Major Changes Set to Be Implemented at Board of Immigration Appeals
February 7, 2002

In an effort to reduce substantial case backlogs and overall, the processing time for many immigration related appeals, U.S. Attorney General John Ashcroft has proposed regulations that will significantly alter the structure of the Board of Immigration of Appeals (BIA) and the way it does business. The rule, which is set to take effect immediately, spells mainly bad news for those with matters now pending before the BIA.

What is the Board of Immigration Appeals?

The BIA is part of the Executive Office of Immigration Review or EOIR (and its parent agency, the U.S. Department of Justice), which under authority granted by the U.S. Attorney General, reviews decisions made in individual cases by Immigration Judges in removal/deportation proceedings and a variety of decisions made by the Immigration & Naturalization Service and other federal agencies. In interpreting and administering federal immigration laws and regulations in an appellate context, the BIA, to this point, consisted of up to 23 members, with panels of 3 members reviewing and rendering a decision in each appeal.

What is the problem the Attorney General seeks to address?

In short, more than 55,000 appeals are now pending before the BIA, with some cases pending more than 7 years. Ashcroft’s goal in proposing these new regulations is to clear this backlog during a 6-month transition period, with no case pending more than 10 months by the end of this period. Additionally, following this period, a time limit of 6 months would be imposed on the adjudication of virtually all future appeals.

What new measures are set to be implemented?

Set to be implemented immediately for both pending and incoming cases, is a procedure where most cases will be only be reviewed by a single Board member, rather than a panel of 3. Additionally, following the 6 month transition period, the total number of Board members will be reduced to 11 members.

Appeals that would still continue to be considered by panels of 3 members under the new plan include cases where:
— inconsistencies in decisions by Immigration Judges need to be settled,
— ambiguous laws, regulations or procedures are in need of clarification,
— an Immigration Judge’s decision does not “comport with the law” or includes “clearly erroneous factual determinations” and,
— a case or controversy of “major national import” is presented.

Although the goals sought to be achieved by these measures are worthy, many questions as to the practicality of the measures have been raised. According to testimony presented before the House of Representatives’ Immigration Subcommittee on February 6, 2002, by a representative of the American Immigration Lawyers Association (an accredited bar association of more than 7,600 U.S. immigration lawyers), the Attorney General’s directives are formulated to achieve efficiency at the expense of justice, due process and fair decision making. Specifically, as noted in the testimony, current backlogs are due to a lack of resources rather than an inefficient use of resources, and an increase, rather than a decrease, in the number of Board members is needed. And to ensure fairness of decisions, reviewing panels of 3 members, rather than 1, should be the norm.

The immigration lawyers association representative also argued that a BIA as envisioned under the new Ashcroft plan will result in a flood of lawsuits being presented in federal courts, where aggrieved parties will be forced to take issue with decisions that were arrived at without full due process or a solid legal basis.

Additionally, so as to ensure the fairest and most unbiased decision making, it was also suggested that the Executive Office for Immigration Review be split off from and become independent of the Department of Justice, the same umbrella agency the U.S. Immigration & Naturalization Service falls under. That way the agency in charge of interpreting and applying the laws in a court/adversarial context (EOIR) would be completely separate and independent from the agency entrusted with the day to day administration and enforcement of the law (INS).

In any case, a reduced BIA backlog under Ashcroft’s plan will certainly lead to quicker decisions, but whether quicker decisions necessarily adds up to quicker justice is still in question. What is clear under Ashcroft’s plan, is that those whose appeals are in the least bit frivolous or stand on a weak legal foundation, will likely no longer be able to enjoy the benefits that a delayed appellate process presents – specifically, the right to remain in the U.S. on an extended basis while their case is pending.