AILA Testimony on BIA Reform

Statement of Stephen Yale-Loehr American Immigration Lawyers Association on The Operations of the Executive Office for Immigration Review (EOIR)

Before the House Committee on the Judiciary Subcommittee on Immigration and Claims February 6, 2002 Washington, D.C.

The EOIR was created on January 9, 1983, through an internal Department of Justice (DOJ) reorganization that combined the BIA with the Immigration Judge (IJ) function previously performed by the Immigration and Naturalization Service (INS). Along with establishing EOIR as a separate agency within the DOJ, this reorganization made the immigration courts independent of the INS, the agency charged with enforcing federal immigration laws. The EOIR also is separate from the Office of Special Counsel for Immigration-Related Employment Practices in the Department of Justice (DOJ) Civil Rights Division and the Office of Immigration Litigation (OIL) in the DOJ Civil Division. As an office within the DOJ, the EOIR is headed by a Director who reports directly to the Deputy Attorney General.

Under authority delegated by the Attorney General, the EOIR administers and interprets federal immigration laws and regulations through the conduct of immigration court proceedings, appellate reviews, and administrative hearings in individual cases. The EOIR carries out these responsibilities through its three main components: 

• The BIA, which hears appeals of decisions made in individual cases by IJs, INS District Directors, or other immigration officials;

• The Office of the Chief Immigration Judge (OCIJ), which oversees all the immigration courts and their proceedings throughout the United States; and

• The Office of the Chief Administrative Hearing Officer (OCAHO), which became part of the EOIR in 1987, to resolve cases concerning employer sanctions, document fraud, and immigration-related employment discrimination.

The BIA is the highest administrative body for interpreting and applying immigration laws. It is composed of 23 Board Member positions (four vacancies currently exist), including the Chairman and two Vice Chairmen who share responsibilities for Board management.
As historical background, a Board of Review functioned within the Department of Labor between 1922 and 1940 and was empowered with reviewing immigration cases and making recommendations to the Secretary of Labor as to their disposition. In 1940, the administration of immigration affairs was transferred to the DOJ, and the Board of Review was replaced with the Board of Immigration Appeals. The new Board was empowered to render final administrative decisions in such matters, subject only to possible review by the Attorney General. As noted above, the 1983 reorganization created the EOIR and placed the Board under the umbrella of that office.

The BIA never has been recognized by statute, and is entirely a creature of the Attorney General's regulations. It is completely independent of the INS, and accountable directly to the Attorney General through a separate chain of command.
The Board has nationwide jurisdiction to hear appeals from certain decisions rendered by IJs and District Directors of the INS in a wide variety of proceedings in which the Government of the United States is one party and an alien, a citizen, or a business firm is the other party. In addition, the Board is responsible for the recognition of organizations and accreditation of representatives requesting permission to practice before INS, the Immigration Courts, and the Board.
Decisions of the Board are binding on all INS officers and IJs unless modified or overruled by the Attorney General or a federal court. The majority of appeals reaching the Board involve orders of removal and applications for relief from removal. Other cases before the Board include the exclusion of aliens applying for admission to the United States, petitions to classify the status of alien relatives for the issuance of preference immigrant visas, fines imposed upon carriers for the violation of immigration laws, and motions for reopening and reconsideration of decisions previously rendered.

The Exponential Growth of the BIA's Caseload and the Success of the Recently Implemented "Streamlining" Initiative 

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. The new streamlining procedures permit 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." Specifically, the report found that streamlining has "significantly improved" productivity, both in terms of the number of cases completed and the average number of days required for a case to be processed.

The report notes that although the efficiency of streamlining is expected to eliminate the remainder of pending cases eligible for streamlining within 20 months, the program should remain viable and can be sustained based solely upon the incoming stream of cases. For example, the report continues, the Board in FY 2001 received an average of 2,350 new cases per month, approximately 35 percent of which were completed by the streamlining panel. Assuming the continuation of this trend, the report adds, streamlining should dispose of approximately 825 cases per month plus any additional cases made appropriate for streamlining by changes in the statute, regulations, case law, or expansion of the streamlining categories.

The Attorney General's Recent Proposal for Regulatory Changes

Attorney General John Ashcroft reportedly has signed off on a proposed rule that would make a number of procedural reforms at the BIA, including cutting the number of Board Member positions from the current 23 permanent positions to 11. While the rule has yet to be published in the Federal Register at the time this testimony was submitted, an advance summary of the proposed regulatory changes obtained by AILA states that the proposed reforms are intended to accomplish the following five objectives:

•  Eliminating the backlog of approximately 55,000 cases currently pending before the Board; 

•  Eliminating delays in the adjudication of administrative appeals; 

• Using the EOIR's resources more efficiently; 

• Focusing the Board's resources on those cases that present disputed legal questions; and 

• Enhancing the quality of BIA decisions.

Specific reforms outlined in the proposal include: 

Single-Member Review and New Criteria for Three-Member Panel Review. According to the advance summary, 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 in the rulings of 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 five-Member "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 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 allows 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. See 8 CFR § 3.3(c)(1) and (2). 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 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 Supreme Court or a court of appeals would "substantially determine the outcome of a case before the BIA." 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 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 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 period, the rule would reduce the number of Board Members to 11, with the Attorney General designating the membership. Five Members including the Chairman would serve on the new screening panel, while the remaining six would either be divided into two three-Member panels, or three two-Member panels, with IJs rotating in to serve as third Members. 

AILA Fully Shares the Attorney General's Concern that the BIA Achieve Timely and Efficient Adjudications and Backlog Reduction. However, the Administration's Proposal Would Not Address Successfully the Backlog and Case Time Concerns and Could Lead to a Diminution of Due Process

The many members of the American Immigration Lawyers Association 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 in a backlog while the respondent either remains in detention or otherwise awaits a final decision that will determine his or her fate.

It may have been the case in some instances in the past that a person could achieve some benefit from delay. Accrual of time toward qualifying for certain forms of relief from deportation; the passage of time in which new changes in law provided new benefits; higher court decisions that set new precedent that might determine the outcome of certain cases: all of these factors potentially could benefit a person awaiting BIA action on their case.

However, changes in our immigration laws enacted by Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) largely eliminated any possible benefit of delay. The "stop time" rule enacted in IIRAIRA § 309(c)(5) eliminated accrual of time toward qualifying for relief. And the uncertainty facing a respondent whose grant of relief is being challenged by the INS is an incredibly stressful factor that every respondent wants ended by a final adjudication by the administrative appellate body.

AILA has argued strenuously for timely adjudications of petitions and applications for INS benefits, and supports the INS Commissioner's goal of achieving six-month adjudications for all immigration cases. AILA also strongly supports the Attorney General's stated goal of having the BIA complete adjudications within a six-month time period. This time period should be much shorter for persons who are detained by the INS during their appeal process. AILA also fully supports the Attorney General's goal of completely clearing the current BIA backlog of 55,000 cases within a reasonable period of time.

AILA does not believe, however, that the methods the Attorney General has proposed for achieving timely adjudications and backlog elimination will succeed, for the following reasons:

• Existing backlogs are not the result of inefficiency but reflect a lack of resources. A reduction in the number of Board Members does not genuinely serve the interests of fairness or efficiency. The Board of Immigration Appeals currently has 23 permanent Board positions, with 19 positions currently filled, supported by about 120 staff attorneys. The Board is expected to adjudicate annually about 30,000 and deal with a backlog of 55,000 cases. The streamlining measures that took effect a little more than one year ago have begun to show results. Case completions have increased from an average of about 20 per staff attorney per month to about 40 to 50 per staff attorney per month.
  
  The proposed reduction in the Board would require each of the 11 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.
  
  It is counterintuitive to think that eliminating Board Members and implementing more stringent streamlining will resolve backlog problems. 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. 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. Moreover, country and political conditions frequently change, affecting the decisions that Board Members must make. 
  
  Board Members have some of the most difficult jobs assigned to any adjudicator in our nation. To their credit, Members of the Board take their work very seriously and treat each case with the thought and care it requires and deserves.
  
  To reduce backlogs and allow Board Members to keep current with incoming appeals, we urge the Attorney General to increase the number of Board Members, staff attorneys and support staff, while imposing the proposed time deadlines, to allow the backlog to be cleared while supporting the judges in their important work.
  
  The Administration proposal to reduce the number of Board Members 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. 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. 

• 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. 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. If the BIA is prevented from being able to review details of the underlying case, or to present a thoughtful and rational basis for its decision in either upholding or denying a matter on appeal, the federal court reviewing that decision will be deprived of the thought processes used by the BIA in making its final decision. When the federal courts are asked to look to those BIA decisions for purposes of review, the federal courts will be required to routinely remand such cases back to the BIA to request the full analysis of the Board's thinking in each decision. Any system that routinely involves remands for purposes of clearer decisions in the courts below cannot be said to achieve any type of efficiency; rather, such a system would institutionalize inefficiency.
  
  Under current practices, the Board has a strict policy for deferring to the findings of fact made by immigration judges. However, there are situations where a review and analysis of an immigration judge's findings of fact is appropriate. Raising the standard to require a showing that the decision of the immigration judge was "clearly erroneous" imposes an unnecessary and overly harsh burden.
  
  Although regulations require that immigration hearings be recorded, in the vast majority of cases immigration judges 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, immigration judges 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.
  
  The need for a de novo review of the factual finding of an immigration judge is particularly compelling in asylum cases. 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.
  
  We must also remember that 56 percent of all people who appear before an immigration judge do not have an attorney. When combined with the language barriers that many people face, immigration decisions are sometimes based on confusion or 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."
  
  In fact, if the BIA is allowed to clarify factual errors, federal courts then will not have to remand cases, thereby improving overall efficiency. The BIA also should be allowed to consider new evidence, such as changes in country conditions, something that the Administration's proposal would also prevent from being considered. The Administration's proposal would generate additional concerns if it were to bar motions to reopen based on new evidence. Such a bar could violate due process protections.

• The BIA has already successfully implemented procedures that allow it to streamline and expedite cases. As noted above, 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. 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.
  
  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.

• Three-judge panels should remain the norm, not the exception. The Attorney General's proposed restructuring appears to assume that the vast majority of BIA appeals do not involve complex questions of law or legal interpretation. The proposed restructuring contemplates that the majority of the cases will be "screened" and then assigned to single Board Members for adjudication, with only certain "qualifying" cases forwarded for panel consideration. The proposal does not detail how the screening committee would be selected and who would do the selecting.
  
  These assumptions are 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. In these cases, the Board does not have the benefit of legal briefs to assist them 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.

• Thoughtful and thorough administrative review at the BIA level is more critical than ever in light of the limitations on judicial review imposed by the IIRAIRA. Congress placed significant restrictions on judicial review of immigration cases in 1996. The result is that the BIA is the court of last resort for the vast majority of those seeking review of immigration judge decisions. IIRAIRA prohibits judicial review in many cases that involve discretionary decisions regarding relief from deportation and many cases that involve underlying criminal convictions. While these restrictions continue to be challenged in court in selective cases, and while the U.S. Supreme Court has not yet ruled on the constitutionality of the restrictions, most cases never go beyond the BIA.
  
  Further, in cases where the respondent is unrepresented by legal counsel, most do not have the resources to pursue their cases to the circuit courts of appeals. The BIA thus serves by necessity as the court of last resort for the vast majority of pro se respondents.
  
  Given these facts, it is extremely important that full and fair administrative appellate review not be compromised in the name of efficiency. Persons facing removal and possible life-threatening circumstances in their home country deserve careful consideration of their claims to relief. A Board of Immigration Appeals that enjoys a fully staffed complement of adjudicators given appropriate and adequate resources to complete their decision-making in an efficient and timely manner best provides such consideration. 

• The Attorney General's proposed regulations present additional procedural concerns and contain questionable retroactive applicability. AILA will address these and other areas more fully in written comments once the proposed regulation has been published. Areas of concern include the proposed requirement for simultaneous briefing in 21 days. Such a deadline would defeat the purpose of opposing briefs that can both address points made by each side and provide judges the benefit of full elaboration of the issues. Without such elaboration, their job becomes more difficult. In addition, the Attorney General's proposal to apply the new regulation retroactively would change settled expectations by modifying the standard of review for cases already on appeal.
  
  Moreover, any proposed reforms must be considered in light of the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). That 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, particularly with regard to pro se respondents, as discussed above.

The Executive Office for Immigration Review Should Constitute a Separate and Independent Agency Outside of the Department of Justice 

Reforming the BIA is an important activity and should involve increasing the number of Board Members, improving the screening of cases that have limited factual or legal disputes, and instituting programs to provide free legal representation in meritorious matters. It is vitally important that immigration courts be independent, impartial and include meaningful checks and balances. Due process requires no less. To that end, AILA advocates the creation of a separate, Executive Branch agency that would include the trial-level immigration courts and the BIA. Such an Article I entity would best protect and advance America's core legal values by safeguarding the independence and impartiality of the immigration court system. I would welcome another opportunity to come before this Subcommittee to discuss an independent immigration court.

Conclusion

There are four goals of any administrative process: accuracy, efficiency, acceptability, and consistency. 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). 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 assure equal treatment of similarly situated litigants. The Attorney General's proposed reforms of the immigration appeal function must be measured against these four goals, as well as the due process requirements of the U.S. Constitution. Specifically, AILA believes that any reforms should include the following considerations: 

•  The independence and impartiality of the immigration judges and the immigration court system must be affirmed;

• Proposed changes must facilitate, not erode, immigrants' access to the BIA and federal courts, consistent with due process considerations in this mass justice system; and 

• Such changes also must enhance efficiency, increase accuracy, acceptability, accountability and consistency, and facilitate oversight and review.

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