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BOARD OF IMMIGRATION APPEALS REFORM
In late August 2002, the Department of Justice (DOJ) issued final regulations that
drastically changed the structure and procedure for reviewing case appeals brought
before the Board of Immigration Appeals (BIA), the administrative appeals court for
decisions made by Immigration Judges (IJs). At a press conference on February 6,
2002, the Attorney General stated that the reform was part of a series of
reorganizations within DOJ to "serve better our mission of protecting America from
terrorist attack[s], our mission of enforcing our nation's laws and safeguarding our civil
liberties" 1 as well as to eliminate the BIA's backlog of 56,000 pending cases.
The new regulation includes several changes that place expediency over fairness.
Within six months of the regulation's implementation, the BIA was instructed to
adjudicate the backlog of approximately 55,000 cases while continuing to adjudicate
new cases. At the same time, the number of judges, or Board members who issue
decisions on cases brought before the Board, was reduced from 23 to 11 members.
According to one estimate, meeting this goal would require each of the remaining
eleven Board members to decide an average of 50 cases per week. 2 In addition, the
new regulation imposes strict deadlines by which Board members must complete
cases. It also directs the Chairman of the Board to notify the Director of the Executive
Office for Immigration Review (EOIR) and the Attorney General if a Board member
consistently fails to meet those deadlines.
Most case appeals filed at the BIA are now decided by a single Board member who
issues a decision that affirms, without opinion or explanation, the underlying decision
of the IJ. This is a significant departure from previous Board procedure. In the past,
many more cases were reviewed by three Board members who issued decisions with
the reasoning behind their decisions. Often, the decisions included concurring and
dissenting opinions. Such decisions ensured that the issues raised by the parties to
the appeal were actually reviewed and addressed. In addition, the inclusion of the
Board members reasoning enabled the losing party to accept more readily the
legitimacy of the appellate review. One consequence of this development involves a
379 percent increase (over a 12 month period) of the number of immigration cases filed
in the federal courts, 3 the next step for an immigrant who seeks further review of his
or her case. Reasoned decisions also provided federal courts with an analysis to
review when cases were brought to federal court.
The new regulations also shortened the briefing period for appeals before the BIA from
30 to 21 days, and in detained cases, changed the briefing schedule from a
consecutive schedule to a simultaneous schedule. As a result, immigrants who receive
a favorable grant of relief from removal by an IJ, which is subsequently appealed by
the government, do not have the opportunity to review the government's arguments
against them prior to making arguments in their own defense.
Moreover, because the EOIR does not express mail briefing schedules and transcripts
once they are issued, 5-7 days of the 21 day period is potentially consumed by mail
delivery. This is especially true in the cases of detained immigrants; mail delivery in
detention facilities is frequently delayed due to internal delivery procedures. Immigrants
wait months, from the time that they or the government files a notice of appeal in their
case, until a transcript of their Immigration Court hearing is made and a briefing
schedule is set. Shortening the appellate briefing period by 9 days has comparatively
little, if any, impact on reducing the BIA backlog. Instead, this change has only
exacerbated the burden of the immigrant, his or her legal representative, and non-profit
organizations attempting to assist indigent immigrants with appellate cases.
Solutions
In order to increase the BIA's efficiency and to preserve the due process rights of
immigrants to an individualized review of their claims, BIA resources should be
expanded. Resources enabling the Board to prepare more quickly transcripts and
briefing schedules would result in more "time saved" than the comparatively short
amount of time eliminated from the shortened briefing period. The briefing period should
be returned to a 30-day consecutive period, in order to provide adequate time and an
opportunity for the immigrant to review the arguments raised by the government
against him or her prior to his or her deadline for responding to those contentions. The
existing regulations must be changed to ensure that all decisions be accompanied by
some explanation of the reasoning behind them. In the cases of individuals seeking
asylum, withholding of removal and protection under the Convention Against Torture,
failure to provide such information is particularly unconscionable. 4
footnotes
1. See Attorney General Transcript, "News Conference - Administrative Change to
Board of Immigration Appeals," February 6, 2002
2. Executive Office for Immigration Review: Oversight Hearings on The Operations of
the Executive Office for Immigration Review (EOIR) Before the House Judiciary
Subcommittee on Immigration and Claims, 107th Cong., 2d Sess. (2002) (Statement of
Stephen Yale-Loehr).
3. See "Immigration Appeals Surge in Courts", The Third Branch, Vol. 35, No. 9,
September 2003.
4. These solutions are outlined in U.S. Conference of Catholic Bishop's comments to
the General Counsel of the Executive Office for Immigration Review regarding the
Proposed BIA Restructuring Rule, submitted March 21, 2002.
In late August 2002, the Department of Justice (DOJ) issued final regulations that
drastically changed the structure and procedure for reviewing case appeals brought
before the Board of Immigration Appeals (BIA), the administrative appeals court for
decisions made by Immigration Judges (IJs). At a press conference on February 6,
2002, the Attorney General stated that the reform was part of a series of
reorganizations within DOJ to "serve better our mission of protecting America from
terrorist attack[s], our mission of enforcing our nation's laws and safeguarding our civil
liberties" 1 as well as to eliminate the BIA's backlog of 56,000 pending cases.
The new regulation includes several changes that place expediency over fairness.
Within six months of the regulation's implementation, the BIA was instructed to
adjudicate the backlog of approximately 55,000 cases while continuing to adjudicate
new cases. At the same time, the number of judges, or Board members who issue
decisions on cases brought before the Board, was reduced from 23 to 11 members.
According to one estimate, meeting this goal would require each of the remaining
eleven Board members to decide an average of 50 cases per week. 2 In addition, the
new regulation imposes strict deadlines by which Board members must complete
cases. It also directs the Chairman of the Board to notify the Director of the Executive
Office for Immigration Review (EOIR) and the Attorney General if a Board member
consistently fails to meet those deadlines.
Most case appeals filed at the BIA are now decided by a single Board member who
issues a decision that affirms, without opinion or explanation, the underlying decision
of the IJ. This is a significant departure from previous Board procedure. In the past,
many more cases were reviewed by three Board members who issued decisions with
the reasoning behind their decisions. Often, the decisions included concurring and
dissenting opinions. Such decisions ensured that the issues raised by the parties to
the appeal were actually reviewed and addressed. In addition, the inclusion of the
Board members reasoning enabled the losing party to accept more readily the
legitimacy of the appellate review. One consequence of this development involves a
379 percent increase (over a 12 month period) of the number of immigration cases filed
in the federal courts, 3 the next step for an immigrant who seeks further review of his
or her case. Reasoned decisions also provided federal courts with an analysis to
review when cases were brought to federal court.
The new regulations also shortened the briefing period for appeals before the BIA from
30 to 21 days, and in detained cases, changed the briefing schedule from a
consecutive schedule to a simultaneous schedule. As a result, immigrants who receive
a favorable grant of relief from removal by an IJ, which is subsequently appealed by
the government, do not have the opportunity to review the government's arguments
against them prior to making arguments in their own defense.
Moreover, because the EOIR does not express mail briefing schedules and transcripts
once they are issued, 5-7 days of the 21 day period is potentially consumed by mail
delivery. This is especially true in the cases of detained immigrants; mail delivery in
detention facilities is frequently delayed due to internal delivery procedures. Immigrants
wait months, from the time that they or the government files a notice of appeal in their
case, until a transcript of their Immigration Court hearing is made and a briefing
schedule is set. Shortening the appellate briefing period by 9 days has comparatively
little, if any, impact on reducing the BIA backlog. Instead, this change has only
exacerbated the burden of the immigrant, his or her legal representative, and non-profit
organizations attempting to assist indigent immigrants with appellate cases.
Solutions
In order to increase the BIA's efficiency and to preserve the due process rights of
immigrants to an individualized review of their claims, BIA resources should be
expanded. Resources enabling the Board to prepare more quickly transcripts and
briefing schedules would result in more "time saved" than the comparatively short
amount of time eliminated from the shortened briefing period. The briefing period should
be returned to a 30-day consecutive period, in order to provide adequate time and an
opportunity for the immigrant to review the arguments raised by the government
against him or her prior to his or her deadline for responding to those contentions. The
existing regulations must be changed to ensure that all decisions be accompanied by
some explanation of the reasoning behind them. In the cases of individuals seeking
asylum, withholding of removal and protection under the Convention Against Torture,
failure to provide such information is particularly unconscionable. 4
footnotes
1. See Attorney General Transcript, "News Conference - Administrative Change to
Board of Immigration Appeals," February 6, 2002
2. Executive Office for Immigration Review: Oversight Hearings on The Operations of
the Executive Office for Immigration Review (EOIR) Before the House Judiciary
Subcommittee on Immigration and Claims, 107th Cong., 2d Sess. (2002) (Statement of
Stephen Yale-Loehr).
3. See "Immigration Appeals Surge in Courts", The Third Branch, Vol. 35, No. 9,
September 2003.
4. These solutions are outlined in U.S. Conference of Catholic Bishop's comments to
the General Counsel of the Executive Office for Immigration Review regarding the
Proposed BIA Restructuring Rule, submitted March 21, 2002.
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202.635.2649 fax
media inquiries:
e-mail me
(202) 635-5810
Advocacy Topics
Alternatives to Detention
Asylees and Refugees
Asylum-Seekers
Barriers to Family Reunification
Board of Immigration Appeals
Border Enforcement and Immigrant
Deaths
Citizenship
Consular Identification Documents
Detention
Department of Homeland Security
Driver's License Restrictions
Immigration Processing Delays
Indefinite Detention
Legalization
Local Law Enforcement
Mandatory Detention
National Security and Immigration
Unaccompanied Minors
Undocumented Immigrants:
State/Local Initiatives
Video Conferencing
Voter Registration
Alternatives to Detention
Asylees and Refugees
Asylum-Seekers
Barriers to Family Reunification
Board of Immigration Appeals
Border Enforcement and Immigrant
Deaths
Citizenship
Consular Identification Documents
Detention
Department of Homeland Security
Driver's License Restrictions
Immigration Processing Delays
Indefinite Detention
Legalization
Local Law Enforcement
Mandatory Detention
National Security and Immigration
Unaccompanied Minors
Undocumented Immigrants:
State/Local Initiatives
Video Conferencing
Voter Registration
