussing proposed 8 CFR § 3.3(b). Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). See also Hughes Aircraft Co. v. United States, 520 U.S. 939, 945-50 (1997) (applying the presumption against statutory retroactivity); Landgraf v. USI Film Products, 511 U.S. 244, 263-86 (1994) (applying the presumption against statutory retroactivity with an extensive discussion of the rule).  SEC v. Chenery Corp., 332 U.S. 194 (1947).  Id. at 203.  Id.  466 F.2d 380, 390 (D.C. Cir. 1972).  See Microcomputer Tech. Inst. v. Riley, 139 F.3d 1044, 1050 n.4 (5th Cir. 1998) (describing six circuits, besides the D.C. Circuit, that have adopted the five-factor analysis).  Retail, Wholesale, 466 F.2d at 390.  See Microcomputer Tech. Inst., 139 F.3d at 1050 n.4.  Heckler v. Community Health Servs. of Crawford County, Inc., 467 U.S. 51, 60 n.12 (1984).  St. Cyr, 121 S. Ct. at 2271.  See, e.g., Padilla-Agustin v. INS, 21 F.3d 970, 976 (9th Cir. 1994) (holding that “when EOIR–26, the BIA’s standards of specificity, and the practice of dismissing appeals without notice are linked, that concatenation is so misleading that it can result in a denial of due process to the alien.”).
 Proposed 8 CFR § 3.1(d)(2)(i)(D).
 Proposed 8 CFR § 3.1(d)(2)(ii), (iii).
 See, e.g., United States v. Chapa-Garza, 243 F.3d 921 (5th Cir., March 1, 2001) (holding that a felony DUI is not a crime of violence under 18 USC § 16(b)), petition for reh’g en banc denied, No. 99-51199 (Aug. 20, 2001); ); Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001) (vacating the petitioner’s deportation order and holding that a felony conviction under New York state law for driving while intoxicated (DWI) does not constitute a “crime of violence” under 18 USC § 16(b)); Bazan-Reyes v. INS, No 99-3861, 2001 WL 748157 (7th Cir., July 5, 2001) (holding that a felony DUI is not a crime of violence under 18 USC § 16(b)).
 Maurice Roberts, The Board of Immigration Appeals: A Critical Approach, 15 San Diego L. Rev. 29, 38 (1977–1978).
Cite as AILA Doc. No. 02032031.