Recently the handling of civil immigration detainers by local law departments has been heavily scrutinized.
AILA Doc No. 06011162 | Dated January 10, 2006
AILA Welcomes Attorney General Gonzales' Review of Immigration Judges and Board of Immigration Appeals Processes
WASHINGTON, Jan. 10 --- The American Immigration Lawyers Association (AILA) today strongly commended Attorney General Gonzales' announcement that he is launching a comprehensive review of the immigration courts, including the Board of Immigration Review.
AILA has had deep and long-standing concerns about the functioning of the immigration courts, the behavior of immigration judges, and especially the "Affirmance Without Opinion" (AWO) procedure employed by the Board of Immigration Appeals.
Writing to Attorney General Gonzales after voicing concerns about AWO during his recent appearance at the Council of Foreign Relations in New York, AILA President Deborah Notkin stated, "As the decisions from these [Circuit Courts of Appeals] demonstrate, the abbreviated AWO review carried out by a single member of the BIA has proven to be an inadequate check against even simple errors by Immigration Judges (IJs). As a result, seriously flawed IJ decisions are being elevated to the status of final agency decisions in removal proceedings. This result not only hurts the respondents involved in the individual cases, but also undermines public confidence in Department of Justice judges and processes.
In July 2002, the Department of Justice adopted final regulations that restructured and streamlined the appeals process before the BIA, and included an enhanced "affirmance without opinion" procedure. This procedure allows a single Board member to affirm an IJ decision without opinion. For purposes of federal court review, the AWO process elevates the IJ decision to the status of the final agency decision to be reviewed. Consequently, federal courts are now directly reviewing IJ decisions, where previously there would have been a BIA decision and rationale for the court to review.
Increasingly, courts are reversing immigration decisions due to seriously flawed IJ decisions. For example, the Seventh Circuit recently calculated that it reversed the Board in a "staggering 48%" of the petitions for review that were decided on the merits in the preceding twelve months. Noting that its criticisms of the BIA and the IJs have "frequently been severe," the Seventh Circuit also stated:
Th[e] tension between judicial and administrative adjudicators is not due to judicial hostility to the nation's immigration policies or to a misconception of the proper standard of judicial review of administrative decisions. It is due to the fact that the adjudication of [immigration] cases at the administrative level has fallen below the minimum standards of legal justice. … [I]t cannot be in the interest of the immigration authorities, the taxpayer, the federal judiciary, or citizens concerned with the effective enforcement of the nation's immigration laws for removal orders to be routinely nullified by the courts … [T]he power of correction lies in the Department of Homeland Security, which prosecutes removal cases, and the Department of Justice, which adjudicates them.
Benslimane v. Gonzales, __ F.3d __, 2005 U.S. App. LEXIS 26048, *3-4 (7th Cir. 2005) (emphasis added).
The Seventh Circuit is not alone in its criticisms, as a number of other courts also have expressed concern over the increasing number of below-standard decisions of IJs that they are now forced to review. See, e.g., Alarcon-Chavez v. Gonzales, 403 F.3d 343, 346 (5th Cir. 2005) (finding that the IJ exhibited "an arbitrary exercise of judicial fiat at the expense of a powerless alien whom the DHS had already found to have a credible fear of returning to Cuba"); Cao v. Gonzales, 407F.3d 146, 161 (3rd Cir. 2005) (finding that the IJ's credibility determination was based upon impermissible "personal notions," "untenable conclusions," and "speculation or conjecture"); Recinos de Leon v. Gonzales, 400 F.3d 1185, 1193-94 (9th Cir. 2005) ("By streamlining the case, the BIA offered no coherent alternative explanation for the decision not dependant on the IJ's deficient finding of facts. Instead, the BIA rested on the IJ's indecipherable explanation").
There are many additional cases in which the courts have reversed removal decisions because of basic errors by IJs. Were it not for the AWO procedure, these errors would likely have been remedied by the BIA when it issued its own decision in the case. AILA believes that these cases demonstrate that the AWO procedure is not working and that it should be abandoned. The BIA must carefully and thoroughly review administrative appeals.
AILA appreciates the leadership that Attorney General Gonzales is bringing to the Department of Justice on these important issues, and commends the Attorney General especially for the strong statement he issued today about his expectations for immigration judges.
AILA welcomes the comprehensive review that the Attorney General has announced and will work in any way it can to provide data and documentation to the Department of Justice as it conducts its review.
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.
Cite as AILA Doc. No. 06011162.