AILA’s Comments on the Proposed BIA Reform Rule

March 20, 2002

 Hand Delivered

Charles K. Adkins-Blanch, General Counsel

Executive Office for Immigration Review

5107 Leesburg Pike, Suite 2400

Falls Church, VA  22041

 Re:    Board of Immigration Appeals: Procedural Reforms to Improve Case Management

         67 Fed. Reg. 7309 (Feb. 19, 2002)

 

Dear Mr. Adkins-Blanch:

 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).^[1]  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.[2] 

I.  INTRODUCTION

 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.^[3]  Specific reforms set forth in the proposed rule include:

 Single-Member 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.”

 Elimination of 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.

 Time Limits. 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.

 Prioritization, 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).

 New Procedures 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.

 Reduction in 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.^[4]  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 law.

 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.”^[5]  Due process is a fundamental principal of fairness in all legal matters.^[6]  In Mathews v. Eldridge,^[7] 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.^[8]

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.^[9]

 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 burdens. 

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 1994.

 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 program.

 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.”[10]  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.[11]

 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 categories.[12]

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)^[13] 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: 

A.            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 immigration law. 

 Contrary to the Attorney General’s assertion, the Board does not take “an inordinately long time” to resolve cases.[14]  Staggering under numerous statutory and regulatory changes, the still understaffed Board has steadily increased its adjudications despite an increasingly complex caseload.

 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.[15]

 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.[16]

 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 personnel.

 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. Cyr[17] 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 membership.

 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: 

Review 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 states:  

The 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 bodies.^[18]

 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.^[19]  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.”^[20]

 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.^[21]  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.^[22]

 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.^[23]  The Board was forced to clarify its review policies in Matter of Burbano,^[24] 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,^[25]and Calcano-Martinez v. INS,^[26] 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.”^[27]  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 since 1956. 

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-.^[28]  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 adjudicative body.

 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 cases.

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.[29]  When 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 v. Eldridge.^[30]  The Matthews 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 other parties.

 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.^[31]  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. 

Furthermore, a significant number (34 percent)of BIA cases are brought pro se.^[32]  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 aberrant decision.

 Relying 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.

 The 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 system.

 

1.   The 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.”^[33]  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.  Moreover, to 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.

 For 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.”^[34]  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.”^[35]  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,^[36] as would cases or controversies of “major national import.”^[37]  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.”^[38]  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.

 The 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.

 

2.   The 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.^[39]  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.^[40]

 The proposed regulations also appear to allow the same Board Member to review motions to reopen or reconsider his or her incorrect decisions.^[41]  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.^[42]  For instance, since cancellation of removal for victims of domestic violence involves showing extreme hardship and a favorable exercise of discretion,^[43] 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.”^[44]

 In sum, instituting single-member screening based on subjectivecriteria, while severely curtailing de novo review of factual issues^[45] 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.^[46]  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 subsequent legislation.

 According 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 August 2001.[47]  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.[48]

 Rather 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 exhibits.

 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

 

         1.  The BIA should retain its current briefing schedule

 Current BIA procedures allow each party 30 days in which to file their respective briefs.^[49]  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.^[50]

 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 thorough review?

 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.

 

4.   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 decisions.

 

E.   The Retroactive Application Of The Proposed Rule Would Impinge Upon Individuals’ Appellate Rights

 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.”^[51]  (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.” ^[52]  (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.”[53]  Nevertheless, retroactive application of adjudicative decisions is sometimes appropriate.  In SEC v. Chenery Corp.,[54] 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 agency.”[55]  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.”[56]

 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,[57] to determine whether the result of an adjudication could be applied retroactively.[58]  The D.C. Circuit’s analysis considers:

 

(1) 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 old standard.[59]

 

Other circuits apply the Chenery retroactivity test on a case-by-case basis.[60]  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.”[61]  These tests, though not fully defined by the Supreme Court, offer some guidance as to when an adjudicative decision may be applied retroactively.

 

F.   The 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 Efficiency

 Currently, 8 CFR § 3.1(d)(2)(i) provides that the Board “may summarily dismiss any appeal or portion of any appeal in any case in which:

 

(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;

 

(C) The appeal is from an order that granted the party concerned the relief that had been requested;

 

(D) 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;

 

(E) The appeal does not fall within the Board's jurisdiction, or lies with the Immigration Judge rather than the Board;

 

(F) The appeal is untimely, or barred by an affirmative waiver of the right of appeal that is clear on the record; or

 

(G) 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,[62] 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.[63]  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.

 

G.  The 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.^[64]  Cases are to be identified for summary dismissal, and any matter so dismissed may constitute frivolous behavior under § 3.102(j).^[65]

 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.[66]

 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.

 

V.  CONCLUSION

 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 allotted.

 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:

 

The 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.^[67]

 

We urge the Attorney General to revisit these proposals in light of these comments.

 Sincerely,

AMERICAN IMMIGRATION LAWYERS ASSOCIATION

 

^[1] 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).

[2] 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.

^[3] 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.

^[4] 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).

^[5] U.S. Const. amend. V.

^[6] Gerald Hill & Kathleen Hill, Real Life Dictionary of the Law (1995).

^[7] Mathews v. Eldridge, 424 U.S. 319, 341–47 (1976).

^[8] Id.

^[9] Legomsky, supra note 4, at 1316–17.

[10] U.S. Department of Justice, Executive Office for Immigration Review, “Board of Immigration Appeals Streamlining Pilot Project Assessment Report,” at 1 (hereinafter “Streamlining Report”). [11] Id. at 1–2. [12] Id. at 2.

^[13] Pub. L. No. 104–208.

[14] Statement of Attorney General John Ashcroft at a February 6, 2002, news conference. [15] 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. [16] Streamlining Report, supra note 10, at 5–6. [17] INS v. St. Cyr, 121 S. Ct. 2271 (June 25, 2001).

^[18] 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.

^[19] 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).

^[20] Ghassan v. INS, 972 F.2d 631, 635 (5th Cir. 1992).

^[21] Mikhael v. INS, 115 F.3d 299 (5th Cir. 1997).

^[22] Id. at 306.

^[23] 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).

^[24] Matter of Burbano, 20 I&N Dec. 872 (BIA 1994).

^[25] INS v. St. Cyr, 121 S. Ct. 2271 (2001).

^[26] Calcano-Martinez v. INS, 121 S. Ct. 2268 (2001).

^[27] Matter of B-, 7 I&N Dec. 1 (BIA, Comm’r 1955; A.G. 1956).

^[28] Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002).

[29] U.S. Department of Justice, Executive Office for Immigration Review, “Statistical Desk Book,” Dec. 2001, at J1 (hereinafter “Statistical Deskbook”).

^[30] 424 U.S. 319, 335 (1976).

^[31] Proposed 8 CFR § 3.1(e)(1).

^[32] Statistical Desk Book, supra note 29, at K1.

^[33] 67 Fed. Reg. 7309, 7311 (Feb. 19, 2002).

^[34] Proposed 8 CFR § 3.1(e)(6)(i).

^[35] Proposed 8 CFR § 3.1(e)(6)(ii).

^[36] Proposed 8 CFR § 3.1(e)(6)(iii).

^[37] Proposed 8 CFR § 3.1(e)(6)(iv).

^[38] Proposed 8 CFR § 3.1(e)(6)(v).

^[39] 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…).”) 

^[40] See id.

^[41] 67 Fed. Reg. 7309, 7311 (Feb. 19, 2002) (amending 8 CFR § 3.2(i)).

^[42] See previous discussion on the proposed elimination of de novo review of factual issues.

^[43] INA § 240A(b)(2).

^[44] Aleinikoff & Martin, “Ashcroft’s Immigration Threat,” Washington Post, Feb. 26, 2002, at 21.

^[45] See discussion below.

^[46] Mathews v. Eldridge, 424 U.S. at 341–47.

[47] Streamlining Report, supra note 10, at 5. [48] Id. at 7.

^[49] See 8 CFR § 3.3(c)(1) and (2).

^[50] Proposed 8 CFR § 3.3(c)(1).

^[51] 67 Fed. Reg. 7309, 7312 (Feb. 19, 2002).

^[52] Id. at 7316, discussing proposed 8 CFR § 3.3(b).

[53] 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). [54] SEC v. Chenery Corp., 332 U.S. 194 (1947). [55] Id. at 203. [56] Id. [57] 466 F.2d 380, 390 (D.C. Cir. 1972). [58] 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). [59] Retail, Wholesale, 466 F.2d at 390. [60] See Microcomputer Tech. Inst., 139 F.3d at 1050 n.4. [61] Heckler v. Community Health Servs. of Crawford County, Inc., 467 U.S. 51, 60 n.12 (1984). [62] St. Cyr, 121 S. Ct. at 2271. [63] See, e.g., Padilla-Agustin v. INS, 21 F.3d 970, 976 (9^th 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.”).

^[64] Proposed 8 CFR § 3.1(d)(2)(i)(D).

^[65] Proposed 8 CFR § 3.1(d)(2)(ii), (iii).

[66] See, e.g., United States v. Chapa-Garza, 243 F.3d 921 (5^th 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 (7^th Cir., July 5, 2001) (holding that a felony DUI is not a crime of violence under 18 USC  § 16(b)).

 ^[67] Maurice Roberts, The Board of Immigration Appeals: A Critical Approach, 15 San Diego L. Rev. 29, 38 (1977–1978).

Related Resources

• Appendix to AILA’s Comments on the Proposed BIA Reform Rule
• Appendix -- Credibility Cases