AILA Comments on BIA Streamlining

November 13, 1998

BY HAND

Margaret Philbin, Esq.
General Counsel
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 2400
Falls Church, VA 22041

Re: BIA Proposed Rule on Streamlining Decisions, EOIR No. 122P, AG 2177-98, 63 FR 49043 (September 14, 1998)

Dear Ms. Philbin:

The following are the comments of the American Immigration Lawyers Association ("AILA") and the American Immigration Law Foundation ("AILF") to the proposed regulation cited above. This regulation purports to streamline the review of the Board of Immigration Appeals of certain decisions.

As you know, AILA is a bar association of over 5,000 attorneys and law professors who practice and teach in the field of immigration and nationality law. Its members represent the entire spectrum of temporary visitors, immigrants, and the U.S. citizens, families, and employers who sponsor them for temporary and permanent residence in this country. AILA’s goals include the advancement of the law pertaining to immigration and naturalization, the promotion of reforms and the facilitation of justice in the field.

AILF is a not-for-profit organization whose mission is to increase public understanding of immigration law and policy, promote public service and professional excellence in the field of immigration law, and advance fundamental fairness in U.S. immigration law and its administration.

Both AILA and AILF have a significant interest in the proposed regulation. We recognize the attempts being made by the Board to reconcile its own mission with its limited resources and increasing workload. However, we are concerned that the changes proposed by the Board will bring with them significant problems.

I. Introduction

As an initial matter, we must state our opposition to the proposed review process at the Board of Immigration Appeals to reduce review by allowing single board member review and affirmance with no opinion. We understand--and

sympathize--with the caseload demands upon the Board. We accept the need for some mechanism to increase efficiency in light of this rapidly expanding burden. However, the proposed rule, in effect, abandons the statutory function of the Board and concedes its inability to do the job for which it has been formed. There is no reasonable cause to believe that a cursory review of an appeal meets the preferred standard of review that is expected of an appellate body, particularly an appellate body that is the only point of review in certain cases. To adopt this proposal admits the Board can't meet its responsibility.

If, in fact, that is what the EOIR admits, then we must examine the best alternatives. Certainly, the fact of 25,000 new cases a year—with thousands in the backlog--are an inescapable fact. The proposed rule appears to be an attempt to reduce Board member’s time on simple cases so as increase case turnover and reduce the backlog. To accomplish this, the proposed rule suggests that a single member of the Board be allowed to affirm decisions, and that this be done with without opinion and performed by mere signature to that effect. However, for the reasons explained below, neither aspect of this proposal will serve the Board’s primary function – that of correcting factual or legal errors made by decision-makers, and of developing the body of immigration law.

AILA and AILF are strongly opposed to the absence of a written opinion, for reasons stated below. We are also opposed to the use of single-member review as it is currently articulated. Before we can agree that single members should be able to review decisions, we would like the Board to address the concerns noted below, namely the inconsistent and unworkable standard for affirmance; the ability of a single-member to reverse or remand as well as affirm; the ability to cite to the single-member review (in connection with other contentions) in a petition for en banc review; and the lack of selection standards for single members.

II. The Absence of a Written Opinion, Even a Summary Opinion, Is Harmful.

The Board’s role in the immigration process is an essential one. It serves as the reviewing body of immigration law. Often it alone can rectify the mistakes made by all-too-human immigration officials and judges. Especially in light of the limits on federal judicial review placed on certain types of cases, the Board’s role has increased in significance.

Written decisions, addressing the contentions and concerns of the parties, are in turn central to the appellate process. The Board touched on one purpose of written decisions in the supplementary information to the rule – that of providing guidance to the judges and the immigration bar. However, written guidance, even summary guidance, is far more effective than a summary affirmation.

Other purposes would be served by written opinions. Written explanations would continue to protect the legitimacy of the appellate process. The very reason the Board seeks to streamline decisions is due to an increasing caseload, the result of more aliens seeking relief and fewer avenues of relief available. This increased caseload has taxed the resources of those clerks and attorneys who research the appeals, and of the adjudicators who must decide them. Overworked people make mistakes. A written explanation attempts to ensure that harried adjudicators and their staffs actually review the contentions of the parties, whether they are legal, factual, or both, and develop reasoned responses to them. While written opinions would not guarantee that fewer mistakes would result, it is far more likely.

Written opinions would also enable the losing party, and the public at large, to accept the legitimacy of an appellate decision. An alien who seeks review by the BIA does so because he or she believes that the court below misunderstood the facts of the case, misapplied the law, or both. The BIA is turned to as an independent appellate entity – a check on the trial judge. Even if the alien loses on appeal, a written opinion demonstrates that the issues were considered completely.

Most importantly, the written explanation of the Board’s reasoning is needed to provide a reviewing court, where there is one, with some guidance as to how it reached that decision. In fact, several courts of appeal have indicated that some written analysis of the parties’ contentions is necessary to ensure that the Board reviewed them. Osuchukwu v. INS, 744 F. 2d 1136, 1142 (5^th Cir. 1984). See also Zlatkov v. INS, 1996 U.S. App. LEXIS 4571 (7^th Cir. 1996) (BIA decision affirmed because it "is not of the type which would generally be characterized as summary" but analyzed Zlatkov’s claims in six pages of discussion and analysis); Sanon v. INS, 52 F. 3d 648 (7^th Cir. 1995) (BIA reversed because "it did not address adequately the issues Sanon’s petition raised" and "we require some proof that the Board has exercised its expertise in [an asylum] case"); Dulane v. INS, 46 F. 3d 988 (10^th Cir. 1995) (BIA reversed for abuse of discretion because it "did not announce its decision [denying motion to reopen on the issue of suspension of deportation] in terms sufficient for us to conclude that it cumulatively considered all the relevant evidence" and also reversed for failure to base decision on substantial evidence because it failed to address whether Dulane established a well-founded fear of future persecution); Panrit v. INS, 19 F. 3d 544 (10^th Cir. 1994) ("we do not grant unrestricted license to the Board automatically to summarily adopt immigration judges’ decisions without examining those decisions to ensure that all of the factors urged by the alien were in immigration judge. To do so would effectively remove the Board as a separate reviewing body…"); Turri v. INS, 997 F 2d. 1306 (10^th Cir. 1993) (reversing BIA because it did not "announce its decision in terms sufficient for us, as the reviewing court, to see that the Board heard, considered, and decided based on all the relevant factors"); Diaz-Resendez v. INS, 960 F. 2d 493 (5^th Cir. 1992) (reversing BIA for abuse of discretion because "its decision is made without rational explanation"); Saldana v. INS, 762 F. 2d 824 (9^th Cir. 1985) (reversing BIA and noting that "when the BIA dismisses an alien’s claims without conclusory or laconic statements, this court may conclude that the BIA has abused its discretion by failing to give reasons which show that it has properly considered the facts which bear on its decision"); Velarde v. INS, 140 F. 3d 1305 (9^th Cir. 1998) (reversing BIA where it had dismissed an alien’s asylum claim in a single sentence, and holding that "failure by the BIA to support its conclusions with a reasoned explanation based upon legitimate concerns" constitutes an abuse of discretion, and that "when the Board denies eligibility for relief, it must give reasons for its decisions.")

The "no opinion" provision is seriously flawed. It flies in the face of accepted administrative law which mandates that a reviewing body state with sufficient particularity and clarity the reasons for the decision. See De La Llana-Castellon v. INS, 16 F3rd 1093, at 1098 (10th Cir 1994). Even if the decision is a brief recitation of the facts and a statement of controlling law that only takes up a couple of paragraphs, there must be some indication that the decision of the immigration judge was reviewed and evaluated. To do less assures the alien of

an appeal--at least in asylum cases--to the Court of Appeals, and the case law and presumption of a thorough review is on the alien's side. Why promulgate a rule that begs for reversal?

III. Single Member Review, if Unavoidable, Must Be Held to Consistent Standards.

AILA and AILF believe that in principle, multi-member review of the BIA’s caseload is preferable to the Board’s plan to use single members to review cases. The multi-person deliberative process is more reasoned, more thoughtful, and is far more likely to result in fair adjudications. However, we recognize that a multi-member deliberation at the Board may no longer be a viable option, given the increasing demands placed before it.

A. Lack of Standards In Deciding Which cases Are Reviewed by Single Members.

The Board’s current proposal for streamlining of single-member affirmances has several significant flaws. The first is the lack of a consistent standard for what would be referred to a single member and what would be referred to a panel. The Supplementary Information to the proposed rule is itself inconsistent on this, offering several standards. It refers to the correct standards to be applied in terms of a "realistic chance" of reversal; a "chance that the result below was incorrect"; and that "the appellant makes a substantive argument" for reversal. None of these standards appears in the rule itself. In fact, the rule would permit a single member to affirm whenever that member concludes that there is no legal or factual basis for reversal, or where he or she determines that the result was correct. These differing standards will only result in confusion to the Board, judges, and the bar who are affected by them.

We believe that a realistic and consistent standard for the process of determining what cases are to be reviewed by a single Board member must be adopted. We would advocate that the Board adopt language that would provide clear guidance without undue burdens. We also believe that the Board should foreclose single-member review to all cases where judicial review would be foreclosed, such as deportation on criminal grounds.

The rule and the Supplementary Information discuss referral standards for panels. The rule looks to the member making an appellate determination of the decision below, rather than any assessment of whether any other Board member would reasonably opt for reversal. The rule’s narrow interpretation should be abandoned in favor of the more basic, threshold assessment of the reasonableness of reversal. In this, only when a member could conclude that no other Board member could reasonably support reversal that he or she could affirm the decision below. This standard would ensure that borderline cases would go to a panel, leaving the members with clearer (and thus, more efficiently handled) decisions. This standard could work in the alternative for summary reversals as well (see below).

B. Broadening the Use of Single Members.

Because of the caseload, AILA and AILF recognize that review by a single member may now be necessary. But this single member review should not be just to affirm lower decisions. The single member should also have the power to reverse or remand, as is necessary. We recognize that with a 25,000 case intake every year that the 16 current members of the Board cannot meet in panel conferences--at least in any meaningful way--on every case. Moreover, there are no doubt many cases--joint motions to reopen for adjustment, obvious NACARA cases, termination for death or departure--that can readily be resolved by a quick order. But where an alien has raised an issue of mistake in law or misinterpretation of the facts by the immigration judge, then a more thorough review is needed. While the proposed rule contemplates that such issues will be referred to a three judge panel, such a determination places an important burden on both the staff attorney and Board member. This might be necessary, but a system of quality review should be in place to check each Board member's evaluation of such criteria. With the different perspectives that exist on a sixteen-member Board, there will undoubtedly be difference in evaluating these cases. The Board, therefore, must attempt to establish some standard that will be reasonably consistent.

C. Objecting to the Single Member Review.

The proposed rule states that the contention of whether or not a case was appropriately decided by a single Board member shall not be the subject of a Motion for Reconsideration. While allowing motions to reconsider on this ground may result in frivolous appeals, the contention is a serious one that could and should be addressed in some way. Immigration laws have changed significantly, and the complexities are more significant than ever before. The lack of precedents on many points, and the increasing caseloads, may cause single members to overlook issues or facts crucial to the decision. We suggest that this contention can legitimately be raised in connection with others. We also suggest that it would be appropriate in combination with a petition for en banc review, as is practiced by other administrative agencies.

D. Standardization of Single-Member Selection.

Finally, the Board needs to standardize the selection of those single members to take cases. The proposed rule appears to allow selective delegations of authority, permitting the Chair to determine which Board member (or the chief Attorney Examiner) is to take on which case. No standards are described as to how the chair is to make such determinations. The BIA should adopt a more neutral or random selection process to prevent potential abuses of authority, and to ensure that no one member is issuing such opinions.

Conclusion

We thank the Board for this opportunity to comment on its procedures and sincerely hope it will consider the concerns expressed above, which we know are shared by others in the immigration community. Both AILA and AILF remain available to discuss this issue with the Board and EOIR in future.

Respectfully submitted,

AMERICAN IMMIGRATION LAWYERS ASSOCIATION
Jeanne A. Butterfield, Executive Director
Elissa M. McGovern, Associate Director, Liaison
Douglas Weigle, Vice-chair, EOIR Liaison Committee

AMERICAN IMMIGRATION LAW FOUNDATION
Roy Petty, Executive Director
Nadine Wettstein, Acting Director, Legal Action Center

Related Resources

• BIA Proposed Rule on Streamlining Decisions
  (63 FR 49043, 9/14/98)