AILA Comment on EOIR Regulation on Delegations of Authority

Charles Adkins-Blanch, General Counsel
Executive Office for Immigration Review
Suite 2400
5107 Leesburg Pike
Falls Church, VA  22041

Re: 65 Fed. Reg. 81434 (12/26/00), Authorities Delegated to the Director of the Executive Office for Immigration Review, the Chairman of the Board of Immigration Appeals, and the Chief Immigration Judge

Dear Mr. Adkins-Blanch:

The American Immigration Lawyers Association (AILA) is writing to comment on proposed regulations published in the Federal Register on December 26, 2000. The American Immigration Lawyers Association (“AILA”) is a voluntary bar association of approximately 7,000 attorneys and law professors practicing and teaching in the field of immigration and nationality law. AILA’s members represent and advocate on behalf of thousands of aliens each year, and AILA remains committed to justice and fairness in the proceedings to which those aliens may become subject.

AILA is very concerned about section 3.0(b)(ii) of the proposed regulation, which would grant the Director the authority to, among other things, “Direct…the efficient disposition of all pending cases, including the power, in his discretion, to set priorities or time frames for the resolution of cases….”  This provision would appear to grant the Director plenary power to set specific time frames in which cases must be adjudicated.   However, individual cases cannot be re-shaped to fit externally-determined time frames.  Only the litigants involved in trying the case can know how much time is necessary to fully present the evidence required to ensure that the Immigration Judge can accurately evaluate the credibility of the witnesses and make a fully informed decision.  Especially in the context of an asylum claim, where a traumatized witness’ testimony must be carefully and often slowly elicited, externally-imposed time limitations would undermine the capacity of the immigration court to fully and fairly develop all the relevant facts.  Indeed, AILA would be troubled if an IJ attempted to impose an arbitrary time limit on proceedings:  we are doubly disturbed by the authorization of someone outside the courtroom to impose such a limit.

Section 3.0(b)(2) only increases our concern over this provision.  This subsection allows the Director to delegate the authority to impose time limits to “any other EOIR employee.”  It is bad enough that someone outside the immediate courtroom be able to impose time limits on proceedings.  It is unconscionable that such limits might be imposed by just anyone, including someone who may be concerned more with “case completion numbers” than with justice.

AILA’s concerns with these provisions are only exacerbated by section 3.0(c), which rightly indicates that the Director cannot direct the result of an adjudication, but then states that “nothing in this part shall be construed to limit the authority of the Director under paragraph (b) of this section.”  The result is that the prohibition against the Director’s involvement in individual determinations is superseded by the Director’s (or his designee’s) ability to impose time limits.  Unfortunately, such a time limit can, and often will, negatively impact a case if insufficient time is allowed for both sides to fully present the evidence and cross-examine witnesses.

In sum, AILA regards this proposal as a threat to due process and to the fairness of proceedings.  We urge that the language in section 3.0(b)(1)(ii) granting the Director discretion “to set priorities or time frames for the resolution of cases” be deleted.

Thank you for your consideration.

Sincerely,

AMERICAN IMMIGRATION LAWYERS ASSOCIATION

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